2023 (9) TMI 1164

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.... re-filing the appeal] 1. This is an application moved on behalf of the appellant/revenue seeking condonation of delay in re-filing the appeal. 1.1 According to the appellant/revenue, there is a delay of 258 days. 2. Mr Himanshu S. Sinha, who appears on behalf of the respondent/assessee, says that he does not oppose the prayer made in the application. 3. Accordingly, the delay is condoned. 4. The application is disposed of, in the aforesaid terms. ITA 787/2019 5. This appeal concerns Assessment Year (AY) 2008-09. 6. Via this appeal, the appellant/revenue seeks to challenge the order dated 23.05.2018, passed by the Income Tax Appellate Tribunal [in short, "Tribunal"]. 7. We may note that the Tribunal via the impugned order has, in....

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..../assessee has not preferred an appeal on that score. 11. Insofar as the appellant/revenue is concerned, Mr Ruchir Bhatia, learned senior standing counsel, who appears on behalf of the appellant/revenue, submits that this appeal is confined to the direction issued by the Tribunal to exclude the following four comparables: (i) Avani (ii) Wipro (iii) E-Zest (iv) Persistent 12. Mr Bhatia says that the approach adopted by the Tribunal was unsustainable and, therefore, interference is called for by this court. 13. On the other hand, Mr Sinha relies upon the impugned order in support of his submission that the Tribunal has returned findings of fact and, therefore, no interference is called for by the court. 14. Having examined the ....

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....Transfer Pricing Officer (TPO), the respondent/assessee had accepted Persistent as a comparable. 19.1 Mr Bhatia also contended that, having taken this position, quite obviously, no objection was filed vis-à-vis this comparable before the Dispute Resolution Panel (DRP). 19.2. Concededly, the objection to the inclusion of Persistent was taken by the respondent/assessee for the first time before the Tribunal. Therefore, it was Mr Bhatia's submission that the Tribunal could have taken note of this aspect of the matter and, accordingly, dealt with the issue as to whether or not Persistent should be excluded as a comparable. 20. In our view, the argument, though, attractive at first blush, cannot carry the case of the appellant/revenue ....