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TMI Blog2018 (12) TMI 1764X X X X Extracts X X X X X X X X Extracts X X X X ..... on actual basis if the assessee has given the detailed working to the lower authorities. However, if no such working has been given by the assessee to the lower authorities then in our view the assessee will not be entitled to any such claim. This ground is allowed for statistical purpose. - I.T(TP).A No. 697/Bang/2016 - - - Dated:- 21-12-2018 - SHRI. A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI. LALIET KUMAR, JUDICIAL MEMBER For the Assessee : Shri. Uma Shankar Goutam, Advocate For the Revenue : Shri. C. H. Sundar Rao, CIT DR-I ORDER PER LALIET KUMAR, JUDICIAL MEMBER : The present appeal is filed by the assessee against the order u/s.143(3) r.w.s.144C(13) of the Act, passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r : 05. As per the 92CA report, the international transactions reported by the assessee was as under : 06. During the TP proceedings, the tax payer was issued a show cause notice and in reply the assessee had filed reply and submitted the objections. After considering the reply and submissions made the TPO has rejected the TP study of the assessee and issued a show-cause to bring in various comparables which are functionally similar to that of the assessee. For the purposes of determining the ALP of the international transactions with respect to the software development services, finally the TPO arrived at the following set of comparables : Feeling aggrieved by the order of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w is required to be adopted and when sufficient number of comparables are available, then the RPT filter should be adopted at 1.5% otherwise it can be relaxed for 25% . Recently, there is a change in law ( CBDT issued in rules on multiyear data and range concept after passing of Finance Act 2014 ) which requires that there should be a minimum of six comparables available for the purpose of determining the ALP. Though the said amendment is prospective nature, but taking clue from the wisdom of the legislature, we deem it appropriate if more than six comparables are available, then 15% RPT filter should be applied, but if the comparables after applying the 15% RPT filter is less than six, then the RPT filter should be brought up from 15% to 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of DRP is reversed and the AO,TPO are directed to include these three comparables in the final list of comparables. Regarding the request of the revenue to include remaining seven comparables excluded by DRP and 3 more comparables which are not excluded by DRP but being requested by the assessee for exclusion i.e. for total 10 exclusions, Para 9 of the tribunal order rendered in the case of Commscope Networks India Pvt. Ltd. (Supra) is relevant and therefore, the same is reproduced here in below from pages 2364 2365 of the Case law Compendium for ready reference. This Para reads as under:- 9. Now we decide about the remaining 6 comparables excluded by DRP and 4 comparables retained by DRP but for which the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omparables retained by DRP and we have already held that out of 9 comparahies excluded by DRP, 3 have to come back being 1) Evoke Technologies Pvt. Ltd., 2) Mindiree Ltd. (Seg) and 3) R S Software (India) Ltd. Now, we decide about LGS Global Ltd. As per the tribunal order rendered in the case of Applied materials India Pvt. Ltd. vs. ACIT (Supra), this is a good comparable and therefore, we direct the A.O. and TPO to include this comparable. So, there should be 4 comparables in the final list of comparable and on the basis of that, the AO/TPO should work out the ALP. 6. Respectfully following this tribunal order, we exclude these 10 comparables i.e.1) Accropetal Technologies Ltd. (Seg.), 2) E Zest Solutions Ltd. , 3) F - Infochips ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e following decisions : a) AT T Global Business Services India Ltd. - IT(TP)A No. 190/Bang/2016 A.Y. 2011-12 b) Yokogawa Technologies India P Ltd,- 1T(TP)A No. 6o6/Bang/2016 - AY 2011-12 c) Cypress Semiconductor Technology India Pvt. Ltd. - 1T(TP)A No. 356/Bang/2016 - AY 2011-12 d) Metric Stream infotech India Pvt. Ltd. - IT(TP)A No. 493/Bang/2016 - AY 2011-12 e) Finastra Software Solutions India Pvt. Ltd. - 1T(TP)A No. 529/Bang/2016 - AY 2011-12 f) Zynga Game Network India Pvt. Ltd. [IT (TP) A. No. 360,/Bang! 2016] (AY 2011-12) g) M/s. Microsoft Research Lab India Pvt. Ltd. [IT (TP) A. No. 115/ Bang/ 2016] (AY 2011-12) h) GT Nexus Software Pvt Ltd [IT (TP) A. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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