TaxTMI 
TaxTMI 
2018 (7) TMI 2129
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....01.2016, relating to the Assessment Year 2010-11. 2.The appeal has been admitted on 05.12.2017 to consider the following substantial questions of law formulated in the memorandum of appeal: "1. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in applying turnover filter and excluding 6 comparable chosen by the Transfer Pricing Officer by following its earlier order in case of Genesis Integrating Systems [India] Pvt. Ltd., and another decisions even when the said decision has not reached finality? 2. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that Foreign Exchange Fluctuation gains are required to be added to operating revenue ....
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....antial Question of Law No.1: "31. We have considered the rival submissions. The substantial question of law (Question No.1 to 3) which was framed by the Hon'ble Delhi High Court in the case of Chryscapital Investment Advisors (India) Pvt.Ltd., (supra) was as to whether comparable can be rejected on the ground that they have exceptionally high profit margins or fluctuation profit margins, as compared to the Assessee in transfer pricing analysis. Therefore as rightly submitted by the learned counsel for the Assessee the observations of the Hon'ble High Court, in so far as it refers to turnover, were in the nature of obiter dictum. Judicial discipline requires that the Tribunal should follow the decision of a non-jurisdiction High Cou....
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....rit in ground No. 2 raised by the Revenue and the same is dismissed as such." Regarding Substantial Question of Law No.3: "34. As far as ground No.3 (i) is concerned, it does not arise out of the order of the DRP as nosuch direction was given by the DRP. As far as Ground No.3(ii) is concerned, the DRP has given definite directions in its order at para 10.5 of its directions by quoting decided cases to be considered by the TPO/AO. These directions in our view are sufficient guidelines for the TPO to allow risk adjustment. The TPO/AO is also entitled to look into other circumstances that may be brought before it by the Assessee in the proceedings pursuant to the order of the DRP and this order." Regarding Substantia....
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....5% of the total revenues can be excluded." Regarding Substantial Question of Law No.5: "37. As far as exclusion of M/S.Kals Information Systems Ltd., is concerned, we find that for AY 2010-11, in the case of a software development service provider, the ITAT Hyderabad Bench in the case of Pegasystems Worldwide India Pvt.Ltd. Vs. ACIT TS 488-ITAT-2015 (hyd) has taken the following view on adopting this company as a comparable company in software development segment: "xxxxx." 4.The controversy involved herein is no more res integra in view of the decision of this Court in I.T.A. Nos.536/2015 c/w 537/2015 dated 25.06.2018[Prl. Commissioner of Income Tax & Anr. V/s. M/s.Softbrands India Pvt. Ltd.,] wherein it has be....