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TMI Blog2016 (12) TMI 1745X X X X Extracts X X X X X X X X Extracts X X X X ..... was issued on 28.9.2010 and served on the assessee. Subsequently, notice u/s. 142(1) was issued. 4. As the Arm Length Price declared by the assessee company was more than Rs. 15 crores, the case was referred to the DCIT (Transfer Pricing)-V, Bangalore to determine the correctness of Arm Length Price declared by assessee with the prior approval of the Commissioner of Income-tax, Bangalore-III, Bangalore. The Transfer Pricing Officer vide order u/s. 92CA of the Act dated 16.1.2013 has determined at an adjustment of Rs. 2,04,50,189/- to the Arms Length Price declared by the assessee. 5. Accordingly, a draft assessment order was passed on 15.3.2013 u/s. 143(3) r.w.s. 144C of the Act proposing to make addition of Rs. 2,04,50,189/- on account of TP adjustment among other issues. The assessee filed its objection before the Hon'ble DRP, Bangalore on 22.4.2013 against draft assessment order. The Hon'ble DRP vide order u/s. 144C(5) r.w.s. 144C(8) of the Act, in DRP No. 97/DIT/IT/2012-13 dated 30.12.2013 has upheld the addition made by the TPO on the international transaction. Further, the DRP has upheld the addition of Rs. 5,00,000/- made by the A.O. on account of prepaid expenses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion maintained by the appellant as per the Rules and erred on facts treating the filters applied by the appellant as defective. 6. Grounds relating to TP analysis of the TPO 6.1 The learned TPO has erred in doing a fresh transfer pricing analysis despite the absence of any defects in the transfer pricing analysis submitted by the appellant and Hon'ble DRP has erred in upholding the same. 6.2 The learned TPO erred on facts by not appreciating that on or before the due date of filing return, the relevant financial year data of comparable companies was not available in public domain and by undertaking a fresh search for comparability analysis (FY 2008-09) after September 30, 2009, which is beyond the date of compliance ie., September 30, 2009 resulting in 'Impossibility of performance' and against the premise of maintenance of 'contemporaneous documentation'. The same also violates the law, Rule 10B(4) read with Rule 10D(4) and Hon'ble DRP has erred in upholding the same; 6.3 The learned TPO erred on facts by disregarding the functional and risk profile of the Assessee and comparing it with companies which have an entirely different functional, risk pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons for Seeking exclusion Decision relied upon 1 Tata Elxi Ltd (Seg). 3,78,43,000 2,12,19,774 2,12,19,77,370 High turnover M/s. Mcafee Software (India) Pvt. Ltd. v. DIT 2 Sasken Communication Technologies Limited 4,05,31,20,000 2,12,19,774 2,12,19,77,370 High turnover M/s. Mcafee Software (India) Pvt. Ltd. v. DIT 3 Persistent Systems Ltd 5,19,69,10,000 2,12,19,774 2,12,19,77,370 High turnover M/s. Mcafee Software (India) Pvt. Ltd. v. DIT 4 Zylog Systems Ltd 7,34,93,51,475 2,12,19,774 2,12,19,77,370 High turnover M/s. Mcafee Software (India) Pvt. Ltd. v. DIT 5 Mindtree Ltd (Seg). 7,93,22,79,326 2,12,19,774 2,12,19,77,370 High turnover M/s. Mcafee Software (India) Pvt. Ltd. v. DIT 6 Larsen & Toubro Infotech 19,50,83,81,374 2,12,19,774 2,12,19,77,370 High turnover M/s. Mcafee Software (India) Pvt. Ltd. v. DIT 7 Infosys Limited 2,02,64,00,00,000 2,12,19,774 2,12,19,77,370 High turnover M/s. Mcafee Software (India) Pvt. Ltd. v. DIT 8 Bodhtree Consulting Ltd 16,05,75,212 2,12,19,774 2,12,19,77,370 Diff. in Functionality M/s. Logica Pvt. Ltd. IT(TP)ANo.1621/B/2014 following Cisco Systems (India) Pvt. Ltd. IT(TP) No.271/B/2014 9 RS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the Assessee that the facts and circumstances in the present year also remains identical to the facts and circumstances as it prevailed in AY 08-09 IT(TP)A No. 271/Bang/2014 Page 18 of 61 as far as this comparable company is concerned. Following the aforesaid decision of the Mumbai Bench of the tribunal, we hold that Bodhtree Consulting Ltd. cannot be regarded as a comparable. In this regards, the fact that the assessee had itself proposed this company as comparable, in our opinion, should not be the basis on which the said company should be retained as a comparable, when factually it is shown that the said company is a software product company and not a software development services company." (Emphasis Supplied) Similar view has been upheld by the Hon'ble Bangalore ITAT in the case of Cisco Systems (India) (P.) Ltd. v. Dy. CIT [2014] 66 SOT 82 (URO) 12. Hence Bodhtree Consulting Ltd., is to be excluded from the list of comparables. 13. The Assessee requests R.S. Software and Akshay Software selected by himself as the Company passes all filters applied by TPO and hence to be retained. Further we note that R.S. Software (India) Ltd is in software developme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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