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TMI Blog2018 (7) TMI 2077X X X X Extracts X X X X X X X X Extracts X X X X ..... P]A No.271/Bang/2014 dated 14.08.2014, relating to the Assessment Year 2009-10. 2. The substantial questions of law framed by the Revenue in the Memorandum of Appeals are as under: "1. Whether on the facts and in the circumstances of the case, the Tribunal was justified in allowing relief to the assessee based on decision of Tribunal in assessee's own case for the assessment year 2008-09 and other decisions of Co-ordinate Benches, which have not reached finality and ought to have decided the comparability of the companies on the basis of specific facts brought on record by the TPO in the case of the assessee? 2. Whether, on the facts and in the circumstances of the case, the Tribunal failed to appreciate the facts that the allocatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be adopted?" 3. The learned Tribunal, after discussing the rival contentions of both the Appellants-Revenue and Respondent-Assessee, has returned findings as under: Regarding Substantial Question No.2: "9. At the time of hearing, it was brought to our notice that in asssessee's own case for the A.Y. 2008-09 in ITA No.1510/Bang/2012, by order dated 31.10.2013, has upheld the use of headcount method followed by the assessee as appropriate method for allocation of common expenses between its various business units. The following were the relevant observations of the Tribunal:- "xxxxx" 10. It is not in dispute before us that the facts and circumstances prevailing in the present assessment year are identical to the facts that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are development services is only on account of transactions of rendering software development services by the assessee to its AE and the foreign exchange fluctuation at the time of realization of the payment for rendering software development services. It is therefore clear that the foreign exchange fluctuation in question has to be treated as part of the operating income of software development services segment of the assessee and the operating profit to operating cost has to be determined accordingly. The DRP has refused to follow the decision of ITAT Bangalore Bench in the case of SAP Labs India Pvt. Ltd., [supra]. In our view the decision rendered by the Tribunal is binding on the DRP and the DRP cannot be heard to say that the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ged in providing open & end to end web solutions software consultancy and design & development of software using latest technology. The decision rendered by the Mumbai Bench of the Tribunal in the case of Nethawk Networks Pvt. Ltd., [supra] is in relation to A.Y. 2008-09. It was affirmed by the 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 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Trilogy E-Business Software India Pvt. Ltd., [supra]. The following were the relevant observations of the Tribunal:- "xxxxx" Following the aforesaid decision of the Tribunal, we hold that KALS Information Systems Ltd., should not be regarded as a comparable. 26.4 Tata Elxsi Ltd.:- As far as this company is concerned, it is not in dispute before us that in assessee's own case for the A.Y. 2007- 08, this company was not regarded as a comparable in its software development services segment in ITA No.1076/Bang/2011, order dated 29.03.2013. Following were the relevant observations of the Tribunal:- "xxxxx" 26.5 Following the aforesaid decision of the Tribunal, we hold that M/s. Tata Elxsi Ltd., should not be regarded as a compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to any substantial question of law. 56. We are therefore of the considered opinion that the present appeals filed by the Revenue do not give rise to any substantial question of law and the suggested substantial questions of law do not meet the requirements of Section 260-A of the Act and thus the appeals filed by the Revenue are found to be devoid of merit and the same are liable to be dismissed. 57. We make it clear that the same yardsticks and parameters will have to be applied, even if such appeals 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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