TaxTMI 
TaxTMI 
2021 (12) TMI 936
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....responding to ground no.1) 2. That on the facts and circumstances of the case, the learned AO and the learned Dispute Resolution Panel ("the learned Panel") erred in upholding the approach of the learned Transfer Pricing Officer ("the learned TPO") and the adjustment of INR 3,45,45,100 made to the transfer price of the Appellant in respect of its contract marketing support services provided to its Associated Enterprises (`AEs'). (corresponding to ground no.2) 3. That the learned AO and the learned Panel erred both in facts and law in confirming the action of the learned TPO of making an adjustment to the transfer price of the Appellant holding that the international transactions do not satisfy the arm's length principle envisaged under the Income Tax Act, 1961 ("the Act") and in doing so, grossly erred in: (corresponding to ground no.3) 3.1. Re-characterising the business profile of the Appellant (i.e. re-characterized from a contract marketing service provider to a full-fledged technical/business support service provider) in relation to the Appellant's international transactions with its associated enterprises. (corresponding to ground no.3.1) 3.2. Upholdin....
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....ional similarity whereas this comparable should have been excluded for the reason being functionally dissimilar and segmental data not available in the public domain. (corresponding to ground no.3.7) 3.9. The learned AO in pursuance of the directions of the learned Panel erred in law and on facts in including HCCA Business Services Private Limited as a comparable to the Appellant for the Business Support Services segment on the ground of functional similarity whereas this comparable should have been excluded for the reason being functionally dissimilar. (corresponding to ground no.3.7) 3.10 The learned AO in pursuance of the directions of the learned Panel erred in law and on facts in including Killick Agencies and Marketing Limited as a comparable to the Appellant for the Business Support Services segment on the ground of functional similarity whereas this comparable should have been excluded for the reason being functionally dissimilar, qualified annual report and fails advertising expenses < 3% of total sales filter. (corresponding to ground no.3.7) 3.11.The learned AO in pursuance of the directions of the learned Panel erred in law and on facts in including TSR Darasha....
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....ds are not accepted, we mention below the grounds on technical support services: 3.17.The learned AO in pursuance of the directions of the learned Panel erred in law and on facts in including Engineers India Limited as a comparable to the Appellant for the Technical Support Services segment on the ground of functional similarity whereas this comparable should have been excluded for the reason being functionally dissimilar and fails service income > 75% of total sales filter. (corresponding to ground no.3.7) 3.18.The learned AO in pursuance of the directions of the learned Panel erred in law and on facts in including L & T Ramboll Consulting Engineers Limited as a comparable to the Appellant for the Technical Support Services segment on the ground of functional similarity whereas this comparable should have been excluded for the reason being functionally dissimilar. (corresponding to ground no.3.7) 3.19.The learned AO in pursuance of the directions of the learned Panel erred in law and on facts in including Zipper Trading Enterprises as a comparable to the Appellant for the Technical Support Services segment on the ground of functional similarity whereas this comparable sho....
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....lly dissimilar. (corresponding to ground no.3.7) 3.26.The learned AO in pursuance of the directions of the learned Panel erred in law and on facts in including Semac Limited as a comparable to the Appellant for the Technical Support Services segment on the ground of functional similarity whereas this comparable should have been excluded for the reason being functionally dissimilar. (corresponding to ground no.3.7) 4. The learned AO erred in not giving effect to the directions of the Learned Panel and not providing the following: (corresponding to ground no.4) 4.1. Giving effect to the correct computation of operating mark up on cost in respect of the comparables adopted for the 'business support segment' as provided by the Appellant to the learned AO; (corresponding to ground no.4) 4.2. Not adjudicating on the comparability of "Zipper Trading Enterprises" based on the information available with the learned TPO; and (corresponding to ground no.4) 4.3. Granting working capital adjustment based on the actual working capital position of the Appellant. (corresponding to ground no.4) 5. That the learned AO/the learned Panel erred in ignoring the limited-risk nat....
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....tion of existing and potential customers c. Full software warranty including maintenance contract for remote and onsite support, inclusive of software updates and labour - generally for 1 year but sometimes for 2 years. 4.3.19 Technical support services for products sold in India 4.3.20 Remote and onsite support by application engineers/ support engineers in respect of Parametric products sold in India. 4.3.21 Telephonic and web based online support to customers 4.3.22 Visit to customers to provide inputs about the product and hand holding. These visits are in addition to break down rectification and general maintenance services. 4.3.23 Documentation and localization of training materials in collaboration with the Global Sales Organization (GSO)." 5. According to the TPO, the above functions are both in respect of marketing / business support services and also technical support services as several functions involve working of engineers. The AO vide note dated 19.12.2012 required the assessee to establish with evidence why the assessee has employed engineers and developers and why it should not be treated as providing technical services. The assessee replied vide....