2015 (7) TMI 370 - HC - Income Tax

Objection in selection of comparable companies - Inclusion of comparable companies chosen by the TPO, which were functionally not comparable - Non-adjudication of certain grounds raised by appellant in the appeal memo - Question of limitation - Held that - Non-adjudication of certain grounds raised by appellant in the appeal memo - As regards the third question, learned counsel for the appellant contended that the Tribunal had wrongly recorded that the assessee's counsel had confined the grievance on behalf of the assessee to the inclusion of four comparables in software service segment and that it had only been argued that the comparables mentioned therein had been wrongly included by the TPO. Learned counsel for the appellant has invited our attention to the written submissions filed before the Tribunal. This contention must at least, in the first instance, be raised by the appellant before the Tribunal. The appellant is at liberty to do so. In the event of the Tribunal not entertaining the application, the appellant is at liberty to adopt appropriate proceedings including in any appeal that may be filed against the main order. Other issues may be taken after final decision of the tribunal There would be no question of limitation, in such a case. The limitation would begin only after the final decision of the Tribunal.

Summary

Issues involved:
1. Tribunal's order remitting the issue of comparison on comparables to the Transfer Pricing Officer (TPO) after the constitution and dissolution of a Special Bench.
2. Alleged non-adjudication of certain grounds raised by the Appellant before the Tribunal.
3. Tribunal's decision upholding the inclusion of comparable companies chosen by the TPO that were deemed functionally not comparable.

Issue 1: The Tribunal's order remitting the issue of comparison on comparables to the TPO after the constitution and dissolution of a Special Bench:
The Tribunal noted the constitution of a Special Bench to consider the impact of turnover on comparability, refraining from adjudicating the issue. The Tribunal directed the TPO to reconsider the comparables after the Special Bench's decision. However, the Special Bench was dissolved due to the withdrawal of the matter by the assessees. The Tribunal must now decide the matter itself or refer it to another Special Bench, requiring the appellant to make an application before the Tribunal for further action.

Issue 2: Alleged non-adjudication of certain grounds raised by the Appellant before the Tribunal:
The Appellant contended that the Tribunal wrongly recorded the grievance as confined to the inclusion of four comparables in the software service segment. The Appellant argued that the comparables were wrongly included by the TPO, as per the written submissions filed before the Tribunal. The Court advised the Appellant to raise this contention before the Tribunal initially and pursue appropriate proceedings, including potential appeals against the main order if needed.

Issue 3: Tribunal's decision upholding the inclusion of comparable companies chosen by the TPO:
The Tribunal's decision on this issue was against the Appellant. The Court clarified that it was not considering this issue at the current stage, as the matter before the Tribunal remained inconclusive due to the dissolution of the Special Bench. The Court suggested that the Tribunal should conclusively decide the matter, granting the Appellant the liberty to challenge the order, including on the issue of the inclusion of comparables, in a potential appeal against the final decision without any limitation issues.

In conclusion, the appeal was disposed of, emphasizing the need for the Tribunal to make a final decision on the comparables issue and granting the Appellant the right to challenge the order in subsequent appeals. The Court highlighted the importance of raising all contentions before the Tribunal and pursuing appropriate legal actions based on the Tribunal's final decision.