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2019 (3) TMI 2012 - HC - Income TaxTP Adjustment - comparable selection - Tribunal excluding one M/s. Bodhtree Consulting Limited - HELD THAT - This issue had come up before this Court earlier in case of Tata Power Solar Systems Ltd. 2016 (12) TMI 1600 - BOMBAY HIGH COURT a party is not barred in law from withdrawing from its list of comparables, a company, if the same is found to have been included on account of mistake as on facts, it is not comparable. 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. Assessee's submission in arriving 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. Appeal is dismissed.
Issues:
1. Exclusion of comparable M/s. Bodhtree Consulting Ltd. for determining Arm's Length Price. 2. Inclusion of foreign exchange gain in export turnover for deduction under section 10A of the Act. 3. Exclusion of expenditure incurred in foreign exchange from total turnover for deduction under section 10A of the Act. 4. Reliance on the Bombay High Court's decision of Gem Plus Jewellery by ITAT. Issue 1: Exclusion of Comparable M/s. Bodhtree Consulting Ltd.: The High Court considered the appeal challenging the Tribunal's decision to exclude M/s. Bodhtree Consulting Ltd. as a comparable for determining the Arm's Length Price. The Tribunal found that the two companies, the assessee and Bodhtree Consulting, were not comparable due to fundamental differences in their profiles. The Tribunal's decision was based on the fact that the assessee was a product manufacturing company, while Bodhtree Consulting was a software product manufacturer. The Court upheld the Tribunal's decision, stating that there was no error in excluding Bodhtree Consulting based on the material on record. The Court also referred to a previous case law to support the principle that an assessee is not barred from withdrawing a company from the list of comparables if it is found to have been included mistakenly and is not functionally comparable. Issue 2: Inclusion of Foreign Exchange Gain in Export Turnover: The Court did not entertain the issue of including foreign exchange gain in export turnover for deduction under section 10A of the Act, as similar questions had been considered in previous appeals of the same assessee and were dismissed by the Court. Therefore, without separate discussion, the Court did not entertain this issue in the present appeal. Issue 3: Exclusion of Expenditure Incurred in Foreign Exchange: Similarly, the Court did not entertain the issue of excluding expenditure incurred in foreign exchange from the total turnover for deduction under section 10A of the Act, as it had already been considered in previous appeals of the same assessee and dismissed by the Court. Hence, without separate discussion, these questions were not entertained in the present appeal. Issue 4: Reliance on Bombay High Court's Decision of Gem Plus Jewellery: The Court addressed the issue of whether the ITAT erred in solely relying on the Bombay High Court's decision of Gem Plus Jewellery, which had been contested by the Revenue before the Apex Court. However, the Court did not delve into this issue as it found that the only question that survived for consideration was the determination of the Arm's Length Price in the case of the respondent assessee. In conclusion, the High Court upheld the Tribunal's decision to exclude M/s. Bodhtree Consulting Ltd. as a comparable for determining the Arm's Length Price, based on the fundamental differences in the profiles of the two companies. The Court did not entertain the issues related to foreign exchange gain and expenditure incurred in foreign exchange for deduction under section 10A of the Act, as these had been previously considered and dismissed in appeals of the same assessee. The Court also did not address the issue of the ITAT's reliance on the Bombay High Court's decision of Gem Plus Jewellery, as the main focus was on the comparability issue in the present appeal.
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