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TMI Blog2018 (8) TMI 1206X X X X Extracts X X X X X X X X Extracts X X X X ..... ubstantial questions of law framed by the Revenue in the Memorandum of Appeal are as under: "1. Whether in the facts and circumstances of the case, the Tribunal is right in law in directing the assessing officer to re- calculate the deduction allowable to the assessee under section 10A of the Act by reducing the total turnover also by the same amount by which export turnover was reduced by the assessing officer in respect of foreign currency expenses incurred towards technical services rendered outside India, without appreciating the fact that there is no provision in Section 10A that such expenses should be reduced from the total turnover also, as clause [iv] of the Explanation 2 to Section 10A provides that such expenses are to be reduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the facts and circumstances of the case, the Tribunal is right in law in excluding the comparables, namely, M/s. Infosys BPO Ltd., and M/s. Cosmic Global Ltd., by following its earlier order in the case of M/s. E-4E Business Solutions India Ltd., even though the said decision has not reached finality and without appreciating that the TPO has chosen the said comparable after applying all the required tests?" Regarding Substantial Question No. 1: 3. The issue is covered by the decision of the Hon'ble Supreme Court in the case of Commissioner of Income-tax, Central - III vs. HCL Technologies Ltd., [2018] 93 Taxmann.com 33(SC). The relevant portion of the judgment of the Hon'ble Supreme Court in the case of HCL Technologies Ltd. (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , when the object of the formula is to arrive at the profit from export business, expenses excluded from export turnover have to be excluded from total turnover also. Otherwise, any other interpretation makes the formula unworkable and absurd. Hence, we are satisfied that such deduction shall be allowed from the total turnover in same proportion as well". 4. The learned Tribunal, after discussing the rival contentions of both the Appellant-Revenue and Respondent-Assessee, has returned the findings as under: Regarding Substantial Question of Law No.2: " (v) Crossdomain Solutions Ltd. 40.1. This company was selected by the TPO and also retained by the CIT (Appeals). The assessee has raised the objection regarding the comparability of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the earlier order of this Tribunal, we direct the Assessing Officer to exclude this company from the set of comparables." Regarding Substantial Question of Law No.3: " 34. As regards the turnover filter both the ld.AR as well as ld.DR has agreed on principle that the turnover filter applied by the CIT (Appeals) at Rs. 1 to Rs. 200 crores is not a proper filter as held by this Tribunal in a series of decisions and therefore the proper parameter of turnover difference would be 10 times of the assessee's turnover on both sides. Thus by applying the 10 times parameter of assessee's turnover on higher as well as lower side, we find that certain companies will be excluded. The assessee is having turnover of Rs. 229 Crores therefore the compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inate bench in the case of e4e Business Solutions India Pvt. Ltd. Vs. DCIT (supra)." 5. For the similar reasons, the learned Tribunal has excluded other comparables also. 6. However, this Court in a recent judgment in I.T.A. Nos.536/2015 c/w 537/2015 delivered on 25.06.2018 (Prl. Commissioner of Income Tax & Anr. -v- M/s Softbrands India Pvt. Ltd.,) has held that in these type of cases, unless an ex-facie perversity in the findings of the learned Income Tax Appellate Tribunal is established by the appellant, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable. The relevant portion of the said judgment is quoted below for ready reference: "Conclusion: 55. A substantial quantum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are filed by the Assessees, because, there may be cases where the Tribunal giving its own reasons and findings has found certain comparables to be good comparables to arrive at an 'Arm's Length Price' in the case of the assessees with which the assessees may not be satisfied and have filed such appeals before this Court. Therefore we clarify that mere dissatisfaction with the findings of facts arrived at by the learned Tribunal is not at all a sufficient reason to invoke Section 260-A of the Act before this Court. 58. The appeals filed by the Revenue are therefore dismissed with no order as to costs." 7. Having heard the learned counsels appearing for the parties, we are therefore of the opinion that no substantial question of law arise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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