TaxTMI 
TaxTMI 
2018 (1) TMI 89
X X X X Extracts X X X X
X X X X Extracts X X X X
....lowing grounds of appeal: Date of Hearing: 18.12.2017 "In the facts and the circumstances of the case, and in law, the learned Commissioner of Income Tax (Appeals)-III, Hyderabad, erred: 1. In respect of disallowance of Rs. 5,99,163 on account of employees' contributions to Provident Fund paid after the due date: a) The CIT(A) ought to have allowed the said amount as deduction since the same was paid before the end of the year. b) Without prejudice to above: (i) In holding that the said amount is not a business receipt but income from other sources. (ii) In confirming that the said amount is not eligible for deduction u/s.l0A (iii) In not appreciating that the once the amount is disallowed u/s.36(I)(va) and forms par....
X X X X Extracts X X X X
X X X X Extracts X X X X
....udice to above and without accepting the disallowance, in confirming that the Transfer Pricing Officer was justified in not granting the benefit of 5% as per the proviso to sub-section (2) of Section 92. i) In not appreciating that the appellant has not realized any consideration beyond the amount stated in the books and account and there is no avoidance of tax established on facts. 3. The appellant craves leave to add, modify or withdraw any of the grounds of appeal at the time of hearing". 2. As regards Ground of appeal No.1, we find that this issue is now covered in favour of the assessee by the decision of the Coordinate Bench of this Bench (to which both of us signatories) in the case of M/s. Nagarjuna Engineering Constructions....
X X X X Extracts X X X X
X X X X Extracts X X X X
....wed. 3. As regards Ground of appeal No.2 against the adjustment made towards the ALP of the international transactions entered into by the assessee with its AEs, the assessee is seeking exclusion of three companies from the final list of comparables. They are (i) Exensys Software Solutions Ltd; (ii) Thirdware Solutions Ltd; and (iii) Infosys Technologies Ltd. 4. Brief facts of the case are that the assessee is engaged in the business of software development. During the relevant A.Y, the assessee had entered into international transactions of providing software services to its AEs. For determination of the ALP of the transaction, the AO referred the matter to the TPO. The TPO rejected the assessee's T.P study and made his own search for th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....said decision has been followed by the Coordinate Benches of this Tribunal including this very Bench and has directed the exclusion of the said company from the final list of comparables. Respectfully following the decision of the Coordinate Benches, we direct the AO to exclude Infosys Technologies Ltd from the final list of comparables. 7. As regards Exensys Software Solutions Ltd is concerned, the Coordinate Bench of this Tribunal in the case of United Online Software Development (India) Pvt. Ltd vs. ITO in ITA No.1480/Hyd/2010 dated 24.01.2014 has taken note of the fact that there was a merger of the Exensys Software Solutions Ltd and Holool India Ltd w.e.f. 1.4.2004 and that it had a material impact on the financial results of the comp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e details filed before us with regard to the Thirdware Solutions Ltd in the paper book at Page 183 to 185 and we find that the facts are the same. Therefore, respectfully following the decision of the Coordinate Bench on similar set of facts, we direct this company to be excluded. 9. The assessee has also submitted that there was underutilization of the assets of the company during the relevant A.Y and that the TPO ought to have made adjustments towards such underutilization of the assets. He prayed that the TPO be directed to give adjustment for underutilization of its capacity. We find that the assessee had not sought adjustment towards underutilization of the assets during the TP proceedings but before the CIT (A) the assessee has raise....