TaxTMI 
TaxTMI 
2021 (9) TMI 1418
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....er: 1. On the facts and circumstances of the case and in law; the learned Assessing Officer ('AO')/Transfer Pricing Officer ('TPO') and the Hon'ble Dispute Resolution Panel ('DRP') erred making I confirming total addition of Rs. 2,21,22,670 under Section 92CA(3) of the Act in respect of software services provided by the Appellant to its Associated Enterprise ('AE'). 2. On the facts and circumstances of the case and in law, the reference made by the learned AO to the learned TPO for determining the arm's length price of the international transaction is bad in law and accordingly, consequential transfer pricing order, DRP directions and final assessment order-are liable to be quashed. 3. On the facts and circumstances of the case and in law, the learned AO I TPO and Hon'ble DRP erred in disregarding benchmarking analysis and comparable companies selected by the Appellant based on the contemporaneous data requirement in the transfer pricing study report maintained as per Section 92D of the Act read with Rule 10D of the Income-tax Rules, 1962 ('the Rules'). &....
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....under: "2.1. Profile: OLF (India) software Pvt. Ltd. formally known as Cube Logic (India) Pvt. Ltd. was incorporated on 16th December 2009 under company's Act, 1956. OLE (India) Software Pvt. Ltd. is the immediate subsidiary of Cube Logic Ltd. UK and by virtue of, and it is providing back end software development services using the technology platform as per the requirement of the letter. 2.2 Functions: OLF Software Pvt. Ltd. performs services under the business model of a back end software Development service provider while fulfilling the duties under the scope of work entered with its AEs. The terms and conditions relating to the transactions have been clearly charted into the terms with the Associated Enterprise." 2.2. The Ld. TPO observed that assessee had entered into following international transaction with the associated enterprise: International Transaction Particulars Receivable/Received Payable / Paid As per TP Document (INR) Method Software development 18,77,87,010 18,77,87,010 TNMM Trade Advances 4,06,76,816 TNMM Total 4,06,76,816 18,77,87,010 22,84,63.826 2.3. The Ld. TPO obs....
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....arables adopted by the Ld. TPO. 2.9. On receipt of the DRP directions, the Ld. AO passed final assessment order by making addition amounting to Rs. 2,21,22,670/-. 2.10. Aggrieved by the order of Ld. AO, assessee is in appeal before us now. 2.11. At the outset the Ld. AR submitted that amongst the grounds raised by assessee it is seeking exclusion of following comparables: Persistent Systems Ltd. Aspire systems (India) Ltd. Larsen and Toubro Infotech Ltd. Nihileant Technologies Ltd. Infosys Ltd. Thirdware Solutions Ltd. Cybage Software Pvt. Ltd. 2.12. Accordingly all other grounds raised by assessee stands dismissed as not pressed. 2.13. Before we undertake the comparability analysis it is necessary to understand the functions performed, assets owned and risks assumed by assessee in the software development service segment. Functional analysis carried out by the Ld. TPO has been reproduced in the earlier part of this order. Insofar as the assets owned and risk assumed, we note from the TP study at age 29 of the paper book that it owns tangi....
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....arlier paragraph and remanded 1 company for fresh consideration with the following observations:- "5. The Ld. A.R. submitted that M/s. Infosys Ltd., M/s. Persistent Systems Ltd. and M/s. Thirdware Solutions Ltd. have been excluded by the co-ordinate bench in the assessee's own case in AY 2008-09 in IT(TP)A No. 1673/Bang/2012. 6. We notice that the co-ordinate bench has excluded M/s. Infosys Ltd. in AY 2008-09 by following the decision rendered by another co-ordinate bench in the case of 3DPLM Software Solutions Ltd. (IT(TP)A No. 1303/Bang/2012 dated 28-11-2013, wherein the decision rendered in the case of Triology E Business Software India P Ltd. (ITA No. 1054/Bang/2011) was followed and it was held that M/s. Infosys Technologies Ltd. is not functionally comparable since it owns significant intangible and has huge revenues from software products. It was further observed that the break-up of revenue from software services and software product is not available. 6.1 It was stated that there is no change in facts. Accordingly, following the decision re....