TaxTMI 
TaxTMI 
2019 (3) TMI 2012
X X X X Extracts X X X X
X X X X Extracts X X X X
....to exclude the comparable of M/s. Bodhtree Consulting Ltd. for 2010-11 while determining the Arm Length Price?" (2) Whether on the facts and circumstances of the case and in law the ITAT was correct in law in holding that foreign exchange gain attributable to the delivery of good outside India as included in the total turnover by AO is also entitled to be included in the export turnover for proper computation of deduction under section 10A of the Act?" (3) Whether on the facts and circumstances of the case and in law the ITAT was correct in law in holding that expenditure incurred in foreign exchange is excludable from the total turnover and also from the export turnover for computation of deduction under section 10A of the Act.? (4) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ed that undisputedly the assessee was a product manufacturing company, whereas the Bodhtree Consulting were software product manufacturer. It was on this basis that the tribunal found that the two instances cannot be compared. The relevant observations of the tribunal in this regard may be noted. "24(a) In the department's written submissions at page 4, para 3.2.3 as also by way of his oral arguments, the DR has sought to place reliance on the assessee's Transfer Pricing Report (TPR) as per which, acording to the ld. D.R., the assessee is into "application development", which includes, inter alia, "product release". Therefore, according to the Ld. DR, the assessee is a product manufacturing company. This however, has been emphatically den....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he TPO in para 5.1 of his order. This finding of the TPO was confirmed by the ld. DRP. The Department cannot now be allowed to set up a new case, as is sought to be done. Even otherwise, the case sought to be now set up at this stage i.e. that the assessee manufacturing company is a product company, is factually incorrect. 26. On the basis of the above, it is correct that Bodhtrede Consulting Ltd. Being a software product manufacturer, is not comparable to the assesseel company. Moreover, it has been excluded in "Nethawk Networks Pvt. Ltd.", (supra) "Wills Processing Services (I) Pvt. Ltd. (supra) and "CISCO" Systems Pvt. Ltd. (supra). Accordingly, here also, it is ordered to be excluded from the final set of comparables. 5] These findin....