TMI Blog2018 (7) TMI 474X X X X Extracts X X X X X X X X Extracts X X X X ..... Dated:- 28-6-2018 - Dr. Vineet Kothari And Mrs. S. Sujatha, J.J. Mr. E.I. Sanmathi, Adv.- For the Appellant Mr. T. Suryanarayana, Adv.- For the Respondent JUDGMENT 1. The Appellants-Revenue have filed this appeal u/s.260A of the Income Tax Act, 1961, raising purportedly certain substantial questions of law arising from the order of the ITAT, Bangalore Bench B , Bangalore, dated 11.05.2016 passed in IT(TP)A No.1614/Bang/2014 (M/s. Nett App India Pvt. Ltd., vs. Dy.Commissioner of Income Tax) for A.Y.2009-10. 2. The proposed substantial questions of law framed in the Memorandum of appeal by the Appellants-Revenue are quoted below for ready reference:- (1) Whether on the facts and in the circumstances of the case, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in the case of M/s. Citrix Research and Development India Pvt. Ltd., even though the said decision has not reached finality? 3. Regarding substantial question of law No.1:- Learned counsel for the Appellants-Revenue Mr.K.V.Aravind submits that he does not press the 1st substantial question of law, as the issue regarding deduction of expenditure incurred for Export Turn Over is also required to be deducted from Total Turn Over for the purpose of computing the deduction u/s.10A of the Act, the controversy is no longer res integra and is covered by the decision of the Division Bench of this Court in the case of M/s.Tata Elxsi Ltd., vs. Asst.Commissioner of Income Tax, decided on 20.10.2015 since reported in (2015) 127 DTR 03 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT Act are allowed only in Export Turnover but not from the Total Turnover then, it would give rise to inadvertent, unlawful, meaningless and illogical result which would cause grave injustice to the Respondent which could have never been the intention of the legislature. 20. Even in common parlance, when the object of the formula is to arrive at the profit from export business, expenses excluded from export turnover have to be excluded from total turnover also. Otherwise, any other interpretation makes the formula unworkable and absurd. Hence, we are satisfied that such deduction shall be allowed from the total turnover in same proportion as well . 4. The learned Tribunal, after discussing the rival contentions of both the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame by the assessee in the T.P. Analysis would not preclude the assessee from taking the objection of functional dis-similarity as held by the Special Bench in the case of CIT Vs. Quark Systems P. Ltd. [2010] 38 SOT 307 (Chd.) (SB) which has been upheld by the Hon ble Punjab Haryana High Court in 62 DTR 182. Accordingly, we do not accept the objection raised by the learned D.R. M/s.Eclerx Services Ltd., Thus it is clear from the finding of the Tribunal that the functional comparability of this company has been examined by the Special Bench in the case of Maersk Global Services reported in 147 ITD 83 and it was found that this company is mainly engaged in providing high end services involving specialized knowledge and automation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of M/s.Citrix Research Development India Pvt. Ltd., (supra), we direct the Assessing Officer/TPO to give the working capital adjustment after considering the objections of the assessee as well as after exclusion of the companies as directed by us from the list of comparables . 5. This Court in ITA No.536/2015 c/w ITA No.537/2015 delivered on 25.06.2018 (Prl.Commissioner of Income Tax Anr. Vs. M/s.Softbrands India Pvt. Ltd.,) has held that in these type of findings of the learned Tribunal remained final fact findings of the learned Tribunal and are binding on the lower authorities of the Department as well as this Court and unless an established ex-facie perversity is found in the findings of the learned Tribunal, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Section 260-A of the Act and thus the appeals filed by the Revenue are found to be devoid of merit and the same are liable to be dismissed. 57. We make it clear that the same yardsticks and parameters will have to be applied, even if such appeals are filed by the Assessees, because, there may be cases where the Tribunal giving its own reasons and findings has found certain comparables to be good comparables to arrive at an Arm s Length Price in the case of the assessees with which the assessees may not be satisfied and have filed such appeals before this Court. Therefore we clarify that mere dissatisfaction with the findings of facts arrived at by the learned Tribunal is not at all a sufficient reason to invoke Section 260-A of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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