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TMI Blog2021 (2) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... substantial question of law. From perusal of the order passed by the tribunal, it is evident that the tribunal has placed reliance on in the case of Thirdware Solutions Ltd., which pertain to the same Assessment Year and thus, the tribunal has followed its own order in the same Assessment Year. From perusal of the order passed by the tribunal and in particular from para 11.1 to 11.8, it is evident that the tribunal has recorded the findings for exclusion of the companies pertaining to ITE services segment by assigning cogent reasons. Similarly, in paragraphs 12 and 13 of the order passed by the tribunal, the tribunal has excluded the companies of SWD services segment by assigning valid and cogent reasons. The revenue has not assailed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of functional dissimilarity even when the comparable-companies satisfied all the qualitative and quantitative tests applied by Transfer Pricing Officer? (ii) Whether on the facts and circumstances of the case, the Tribunal is right in excluding certain comparable companies on the ground of RPT filter of these comparables are more than 15% even when the Transfer Pricing Officer had chosen proper comparables and in TP case, the selection of comparables is different from each case and depends on facts of instant cases? (iii) Whether on the facts and circumstances of the case, the Tribunal is right in law in excluding certain comparable-companies on the ground of Turnover filter of these comparables even when the Transfer Pricing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Transfer Pricing Officer the Assessing Authority passed a draft assessment order on 30.12.2010. The assessee thereupon filed objections before the Dispute Resolution Panel. The Dispute Resolution Panel by an order dated 26.09.2011 under Section 144C(5) of the Act upheld the order of assessment and issued directions to the Assessing Authority. Thereafter, the Assessing Authority passed an order of assessment on 30.10.2011 by which the Assessing Authority made transfer pricing adjustment of ₹ 62,88,83,161/- on the basis of transfer pricing order and further made certain disallowances. Thereupon the assessee filed an appeal before the Income Tax Appellate Tribunal (hereinafter referred to as 'the tribunal' for short). The trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is also argued that when a comparable is functionally similar to that of the assessee, the same cannot be excluded merely because its turnover is lower than that of the assessee and turnover cannot be a relevant criteria in a service sector. It is also pointed out that the tribunal ought to have directed an enquiry under Rule 10B(3) of the Rules to determine as to whether material differences between the assessee and the said entity can be eliminated. It is also urged that while determining the comparability of transactions, multiple year data can only be included in the manner provided in Rule 10B(4) of the Rules. It is further submitted that since the tribunal has failed to take into account the material brought on record by the Transf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over is a related criteria for determination of comparability of companies and a company with high turnover cannot be compared with a captive service provider like the assessee who does not undertake any risk. In support of aforesaid submissions, reliance has been placed on decisions in 'CIT VS. PENTAIR WATER INDIA (P.) LTD.', (2016) 381 ITR 216 (BOMBAY), 'CIT VS. AGNITY INDIA TECHNOLOGIES (P.) LTD.', (2013) 36 TAXMANN.COM 289 (DELHI), PCIT VS. SAMSUNG R D INSTITUTE BANGALORE PVT. LTD. ITA NO.622/2017 DATED 30.11.2020. 7. We have considered the submissions made by learned counsel for the parties and have perused the record. We find sufficient force in the submission made by learned counsel for the assessee that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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