TaxTMI 
TaxTMI 
2015 (11) TMI 1365
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....e submitted that Ground nos.1 and 2 are general in nature. Considering the general nature of the said ground nos.1 and 2, they are dismissed. Further, Ld Counsel submitted that Ground nos.3 & 9 are not pressed and Ground no.10 is premature. Therefore, the said ground nos.3 and 9 are dismissed as not pressed and ground no.10 is also dismissed as premature in nature. Thus, the rest of the grounds left for our adjudication are Ground no.4, 5, 6, 7, and 8, which read as under: "4. The Ld DRP / AO / TPO erred in not considering depreciation on commercial rights as an extraordinary / non-operating expense and thus, erred in not excluding the same while computing the operating profit margin of the appellant. 5. the Ld DRP /AO / T....
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....s. Siemens Enterprise Communications Private Limited, which was also known as Unify Enterprise Communications Private Limited. Assessee had international transactions involving purchase and sale of EPBAX Accessories and office equipment. Assessee benchmarked these transactions using TNMM method at the entity level adopting the PLI of OP/OR @ 8.07%. Assessee conducted the TP study considering the 6 comparables, whose average arithmetic mean of PLI of 8.55%, is within the range of (+) or (-) 5%. Accordingly, assessee filed the return of income. During the proceedings before the TPO, assessee attempted to justify the 8.07% as ALP. The TPO rejected a couple of comparables ie Shyam Telecom Ltd and Spanco Telesystems of the assessee. Further, TPO....
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....adjudication before the DRP and the DRP decided the issue in favour of the assessee. As stated, there is no further appeal on this issue. In this regard, Ld Counsel for the assessee brought our attention to para 10 of the said DRP"s order for the AY 2009-2010, dated 27.12.2013. The said order of the DRP was not available before the DRP"s order dated 14.9.2012 for the AY 2008-2009. If the same is followed, in view of the principles of consistency, the Arraycom Ltd without adjustments by the TPO should be considered as a good comparable in favour of the assessee. 6. After hearing the Ld DR, we have perused the said para 10 of the DRP"s order for the AY 2009-2010 (supra) and find merit in the argument of the Ld Counsels for the assessee. Fo....
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.... Limited for adjudication as to decide if this comparable constitutes good comparable. In this regard, Ld Counsel for the assessee brought our attention to the financial statements relating to the Shyam Telecom Limited. Bringing our attention to page 281, 283 and 285 of the paper book, Ld Counsels for the assessee demonstrated that the OP/OR for the AYs 2006-07, 2007-08 and 2008-09 of the said company are (-) 2.89%; (+) 6.73% and (-) 1.53% respectively. With these parameters, the said company cannot be considered as the case of persistent losses. For excluding from the list of good comparables, merely the contemporaneous figures alone should not be considered in matters of benchmarking the loss cases. In this regard, Ld Counsel for the asse....
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....aking company, minimum 3 years including the current year should register loss in succession. For this, Ld Counsel relied on various decisions of the Tribunal........" 9. We have also perused the calculations furnished in Annexures 1A and 2A for the proposition that assessee is within the allowed margin of (+)/(-) 5% if the above issues are decided in assessee"s favour. We have held that Arraycom Limited should be allowed as comparable without adjustments and the case of Shyam Telecom Limited should be considered in favour of the assessee, therefore, in principle, both the arguments of the assessee are approved for the reasons given in the above paragraphs of this order. However, the figures given by the assessee in the said Annexures 1A....
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....achinery, plant or furniture; (b) intangible assets, being know-how patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature." Explanation 3 states that the expression "asset" shall mean an intangible asset, being know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature. A reading the words "any other business or commercial rights of similar nature" in clause (b) of Explanation 3 indicates that goodwill would fall under the expression "any other business or commercial right of a similar nature". The principle of ejusdem generis would strictly apply while interpreting the said expression which finds ....