9911796707
TMI Blog2019 (3) TMI 2012X X X X Extracts X X X X X X X X Extracts X X X X ..... to exclude the comparable of M/s. Bodhtree Consulting Ltd. for 2010-11 while determining the Arm Length Price?" (2) Whether on the facts and circumstances of the case and in law the ITAT was correct in law in holding that foreign exchange gain attributable to the delivery of good outside India as included in the total turnover by AO is also entitled to be included in the export turnover for proper computation of deduction under section 10A of the Act?" (3) Whether on the facts and circumstances of the case and in law the ITAT was correct in law in holding that expenditure incurred in foreign exchange is excludable from the total turnover and also from the export turnover for computation of deduction under section 10A of the Act.? (4) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that undisputedly the assessee was a product manufacturing company, whereas the Bodhtree Consulting were software product manufacturer. It was on this basis that the tribunal found that the two instances cannot be compared. The relevant observations of the tribunal in this regard may be noted. "24(a) In the department's written submissions at page 4, para 3.2.3 as also by way of his oral arguments, the DR has sought to place reliance on the assessee's Transfer Pricing Report (TPR) as per which, acording to the ld. D.R., the assessee is into "application development", which includes, inter alia, "product release". Therefore, according to the Ld. DR, the assessee is a product manufacturing company. This however, has been emphatically de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the TPO in para 5.1 of his order. This finding of the TPO was confirmed by the ld. DRP. The Department cannot now be allowed to set up a new case, as is sought to be done. Even otherwise, the case sought to be now set up at this stage i.e. that the assessee manufacturing company is a product company, is factually incorrect. 26. On the basis of the above, it is correct that Bodhtrede Consulting Ltd. Being a software product manufacturer, is not comparable to the assesseel company. Moreover, it has been excluded in "Nethawk Networks Pvt. Ltd.", (supra) "Wills Processing Services (I) Pvt. Ltd. (supra) and "CISCO" Systems Pvt. Ltd. (supra). Accordingly, here also, it is ordered to be excluded from the final set of comparables. 5] These findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l comparables to determine the ALP-. "3(d) We find that the impugned order of the Tribunal holding that a party is not barred in law from withdrawing from its list of comparables, a company, if the same is foundto have been included on account of mistake as on facts, it is not comparable. The Transfer Pricing Mechanism requires comparability analysis to be done between like companies and controlled and uncontrolled transactions. This comparison has to be done between like companies and requires carrying out of FAR analysis to find the same. Moreover, the assessee's submission in arrriving at the ALP is not final. It is for the TPO to examine and find out the companies listed as comparables which are, in fact, comparable. The impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
