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TMI Blog2018 (4) TMI 1479X X X X Extracts X X X X X X X X Extracts X X X X ..... nsfer Pricing Officer (TPO), nor the DRP, the assessee objected to the inclusion of Brescon Corporate Advisors Ltd. on account of functional dissimilarity. Serious objection has been taken to the finding of the ITAT. It is contended that it is solely dependent on its previous reasoning in Xander Advisors India (P.) Ltd vs. Assistant Commissioner of Income Tax 2014 (36) ITR (Trib) 499 (Delhi). It is pointed out that mere pronunciation of the alleged functional dissimilarity in another decision cannot be treated per se as a precedent by the ITAT in these circumstances and that in the absence of analysis as to the dissimilarity by the lower ranking authority, the ITAT ought not to have carried out the exercise and excluded the comparable. Lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s India (P.) Ltd. (supra) had considered the functional profile of Brescon Corporate Advisors Ltd. and noted that as against the total amount of Rs. 139,563,352/- (reported towards the financial services of Brescon Corporate Advisors Ltd). The equity related advisories constituted Rs. 25,253,608/-. Furthermore and crucially in Xander Advisors India (P.) Ltd (supra) vis-à-vis Brescon Corporate Advisors Ltd., the Tribunal recorded a finding that no segmental data with respect to the disparage income schemes of Brescon Corporate Advisors Ltd. was available. In these circumstances, the Court is of the opinion that the exclusion of Brescon Corporate Advisors Ltd. does not per se result in any error of law. 4. For the above reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to accept the submission of learned CIT(DR) that a decision can be applied in transfer pricing cases only if it pertain to the same assessment year because ultimately it is the FAR analysis which is relevant of the tested party as well as of comparable for selecting/rejecting a comparable. If the functional profit of a comparable vis-a-vis the tested party remains the same over the years there is no reason as to why the decision rendered in regard to one assessment year may not be applied for any other year unless it is demonstrated with facts and figures that the said decision was rendered in entirely different set of facts. 4. There is no estoppel against the assessee from demonstrating that a particular comparable was wrongly included ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce cost, the assessee relied on CIT vs.Gobald Motor Services Pvt.Ltd. 100 ITR 240, wherein, it was, inter alia, held that it was not for the revenue to question the commercial expediency of the expenditure and it is a matter entirely left to the judgment of the assessee. There could not be any other consideration for severance cost of Rs. 35,10,000/- paid to Shri Girish Baliga except the services rendered by him to assessee company. The payment made to Shri Girish Baliga by the assessee company as going concern was in line with the practice prevalent in the industry. This payment cannot be held to be in capital field and was an allowable expenditure in the hands of the assessee company. In the result, the appeal of the assessee is partly a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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