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TMI Blog2025 (5) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessment year under consideration i.e. AY 2011-12 pointing out certain defects in the order passed by the Tribunal dated 30/10/2017. The Tribunal after considering the miscellaneous application filed by the assessee vie order dated 03/12/2021 recalled its order in ITA No.99/Del/2016 for AY 2011-12 dated 30/10/2017 for the limited purpose of adjudicating one of the comparables (Infosys BPO Ltd.) which was inadvertently overlooked while passing the order. The Tribunal also recalled its order to adjudicate on working capital adjustment which was omitted to consider while disposing of the appeal. Therefore, in this appeal only the following two issues have to be decided as per the order of the Tribunal in MA No.279/Del/2018 dated 03/12/202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 the relevant schedule, submitted that there is no outsourcing involved by the assessee. Therefore, Ld. Counsel submits that this difference in business models itself has been found a sufficient reason for non- comparability of companies, in the case of Ramp Green by Delhi High Court. 3. Reliance was also placed on the decision of the Hon'ble Delhi High Court in PCIT Vs. Cadensce Design Systems (India) Pvt. Ltd. in ITA No.333/2019 dated 06/08/2019 which is placed at 310 of the Paper Book, wherein Infosys BPO Ltd. has been excluded from the final set of comparables. Ld. Counsel finally submitted that in assessee's own case for the AY 2012-13 the Tribunal in ITA No.6690/Del/2016 excluded Infosys BPO Ltd. from the final set of comparables. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of IT enabled services and it is essentially a captive service provider. Although, the assessee has pleaded for exclusion of BPO Infosys Ltd. on other grounds also, it is our considered opinion that the wide functional dissimilarity between the two companies is sufficient to accept the assessee's plea for exclusion of this company from the final set of comparables. We also find that BPO Infosys Ltd. was directed to be excluded by ITAT Delhi Bench in the case of Baxter India Pvt. Ltd. vs. ACIT in ITA 6158/Del/2016 which also provided captive IT Enabled Services to its AE. The year under consideration before the ITAT in the case of Baxter India (P) Ltd. was also AY 2012-13. The relevant observations are contained in para 23 of the said or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove i.e. functionally not comparable, presence of brand and extraordinary event that has taken place during the year on account of acquisition of Australian based company, we are of the considered opinion that Infosys BPO Ltd. should not be included in the list of comparables. We accordingly direct the Assessing Officer/TPO to exclude Infosys BPO Ltd. from the list of comparables for the purpose of computing the average margin." 5.1.1 Respectfully following the order of the coordinate bench, on identical facts, we direct the AO/TPO to exclude BPO Infosys Ltd. from the final set of comparables." 7. Facts being similar, respectfully following the decision of the coordinate bench, we direct the AO/TPO to exclude Infosys BPO Ltd. from final ..... X X X X Extracts X X X X X X X X Extracts X X X X
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