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TMI Blog2018 (7) TMI 2257X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007-08. 2. The Revenue has suggested five substantial questions of law, which are quoted below for ready reference: "1. Whether on the facts and circumstances of the case, the Tribunal is correct in directing the assessing officer to exclude expenses incurred in foreign currency and other expenses that has been excluded from ETO, from the total turnover also and accordingly recomputed the deduction under section 10A without appreciating the fact that there is no provision in sec.10A that such expenses should be reduced from the total turnover also as clause (iv) of the Explanation 2 to Sec.10A provides that such expenses are to be reduced only from the export turnover? 2. Whether on the facts and circumstances of the case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ational Ltd, Akshay Software Technologies and VJIL Consulting Ltd even when the TPO has rightly rejected same as they do not satisfy the required tests?" 3. The learned counsel appearing for the Appellants - Revenue, Mr.K.V. Aravind submitted that in so far as the first substantial question of law is concerned, the same is covered by the decision of the Hon'ble Apex Court in the case of Commissioner of Income-tax, Central - III vs. HCL Technologies Ltd., [2018] 93 Taxmann.com 33(SC). The relevant portion of the judgment of the Hon'ble Supreme Court in the case of HCL Technologies Ltd. (supra), is quoted below for ready reference:- "17. The similar nature of controversy, akin this case, arose before the Karnataka High Court in CIT v. Tat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otal turnover also. Otherwise, any other interpretation makes the formula unworkable and absurd. Hence, we are satisfied that such deduction shall be allowed from the total turnover in same proportion as well". 4. In so far as the second and fifth substantial questions of law raised by the Revenue are concerned, the learned counsel for the Revenue submitted that the learned ITAT in its Order dated 09/12/2016 has given the findings, the relevant portion of which is quoted below for ready reference:- "8. We are in agreement to the request of ld. Counsel for the Assessee. The Assessee has relied on the decision of M/s Infineon Technologies India Pvt Ltd., in IT(TP)A 1068/Bang/2011 for rejection of 15 comparables and has accepted 11 comparab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any negative working capital adjustment when assessee does not carry any capital risk. In fact, TPO should have done necessary working capital adjustment to the profits of the selected comparables so as to make them comparable to the ITA.No.206/Hyd/ 2014 Adaptec (India)P.Ltd., Hyderabad." 6. In so far as the fourth substantial question of law raised by the Revenue is concerned, the learned counsel for the Revenue submitted that the ITAT in its Order dated 09/12/2016 has recorded the findings the relevant portion of which is extracted below for ready reference:- "14. We heard both parties relying on the following Tribunal judgments, wherein comparability economic adjustments are also mandated by the Tribunal. * sony India (P) Limited [ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question of interpretation of provisions of Double Taxation Avoidance Treaties (DTAA), interpretation of provisions of the Income Tax Act or Overriding Effect of the Treaties over the Domestic Legislations or the questions like Treaty Shopping, Base Erosion and Profit Shifting (BEPS), Transfer of Shares in Tax Havens (like in the case of Vodafone etc.), if based on relevant facts, such substantial questions of law could be raised before the High Court under Section 260-A of the Act, the Courts could have embarked upon such exercise of framing and answering such substantial question of law. On the other hand, the appeals of the present tenor as to whether the comparables have been rightly picked up or not, Filters for arriving at the correc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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