TMI Blog2019 (8) TMI 1832X X X X Extracts X X X X X X X X Extracts X X X X ..... uded from the list of comparable as it did makes profit in the relevant Assessment Year under consideration. This view on facts was upheld by the Tribunal - This concurrent finding of fact by DRP and the Tribunal has not been shown to be perverse. Therefore, the question as framed does not give rise to any substantial question of law. Thus, not entertained. Substantial question of law or fact - We find that this appeal as filed by the Revenue seeks to challenge concurrent finding of facts arrived at by the DRP and the Tribunal. In fact, no perversity in the impugned order is even attempted to be shown by the Revenue. The appeal is filed in a normal course, without considering the issue whether the impugned order gives rise to a substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the IT Act, 1961, r.w. Rule 10B(2) of the IT Rules? (b) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the CG- vak Software Limited as comparable for the purpose determining the Arm's length pricing in the case of assessee? 3 Re. Question (a):( i) The Respondent is in the business of providing Information technology enabled services, inter alia, to its Associated Enterprises (AEs). The Respondent had arrived at the Arms Length Price (ALP) of its transaction with its AEs by using comparable to benchmark its income on the basis of the Transactional Net Margin Method (TNMM). It determined the Profit Level Indicator (PLI) on the basis of operating profits/operatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded M/s. CG Vak from the list of comparables to determine the ALP on the ground that it was a consistently loss making company; (ii) The DRP while deciding the Respondent s application held that M/s. CG Vak could not be excluded from the list of comparable as it did makes profit in the relevant Assessment Year under consideration. This view on facts was upheld by the Tribunal; (iii) This concurrent finding of fact by DRP and the Tribunal has not been shown to be perverse. Therefore, the question as framed does not give rise to any substantial question of law. Thus, not entertained. 5 We find that this appeal as filed by the Revenue seeks to challenge concurrent finding of facts arrived at by the DRP and the Tribunal. In fact, no p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onstrated to the Court that the Tribunal or any other lower authority took into account irrelevant consideration or excluded relevant factors in the ALP determination that impact significantly. We hope the above observations would be kept in mind both by the Revenue and the Assessee who seek to prefer appeals from the orders of the Tribunal on Transfer Pricing particularly inclusion/ exclusion of comparables. The Commissioner of Income Tax and the Assessee in general would do well to also review the appeals filed and withdraw the same, in case the only challenge therein is to finding of facts, if the same is without evidence of any perversity or is in the face of settled legal position. The counsel of the Revenue is directed to serve a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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