TMI Blog2018 (7) TMI 2003X X X X Extracts X X X X X X X X Extracts X X X X ..... DR. VINEET KOTHARI J. - 1. This appeal is filed by the Revenue purportedly raising substantial questions of law arising from the order of the Income-tax Appellate Tribunal, Bangalore Bench B , Bangalore, in IT [TP]A No. 1292/Bang/2014 dated September 4, 2015, relating to the assessment year 2009-10. 2. This appeal has been admitted on October 3, 2017 to consider the following substantial questions of law formulated by the Revenue in the memorandum of appeal : 1. Whether, on the facts and in the circumstances of the case, that the Tribunal is right in law in excluding M/s. Bodhtree Consulting Ltd., M/s. Infosys Ltd. and M/s. Tata Elxsi Ltd., even when the decision followed by the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the asses see contended that this company ought to be excluded from the final set of comparables as it was functionally different from the assessee. The learned authorised representative drew the attention of the Bench to page 12 of the annual report of 'Bodhtree' - 'segment wise and product wise performance' wherein it is stated that : 'Bodhtree has only one segment, namely, software development. Being a software solutions company, it is engaged in providing open and end-to-end web solutions, off shoring data management, data warehousing, software consultancy, design and development of solutions, using latest technologies.' 13.2.2 The learned authorised representative further submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eliance on the decision of the Co-ordinate Bench of this Tribunal in the case of CISCO Systems (India) Pvt. Ltd. v. Deputy CIT [2015] 37 ITR (Trib) 133 (Bangalore) in IT (TP) A No. 271/Bang/2014 dated August 14, 2014 for the assessment year 2009-10 wherein this company was excluded from the list of com parable to a software development service provider as it is a software product company. 13.4 Per contra, the learned Departmental representative supported the orders of the authorities below in retaining this company as a comparable to the assessee in the case on hand. 13.5.1 We have heard the rival contentions and perused and carefully considered the material on record including the judicial pro nouncement relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tware Solutions P. Ltd. v. Deputy CIT [2014] 3 ITR (Trib)-OL 305 (Bangalore) in IT (TP) A No.1303/Bang/2013, dated November 28, 2013, has omitted this company from the list of com parables to a mere software development service provider since it was found to be functionally dissimilar and different, being a market leader engaged in software products, owned significant intellectual property rights and intangibles, had significant research and development activities, brand attributable profits etc. At para 26.2 of its order the Co-ordinate Bench of this Tribunal in the case of CISCO Systems (India) Pvt. Ltd. (supra) has held as under : . . . 14.4.2 Following the aforesaid decision of the Co-ordinate Bench of this Tribunal in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be regarded as comparable to the assessee in the case on hand who is a captive software service provider and consequently direct the Assessing Officer/Transfer Pricing Officer to exclude this company from the list of comparables. 6. The controversy involved herein is no more res integra in view of the decision of this court in I.T.A. Nos. 536/2015 carried with 537/2015 dated June 25, 2018 (Principal CIT v. Softbrands India Pvt. Ltd. [2018] 406 ITR 513 (Karn)) wherein it has been observed that unless the finding of the Tribunal is found ex facie perverse, the appeal under section 260A of the Act, is not maintainable. The relevant portion of the judgment is quoted below for ready reference (page 541 of 406 ITR) : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 260A of the Act before this court. The appeals filed by the Revenue are therefore dismissed with no order as to costs. 7. In the circumstances, ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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