TaxTMI 
TaxTMI 
2015 (3) TMI 151
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....es of the case and in law, the Ld.CIT(A) has erred in confirming the action of the Ld. AO is not allowing deduction u/s.10B of the Act amounting to INR 2,30,81,297/- on the ground that the approval granted by the Software Technology Park of India (STPI) to the Bopodi unit of the Appellant is not ratified by the Board of Approval constituted u/s.14 of the Industrial Development Regulation Act. 3. Without Prejudice to the claim of deduction u/s.10B of the Act, on the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred in confirming the action of the Ld. AO in denying the alternate claim of deduction u/s.10A of the Act on the ground that the Appellant does not meet the fundamental condition of having been located in 'free trade zone' and that the claim of deduction cannot be switched from one section another". 3.1 Facts of the case, in brief, are that the assessee is a wholly owned subsidiary of Approva US which provides software development activities and quality assurance services to its AE on exclusive basis. It also provides software maintenance and support functions like documentation of the programmed code, IT integration and configuration manage....
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....fficer under the Department of Bio-Technology; for an EPZ unit of ETHP unit, it is the Development Commissioner and for STP unit (i.e. Softwate Technology Park) unit, it is the officer designated by Ministry of Information Technology (i.e. the STPI Director). All the rest of the units, the approval is to be sought for from BOA (Board of Approval). As the 100% EOU status under the STP scheme is bestowed upon the assessee by the STPI Director, the assessee has fulfilled the conditions of registration as per IDRA Act. 4.1 It was submitted that if a pedantic view has to be taken that yet the assessee should have availed IDRA registration it would lead to a proposition that the same status, i.e. 100% EOU will be granted by two authorities which is unworkable, unreasonable and unacceptable. Various decisions were also brought to the notice of the AO. It was further submitted that the issue was examined in scrutiny proceedings for A.Y. 2006-07 and the AO after satisfying himself on this issue had granted deducted u/s.10B of the Act. Various decisions were also relied upon before the AO in which deduction u/s.10B was granted on obtaining approval either from the Board of Approval of STP....
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....ark Scheme vide Notification No.33/(RE)/92-97 dated 22nd March, 1994. It was amended by the Notification No. SO 388(E) dated 30th April 1995. It was contended that the STPI appointed by the Central Government under section 14 of IDRA can also be confirmed from the Custom Notification No. 138 and 140 dated 22 October 1991. Thus, on a combined reading of above Notifications it is clear that the Board had authorized IMSC, who in turn delegated the powers to the Director of STPI for granting approval to STPI units for claiming the benefit as 100% ECU. For the above proposition the assessee relied on the following decisions : i. The Commissioner of Income Tax vs K Sudha Rani - AP High Court ITA 87 of 2013 dated 25 June 2013 ii. Bebo Technologies PLtd. vs JCIT 20 taxmann.com 812 Similar view has also been taken in the cases of: i. Visu International Ltd vs DCIT (ITA 696/Hyd/2011 ) ii. Secunderabad Software vs DIT (ITA 1501/Hyd/2011) iii. Valliant Communications Ltd vs DCIT (ITA. 2706/Del/2008 6.1 It was submitted that a view favourable to the assessee should be adopted in the case of conflicting decisions. For the above proposition, the assessee relied on the followi....
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....aim of the deduction u/s 10B are identical with the deduction u/s 10A. Even the formats of the Form 56F and 56G are same. Therefore, if there is a technical defect, only on account of technicality or venial defect, the benefit, otherwise allowable to the assessee, should not be disallowed by the AO. For the above proposition, the assessee relied on the following decisions : i. Efextra Esolutions Pvt Ltd vs DIT-Delhi Tribunal ITA. 313/Del/2012 ii. ACIT vs Yeshwant Kanetkar- 150/Nag/2011-Nagpur Tribunal iii. Mantec Consultants P Ltd vs CIT-II - Delhi HC - ITA 1295/2008 Krishnan Nair vs CIT- Kerala High Court - 180 CTR 364 iv. N Makro Technologies (P) Ltd. vs. ACIT- Hyderabad Tribunal -1057/H/2010 v. Infosage Systems (India ) vs. DCIT - ITA No. 952/Hyd/10 vi. Supreme Netsoft Pvt Ltd vs DIT - ITA No. 1301/Hyd/2011 vii. Legato Systems India (P) Ltd. v /TO - 203 CTR 101 6.7 Various decisions were also brought to the notice of the Ld.CIT(A) to the proposition that in case deduction u/s.10B is not allowed then alternatively deduction u/s.10A should be granted to it. 7. However, the Ld.CIT(A) also was not convinced with the arguments advanced by the assessee an....
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....n of obtaining ratification of the approval granted by STPI Director for availing of deduction u/s 10B. 2.2.27 Thirdly, the judgement of the Delhi High Court on Regency Creations Limited is a comprehensive decision, which pertains to the AYs 2003-04, 2004-05, 2006-07 and 2007-08. Therefore, it covers part of the period of the new foreign trade policy. In this case, the High Court has expressly held that mere approval by the STPI is not enough. The approval should be granted by the Board constituted in accordance with the provisions of the Section 14 of IDRA. Further, the honourable High Court has also held that the power of approval to be granted by an authority by express provision of the statute has to be exercised by that authority and cannot be delegated. Therefore, the approval given only by the STPI is not sufficient to claim the deduction u/s 10B. The honourable High Court in para 17 of the judgment has held as under: "In the instant case, there is no notification or official document suggesting that either the Interministerial Committee, or any other officer or agency was nominated to perform the duties of the Board (constituted under section 14 of the /OR Act), for p....
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....he High Court. Therefore, these decisions would not support the Appellant's case. 2.2.31 The Appellant has raised an argument that it is not open for the AO to deny the deduction, which was already granted to it in the earlier years. The learned AO has already distinguished the decisions relied on by the Appellant on this issue in the assessment Order. According to me, the fundamental issue is that the Appellant's deduction is not in accordance with the provisions of the law. Hence, the conduct of the AO granting of deduction in the earlier year will not estopp operation of law in the current year. A deduction which is legally erroneous cannot become lawful by the consent of the Department because it reached erroneous conclusion in the earlier years. Therefore, I do not accept the Appellant's argument on this Ground. For the same reasons, I do not accept the Appellant's arguments on upholding principle of consistency. In my opinion, 'principle of consistency' has no application to the facts of the case. 2.2.32 The Appellant has taken alternative Ground of Appeal vide which it has requested for granting the deduction u/s10A. I have considered the Appell....
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....rder dated 25- 06-2012 dismissed the appeal filed by the Revenue holding that the appeal is not required to be admitted as the Tribunal has not done anything wrong either on facts or on law while following its earlier decision in same assessee's case. Since nowhere it is suggested that the aforesaid earlier decision of the Tribunal has not been accepted or that the appeal has been preferred against the said decision and the Hon'ble High Court interfered with the order of the Tribunal. Accordingly, the appeal filed by the Revenue was dismissed. 8.1 Referring to the decision of the Hon'ble Gujarat High Court in the case of Nirma Industries Ltd. Vs. DCIT reported in 155 taxmann 330 he drew the attention of the Bench to the following observations : "26. In the result the effect of dismissal of tax appeal by the High Court holding that no substantial question of law arises is that the order of the Tribunal on the issue which was agitated by the appellant before the High Court stands merged in the order of the High court, and for all intents and purposes it is the decision of the High Court which is operative and which is capable of being given effect to. It is not open to any pers....
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....stion can be answered in favour of the Revenue. A reading of the order of the Assessing Officer as well as the Commissioner of Income Tax (Appeals) shows that even though the assessee originally claimed relief under Section 10B, it was cautious enough to make an alternative plea under Section 10A in view of the fact that the assessee's vendor had the benefit under Section 10A. It is not denied by the Revenue that the assessee had the whole business transferred to its favour and that the factum of transfer was also intimated to the Software Technology Park of India. Thus, as a Software Technology Park, the assessee is entitled to place his claim under Section 10A. In any event, even assuming for a moment, the assessee had not referred to the Section correctly, the fact remains that if the claim could be favourably be considered under any of those special deduction provisions and on the conditions specified therein being satisfied, we do not think that there exists any justifiable ground for the Revenue to contend that the assessee shall not be entitled to have the benefit of Section 10A." 8.4 Referring to the decision of the Hyderabad Bench of the Tribunal in the case of Clou....
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....owing the decision of the Delhi High Court in their final decision in the case of CIT vs. Valiant Communications in ITA. No. 2002 of 2010 in Civil Misc. Appln. No. 12/2013 we hold that the claim of the assessee for deduction under section 10A requires to be examined in accordance with law and hence, we remit the issue to the file of Assessing Officer to decide denovo the claim of the assessee in the present case." He accordingly submitted that either the benefit of deduction u/s. 10B should be granted to the assessee or alternatively deduction u/s.10A should be granted since assessee fulfils all the conditions prescribed for claiming the same deduction. 9. The Ld. Departmental Representative on the other hand strongly supported the order of the CIT(A). He submitted that the Hon'ble Delhi High Court in the case of Regency Creations has passed a very detailed order on this issue. Therefore, the order of the AO which is based on the decision of the Hon'ble Delhi High Court has to be followed. So far as the decision of the Hon'ble AP High Court relied on by the Ld. Counsel for the assessee is concerned, he submitted that merely because the revenue had not filed any appeal in the ....
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.... the AO in disallowing the claim of deduction u/s.10A of the I.T. Act. 11.1 So far as the alternate claim of the assessee that in case deduction u/s.10B is not allowed then he should be allowed the deduction u/s.10A, the Ld.CIT(A) rejected the same also holding that the unit of the assessee will not meet the fundamental condition of having been located in free trade zone for claiming the deduction u/s.10A. Further, according to him, the availability of the deduction from one section to another cannot be switched so easily because otherwise the legislature would not have provided 2 different sections in the first place. He accordingly rejected the claim of the assessee. 11.2 We find a somewhat similar issue had come up before the Hon'ble Madras High Court in the case of CIT Vs. Heartland KG Information Ltd.(Supra). In that case, the assessee was an industrial undertaking engaged in Medical Transcription business. There was another undertaking K which got approval as 100% EOU from STPI and started its new business of medical transcription during F.Y. 1999-2000. It also had another undertaking engaged in the business of development of software exported outside India. In respect ....
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....e assessee is not eligible for deduction u/s.10B of the Act but eligible u/s.10A of the Act, we find no reason as to why such benefit should be denied to the assessee. After all these are incentive provisions and are to be liberally construed. If the assesses otherwise fulfils all the legal requirements for claiming the deduction u/s.10A of the Act but inadvertently claimed the same u/s.10B of the Act which was granted to it in the past, we find no reason as to why the alternate claim of the assessee should not be accepted. 11.4 However, since the lower authorities have not thoroughly examined the allowability of deduction u/s.10A of the Act and merely rejected the claim on the ground that the same was not claimed in the original return filed, therefore, we in the interest of justice deem it proper to restore the issue to the file of the AO with a direction to give an opportunity to the assessee to substantiate its eligibility for deduction u/s.10A of the I.T. Act. We hold and direct accordingly. Since we are restoring the issue to the file of the AO for deciding the alternate claim of the assessee for deduction/s.10A, therefore, we refrain ourselves from adjudicating the allowa....
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....39;TPO') in making an adjustment of Rs. 4,31,26,609/ to the income returned by the appellant by recomputing the arm's length price of the international transactions. 5. Incorrect calculation of Operating Profit/ Total cost COP/ TC') of the Appellant and comparables On the facts and in the circumstances of the case and in law, the learned CIT(A)/the learned AO erred in calculating OP/TC of the Appellant and the comparables. On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in upholding the action of the Ld AO/TPO in treating loss/gain on account of foreign exchange fluctuations as nonoperating for the purposes of computing the OP/TC margin of the Appellant and in not following the ratio laid down by various Appellate Tribunal/Supreme Court decisions. 6. Unjust rejection of TP study filters and unjust introduction of additional filters for selecting final set of comparables. On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in upholding the action of the learned AO/TPO in applying additional filters for selecting companies as comparables, without providing cogent reasons and b....
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....the case and in law, the Id CIT (A) has erred in upholding the action of the Ld AO/TPO in not sharing the search strategy; accept/reject matrix, source of additional comparables, selected in the final set of comparables, even after the Appellant has demanded for the same in the submissions and hearings. 14. On the facts and in the circumstances of the case and in law, the Ld CIT (A) has erred in confirming the action of the Ld AO/TPO in computing transfer pricing adjustment using the financial information of the comparables pertaining to financial year ended March 2009 only, available at the time of assessment, although such information was not available at the time when the Appellant complied with the Indian TP regulations as per the Act. 15. No motive, circumstances, intention of tax evasion by the Appellant On the facts and in the circumstances of the case and in law, the learned CIT (A) erred in not appreciating that the Appellant had no motive to shift profits since it entitled to benefit under section 10B of the Act. 13.1 Facts of the case, in brief, are that during the previous year under consideration the assessee has entered into international transaction with ....
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....as at arm's length price. 13.2 During TP proceedings the TPO considered the details of comparables selected by the assessee for benchmarking international transaction for A.Y. 2007-08 and 2008-09, vis-à-vis the comparables selected by the TPO for A.Y. 2007-08 and 2008-09. He noted that the search criteria and the acceptance rejection matrix applied by the assessee for excluding the companies for arriving at a final comparables set are as under : A. Companies not having financials for atleast 2out of 3years B. Sales turnover more than 75% of total income in the latest year c. Companies not having profit before tax of less than zero for at least 2 out of 3 years D. Companies with R&D not more than 3% of sales of the latest year E. Companies with NFA not more than 200% of sales F. Companies with less than one crore sales G. Companies with net worth not less than zero in the latest year H. Companies having Govt ownership I. Companies having Government ownership J. Companies having different functions K. Companies not having IT-S - companies results L. Companies not partially engaged in IT-S companies results 13.3 The TPO after considerin....
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....th persistent loss and companies with peculiar circumstances. 13.4 Thus, the TPO applied the following filters or criteria in searching for the comparables : (a) Companies whose data is not available for the FY 2008-09 were excluded and the data for the FY 2008-09 has been considered for the period from 01-04-2008 to 31-03- 2009. (b) Companies whose software development service income < Rs. 1 cr. were excluded and the companies having turnover between 1 to 200 crores were considered as comparables. (c) Companies whose software development service revenue is less than 75% of the total operating revenue or segmental revenue were excluded. (d) Companies who have more than 25% related party transactions were excluded. (e) Companies who have less than 75% of the operating revenue as export sales were excluded. (f) Companies who have persistent losses for the period under consideration were excluded. (g) Companies having different financial year ending (i.e. not March 31, 2009) or data of the company does not fall within 12 month period i.e. 01-04-2008 to 31-03-2009, were rejected. However, if the data of at least 9 months of FY 2008-09 is available for analysis, ....
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....S subsidiary once visa retrogression in US is lifted as the revenue earning potential is significant. Thus it is seen that the assessee is not in the software development business. Moreover the segmental revenue is 0.77% only as compared to the total revenue. The foreign exchange earnings is also less than 75%. In the segmental result, the net profit is -63.51%. Therefore, the company is not comparable to the assessee. 7 SAARC Net Ltd. (Computer Software Segment) In this case, the segmental revenue from software service is -0.34 lakhs in total turnover of 4.58 crores. Thus it comes to -7.14% of total turnover. There are no foreign exchange earnings. Similarly there is segmental expenditure for software segment. Hence the net result of software segment is shown as -0.34 lakhs, which means that there is no profit. Therefore the company is not comparable to the assessee 8 Vama Industries Ltd. (Software Development & Services Segment) In this case, the foreign exchange earnings is 36.08%. Since export turnover is less than75% of the operating revenue, the company is not considered as a comparable. The TPO accordingly held that the information as well as t....
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....ansaction [A] (ALP =OC*(1+D)) 20,38,05,037 5% range on lower side ( the assessee's transaction falls outside the range) 19,36,14,785 Adjustment over operating income [A-B] (Shortfall being adjustment u/s 92CA) 4,31,26,609 Thus, the TPO made an adjustment of Rs. 4,31,26,609/- to the International transaction and added the same to the total income of the assessee. 15. Before CIT(A) the assessee challenged the TP adjustment made by the AO. Relying on various decisions it was submitted that the TPO erred in treating foreign exchange gain as non-operating in nature. According to the assessee, it should be treated as an operating income. Similarly, it was argued that the TPO had erred in computing the operating margin of the following companies : Sr Company Name OP/TC as per TP order OP/TC reworked by Appellant Before adjustment After WC adjustment Before adjustment After WC adjustment 1 Acropetal Technologies Ltd 21.81% 26.60% 21.30 20.80% 2 Kals Information Technologies Systems Ltd 42.55% 42.89% 41.91% 37.31% 3 ThinkSoft Global Service Ltd 16.61% 22.62% ....
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....the Tribunal has held that Thirdware Solutions Ltd. is not a comparable company. 15.5 As regards Kals Information System Ltd. is concerned, it was argued that the TPO selected this Company on the basis of the information available on the website of the Company. He was of the view that the Company is functionally different and that the Company has earned income from sale of application software and segmental information with respect to software services were available. 15.6 The assessee argued that the Company is also into development of software products along with software services. It was submitted that the company is also engaged in rendering Information Technology enabled Services (ITES) and it also provides training services. The assessee reproduced relevant part of the information from the Annual Report of the company and snap shots of the company's website. It was stated that as mentioned on the website of the Company, the Company has developed two products namely, Virtue Insure and Law vision. Relying on the decision of the Pune Bench of the Tribunal in the case of Bindview India Pvt. Ltd., vide ITA No.1386/PN/2010 for A.Y. 2006-07 it was submitted that the Tribun....
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....ores. However, the TPO has modified the turnover filter having turnover range from Rs. 1 crore to Rs. 200 crores following the ratio laid down in the case of Genesys Integrating Systems India Pvt. Ltd., Vs. DCIT. It was argued that the turnover of the assessee during the year is Rs. 16.06 crores. Therefore, the turnover filter applied by the assessee was proper. Relying on various decisions and the guidance note on reporting on international transactions issued by the ICAI the assessee submitted that the turnover filter applied by the assessee should be accepted. 15.12 The assessee further submitted that the TPO has not granted the risk adjustment which is one of the important considerations for comparability of the risk undertaken by the tested party in a controlled transaction. Relying on various decisions and the provisions of Rule 10B(2) and Rule 10B(3) it was submitted that some risk adjustment has to be granted since the assessee is a risk mitigated entity. 15.13 The assessee further submitted that the TPO has erred in not sharing the search strategy, accept reject matrix, source of additional comparables and computation of OP/TC of comparables selected in final set of ....
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....t and not prospective. He however, rejected the other grounds raised by the assessee. 17. Aggrieved with such order of the CIT(A) the assessee as well as the Revenue are in appeal before us. 18. So far as the grounds raised by the revenue are concerned, we find the same relates to exclusion of Kals Information System Ltd. from the list of comparable companies by the Ld.CIT(A). 19. We have considered the rival arguments made by both the sides, perused the orders of the Assessing Officer and CIT(A) and the paper book filed on behalf of the assessee. We find the Pune Bench of the Tribunal in the case of Bindview India Pvt. Ltd., (Supra) for A.Y. 2006-07 has held that the said company is engaged in development of software products and services and is not comparable to software development services provided by the assessee. Similarly, the Pune Bench of the tribunal in the case of Bitwise Solutions Pvt. Ltd. (Supra) has also held that Kals Information System Ltd., cannot be considered as comparable. Similar view has been taken by the various other Benches of the Tribunal, the details of which are given above below : 1. Symphony Services Pune Pvt. Ltd. Vs. ITO - ITA No.257/PN/....
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....ide its order dated 26- 04-2013 ( to which the AM is party) has also held foreign exchange gain as a part of operating profit". He accordingly submitted that the same should be considered as a part of the operating profit. 21. The Ld. Departmental Representative on the other hand submitted that at the time of considering ALP one does not consider the foreign exchange fluctuation loss/gain. It is a gain or loss of business. All other deductions may be allowed but concept of this loss cannot be brought into ALP calculation because it is not a part of operating cost. He accordingly submitted that the order of the CIT(A) is justified. He also relied on the decision of the Mumbai Bench of the Tribunal in the case of DHL Express India Pvt. Ltd. Vs. ACIT reported in 4650-TIOL- 379 (Mum) (ITAT). Referring to the Safe Harbour Guidelines issued by the CBDT he submitted that foreign exchange fluctuation gain/loss is not a part of operating cost. He accordingly submitted that the order of the CIT(A) should be upheld. 22. We have considered the rival arguments made by both the sides. As reproduced above in para 20 in the arguments advanced by the Ld. Counsel for the assessee, we find t....
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....nt export companies, then even comparables with more than 50% export should be considered as predominant export comparables. Considering that the stringent applicability of export filter by the TPO, that also without any basis, resulted in inadequate number of companies he submitted that either the export filter should be considered as a qualitative parameter rather than quantitative criteria for rejection and applied on a case to case basis or the export filter should be relaxed to 50% from 75%. Referring to the decision of the Delhi Bench of the Tribunal in the case of Motorola Solutions India Pvt. Ltd. Vs. ACIT vide ITA No.5637/Del/2011 he drew the attention of the Bench to the following observation of the Tribunal : "56. We are in agreement with TPO in principle that this filter is appropriate to eliminate the companies which have controlled transactions and thereby have a significant influence on the margins earned. The TPO in his order has observed that in principle the tax payer has no objection for applying this filter. However, its two main contentions are-one-availability of RPT information and second the threshold limit of 15% in place of 25%. At the same time we also....
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....le then the threshold should be relaxed and only gradually to the extent that sufficient comparables are found the limit should be relaxed. Since the threshold filter of 75% adopted by the Assessing Officer and upheld by the CIT(A) in our opinion is on the higher side, therefore, considering the totality of the facts of the case, we hold that under the facts and circumstances of the case, the export filter should be relaxed to 50% from 75%. This ground by the assessee is accordingly partly allowed. 26. In grounds of appeal No.7 to 10 the assessee has challenged the order of the CIT(A) in upholding the AOs action in selecting certain new comparables and rejection of the comparables selected by the assessee in the TP study report. Further the above grounds also relate to inclusion of high/super profit making companies and exclusion of loss making companies. 27. We have considered the rival arguments made by both the sides. In the above grounds, the assessee has basically challenged the inclusion of Thirdware solutions Ltd. and exclusion of Vama Industries Ltd. as a comparable. The Ld. Counsel for the assessee submitted that Thirdware Solutions Ltd. should be rejected as compara....
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....P. Ltd., vs DCIT ITA.No.472/Hyd/2011(Hyderabad Tribunal)" 27.2 As regards exclusion of Vama Industries Ltd., is concerned he submitted that the export turnover of software services segment of Vama Software Industries Ltd. is 69% of the total segmental turnover and therefore this comparable should be considered in the set of comparables as it is predominant into export business. He submitted that the TPO rejected the comparable on the ground that the export turnover is 38% of the total turnover. He submitted that the TPO has taken the overall turnover . Referring to page 969 of the paper book containing the extracts of Annual Report providing details of export turnover of the software segment he referred to Schedule 13 and drew the attention of the Bench to the segmental results according to which export turnover is 69%. He accordingly submitted that Vama Industries Ltd. should not be excluded as a comparable. So far as the other 2 comparables taken by the Assessing Officer/TPO are concerned he did not challenge the same. 28. The Ld. Departmental Representative on the other hand supported the order of the CIT(A). He submitted that although functionally Thirdware Solutions Ltd.....
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....und on such investigation that the high margin profit making company does not satisfy the comparability analysis and or the high profit margin earned by it does not reflect the normal business condition, we are of the view that the high profit margin making entity should not be included in the list of comparable for the purpose of determining the arm's length price of an international transaction. Otherwise, the entity satisfying the comparability analysis with its high profit margin reflecting normal business condition should not be rejected solely on the basis of such abnormal high profit margin. Question No. 2 referred to this special bench is answered accordingly". 29.1 We find from the details furnished by the assessee that the assessee is a software developer whereas Thirdware Solutions Ltd. is engaged in the business of sale-cum-licence of software which is available from the audited accounts, the details of which are as under : Schedule : Sales As on 31-03-2009 As on 31-03-2008 Sale of Licence 22,237,588 3,916,427 Software Services 89,177,023 76,724,371 Export from SEZ unit 478,572,420 263,971,033 Export from STPI unit 162,900,63....
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....al data is available and the export turnover of the software development services is 69% of the total turnover of the software division, therefore, the same should not have been rejected. We therefore direct the Assessing Officer to consider the same as a comparable. Grounds of appeal No. 7 to 10 by the assessee are accordingly partly allowed. 30. Grounds of appeal No.12 relates to non granting of opportunity of verification. It is the submission of the Ld. Counsel for the assessee that TPO has not provided any opportunity for verification of the approach/data, comparability analysis followed/considered by the TPO for identifying the comparable companies for A.Y. 2009-10 and for justifying the reasons for not considering certain comparables. According to the Ld. Counsel for the assessee when the TPO introduced 3 comparables, he has not considered the comparables taken during the last year. According to him he could have done filtering and considered the same since these are functionally comparable for the impugned assessment year also. 31. The Ld. Departmental Representative on the other hand supported the order of the CIT(A). He submitted that there cannot be presumption of ina....