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2015 (8) TMI 712 - ITAT BANGALORE

2015 (8) TMI 712 - ITAT BANGALORE - TMI - Transfer pricing adjustment - Computation of Deduction u/s.10A - Held that:- The Hon'ble High Court of Karnataka in the case of Tata Elxsi Ltd. (2011 (8) TMI 782 - KARNATAKA HIGH COURT) has held that while computing the deduction under section 10A of the Act, if the export turnover in the numerator is to be arrived at after excluding certain expenditure, then the same expenditure should also be excluded from the total turnover also. Respectfully followin .....

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- ITAT BANGALORE] wherein held companies with RPT in excess of 15% of total revenues are to be excluded from the set of comparable, we hold that the learned CIT (Appeals) was not correct in holding that companies with any RPT have to be excluded from the set of comparable companies, and direct the TPO / A.O. to apply the RPT filter at 15% of total revenues for including / excluding the comparable companies, excluded by the learned CIT (Appeals), in the final set of comparables. - Decided partly .....

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the turnover of the assessee being approx. ₹ 7.97 Crores only, falls within the range of ₹ 1 Crore to ₹ 200 Crores. Therefore, following the decision of the co-ordinate bench of this Tribunal in the case of Genisys Integrating Systems (India) Pvt. Ltd. (supra), we hold and direct that only those companies having a turnover of ₹ 1 Crore to ₹ 200 Crores be taken as comparable companies and consequently uphold the decision of the learned CIT (Appeals) in excluding five .....

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namely, (1) Enensys Software Solutions Ltd. ;and (2) Thirdware Solutions Ltd., from the list of comparables merely because they have high profits, without examining whether these companies satisfy the comparability analysis. In this factual matrix, respectfully following the decision of the Special Bench of the ITAT, Mumbai in the case of Maersk Global Centres (India) Pvt. Ltd.(2014 (3) TMI 891 - ITAT MUMBAI ), we hold that the learned CIT (Appeals) was wrong in excluding the companies merely be .....

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then the assessee does not have any option referred to in section 92C(2)of the Act. Thus, as per this amendment, it is clear that the + / - 5 % variation is allowed only to justify the price charged in the international transactions and not for adjustment / standard deduction purposes. The aforesaid amendment has settled the issue and accordingly the 5% standard deduction is not allowable to the assessee in the case on hand. The various judicial decisions cited pertain to the period prior to th .....

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. - I.T.(T.P) A. No.73/Bang/2012 - Dated:- 30-4-2015 - SHRI N.V. VASUDEVAN AND SHRI JASON P. BOAZ, JJ. For The Assessee : Shri V. Sridhar, Advocate. For The Revenue : Shri C.H. Sundar Rao, CIT-I (D.R) ORDER Per Shri Jason P. Boaz, A.M. : These are cross appeals, one by the assessee and one by Revenue, directed against the order of the Commissioner of Income Tax (Appeals)-IV, Bangalore dt.30.11.2011 for Assessment Year 2005-06. The assessee has also filed cross objections in the matter. 2. Th .....

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observed from the Form No.3CEB that the assessee had reportedly entered into international transactions with its Associated Enterprises ( AEs ) in the year under consideration and made a reference to the Transfer Pricing Officer ( TPO ) under Section 92CA of the Act for determination of the Arm s Length Price ( ALP ) thereof, the details of which are as under :- (1) Export of Software Development Services : Rs.4,99,98,250. (2) Reimbursement of Expenses : Rs.1,59,320. The TPO passed an order und .....

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as against the returned income of ₹ 24,93,540 by making the following additions/disallowances thereto :- (i) Disallowance on account of computation of deduction u/s.10A : Rs.8,64,293. (ii) T.P. Adjustment : Rs.;42,81,608. 3. Aggrieved by the order of assessment for Assessment Year 2005-06 dt.16.12.2008, the assessee preferred an appeal before the CIT (Appeals) - IV, Bangalore. The learned CIT (Appeals) disposed off the assessee's appeal vide order dt.30.11.2011, allowing the assessee p .....

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as well whereas such exclusion is permitted to arrive at the export turnover only as per the definitions given in Sec. 10A of the Act and total turnover has not been defined in the section. 3. On the facts and in the circumstances of the case, the learned CIT (Appeals) erred in holding that the TPO erred in not excluding comparables having any related party transactions. 4. The learned CIT (Appeals) erred in holding that the size and turnover of the company are deciding factors for treating a c .....

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ant company. 6. The learned CIT (Appeals) erred in holding that the assessee is eligible for a standard deduction of 5% from the ALP under the proviso to Section 92C(2) of the IT Act, 1961. 7. For these and other grounds that may be urged at the time of hearing, it is prayed that the order of the CIT (Appeals) in so far as it relates to the above grounds may be revered and that of the Assessing Officer may be restored. 8. The appellant craves leave to add, alter, amend and / or delete any of the .....

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rred in excluding the comparables which were showing operating profit lesser than the margin shown by the appellant in the determination of ALP without assigning proper reasons and justification. 3. The CIT (Appeals) IV in not allowing marketing expenses to the appellant in the determination of ALP without assigning proper reasons and justification. 4. The CIT (Appeals) IV ought to have considered the submission made by the appellant in this regard for allowing the marketing expenditure as per t .....

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account when the same was reimbursed by the client(s). Hence the CIT (Appeals) IV ought to have considered the miscellaneous income for arriving the operating profit margin in the determination of ALP. 7. The CIT (Appeals) IV ought to have considered that accelerated depreciation was debited to the profit and loss as compared to the rate given in Schedule IV and hence ought to have considered further that the said claim should be restated to make the comparable with the other comparables inasmuc .....

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ing to the transaction with the AEs in the computation of taxable total income was wrong, incorrect, invalid, unjustified, erroneous and not sustainable both on facts and in law. 10. The CIT (Appeals) IV failed to appreciate that there was no proper opportunity was given before passing the impugned order / the TPO s order and any order passed in violation of the principles of natural justice is nullity in law. 11. The appellant craves leave to file additional grounds / arguments at the time of h .....

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Reimbursement of expenses : Rs.1,59,320. The assessee in its T.P. Study has adopted CUP Method as the Most Appropriate Method (MAM) and compared the price charged by it to its AEs with the price charged by it to third parties to justify the ALP of its international transactions. As the assessee had selected CUP Method by considering the price charged by it to its AEs vis-à-vis the price charged to unrelated parties, there was no search process involved. 8. The TPO s Approach. 8.1 The TPO .....

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h Ltd. 27.38 5. Sasken Network Systems Ltd. 16.63 6. Four Soft Ltd. 22.98 7. Thirdware Solution Ltd. 66.09 8. R.S. Software (India) Ltd. 8.07 9. Geometric Software Solutions Co. Ltd. 20.33 10. Tata Elxsi Ltd. (Software Devt. Services - Seg) 24.343 11. Visual Soft Technologies Ltd. (Seg) 23.51 12. Sasken Communication Technologies Ltd. (Seg) 14.41 13. iGate Global Solutions Ltd. (Seg) 4.32 14. Flextronics (Seg) 32.19 15. L&T Infotech Ltd. 10.33 16. Satyam Computers Services 29.44 17. Infosys .....

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issions of the assessee disposed off the assessee's appeal excluding certain companies chosen by the TPO as comparables to the assessee. While deciding on the exclusion of certain companies from the 17 comparable companies chosen by the TPO, the learned CIT(A) adjudicated on the following issues as under. 9.2 Companies with Related Party Transactions ( RPF ) The learned CIT(A) relying on the decision of the co-ordinate bench of this Tribunal in the case of Phillips Software Centre Pvt. Ltd. .....

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es, the assessee had argued against their inclusion on grounds of there being functionally dis-similarity also. We find that the learned CIT(A) has not adjudicated on this aspect, as the companies had been excluded from the list of comparables on the ground of RPT. 9.3 Companies with abnormal profits Relying on the various decisions cited in the impugned order, the learned CIT(A) held that companies showing extra-ordinary profits have to be excluded from the list of comparables. Accordingly, the .....

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be applied, the learned CIT (Appeals) held that companies having turnover exceeding ₹ 200 Crores should be excluded from the final set of comparable and thereby excluded the following companies form the list of comparables :- 1. iGate Global Solutions Ltd. 2. Flextronics Software Solutions Ltd. (Seg) 3. L&T Infotech Ltd. 4. Satyam Services Ltd. 5. Infosys Technologies Ltd. The learned CIT (Appeals) also held that Satyam Computer Services Ltd. should be excluded on grounds of unreliabl .....

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353), directed the Assessing Officer to recompute the same by reducing from the total turnover , the communication expenses by which the export turnover has been reduced. 10.1 In the proceedings before us, the learned Departmental Representative challenged the impugned order of the learned CIT(A) on the issue of RPT, upper turnover filter and abnormal profit, raised at Grounds 3, 4 and 5 of the appeal; placing reliance on later decisions of the co-ordinate benches of this Tribunal in support of .....

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the company Reasons given by assessee for exclusion. 1. Exensys Software Solutions Ltd. Excluded by TPO in A.Y. 2006-07 as product company. 2. Four Soft Ltd. RPT more than 15%. 3. Thirdware Solutions Ltd. Super normal profit. 4. iGate Global Solutions Ltd. (Seg.) Turnover in excess of ₹ 200 Crores. 5. Flextronics Software Solutions Ltd. (seg.) -do- 6. L&T Infotech Ltd. -do- 7. Satyam Computer Services Ltd. -do- 8. Infosys Technologies Ltd. -do- 10.2 We have heard both parties, perused .....

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unds raised by Revenue at S.Nos.1, 7 & 8 are general in nature and no adjudication being called for thereon, are dismissed as infructuous. 12. Ground No.2 : Computation of Deduction u/s.10A of the Act. 12.1 Revenue challenges the order of the learned CIT(A) in directing the Assessing Officer to recompute the eligible deduction to the assessee u/s.10A of the Act by reducing the expenditure incurred in foreign currency towards communication expenses from both export turnover as well as total t .....

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the rival submissions and perused and carefully considered the material on record. We find, as submitted by the learned Authorised Representative, that the Hon'ble High Court of Karnataka in the case of Tata Elxsi Ltd. (supra) has held that while computing the deduction under section 10A of the Act, if the export turnover in the numerator is to be arrived at after excluding certain expenditure, then the same expenditure should also be excluded from the total turnover also. Respectfully foll .....

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pugned order in holding that companies having any RPT have to be excluded from the list of comparable companies. 13.2.1 We have heard the rival contentions of both the learned Departmental Representative for revenue and the learned Authorised Representative of the assessee on this issue and perused and carefully considered the material on record. The learned Authorised Representative of the assessee has referred to the decision of the coordinate bench of this Tribunal in the case of 24/7 Custome .....

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lated party transactions as proposed by the TPO, the learned counsel for the assessee argued that the transfer pricing regulations do not stipulate any minimum limit of related party transactions which form the threshold for exclusion as a comparable. In this regard, the learned counsel for the assessee objected to the TPO s setting a limit of 25% on related party transactions. He objected to the inclusion of comparables being related party transactions in excess of 15% of sales / revenue. In su .....

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5% of total revenue. Within the above limit, transactions cannot be held to be significant to influence the profitability of the comparables. For the purpose of comparison what is to be judged is the impact of the related party transactions vis-à-vis sales and not profit since profit of an enterprise is influenced by large number of other factors …. Respectfully following the decision of the Tribunal in the case of Sony India (P) Ltd (supra), the Assessing Officer / TPO are directe .....

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s Tribunal. Respectfully following the above decision, we hold that the learned CIT (Appeals) was not correct in holding that companies with any RPT have to be excluded from the set of comparable companies, and direct the TPO / A.O. to apply the RPT filter at 15% of total revenues for including / excluding the comparable companies, excluded by the learned CIT (Appeals), in the final set of comparables. Consequently Ground No.3 raised by revenue is partly allowed. 13.2.3 In view of the decision o .....

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mparables is to be excluded as a comparable company, on the ground that it has RPT in excess of 15%. In the T.P. Order, the percentage of RPT over sales for this company has been mentioned as 19.89%. Therefore, following the decision of the coordinate bench of this Tribunal in the case of 24/7 Customer.Com Pvt. Ltd. (supra), we hold and direct that the company Four Soft Ltd. shall be excluded from the set of comparable companies chosen by the TPO. Consequently Ground No.3 raised by Revenue is pa .....

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comparables. In that view of the matter, the following companies were excluded from the TPO s list of comparables :- Sl.No. Name of the company Turnover in Crores (Rs.) 1. IGate Global Solutions Ltd. (Seg) 406.00 2. Flextronics Software Systems Ltd. 457.45 3. L&T Infotech Ltd. 562.45 4. Satyam Computer Services Ltd. 3,464.20 5. Infosys Technologies Ltd. 6,859.70 14.2 The learned Departmental Representative for Revenue has challenged the decision of the learned CIT (Appeals) in holding that s .....

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pper limit of the turnover filter to be applied at ₹ 200 Crores in cases where the turnover of the assessee is less than ₹ 200 Crores. In the case on hand, the turnover of the assessee being approx. ₹ 7.97 Crores only, falls within the range of ₹ 1 Crore to ₹ 200 Crores. Therefore, following the decision of the co-ordinate bench of this Tribunal in the case of Genisys Integrating Systems (India) Pvt. Ltd. (supra), we hold and direct that only those companies having .....

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nies with profit margin of more than 50% from the final set of comparable companies by holding the profit margin in excess of 50% to be abnormal. 15.2.1 We have heard the rival contentions of both the learned Departmental Representative for revenue and the learned Authorised Representative of the assessee. This is an issue on which there have been conflicting decisions of various Tribunals. However, the Special Bench of the ITAT, Mumbai in the case of Maersk Global Centres (India) Pvt. Ltd., in .....

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veral decisions of the Tribunal in support of their corresponding stand taken on this issue. After going through all these decisions of the Division Benches of this Tribunal, we find that the issue relating to exclusion of high profit margin entities from comparables has been decided in favour of the assessee in the cases cited by Shri Porus Kaka without taking into consideration some vital aspects including the relevant TP Regulations in India. It is observed that the decision initially taken i .....

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by the Mumbai Bench that the very rationale of having average in case of more than one comparables is to iron out the effect of extreme cases and find the profit margin as a representative of the whole lot. It was also held by the Tribunal that the higher or lower profit rate has not been prescribed as the determinative factor in the relevant Rules i.e. Rule 10B(2) and 10B(3) to make a case incomparable. The Tribunal observed that the profit rate in any case cannot be such determinative factor i .....

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ules specifically from OECD guidelines by specifying the arithmetic mean for determining the ALP as against the quartile method suggested in the OECD guidelines which excludes the companies that fall in the extreme quartiles for comparability. To the similar effect is another - decision of Bangalore Bench in the case of Trilogy E-Business Software India Ltd. (supra) wherein it was held that the TP Regulation s provide arithmetic mean method for determining the ALP wherein all companies that are .....

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discussed above, the OECD guidelines suggest quartile method which excludes the companies that fall in the extreme quartiles for comparability and there is deviation in this respect in T.P. Regulations in India which specify the Arithmetic Mean for determining the ALP. Nevertheless, the OECD TP Guidelines have considered and dealt with the situation of extreme results in the context of comparability consideration in section A.7.3 of chapter III and it is suggested in para 2.63 that where one or .....

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les cannot be excluded merely on the ground that their profit is abnormally high. In our opinion, the matter in such case would require further investigation to ascertain the reasons for unusual high profit and in order to establish whether the entities with such high profit can be taken as comparables or not. 99. The question No. 2 referred to this Special Bench is as to whether, in the facts and circumstances of the case, companies earning abnormally high profit margin should be included in th .....

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earning abnormally high profit margin should trigger further investigation in order to establish whether it can be taken as comparable or not. such investigation should be to ascertain as to whether earning of high profit reflects a normal business condition or whether it is the result of some abnormal conditions prevailing in the relevant year. The profit margin earned by such entity in the immediately preceding year/s may also be taken into consideration to find out whether the high profit ma .....

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of comparable for the purpose of determining the arm s length price of an international transaction. Otherwise, the entity satisfying the comparability analysis with its high profit margin reflecting normal business condition should not be rejected solely on the basis of such abnormal high profit margin. Question No. 2 referred to this special bench is answered accordingly. 15.2.2 As held by the Special Bench of the ITAT in the case of Maersk Global Centres (India) Pvt. Ltd. (supra), the questio .....

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comparable company satisfying the comparability analysis with its high profit should not be rejected solely on the basis of such abnormally high profit margins. 15.2.3 We find from a perusal of the impugned order that the learned CIT (Appeals) has excluded two companies namely, (1) Enensys Software Solutions Ltd. ;and (2) Thirdware Solutions Ltd., from the list of comparables merely because they have high profits, without examining whether these companies satisfy the comparability analysis. In .....

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profit in the light of our observations in this order after affording the assessee adequate opportunity of being heard and filing details in the matter. Consequently, Ground No.5 of Revenue s appeal is allowed as indicated above. 16. Ground No.6 : Standard deduction 5%. 16.1 Ground No.6 of revenue s appeal contends that the impugned order of the learned CIT (Appeals) is erroneous in granting standard deduction of 5% in computing the ALP of the international transactions, by citing various judic .....

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d Finance Act, 2012, the proviso to section 92C(2) of the Act provided that the ALP would be taken to be the Arithmetic Mean ( AM ) or at the option of the assessee, a price which may vary from the AM by an amount not exceeding 5% of such AM. Thus, the ALP was + / - 5% of such AM. 16.2.2 This issue is now more of academic nature and the judicial decisions cited and relied on by the learned CIT (Appeals) in the impugned order are not applicable as the Act has been amended with retrospective effec .....

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actually been undertaken exceeds five per cent of the arithmetical mean, then, the assessee shall not be entitled to exercise the option as referred to in the said proviso. 16.2.3 The new section 92C(2A) of the Act mandates that if the Arithmetic Mean Price falls beyond + / - 5 % from the price charged in international transactions, then the assessee does not have any option referred to in section 92C(2)of the Act. Thus, as per this amendment, it is clear that the + / - 5 % variation is allowed .....

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he matter, we hold that the learned CIT (Appeals) erred in allowing the assessee the benefit of 5% standard deduction and accordingly reverse this order of this issue in view of the retrospective amendment w.e.f. 1.4.2002 brought about by the insertion of Section 92C(2A) of the Act by Finance Act, 2012. Consequently, we allow the ground raised by revenue at S.No.6. 17. In the result, revenue s appeal for Assessment Year 2005-06 is partly allowed. Assessee's appeal for A.Y. 2005-06 in IT(TP)A .....

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Grounds No.5 & 6 are related to Miscellaneous Income. In Ground No.5, the assessee has assailed the decision of the authorities below in excluding miscellaneous income for arriving at the operating margin without granting the assessee opportunity to present its case and also in holding so, without assigning any reasons whatsoever for their decisions in the matter. In Ground No.6, the assessee contends that miscellaneous income should be considered for arriving at the operating margin in the .....

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ty of being heard and to file details and submissions required. It is ordered accordingly. Consequently, Grounds No.5 & 6 of the assessee's appeal are treated as allowed for statistical purposes. 21.1 Ground No.7 is related to depreciation adjustment in respect of the assessee vis-àvis the comparables. The assessee contends that the learned CIT (Appeals) ought to have considered the assessee's request to grant depreciation adjustment as the rate of depreciation of the assessee .....

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e Assessing Officer / TPO to examine and verify the depreciation policy of the comparable companies and adopt a single common policy for both the assessee and the comparable companies after affording the assessee adequate opportunity of being heard and to file submissions / details required. It is accordingly directed. Consequently, Ground No.7 of the assessee's appeal is treated as allowed for statistical purposes. Grounds No. 8 & 9 - Comparability Analysis. 22.0 Exclusion of Certain Co .....

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are claimed to be functionally not comparable to the assessee. 22.2 Before us, the assessee had submitted a chart explaining its stand on each of the companies which as per the assessee are required to be excluded from the set of 17 comparable companies adopted by the TPO. The learned Authorised Representative submitted that the assessee accepts 9 of the comparable companies adopted by the TPO at S.Nos.1, 2, 4, 5, 8, 9, 10, 11 and 12 of the TPO s list of 17 comparable companies. The assessee ha .....

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roximately ₹ 7.97 Crores only. It was contended that these companies with turnover in excess of ₹ 200 Crores ought to be excluded from the list of comparables as held by the co-ordinate bench of this Tribunal in the case of Genisys Integrating Systems (India) Pvt. Ltd. reported in 152 TTJ 215. 23.2 While dealing with Revenue s appeal we have already adjudicated on this issue at para 14.1 to 14.3 of this order and the same holds good in respect of the assessee's submissions. 24. R .....

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h followed the decision of the Delhi Bench of the ITAT in the case of Sony India (P) Ltd. reported in 2008-TIOL-439-ITAT-Delhi dt.23.12.2008. The learned Authorised Representative contends that in view of the above this company ought to be excluded from the final set of comparables. 24.2 While dealing with Revenue s appeal, we have, at para 13.1 to 13.2.3 of this order, already directed the Assessing Officer / TPO to exclude this company, Four Soft Ltd., from the list of comparables as the RPT o .....

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