TMI Blog2019 (12) TMI 1511X X X X Extracts X X X X X X X X Extracts X X X X ..... xemption u/s 10A / 10B. Therefore, we are of the view that the issue needs to be re-examined by the AO in the light of the submissions of the assessee. Hence, we set aside the issue to the file of AO and direct him to consider the issue afresh after affording opportunity of hearing to the assessee. TPA - Comparable selection - HELD THAT:- Respectfully following the order of the Tribunal in assessee s own case for the A.Y. 2010-11 [ 2019 (10) TMI 1241 - ITAT MUMBAI] , we do not find any infirmity in the order of the ld. CIT(A) for directing exclusion of companies namely M/s Infosys Ltd. and M/s Larsen Turbo Infotech Limited from the final set of comparables. M/s Zylog Systems Limited, the ld CIT(A) has directed for exclusion after recording a finding to the effect that it is a giant in its area of operation and assumes greater risks translating into higher profitability. Thus, this giant sized company with advantages such as brand, intangibles etc. cannot be compared to a company such as the assessee company which is a captive unit of his AE assuming only limited risks. After recording a similar finding, the ld. CIT(A) also excluded Infosys Lt., which is already covered by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal in assessee s own case for the A.Y. 2010-11 dated 09/10/2019 wherein similar issue was restored back to the file of A.O. for deciding afresh after following the order of the Tribunal dated 25/09/2017 for the A.Y. 2009-10. 5. We have considered the rival submissions and carefully gone through the orders of the authorities below and found from the record that while computing business income, the A.O. has allocated head office expenses proportionately for units claiming exemption U/s 10A/10B of the Act on the basis of the turnover of the units. It was contention of the A.O. that the assessee has parked its head office expenses for the units generating taxable income without any valid reasons for not allocating these expenses to the units claiming exemption U/s 10A/10B of the Act. 6. We had carefully gone through the orders of the Tribunal in assessee s own case wherein under similar facts and circumstances, the Tribunal have restored the matter back to the file of the A.O. for fresh adjudication for the A.Y. 2009-10 vide its order dated 25/09/2017 after having the following observation: 13. We have heard both the parties and considered the materials available on recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter was restored back to the file of the A.O. As the facts and circumstances during the year under consideration are pari materia, respectfully following the order of the Tribunal in assessee s own case, the matter is restored back to the file of A.O. for deciding the issue afresh in terms of directions given by the Tribunal in its order dated 25/09/2017 for the A.Y. 2009-10. 9. In the result, appeal of the assessee is allowed for statistical purposes only. 10. ITA No. 345/Mum/2017 C.O. 93/Mum/2017 for the A.Y.2010-11. In the appeal filed by the revenue, the revenue is aggrieved for the action of the ld. CIT(A) directing to exclude companies namely M/s Infosys Ltd., M/s Larsen and Turbo Infotech Limited and M/s Zylog Systems Limited from the final set of comparables due to large scale of operations. It was the grievance of the revenue that without giving any finding as to what should be the range of turnover of companies for selecting as comparables considering the assessee s turnover of ₹ 17.69 cores and also not applying the filter of large scale of operations to the other companies selected as comparables by the TPO, the ld. CIT(A) has directed for exclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As the facts and circumstances during the year under consideration are pari materia, respectfully following the order of the Tribunal in assessee s own case for the A.Y. 2010-11, we do not find any infirmity in the order of the ld. CIT(A) for directing exclusion of companies namely M/s Infosys Ltd. and M/s Larsen Turbo Infotech Limited from the final set of comparables. 14. In respect of M/s Zylog Systems Limited, the ld CIT(A) has directed for exclusion after recording a finding to the effect that it is a giant in its area of operation and assumes greater risks translating into higher profitability. Thus, this giant sized company with advantages such as brand, intangibles etc. cannot be compared to a company such as the assessee company which is a captive unit of his AE assuming only limited risks. After recording a similar finding, the ld. CIT(A) also excluded Infosys Lt., which is already covered by the order of the Tribunal. The ld DR could not place on record any material so as to persuade us to deviate from the finding of the ld. CIT(A). Accordingly, we do not find any reason to interfere in the order of the ld. CIT(A) in this respect. 15. The next grievance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chnology Ltd. Specific question raised before the Hon ble Jurisdictional High Court in this regard is as under:- (ii) Whether on the facts and circumstances of the case, the Tribunal erred in excluding KALS Information Solutions Ltd. and M/s. Helios Matherson Information Technology Ltd. from the list of comoparables on the basis of previous years documentations of the assessee without verifying the functions performed by the comparables in the year under consideration ? 9.1. The Hon ble Jurisdictional High Court addressed the aforesaid question by observing as under:- 10. Re. Question (ii) : a) M/s. KALS Information Solutions Ltd. (KALS Ltd.) and Helios Matheson Information Technology Ltd. (Helios Matheson Ltd.) were included by the TPO in his comparability analysis. The grievance of the respondent assessee before the Tribunal was that both are functionally different from the respondent assessee and, therefore, could not be used as comparables. The respondent assessee pointed out that KALS Ltd and Helios Matheson Ltd. are engaged in the business of selling of software products while the respondent assessee renders software services to its holding company. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n dispute before us. 9.3. We also find that the Hon ble Delhi High Court in the case of PCIT vs. Cash Edge India Pvt. Ltd in ITA No.279/2016 dated 04/05/2016 had endorsed the view taken by the Tribunal that Persistent Systems Ltd was involved in software development, software products and marketing and perhaps more importantly, published segmental data was not available. Accordingly, the said comparable has been rightly excluded by the Tribunal as per Hon ble Delhi High Court. Accordingly, the ground No.2 raised by the revenue is dismissed. 18. We had carefully perused the order of the Tribunal dated 09/10/2019 and found that exactly on the similar facts and circumstances, the Tribunal have confirmed the action of the ld. CIT(A) for exclusion of these companies from the set off final comparables. The ld DR has fairly conceded the fact that the issue is covered by the order of the Tribunal dated 09/10/2019 for the A.Y. 2010-11, therefore respectfully following the order of the Tribunal dated 09/10/2019, we do not find any infirmity in the order of the ld. CIT(A) for excluding these comparables. 19. In the result, appeal of the revenue is dismissed. 20 . Now we take ..... X X X X Extracts X X X X X X X X Extracts X X X X
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