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TMI Blog2023 (9) TMI 1152X X X X Extracts X X X X X X X X Extracts X X X X ..... s Petition assessee seeks rectification of the Tribunal order in IT(TP)No.211/Bang/2022 vide order dated 30/11/2022. 2. The ld.AR submitted that the assessee raised ground No.4 in original ground and ground No.2 in concise ground as follows: Ground No.4 (In original Ground) Concise Ground No.2 "The ld. TPO erred in not relying upon the segmental profit and loss account." 2.1 According to the ld.AR, the assessee raised this ground before this Tribunal as above, which are dismissed by the Tribunal in para 4 at page no.7 and held as under:- "4. Ground Nos.2, 2.1 & 2.2 are not pressed before us. Accordingly, these grounds of appeal are dismissed as not pressed" 2.2 The ld.AR submitted that these grounds were argued before this Tribunal, however, Tribunal failed to give any finding on this ground. 3. We have heard the rival submissions and perused the materials available on record. We have gone through the log book maintained by both the Members and both the Members recorded in their respective log books that 'these grounds were not pressed' and also made a marking in the grounds of appeal in the appeal file that 'these grounds are not pressed'. Now the assessee's counsel want ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Software Labs Pvt. Ltd. e) Consilient Technologies Pvt. Ltd f) L&T Infotech Ltd." 6.1 The Tribunal adjudicated this issue in para No.10 to 12 at page No.17 to 20 of its order, which is as under:- "(b) Mind Tree Ltd. 10. The Ld. A.R. submitted that this company is functionally different on the following reasons: 10.1 He referred page 14 of the annual report of the company, wherein the key products/services of the company are highlighted, the extract of which is as follows: List three key products/services that the Company manufactures/provides (as in balance sheet) Digital: Cloud, Data Analytics. The other services include Application Development & Maintenance, Infrastructure Management, EAI, R&D, Testing, Consulting, Salesforce and SAP. 10.2 Further, he referred page 115 of the annual report, wherein the overview of the company is highlighted, the relevant extract of which is as follows: The Company offers services in the areas of agile, analytics and information management, application development and maintenance, business process management, business technology consulting, cloud, digital business, independent testing, infrastructure management services, mobility, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vity IT(TP)A No.211/Bang/2022 M/s. Mindteck (India) Limited, Bangalore Page 20 of 53 and is functionally comparable to the assessee. Having considered the submissions of the assessee, the Ld. DRP noted that M/s Mindtree Ltd has acquired 3 companies Bluefin Sol, Relational Sol and Magnet 360 LLC all of which provide software development services. Thus, he concluded that this acquisition will not have any effect on the comparability of M/s Mindtree Ltd. Against this assessee is in appeal before us. 12. We have heard the rival submissions and perused the materials available on record. The Ld. A.R. furnished the details of functionality before us. These facts are not at all commented by the AO/TPO or by Ld. DRP. Hence, the issue is remitted back to the file of AO/TPO for fresh consideration in the light of above functionality of Mind Tree Ltd. company." 6.2 As seen from the above, the Tribunal fairly considered the argument of the assessee's counsel and remitted the above issue raised in ground No.3.2 to the file of AO for fresh consideration. Hence, it cannot be said that there is any mistake apparent on record on this issue so as to rectify the same. Accordingly, this argument of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no occasion to examine these comparables at the time of passing the order. Hence, this issue is remitted to the file of AO/TPO for fresh consideration." 9. As seen from the log book, the assessee has not pressed ground No.1 with regard to exclusion of Kumaran Systems Pvt. Ltd. and Synerzip Softech India Pvt. Ltd. while arguing the case on earlier occasion on 21.11.2022. As such, the Tribunal has not considered these two comparables while adjudicating this additional ground. Now the ld. A.R. wanted to reargue this issue, which cannot be permitted under the provisions of section 254(2) of the Act. Accordingly, this argument of ld. A.R. is dismissed. 10. Next argument of the assessee company is that the assessee raised ground No.4.4(d) in revised ground with regard to exclusion of iSN Global Solutions Pvt. Ltd., as it satisfies the export filter. However, this Tribunal given finding in para 31 as under:- "31. We have heard the rival submissions and perused the materials available on record. In this case, the AO/TPO has applied filter that minimum 75% of operating revenue should be from exports. However, this comparable fails this test. Hence, in our opinion, the AO/TPO is justifi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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