2018 (8) TMI 1206 - HC - Income Tax

Computation of Exemption u/s 10A - reduction of expenses from the total turnover - revenue contended that, as per clause iv of the Explanation 2 to Section 10A, such expenses are to be reduced only from the export turnover - Transfer pricing adjustment - selection of comparable - Held that - in these type of cases, unless an ex-facie perversity in the findings of the learned Income Tax Appellate Tribunal is established by the appellant, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable - Decided against the revenue.

Summary

Issues:
1. Interpretation of Section 10A for deduction calculation.
2. Exclusion of comparables based on functional dissimilarity.
3. Exclusion of comparables based on turnover filter.
4. Exclusion of comparables based on previous orders.

Interpretation of Section 10A for deduction calculation:
The Revenue raised a question regarding the deduction allowable to the assessee under Section 10A of the Income Tax Act. The Tribunal directed the assessing officer to re-calculate the deduction by reducing the total turnover in the same proportion as the export turnover was reduced for foreign currency expenses. The Tribunal's decision was supported by the Supreme Court's ruling in a similar case, emphasizing that expenses excluded from export turnover should also be excluded from total turnover to align with legislative intent.

Exclusion of comparables based on functional dissimilarity:
The Tribunal excluded certain comparables, such as Cross Domain Solutions Ltd., based on functional dissimilarity with the assessee's business. The decision was influenced by a previous order and examination of the functional comparability of the companies, leading to their exclusion from the set of comparables.

Exclusion of comparables based on turnover filter:
The Tribunal considered the turnover filter criteria for excluding companies from comparables, determining that turnover differences should be ten times the assessee's turnover on both sides. This led to the exclusion of companies with turnover below a certain threshold, such as Acropal Tech Ltd. and Cosmic Global Ltd., from the set of comparables.

Exclusion of comparables based on previous orders:
Certain comparables, including Infosys BPO Ltd. and Cosmic Global Ltd., were excluded based on previous orders and the consideration of turnover filters. The Tribunal decided to set aside the issue for reconsideration by the assessing officer in light of previous decisions, emphasizing the need for proper justification for seeking exclusion of companies from comparables.

In a recent judgment, the Court highlighted the importance of establishing perversity in the Tribunal's findings for maintaining appeals under Section 260-A of the Act. The Court clarified that issues related to the selection of comparables and filters do not necessarily raise substantial questions of law. Consequently, the appeals filed by the Revenue were dismissed as lacking merit, emphasizing the need for clear justifications in challenging the Tribunal's decisions.