9911796707
TMI Blog2017 (2) TMI 1471X X X X Extracts X X X X X X X X Extracts X X X X ..... f High Court of Judicature at Hyderabad w.e.f. 01-11-2015. Assessee has filed revised Form 36A and revised cross-objection before the ITAT. Accordingly, the name of the company has been taken as M/s. Automatic Data Solutions and Technology Services Pvt. Ltd., 2.1. For the AY. 2010-11, assessee filed its return of income on 13th October 2010 with an income of Rs. 50,87,04,320/- after claiming deduction of Rs. 18,47,85,336/- u/s 10A of the Act in respect of profit from Pune STPI unit. The AO had selected the case for scrutiny assessment u/s 143(2) of the Act, and further made a reference u/s 92CA(1) of the Act to the Transfer Pricing Officer (TPO), Hyderabad for determination of Arm's Length Price (ALP) of the international transactions with Associated Enterprises (AEs). ADP India has international transactions relating to provision of services to its AE. The TPO has rejected the economic analysis undertaken by the assessee for determination of the ALP of the said international transaction and based on fresh analysis concluded that the price received by the assessee for provision of services is not within the arm's length range. The TPO has accepted that the transaction relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l was received in March, 2015 which is peak period for time barring assessments. (b) It is also submitted that M/s. APBCL which is also assessed in this office had filed writ petition in Hon'ble High Court which had to be followed up with personal attendance in Hon'ble High Court. Due to these reasons there is delay in filing the appeal". Considering the above explanation of the Revenue, we condone the delay in filing the appeal and admit the appeal of Revenue to be adjudicated on merits. 5. In this appeal, Revenue has raised only one ground which is as under: "That on the facts & in the circumstances of the case the Hon'ble DRP erred in directing the AO to exclude M/s. Infosys Ltd., M/s. TCS eserve Ltd., & M/s. Eclerx Services Ltd from list of comparable companies adopted by the TPO for determination of Arms Length Price (ALP) of international transactions which resulted in no adjustment to ALP as against of Rs. 9,07,90,246/- proposed by the AO in draft assessment order". Ground No.2 is general in nature. 6. The TPO has selected many comparables and among them M/s. Infosys BPO Ltd., TCS e-serve Ltd., and Eclerx Services Ltd., were objected to on the reason of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t there are exceptional circumstances during the relevant financial year due to which this company is not comparable to the assessee. The Ld. Counsel for the assessee also submitted that the segmental details of this company are not available and hence, has to be excluded on this count also. 11.2.2. We find that the assessee's contentions about the presence of 'brand value' and owning of 'intangibles' is supported by the evidence on record. However, as regards the extraordinary event or exceptional circumstance there is no material placed before us by the Ld. Counsel for the assessee. Therefore, merely because the TPO in another case has held that there is an extraordinary event for which this company has to be excluded from the list of comparables, it cannot be excluded. Such claim has to be supported by evidence on record. As regards the functional dissimilarity and huge turnover and brand value is concerned, we find that this Tribunal in assessee's own case for A.Y.2009-10 while considering the comparability of the assessee with Infosys BPO Ltd., has taken note of the possession of the brand value and intangibles which influenced the financial results of this company. The Hon'b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed before us. Assessee's contentions therein that the KPO services are distinct from BPO services and are not comparable, has been rejected by the Tribunal. However, since a uniform and consistent stand has to be taken in the case of the same assessee on similar facts and circumstances, we, respectfully following the decision of the Coordinate Bench in assessee's own case, do not see any reason to interfere with the order of the DRP. Ground No.2 is accordingly rejected". 9.1. Respectfully following the above decision of the Coordinate Bench, we confirm the order of DRP excluding the above company from the list of comparables. 10. As far as M/s. Infosys Ltd., is concerned, the Coordinate Bench of ITAT in the case of M/s Hyundai Motors India Engineering P. ltd in ITA Nos. 1743/Hyd/2014 (AY.2010-11) & ITA No. 1917/Hyd/2014 (AY.2010-11) dt. 13-11-2015, has decided the issue as under: "15. ......................... As far as Infosys BPO is concerned, the DRP has considered the decision of ITAT in assessee's own case for the A.Y. 200910 and directed it to be excluded. The Ld. D.R. has not been able to bring to our notice any distinguishing features and facts for the A.Y. 2010-11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ground Nos. 1 & 9 are general in nature and does not require any adjudication. 14. Ground Nos. 2 & 3 pertains to issue of disallowance of an amount of Rs. 3,69,000/- towards TDS payable on contracts and Rs. 41,809/- payable towards salaries, invoking the provisions of Section 43B of the Act. It was the contention that the above amounts have not been claimed as a deduction, hence disallowance does not arise. Objection was raised before the Dispute Resolution Panel [DRP], Hyderabad and the DRP has directed the AO to examine and allow which was not followed. Hence the present grounds. 15. It was submitted that the amounts of TDS, if any not payable can only be recovered u/s. 201 and interest u/s. 201(1A) can only be levied, but the same amount cannot be disallowed invoking Section 43B. The disallowance is neither u/s. 40(a)(ia) nor u/s. 37(1), hence the same is not sustainable. In the alternate, it was also submitted that any amount added to the total income would increase the profits for deduction u/s. 10A which was also not considered by the AO. 15.1. After considering the rival contentions, we are of the opinion that the disallowance made by the AO is not according to the provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed to verify the record and allow the claim after due verification. Ground is allowed for statistical purposes. 19. Ground No. 6 pertains to not allowing the claim of set off of brought forward losses. There is no discussion in the order about the set off of losses and inspite of directions from the DRP, the same were not allowed. Ld. Counsel fairly admitted that these losses are subject to the orders in earlier years, accordingly, we direct the AO to verify the past record and determine the losses to be brought forward and allow the set off as per the provisions of law. Ground is considered allowed. 20. Ground No. 7 pertains to levy of tax and interest on distributable profit u/s. 115-O of the Act. It was the contention that the amount was paid within the due date as provided u/s. 115-O Sub-section (3) of the Act. It was submitted that the dividend was declared on 23-12-2009 and the amount was paid on 06-01-2010 i.e., 14th day from the date of declaration. Further, it was submitted that one day has to be excluded while counting the period of fifteen days. Ld. Counsel relied on the decision of the Hon'ble Bombay High Court in the case of CIT Vs. Heritage Estate (P) Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
