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TMI Blog2018 (8) TMI 517X X X X Extracts X X X X X X X X Extracts X X X X ..... There is no question of law, not to speak any substantial question of law, involved in this appeal. X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected as a proper comparable. 12. In any case, according to him, if M/s.Mahindra Consulting Engineers Ltd was considered as a proper comparable, then two new comparables suggested by the assessee during the course of proceeding before ld. TPO, namely M/s.Desein Private Limited and M/s.Blue Star Design & Engineering Ltd. had also to be considered as good comparables. Ld. Authorised Representative submitted that these two companies were also providing engineering consultancy. Summarizing his arguments, ld. Authorised Representative submitted that M/s.Mahindra Consulting Engineers Ltd had to be excluded and M/s.Stewarts & Lloyds Ltd had to be included in the list of comparables. As per the ld. Authorised Representative in the event M/s.Mahindra Consulting Engineers Ltd was considered as a good comparable, then M/s.Desein Private Ltd and M/s.Blue Star Design & Engineering Ltd also should come in the list. 13. Per contra, ld. Departmental Representative strongly assailing on the orders of the lower authorities submitted that in TNMM analysis perfect tallying of functional profile was not necessary. According to him, functional profile of both assessee as well as M/s.Mahindra Consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting Engineers Ltd, M.N.Dastur & Company (P) Ltd, Toyo Engineering India Ltd, Kirloskar Consultants Ltd and M/s.Stewarts & Lloyds Ltd. Ld. TPO is directed to rework the PLI of the above comparables and recomputed the Arms Length Price adjustment if any necessary. Ordered accordingly. 9. Mr.T.R.Senthil Kumar, learned counsel appearing on behalf of the Revenue, strenuously argued that the cost of material consumption of M/s.Stewarts & Lloyds India Limited as a percentage to its operating cost, which was only 8.02% was a relevant factor for rejection of M/s.Stewarts & Lloyds India Limited as an acceptable comparable. Whether this factor was a yardstick or not is a question of law. We are, however, unable to accept the aforesaid submission. 10. The short question before us is whether this appeal filed by the Revenue against the order of the learned Tribunal should be entertained? 11. Section 260A of the Act provides as follows: "Section 260A. Appeal to High Court. (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal before the date of establishment of the National Tax Tribunal, if the High Court is satisfied that the case involve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ir Chunilal V. Mehta & Sons Ltd. vs Century Spg. & Mfg. Co. Ltd., reported in AIR 1962 SC 1314, the Supreme Court agreed with and approved a Full Bench Judgment of this Court in Rimmalapudi Subba Rao vs Noony Veeraju And Ors reported in AIR 1951 Mad 969 and laid down the principles for deciding when a question of law becomes a substantial question of law. 14. In Hero Vinoth Vs. Seshammal reported in (2006) 5 SCC 545, the Supreme Court followed Sir Chunilal V. Mehta & Sons (supra) and other judgments and summarized the tests to find out whether a given set of questions of law were mere questions of law or substantial questions of law. 15. The relevant paragraphs of the judgment of the Supreme Court in Hero Vinoth (supra) are set out herein below : "21. The phrase substantial question of law , as occurring in the amended Section 100 CPC is not defined in the Code. The word substantial, as qualifying question of law , means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 22. In Dy. Commr. v. Rama Krishna Narain [1954 SCR 506 : AIR 1953 SC 521] also it was held that a question of law of importance to the parties was a substantial question of law entitling the appellant to a certificate under (the then) Section 100 CPC. 23. To be substantial a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law involving in the case there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a quest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en of proof. When we refer to decision based on no evidence , it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding." 16. In M.Janardhana Rao Vs. Joint Commissioner of Income Tax [2005] 273 ITR 50 (SC), the Supreme Court held that the principles contemplated under Section 100 of the Code of Civil Procedure would apply to Section 260-A of the IT Act too. 17. Right of appeal is not automatic. Right of appeal is conferred by statute. When statute confers a limited right of appeal only in a case which involves substantial questions of law, it is not open to this Court to sit in appeal over the factual findings arrived at by the Appellate Tribunal. 18. The learned Tribunal considering all materials and relevant facts, including the functional profile of M/s.Stewarts & Lloyds India Limited for successive years, arrived at the conclusion that M/s.Stewarts & Lloyds India Limited was a good comparable. There is no question of law, not to speak any substantial question of law, involved in this appeal. The appeal is, therefore, not entertained and accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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