TaxTMI 
TaxTMI 
2022 (7) TMI 1294
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.....Y.2009-10. ITA No.1710/Mum/2015 & CO No.A.Y.2010-11 This appeal in ITA No.1710/Mum/2015 & CO No.70/Mum/2015 for A.Y.2010-11 preferred by the order against the final assessment order passed by the Assessing Officer u/s.143(3) r.w.s. 144C(13) of the Income Tax Act, hereinafter referred to as Act, pursuant to the directions of the ld. Dispute Resolution Panel-II, Mumbai (DRP in short) u/s.144C(5) of the Act dated 13/11/2014 respectively for the A.Y.2009-10. Let us take up the appeal of the assessee in ITA No.1146/Mum/2014 for A.Y.2009-10. 2. At the outset both the parties stated that though appeal for A.Y.2008-09 is pending disposal before this Tribunal, this Tribunal need not await disposal of appeal of A.Y.2008-09 as the outcome of the said appeal would not have any bearing on appeal for A.Y.2009-10. 2.1. Though the assessee has raised several grounds challenging the transfer pricing adjustment made in respect of ITES segment, we find that the ld. AR stated before us that if one comparable i.e. CG-VAK Software and Exports Ltd., is included in the final list of comparables then assessee would be falling within the +/-5% tolerance band and no TP adjustment would be war....
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....- Particulars Amount Operating Costs (OC) 3,603,596,282 ALP Sales OCx 1.29415 466,35,94,128 Transaction Value 4,252,243,612 105% of Transaction value 446,48,55,793 95% of transaction value 403,96,31,431 Adjustment 41,13,50,516 3.3. We find that assessee had sought to include CG-VAK Software and Exports Ltd., as a good comparable in its TP study report while benchmarking the international transaction of provision of ITES to its AEs. But this was rejected by the ld. TPO on the ground that the said comparable company is persistent loss making company and hence, not a good comparable. Other than this, the ld. TPO had not disputed the functional similarity of CG-VAK Software and Exports Ltd., with that of the assessee company in the transfer pricing order. The action of the ld. TPO was upheld by the ld. DRP. 3.4. We find from the materials available on record, the ld. TPO himself had included CG-VAK Software and Exports Ltd., as a good comparable in A.Y.2007-08 as it was making profit during that year. This is evident from the order passed by the ld. TPO u/s.92CA(3) of the Act dated 20/09/2010 for A.Y.2007-08. We find that in the case of s....
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....hat the aforesaid Tribunal order passed in the case of sister concern was subjected to further appeal before the Hon'ble Jurisdictional High Court by the Revenue in Income Tax Appeal No.738 of 2017 dated 20/08/2019 wherein one of the questions raised by the Revenue before the High Court is as under:- "Question No.(b) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in holding that the CG-VAK Software and Exports Ltd., is a comparable for the purpose of determining the arm's length pricing in the case of assessee." 3.5. The Hon'ble Jurisdictional High Court in para 4 in response to Question No.(b) raised before it had held that CG-VAK Software and Exports Ltd., is a profit making company during the year under consideration and in view of the concurrent finding of the fact recorded by the ld. DRP and the Tribunal which had not shown to be perverse by the Revenue, accordingly, held that the question framed does not give raise to any substantial question of law. Hence, the decision of this Tribunal in the case of sister concern on the inclusion of very same comparable company with that of ITES rendered to its AEs whic....
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....he assessee reconciled the receipts (except for certain receipts pertaining to professional fees and rent received) which were accounted in the AIR data as per the ITD system with the TDS certificates and the amount accounted in the books of accounts. However, the assessee could not reconcile the receipts amounting to Rs.10,33,974/- which was sought to be added by the ld. AO to the total income of the assessee and upheld by the ld. DRP. It is not in dispute that assessee is eligible for deduction u/s.10A of the Act. It is not in dispute that the said un-reconciled receipts from sister concern also pertains to 10A unit of the assessee. The deduction u/s.10A of the Act as directed by the ld. DRP was not granted to the assessee on the ground that the said un-reconciled receipt of Rs.10,33,974/- was not included in Form No.56F issued by the Chartered Accountant for claiming deduction u/s.10A of the Act. We hold that once the receipt of Rs.10,33,974/-, whether reconciled with AIR data or not reconciled with AIR data, pertains to 10A Unit, then the whole of the profits of the said undertaking / eligible unit would be eligible for deduction u/s.10A of the Act. This is the mandate provided....