9911796707
TMI Blog2019 (8) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... able considering their size, volume of turnover and other factors. In our opinion, the whole exercise of selecting the comparables by the TPO is not proper and is in a haphazard manner. In this view of the matter and in view of the detailed discussion by the Ld. CIT(A) on this issue, we do not find any infirmity in his order and accordingly upheld the same. See FROST SULLIVAN (I) (P.) LTD. [ 2012 (4) TMI 120 - ITAT MUMBAI] - Decided against revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer passed a final order consequent to and in accordance with the order of the TPO. 8. Being aggrieved, the Appellant carried the issue in Appeal to the Commissioner of Income Tax (Appeals) [C1T(A)]. By an order dated 26th May, 2009, the CIT (A) allowed the Appellant's appeal. This inter alia on the ground that the TPO's order had referred to Annexure I in its order containing detail of the comparable selected by him. However, copy of the same was not furnished to the Appellant either with the order of TPO or even thereafter. Thus, the CIT(A) during the course of proceeding before him had specifically called upon the AO/TPO to furnish the Annexure I to the order passed by the TPO. However, the same was not furnished even to CIT(A). Therefore, in the absence of the working being furnished, the CIT(A) concluded the no comparable exists. Thus, the adjustment on account of Transfer Pricing was deleted. 9. Being aggrieved, the Revenue filed an appeal to the Tribunal. The Tribunal by the impugned order, has set aside the order dated 26th May, 2005 of the CIT(A) and restored the issue of arriving at the ALP to the Assessing Officer/ TPO for fresh considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their case in accordance with the decision taken by the Tribunal in M/s. Frost & Sullivan (supra). 12 We find that the impugned order of the Tribunal after recording the fact that the Appellant is relying upon the decision of the Tribunal in M/s. Frost & Sullivan (supra) dis-regards the same by making the following observation; - "8.5;- . The Id. A.R. has relied upon the decision of [lie Tribunal wherein those 102 comparable, were held as cannot be considered as comparable. It is to be noted that the decision on the issue of comparability is purely factual in nature and is in the context of comparability of the particular assessee which cannot be applied as a general principle. Further, the Commissioner of Income Tax [Appeals) has also not examined the issue on merit because the Annexure -I to the TP Order was not available." 13 One of the essential elements of Rule of Law is equality of treatment to persons identically situated. The Tribunal has by the impugned order allowed the Revenue's appeal on merits and restored the issue to the TPO for re-consideration. This because the impugned order failed to follow/ consider its decision on identical facts in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of M/s. Frost & Sullivan (supra) to the fact of the present case. 17. Appeal disposed of in above terms. No order as to costs. Keeping in view the aforesaid directions of the Hon'ble Court, we proceed to adjudicate the issues raised in the appeal. 3.1 The Ld. Sr. Counsel for assessee, Shri Farrokh V.Irani, at the outset, drew our attention to the following chart, to submit that facts in the case of the present assessee and in the case of Frost & Sullivan (I) Private Limited were quite identical as evident from the following table: - No. Particulars Relevant Page of Gartner India's CIT(A) order for A.Y.2004-05 Relevant page of ITAT order in the case of Frost & Sullivan 1. Nature of Business Research support Services (gathering collating relevant data used for preparing market reports) Ref Pg.14 Marketing Research/Marketing Analysis Services [ref. Pg.21] Pg. 41 of PB 2. Set of comparable adopted by the TPO - 102 companies - From a very wide spectrum of ITES software consultancy, business research and analytics, business process outsourcing companies etc. - [Ref. Pg. 15[Pg-16 of PB] - 102 companies - From a very wide spectrum of ITES software consultancy, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction in the factual matrix of the assessee and facts in M/s Frost & Sullivan (I) Pvt. Ltd. However, it has been submitted that the department is in further appeal before Hon'ble Bombay High Court in the case of M/s Frost & Sullivan (I) Pvt. Ltd. 5. In view of the admitted position, concurring with the submissions made by Ld. Sr. Counsel, we apply the decision of Tribunal rendered in M/s Frost & Sullivan (I) Pvt. Ltd. and accordingly, dismiss Ground No. 2 of the revenue's appeal. 6. The directions of Tribunal in M/s Frost & Sullivan (I) Pvt. Ltd., for ease of reference, could be extracted in the following manner: - 9. We have considered the rival submissions made by both the sides, perused the orders of the AO and the Ld. CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. We find the TPO vide notice dated 24.11.2006 asked the assessee to show cause as to why the mark-up earned by the assessee at 10% upon cost be not considered as under-pricing of the services to the parent company as the industry is earning a mark-up of over 30%. For this purpose, the AO has given the list of 149 companies as samples accor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
