TMI Blog2019 (7) TMI 1080X X X X Extracts X X X X X X X X Extracts X X X X ..... e order. He submitted that the comparative analysis is part of determining ALP and is final with a quietus at the hands of the final fact finding authorities, bench has given clear cut findings. Therefore, the Bench came to the conclusion after considering all the facts and not inclined to review our decision as the ITAT has no power to review its own order u/s 254(2) of the Act. - M.A. No. 58/Hyd/2019 (in ITA No. 2010/Hyd/2017 - - - Dated:- 17-7-2019 - Smt P. Madhavi Devi, Judicial Member And Shri S. Rifaur Rahman, Accountant Member For the Assessee : Shri P.V.S.S. Prasad For the Revenue : Shri Y.V.S.T. Sai ORDER PER S. RIFAUR RAHMAN, A.M.: This Miscellaneous Application is filed by the assessee u/s 254(2) of the Income Tax Act seeking rectification/modification of the order of the Tribunal dated 18/04/2019 in ITA No. 2010/Hyd/2017. 2. In the M.A., the assessee stated as under: This Miscellaneous application is filed against the order of Hon'ble Income Tax Appellate Tribunal, 'A' Bench, Hyderabad dt. 18.04.2019 vide ITA No. 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The Ld DRP/ AO erred in confirming an adjustment when the appellant company was claiming exemption u/s lOB and hence there is no intention to shift profits outside India and more so when the tax rates in USA where the AE is located, were higher than those prevailing in India. 7. Any other ground that may be urged at the time of hearing with the prior approval of the Hon'ble ITAT. Additional Grounds 1. The Ld. TPO / DRP erred in computing/ confirming the margin of appellant company by treating Fringe Benefit Tax( FBT ) as an operating expense, which resulted in reducing the margin of the Appellant company from 6.27% to 5.92%. 2. The Ld TPO/ORP are not justified in law in considering FBT as an operating expense in case of Appellant company as the Ld. TPO himself did not consider the FBT as an operating expense while computing the margins of com parables. 2. The Hon'ble Income Appellate Tribunal disposed-off these grounds in its order dated 18.04.2019 in ITA No.2010/Hyd/2017. 3. The Hon'ble Income Appellate Tribunal in its order dated 18.04.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... organization. In this case, we do not see any reason to interfere with the selection process. Therefore, the objection of the assessee to exclude the said company is hereby rejected. 4. In the course of proceedings before the Honourable Tribunal the authorised representative submitted that the company Celestial Biolabs Ltd. is engaged in various R D activities and also it was engaged in development of products in the field of bio-technology, pharmaceuticals etc. accordingly it fails the test of functional similarity. 5. In this connection the authorized representative relied on the above case law (3DPLM Software Solutions Ltd [2014J 42 taxmann.com 333 (Bangalore - Trib.)) wherein the Hon'ble ITAT after considering the rival contentions held that the company Celestial Biolabs Ltd is not comparable to the Assessee company as it is fails the test of functional similarity. Further the Hon'ble ITAT also held that in view of the fact that the functional profile of and other parameters of Celestial Biolabs Ltd have not changed in this year under consideration, which fact has also been demonstrated by the assessee, following the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decision of the ITAT Bengaluru bench cannot be relied as it refers to AY 2007-08 which is factually incorrect, as Hon'ble Bengaluru ITAT in the case of 3DPLM (supra), which is also into software development services, excluded Celestial Biolabs Ltd for AY 2008-09 very much on the basis of exclusion of the same in earlier year i.e. AY 2007-08 and also on the basis of same profile being maintained for AY 2008-09, which clearly demonstrate the said company is functionally dissimilar. 9. It is therefore humbly submitted that there is a mistake apparent from the record in the order of the Hon'ble ITAT to this extent and hence it is prayed that the Hon'ble Income Tax Appellate Tribunal be pleased to rectify the above mistake by passing appropriate order. 2.1 The ld. AR of the assessee referring to the above factual background, requested the Bench to rectify the above mistake by passing appropriate order. 3. The ld. DR, on the other hand, submitted that the Hon ble Bench has already considered this issue and applied its mind to come to a decision. As regards the mistake of mentioning of AY as 2007-08 instead of AY 2008-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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