TMI Blog2019 (8) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... ercise of selecting the comparables by the TPO is not proper and is in a haphazard manner. In this view of the matter and in view of the detailed discussion by the Ld. CIT(A) on this issue, we do not find any infirmity in his order and accordingly upheld the same. See FROST SULLIVAN (I) (P.) LTD. [ 2012 (4) TMI 120 - ITAT MUMBAI] - Decided against revenue. - I.T A.No.4719/Mum/2009 - - - Dated:- 30-7-2019 - Shri Saktijit Dey, JM And Shri Manoj Kumar Aggarwal, AM For the Assessee : Shri Farrokh V. Irani Ms. Shamina Menon-Ld. ARs For the Revenue : Shri Rignesh K. Das- Ld. DR ORDER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER): - 1. The captioned matter has come up for fresh hearing before this bench pursuant to the directions of Hon ble Bombay High Court in assessee s Appeal ITA No. 2089 of 2013 dated 02/12/2015, a copy of which is on record. It transpires that the issue of Transfer Pricing Adjustment in revenue s appeal ITA No. 4719/Mum/2009 was remanded back to the file of Ld. Assessing Officer / TPO by the Tribunal vide para 9 of its order dated 12/04/2013, the copy of which i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rry out any Transfer Pricing Adjustment. 7. However, by an order dated 13th December, 2006, the TPO determined the margin at 20.42 % on the basis of 102 selected comparable. The Assessing Officer passed a final order consequent to and in accordance with the order of the TPO. 8. Being aggrieved, the Appellant carried the issue in Appeal to the Commissioner of Income Tax (Appeals) [C1T(A)]. By an order dated 26th May, 2009, the CIT (A) allowed the Appellant's appeal. This inter alia on the ground that the TPO's order had referred to Annexure I in its order containing detail of the comparable selected by him. However, copy of the same was not furnished to the Appellant either with the order of TPO or even thereafter. Thus, the CIT(A) during the course of proceeding before him had specifically called upon the AO/TPO to furnish the Annexure I to the order passed by the TPO. However, the same was not furnished even to CIT(A). Therefore, in the absence of the working being furnished, the CIT(A) concluded the no comparable exists. Thus, the adjustment on account of Transfer Pricing was deleted. 9. Being aggrieved, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13 ' December, 2006 in the case of the Appellant was identical to the order dated 13lh December, 2006 in the case of M/s. Frost Sullivan (supra). This fact was also pointed out to the Tribunal. It was in the above circumstances that the Appellant expected the Tribunal in all fairness to decide the issue which arose in their case in accordance with the decision taken by the Tribunal in M/s. Frost Sullivan (supra). 12 We find that the impugned order of the Tribunal after recording the fact that the Appellant is relying upon the decision of the Tribunal in M/s. Frost Sullivan (supra) dis-regards the same by making the following observation; - 8.5;- . The Id. A.R. has relied upon the decision of [lie Tribunal wherein those 102 comparable, were held as cannot be considered as comparable. It is to be noted that the decision on the issue of comparability is purely factual in nature and is in the context of comparability of the particular assessee which cannot be applied as a general principle. Further, the Commissioner of Income Tax [Appeals) has also not examined the issue on merit because the Annexure -I to the TP Order wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er pricing. 16 In the above view, we set aside the order of the Tribunal to the extent it disposes of the Revenue's appeal with regard to the issue of transfer pricing and restore the issue of transfer pricing to the Tribunal for fresh disposal in accordance with law by a reasoned order. Needless to state that the Tribunal would consider the applicability of the decision of the Tribunal dated 24th February, 2012 rendered in the case of M/s. Frost Sullivan (supra) to the fact of the present case. 17. Appeal disposed of in above terms. No order as to costs. Keeping in view the aforesaid directions of the Hon ble Court, we proceed to adjudicate the issues raised in the appeal. 3.1 The Ld. Sr. Counsel for assessee, Shri Farrokh V.Irani, at the outset, drew our attention to the following chart, to submit that facts in the case of the present assessee and in the case of Frost Sullivan (I) Private Limited were quite identical as evident from the following table: - No. Particulars Relevant Page of Gartner India s CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anner. Similar was the observation of Ld. first appellate authority in the case of M/s Frost Sullivan (I) Private Limited in its order dated 17/12/2009 wherein at para 12.9, it was noted that there was serious violation of the principle of natural justice on the part of Ld. TPO as adequate and proper notice and hearing was not provided to the appellant. The whole exercise of selecting comparable by the TPO was haphazard, illogical and random without any FAR. The revenue contested the stand of Ld. first appellate authority, in M/s Frost Sullivan (I) Pvt. Ltd., before this Tribunal vide ITA No. 2073/Mum/2010 order dated 24/02/2012, wherein vide paras 9 9.1, the Tribunal dismissed the revenue s ground, concurring with the stand of Ld. CIT(A). Our attention is further drawn to the fact that the assessee s margin is more than margin of M/s Frost Sullivan (I) Pvt. Ltd. 3.3 In the above background, Ld. Sr. Counsel emphasized that the said decision of Tribunal in M/s Frost Sullivan (I) Pvt. Ltd. squarely applies to the facts of the present case also and therefore, to maintain judicial consistency, similar view should be taken in the matter by d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 141.79 Larsen Tourbo Infotech Ltd. ₹ 364.61 Tata Technologies Ltd. ₹ 131.21 Birlasoft Ltd. ₹ 168.90 Polaris Software Lab Ltd. ₹ 578.49 Wipro Ltd. ₹ 5132.70 Digital Global soft Ltd. ₹ 628.09 Infosys Technologis Ltd. ₹ 4760.90 I-Flex Solutions Ltd. ₹ 684.46 Satyam Computer Services Ltd. ₹ 2541.54 9.1 Similarly, although the TPO has excluded the loss making companies we find he has not excluded the high profit making companies from the comparables. We find merit in the submission of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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