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Issues involved: Appeal by revenue against CIT(A) order for A.Y. 01-02 regarding addition to software development cost u/s. 92 of the I.T. Act, 1961.
Summary: The revenue appealed against the CIT(A) order deleting the addition of Rs. 18,58,960 made by the AO by enhancing the marking up on software development cost from 5% to 10% u/s. 92 of the I.T. Act, 1961. The appellant argued that the AO's decision was supported by the circular of the CBDT no. 12/2001, allowing adjustments within 5% range. However, the respondent contended that the provisions of sec. 92 were not applicable in this case, as evidenced by the CIT(A) order and the absence of a reference to the Transfer Pricing Officer u/s. 92. The respondent also highlighted a successful case in the succeeding A.Y. 02-03 where the TPO accepted a 6.45% margin on software development services. The ITAT noted that the CBDT circular favored the assessee, and since the AO did not refer the case to the TPO, the addition was deemed unjustified. The ITAT upheld the CIT(A) decision, stating there was no evidence of tax avoidance and dismissed the revenue's appeal. In conclusion, the ITAT dismissed the revenue's appeal, confirming the CIT(A) order.
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