TaxTMI 
TaxTMI 
TaxTMI 
2018 (8) TMI 863
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....nt Year 2005-06. 2. The appeal has been admitted on 13.12.2017 to consider the following substantial questions of law: "1. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in adopting 15% as RPT Filter by following its earlier decisions which have not reached finality even though the TPO rightly held that 25% RPT filter is to be considered as fair by drawing an analogy from the provisions of Section 92 A[2] and Section 40[A][2][b] of the Act? 2. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in excluding comparables namely Extensys Software Solutions Ltd., Sankhya Infotech Ltd., Foursoft Ltd., Thirdware Solutions Ltd., Geometric Software Solutions Company Ltd....
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.... if such companies appeared in the TP study of the assessee itself, CIT (A) having adjudicated and decided on such ground against the assessee, assessee cannot be precluded from seeking exclusion of such companies before the Tribunal. However, in so far as Bodhtree Consulting Ltd, is concerned, not only was the said company in the list of assessee, but we find that assessee had not contested its inclusion before the TPO or before the CIT (A). However, in view of the decision of the Special Bench in the case of Quark Systems Ltd, (supra), assessee again cannot be precluded from seeking exclusion of a comparable, though it was a part of its own comparables, since TP is an evolving area. Said decision of the Special Bench was confirmed by the ....
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....n skewed because of the amalgamation factor. In the case of Symbol Technologies India P. Ltd, (supra), this Tribunal had held as under at para 14 of its order, which is reproduced hereunder : "xxxxx" Accordingly we direct exclusion of Extensys Software Solutions Ltd. 28. Coming to the case of Sankhya Infotech Ltd, argument of the assessee is that it was engaged in the business of software products and services training and hence functionally different. Comparability of Sankhya Infotech Ltd, in the software development segment was an issue which came up before this Tribunal in the case of Net Devices India P. Ltd, (supra). Said decision was also for the very same assessment year. This Tribunal had held as under at para 18.1.1 of its order....
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.... Geometric Software Solutions Co. Ltd, had come up before this Tribunal in the case of Net Devices India P. Ltd, (supra). It was held as under in its order dt.25.05.2016 : "xxxxx" Tribunal had given a finding that 15% RPT filter was proper threshold in the case of Net Devices India P. Ltd, (supra). Further in the case before us comparables on the segment relating to international transactions undertaken by the assessee were easily available. Assessee itself had selected 93 cases in its TP study. Thus the tolerance of RPT can be restricted to the minimum level of 15%. Therefore exclusions directed by the Tribunal in the case of Net Devices India P. Ltd, (supra) based on RPT filter of 15% can be applied here also. Accordingly we direct excl....
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.... Ltd, (seg), we find that comparability of the said company was an issue which came up before the coordinate bench in the case of Net Devices India P. Ltd, (supra). It was held by the coordinate bench as under in its order dt.25.05.2016 : "xxxxx" Accordingly we direct exclusion of Flextronics Ltd, (seg) from the list of comparables. 35. Vis-a-vis, Satyam Computer Services Ltd, comparability of this company was an issue which came up before this Tribunal in the case of Net Devices India p. Ltd, (supra). This Tribunal has held as under in its order dt.25.05.2016 : "xxxxx" Following the above, we direct exclusion of Satyam Computer Services Ltd, from the list of comparables. 36. Coming to the issue of comparability of Infosys Technologie....
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.... and transactions depends upon the fair and quick judicial dispensation in such cases. Had it been a case of substantial 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 o....