TaxTMI 
TaxTMI 
2018 (6) TMI 1648
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....without appreciating the fact that there is no provision in section 10A that such expenses should be reduced from the total turnover also, as clause (iv) of Explanation 2 to section 10A provides that such expenses are to be reduced only from the export turnover ? 2. Whether in the facts and circumstances of the case, the Tribunal is right in law in excluding the comparables, namely, M/s. Infosys Technologies Ltd., Kals Information Systems Ltd., Tata Elxsi Ltd., Persistent Systems Ltd. on the ground of functional dissimilarity by following its earlier order which has not reached finality and even when the Transfer Pricing Officer had chosen the comparables as it satisfies qualitative and quantitative filters applied by the Transfer Pricing Officer and the Tribunal ought to have decided the comparability of these companies on the basis of specific facts brought out on record by the Transfer Pricing Officer in the case of the assessee ? 3. Whether in the facts and circumstances of the case, the Tribunal is right in law in excluding the comparable, namely, M/s. Megasoft by following its earlier decision in the case of the assessee itself whereby the Tribunal had followed its decisi....
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....ies from the DTA to EOU/EHTP/STP/ BTP units will be regarded as 'deemed export', besides being eligible for relevant entitlements under paragraph 6.12 of the Policy. They will also be eligible for the additional entitlements mentioned therein. What is of importance is when a supply is made from DTA to STP, it does not satisfy the requirements of export as defined under the Customs Act. However, for the purpose of Exim Policy, it is treated as 'deemed export'. Therefore, when section 10A of the Act was introduced to give effect to the Exim Policy, the supplies made from one STP to another STP has to be treated as 'deemed export' because clause 6.19 specifically provides for export through Status Holder. It provides that an EOU/EHTP/STP/BTP unit may export goods manufactured/software developed by it through other exporter or Status holder recognized under this policy or any other EOU/EHTP/STP/BTP unit. What follows from this provision is that to be eligible for exemption from payment of Income-tax, export should earn foreign exchange. It does not mean that the undertaking should personally export goods manufactured/software developed by it outside the country.....
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....ed representative placed reliance on the decision of a Co-ordinate Bench of this Tribunal in the case of 3DPLM Software Solutions Ltd. v. Deputy CIT [2014] 3 ITR (Trib)OL 305 (Bang). 9.3 Per contra, the learned Departmental representative supported the order of the Transfer Pricing Officer/Dispute Resolution Panel in including this company in the list of comparables to the assessee. 9.4.1 We have heard both parties and perused and carefully considered the material on record ; including the judicial pronouncement relied on by the assessee. We find that a Co-ordinate Bench of this Tribunal in the case of 3DPLM Software Solutions Pvt. Ltd. (supra) for the assessment year 2008-09 has held that this company is to be omitted from the list of comparables as it has huge revenues from software product development, owned intellectual property rights and was not purely a provider of software services by observing at para 11.4 thereof as under : . . . 9.4.2. Following the above decision of the Co-ordinate Bench of this Tribunal in the case of 3DPLM Software Solutions Pvt. Ltd. (supra) for the assessment year 2008-09, we direct the Assessing Officer to omit this company from the list of c....
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....ally different from the assessee who is only a provider of software development services. The Transfer Pricing Officer rejected the assessee's objections on the ground that this company is mainly, a software development service company, and as per the details filed/obtained under section 133(6) of the Act 96per cent. of its revenues are from software development services. 12.2 Before us, the assessee objected to the inclusion of this company in the list of comparables on the ground that it is functionally different, being engaged in software designing and analytic services and is therefore not comparable to a provider of software development service provider, as is the assessee in the case on hand. The learned authorised representative submitted that a Co-ordinate Bench of this Tribunal in the case of 3DPLM Software Solutions Pvt. Ltd. (supra) the assessment year 2008-09 has held that this company, being engaged in product development and product design services, is to be omitted from the list of comparables to providers of software development services. 12.3 Per contra, the learned Departmental representative supported the orders of the authorities below in including this ....
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....partmental representative supported the orders of the authorities below in including this company in the list of comparable companies. 15.4.1. We have heard the rival contentions and perused and carefully considered the material on record ; including the judicial decision relied on by the assessee. We find that a Co-ordinate Bench of this Tribunal in the case of 3DPLM Software Solutions Pvt. Ltd. (supra) for the assessment year 2008-09 has held that this company is to be omitted from the list of comparables to a provider of software development holding as under at paras 13.4.1 and 13.4.2 of its order extracted hereunder : . . . 15.4.2. Following the above decision of the Co-ordinate Bench of this Tribunal in the case of 3DPLM Software Solutions Pvt. Ltd. (supra) for the assessment year 2008-09, we direct the Assessing Officer/Transfer Pricing Officer to omit this company from the list of comparables in the case on hand." 6. However, this court in a recent judgment in I. T. A. No. 536/2015 connected with I. T. A. No. 537/2015 (Pr. CIT v. Softbrands India P. Ltd. [2018] 406 ITR 513 (Karn)) rendered on June 25, 2018, has held that in these type of cases, unless an ex facie perver....