TaxTMI 
TaxTMI 
2023 (3) TMI 1093
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the turnover filter and the Hon'ble DRP also erred in upholding the same. 7. Companies not part of TP Order and Draft Assessment Order, erroneously included in Final Assessment Order 7.1 The Ld. AO / TPO erred in facts by including the functionally dissimilar companies in the final assessment order when these companies were rejected by the TPO and were not a part of the TP Order and draft assessment order. objection was raised before Hon'ble DRP for these companies: Sr.No. Name of Company 1 Back Office IT Services India Private Limited 2 XS Cad India Private Limited 3 Smartstream Trechnologies India Private 4 Anjana Software Solutions Private Limited 5 Consilient technologies Private Limited 6 Temenos India Private Limited As the above companies were not a part of the draft assessment order, this is an unambiguous case of violation of principle of natural justice and hence the action of the Ld. AO / TPO of including these companies in the final assessment order is liable to be obliterated. 7.2 With prejudice to the above ground i.e. 7.1, the Company submits that the above companies also fails the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Loss on sale of property, plant and equipment 42,740 Interest on PF 14,97,475 Interest on professional tax 1,697 Interest on taxes 1,32,794 Penalty 3,50,000 18,71,51,070 Operating Cost (B) 74,46,09,787 Operating Profit (A-B)=C 13,54,41,931 Operating margin as a percentage of Operating Cost (C/B) % 18.19% 5. The AO rejected the comparables selected by the assessee and arrived at the following final list of comparables :- SWD Segment SI. No. Company Name F.Year wise OPIOC (%) Wt. Average 2015-16 2016-17 2017-18 1 Infomile Technologies Ltd. 9.86 11.06 8.64 9.69 2 Harbinger Systems Pvt. Ltd. 12.69 12.80 9.46 11.65 3 Exilant Technologies Pvt. Ltd. 25.82 17.27 8.50 17.17 4 Tech Mahindra Ltd. 17.5 18.06 20.03 18.57 5 Larsen & Toubro Infotech Ltd. 20.78 19.21 17.14 18.94 6 Great Software Laboratory Pvt. Ltd. 17.88 23.87 17.31 19.73 7 Elveego Circuits Pvt. Ltd. 8.3 40.17 6.75 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... of 34 4 Mindtree Ltd. 5,325.00 Page 3263 of part 2of paper book, volume 10 of 34 5 Nihilent Ltd. 280.06 Page 6253 of Part 2 of paper book, volume 20 of 34 6 Persistent Systems Ltd. 1,732.75 Page 4613 of part 2 of paper book, volume 14 of 34 7 Wipro Limited 44,710.00 Page 5401 of part 2 of paper book, volume 17 of 34 8 Tata Elxsi Ltd. 1,386.30 Page 5864 of part 2 of paper book, volume 18 of 34 9 Infosys Ltd. 61,941.00 Page 7389 of part 2 of paper book, volume 24 of 34 10 Cybage Software Private Limited 737.16 Page 7965 of Part 2 of paper book, volume 26 of 34 9. We heard the rival submissions and perused the material on record. The coordinate bench of the Tribunal in the case of Autodesk India Pvt.Ltd. Vs. DCIT (2018) 96 Taxmann.com 263 (Bangalore- Tribunal), took note of all the conflicting decision on the issue and rendered its decision and in paragraph 17.7. of the decision held as that high turnover is a ground for excluding companies as not comparable with a company that has low turnover. The following were the relevant observations: 17.7. We have considered the rival submissi....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... by the ITAT Mumbai Benches cited by the learned DR before us in the case of Willis Processing Services (supra) and Capegemini India Pvt.Ltd. (supra) are to be regarded as per incurium as these decisions ignore a binding co-ordinate bench decision. In this regard the decisions referred to by the learned counsel for the Assessee supports the plea of the learned counsel for the Assessee. The decisions rendered in the case of M/S.NTT Data (supra), Societe Generale Global Solutions (supra) and LSI Technologies (supra) were rendered later in point of time. Those decisions follow the ratio laid down in Willis Processing Services (supra) and have to be regarded as per incurium. These three decisions also place reliance on the decision of the Hon'ble Delhi High Court in the case of Chriscapital Investment (supra). We have already held that the decision rendered in the case of Chriscapital Investment (supra) is obiter dicta and that the ratio decidendi laid down by the Hon'ble Bombay High Court in the case of Pentair (supra) which is favourable to the Assessee has to be followed. Therefore, the decisions cited by the learned DR before us cannot be the basis to hold that high turnover is not....