TaxTMI 
TaxTMI 
2018 (7) TMI 2077
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....ngalore, in S.P. No.130/Bang/2014 and IT[TP]A No.271/Bang/2014 dated 14.08.2014, relating to the Assessment Year 2009-10. 2. The substantial questions of law framed by the Revenue in the Memorandum of Appeals are as under: "1. Whether on the facts and in the circumstances of the case, the Tribunal was justified in allowing relief to the assessee based on decision of Tribunal in assessee's own case for the assessment year 2008-09 and other decisions of Co-ordinate Benches, which have not reached finality and ought to have decided the comparability of the companies on the basis of specific facts brought on record by the TPO in the case of the assessee? 2. Whether, on the facts and in the circumstances of the case, the Tri....
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....d sale transactions are with the same AE and that TNMM is the right method to be adopted?" 3. The learned Tribunal, after discussing the rival contentions of both the Appellants-Revenue and Respondent-Assessee, has returned findings as under: Regarding Substantial Question No.2: "9. At the time of hearing, it was brought to our notice that in asssessee's own case for the A.Y. 2008-09 in ITA No.1510/Bang/2012, by order dated 31.10.2013, has upheld the use of headcount method followed by the assessee as appropriate method for allocation of common expenses between its various business units. The following were the relevant observations of the Tribunal:- "xxxxx" 10. It is not in dispute before us that the ....
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....a sum of Rs. 37,89,23,185 which was sought to be added as part of the operating income on rendering software development services is only on account of transactions of rendering software development services by the assessee to its AE and the foreign exchange fluctuation at the time of realization of the payment for rendering software development services. It is therefore clear that the foreign exchange fluctuation in question has to be treated as part of the operating income of software development services segment of the assessee and the operating profit to operating cost has to be determined accordingly. The DRP has refused to follow the decision of ITAT Bangalore Bench in the case of SAP Labs India Pvt. Ltd., [supra]. In our view the dec....
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....isions, the Tribunal has taken the view that Bodhtree Consulting Ltd., is in the business of software products and was engaged in providing open & end to end web solutions software consultancy and design & development of software using latest technology. The decision rendered by the Mumbai Bench of the Tribunal in the case of Nethawk Networks Pvt. Ltd., [supra] is in relation to A.Y. 2008-09. It was affirmed by the learned counsel for the Assessee that the facts and circumstances in the present year also remains identical to the facts and circumstances as it prevailed in AY. 08-09 as far as this comparable company is concerned. Following the aforesaid decision of the Mumbai Bench of the Tribunal, we hold that Bodhtree Consulting Ltd., canno....
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....is company has been considered as not comparable to a pure software development services company by the Bangalore Bench of the Tribunal in the case of M/s. Trilogy E-Business Software India Pvt. Ltd., [supra]. The following were the relevant observations of the Tribunal:- "xxxxx" Following the aforesaid decision of the Tribunal, we hold that KALS Information Systems Ltd., should not be regarded as a comparable. 26.4 Tata Elxsi Ltd.:- As far as this company is concerned, it is not in dispute before us that in assessee's own case for the A.Y. 2007- 08, this company was not regarded as a comparable in its software development services segment in ITA No.1076/Bang/2011, order dated 29.03.2013. Following were the releva....
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....to whether the comparables have been rightly picked up or not, Filters for arriving at the correct list of comparables have been rightly applied or not, do not in our considered opinion, give rise to any substantial question of law. 56. We are therefore of the considered opinion that the present appeals filed by the Revenue do not give rise to any substantial question of law and the suggested substantial questions of law do not meet the requirements of Section 260-A of the Act and thus the appeals filed by the Revenue are found to be devoid of merit and the same are liable to be dismissed. 57. We make it clear that the same yardsticks and parameters will have to be applied, even if such appeals are filed by the Assessees, ....