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TMI Blog2015 (8) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... nology Services Ltd. as a comparable and recompute the Arm’s length price. - ITA No: 955/Del/2015 - - - Dated:- 22-5-2015 - SHRI I.C. SUDHIR AND SHRI J.SUDHAKAR REDDY, JJ. For The Assessee : Sh.Rohit Tiwari, C.A., Ms.Anjali Joshi, C.A. For The Revenue : Sh. Judy James, Sr.D.R. ORDER PER J.SUDHAKAR REDDY, ACCOUNTANT MEMBER This is an appeal filed by the assessee and is directed against the order of the AO passed u/s 143(3) r.w.s. 144C(5) of the Income Tax Act, 1961 (the Act) dated 24.12.2002 pertaining to the Assessment Year (AY) 2010-11. 2. Facts in brief:- The assessee is a company and is engaged in the business of software development and its export. The issue that arises for our consideration is the transfe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order for Assessment Year 2010-11 which is bad-in-law. 6. The Ld. AO/Ld. TPO and the Hon'ble DRP erred on facts and in law in partially confirming the adjustment of ₹ 11,587,357 in the assessment order passed under section 143(3) of the Income-tax Act, 1961 ('the Act'), by holding that the international related party transaction of the Appellant with respect to the provision of software development services do not satisfy the arm's length principle envisaged under the Act. In doing so the Ld. AO/Hon'ble DRP has erred: 5.1 by disregarding the economic analysis conducted by the Appellant to determine the Arm's Length price (ALP') of the international transaction pertaining to software development servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on without complete and adequate application of mind with a single-minded intention of making an addition to the returned income of the Appellant; 5.5 by including certain companies in the final set of comparables which are not comparable to the Appellant in terms of functions performed, assets employed and risks assumed; 5.6 by excluding certain companies on arbitrary/ frivolous grounds even though they are comparable to the Appellant in terms of functions performed, assets employed and risks assumed; 5.7 by ignoring the business/ commercial reality that since the Appellant (vis-a-vis its e services) is remunerated on an arm's length cost plus basis, undertakes minimal business risks as against comparable companies that are fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it Tiwari restricted his arguments to the issue of elimination of Wipro Technology Services Ltd. as a comparable. He submitted that in the assessee s own case in the earlier AY 2008-09 in ITA no.6485/Del/2012 dated 20th September, 2013, the Tribunal at para 5 has held that Wipro Technology Services Ltd. cannot be considered as a comparable and directed the Transfer Pricing Officer to exclude the same from the list of comparables, by following the decision of Jurisdictional High Court in the assessee s own case for the AY 2006-07. We extract the same for ready reference. 5. We have heard the rival contentions and perused material on the record. The issue about exclusion of above list of comparables while making the TP adjustments in asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such comparables and allow this ground of the assessee. TPO/AO will accordingly work out the TP adjustment in conformity of the Hon'ble Delhi High Court order. 4.1. The Ld.Standing Counsel for the Revenue on the other hand opposed these contentions but could not demonstrate how the facts are different this year. 5. After hearing rival contentions, perusing the papers on record and orders of authorities below, we uphold that the submission of the assessee that Wipro Technology Services Ltd. cannot be considered as a comparable, in view of the binding judgement of the Jurisdictional High Court in the assessee s own case for the AY 2006-07 which was followed by the Coordinate Bench of the Tribunal in the assessee s own case for the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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