2011 (3) TMI 530

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..... ted upon at this stage and may be left open because the assessee is sure that it will succeed on this issue alone that the RPT in the case of 3 DPLM Software Ltd., is very high and hence that comparable has to be excluded and if that is done then no transfer pricing adjustment is required and therefore the remaining issues are of academic interest only - assessee fails on that count then the assessee can raise these issues again before the Assessing Officer and the Assessing Officer should pass necessary order as per law in that situation - Appeal is allowed for statistical purpose
I.P. BANSAL, A.K. GARODIA, JJ. Abhishek Aggarwal and Pallav Raghuvanshi for the Appellant. Ajay Vohra and Neeraj Jain for the Respondent. ORDER A.K. Garo .....

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..... party transaction (RPT) in the case of this comparable. Our attention was drawn to page No. 247 of the paper book which contains subsequent search result which were submitted before DRP and it is submitted that this comparable i.e., 3 DPLM Software Ltd. has to be excluded for the reason that RPT is abnormally high. It is the claim of the assessee that RPT of this company is 97 per cent of total revenue and hence, this comparable has to be excluded. In support of this contention, reliance was placed on the Tribunal decision rendered in the case of Sony India (P.) Ltd. v. Dy. CIT [2008] 114 ITD 448 (Delhi). 4. As against this, it is submitted by the ld. DR of the revenue that since this is a new argument, the matter has to go back to the fi .....

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..... und that RPT is 97 per cent as has been claimed by the assessee before us, it has to be accepted that this comparable is not uncontrolled and therefore, the same has to be excluded from the list of comparables adopted by the TPO. Even if the percentage of RPT to total revenue is not 97 per cent but is more than 25 per cent even then, this comparable cannot be considered as uncontrolled comparable and the same has to be excluded from the list of comparables finally selected by the TPO. But for the same, the factual aspect has to be examined as to how much percentage of RPT to total revenue is there in the case of this comparable i.e., 3 DPLM Software Ltd. Hence, we set aside the assessment order and restore the entire matter to the file of t .....

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