TMI Blog2018 (7) TMI 2129X X X X Extracts X X X X X X X X Extracts X X X X ..... panies and adopt a threshold limit of 15% of RPT as the basis for rejecting comparable companies - HELD THAT:- Controversy involved herein is no more res integra in view of the decision of this Court in M/s.Softbrands India Pvt. Ltd. [ 2018 (6) TMI 1327 - KARNATAKA HIGH COURT] wherein it has been observed that unless the finding of the Tribunal is found ex facie perverse, the Appeal u/s. 260-A of the Act, is not maintainable. A substantial quantum of international trade and transactions depends upon the fair and quick judicial dispensation in such cases. Had it been a case of substantial question of interpretation of provisions of Double Taxation Avoidance Treaties (DTAA), interpretation of provisions of the Income Tax Act or Overriding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether on the facts and in the circumstances of the case, the Tribunal is right in law in applying turnover filter and excluding 6 comparable chosen by the Transfer Pricing Officer by following its earlier order in case of Genesis Integrating Systems [India] Pvt. Ltd., and another decisions even when the said decision has not reached finality? 2. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that Foreign Exchange Fluctuation gains are required to be added to operating revenue by following its earlier decision in the case of Tribology E-business even though the said decision has been challenged before this Hon ble Court and there is no such computation as stated above is prescribed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt.Ltd., (supra) was as to whether comparable can be rejected on the ground that they have exceptionally high profit margins or fluctuation profit margins, as compared to the Assessee in transfer pricing analysis. Therefore as rightly submitted by the learned counsel for the Assessee the observations of the Hon ble High Court, in so far as it refers to turnover, were in the nature of obiter dictum. Judicial discipline requires that the Tribunal should follow the decision of a non-jurisdiction High Court, even though the said decision is of a non-jurisdictional High Court. We however find that the Hon ble Bombay High Court in the case of CIT Vs. Pentair Water India Pvt.Ltd. Tax Appeal No.18 of 2015 judgment dated 16.9.2015 has taken the vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s far as Ground No.3(ii) is concerned, the DRP has given definite directions in its order at para 10.5 of its directions by quoting decided cases to be considered by the TPO/AO. These directions in our view are sufficient guidelines for the TPO to allow risk adjustment. The TPO/AO is also entitled to look into other circumstances that may be brought before it by the Assessee in the proceedings pursuant to the order of the DRP and this order. Regarding Substantial Question of Law No.4: 36. We now take up the Assessee s appeal for consideration. As far as the appeal of the Assessee is concerned, the first grievance is regarding choosing ICRA Techno Analystics Ltd., and Kals Information Systems Ltd., as comparable companies. As far a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Pegasystems Worldwide India Pvt.Ltd. Vs. ACIT TS 488-ITAT-2015 (hyd) has taken the following view on adopting this company as a comparable company in software development segment: xxxxx. 4.The controversy involved herein is no more res integra in view of the decision of this Court in I.T.A. Nos.536/2015 c/w 537/2015 dated 25.06.2018[Prl. Commissioner of Income Tax Anr. V/s. M/s.Softbrands India Pvt. Ltd.,] wherein it has been observed that unless the finding of the Tribunal is found ex facie perverse, the Appeal u/s. 260-A of the Act, is not maintainable. The relevant portion of the Judgment is quoted below for ready reference: Conclusion: 55. A substantial quantum of international trade and transactions depend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re 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-Aof the Act before this Court. 58. The appeals filed by the Revenue are therefore dismissed with no order as to costs. 5.In the circumstances, having heard the learned Counsel appearing for both the sides, we are of the considered opinion that no substantial question of law arises for considera ..... X X X X Extracts X X X X X X X X Extracts X X X X
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