TaxTMI 
TaxTMI 
2023 (8) TMI 1738
X X X X Extracts X X X X
X X X X Extracts X X X X
.... without prejudice to any others; 1. That the AO erred in passing the impugned Order making an addition by way of transfer pricing adjustment of Rs.80,51,30,298 and consequently, raising a demand of Rs. 50,16,49,540. 2. That the TPO/DRP erred in rejecting the benchmarking analysis carried on by the Appellant and instead independently determined the arm's length price in respect of provision of BPO services without fulfilling the jurisdictional pre-conditions in section 92C(3) of the Act. 3. That the TPO erred in adding and/ or modifying the filters and the DRP erred in upholding the same thereby rejecting the comparable companies identified by the Appellant in its transfer pricing study. 4. That the TPO/DRP erred in identifying the comparable companies without applying a proper search criteria and determined the final set of such comparables on a completely adhoc basis. 5. That the TPO/DRP ought to have excluded Parexel International (India) Pvt. Ltd., 24/7 Customer Pvt. Ltd., Exlservice.com (India) Pvt. Ltd. and MPS Limited from the list of comparables as they were functionally different, placed in a different market position and on....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Counsel for the assessee Mr Nitesh Joshi ['AR' hereinafter] submitted that, inspite there being 14 grounds raised through appeal memo, if ground No.5 is adjudicated in favour of assessee, then of the remaining ground No.1 to 11 would render academic, whereas ground No.12 is not pressed for adjudication, while ground No.13 is premature at this stage, and general ground No 14 is cold-out for adjudication. Keeping in mind aforesaid submission and statement made at BAR by the Ld. AR, we now take up ground No. 5 first for adjudication, which seeks solitary exclusion of MPS Ltd. from the gamut of comparables adopted by the Ld. Transfer Pricing Officer ['TPO' hereinafter] in arriving at the arm's length price ['ALP' hereinafter]. 4. We note that a similar issue came before the Co- ordinate bench in appellant's own case wherein the Tribunal in ITA No. 199/PUN/2021 dt. 05/04/2023 vide para 2-8 adjudicated the present issue in favour of the assessee by directing the Ld. AO/TPO to exclude MPS Ltd. from range of comparable selected in arriving at ALP for the appellant assessee in AY 2016-17; "2. At the very outset, the ld. Counsel for the assessee su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ications provided by the AEs. It is also mentioned that the assessee raises invoices on its AEs for providing BPO services. The functional analyses of the assessee has been put to rest with the decision of Hon'ble Bombay High Court in the case of Pr. CIT Vs. BNY Mellon International operations (India) Pvt. Ltd. in ITA No. 1226/2015, order dated 23-04-2018 wherein at para 8 of the order it has been categorically held by the Hon'ble High Court that the assessee before us provides BPO services which are not KPO services. Therefore, the finding of the A.O/T.P.O that the assessee is providing BPO as well as KPO services is not correct as held by the Hon'ble High court that the services provided by the assessee is only BPO service. 7. Having settled the functional analyses of the assessee as BPO service provider let us examine the exclusion of comparables as contended by the assessee. 8. M.P.S Ltd. 8.1 We have perused the annual report of this company provided at page 523 onwards of paper book (vol. 1) wherein it is evident that MPS is e-publishing company and is one of the most trusted vendor partners to the global publishing industries. This compa....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... companies." 8.3 The ld. D.R could not refute the facts emerging from the annual report of MPS Ltd. that it is providing publishing solutions to its clients and there have been several acquisitions also. This extraordinary event itself by way of several acquisitions renders, this company as non- comparable with that of the assessee. In view of the factual and legal analysis we direct the A.O/T.P.O to exclude MPS Ltd. from the final set of comparables while bench marking international transactions of the assessee company. We order accordingly." (Emphasis supplied) 5. The Ld. representative for Revenue Mr Rakesh Jha ['DR' hereinafter] solidifying present factual position could hardly challenge aforestated judicial precedents and its applicability, faced with the situation, in the absence of any deprecative facts vis-à-vis material brought to our notice, we are inclined to adopt the same rational as laid in foregoing para 8 of ITA No 199/PUN/2021 (supra) and see no reasons to deviate therefrom. Thus maintaining the judicial precedents we accede to exclude MPS Ltd. from the range of comparables adopted by the Ld. TPO in arriving at ALP, and direct the Ld. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment for deduction in terms of section 36(1)(va) of the Act is a pure legal ground triggering no fresh enquiry and investigation into the facts, as the date of remission by which the appellant discharged its liability was conspicuously brought on record at 20(b) of Form No. 3CD of tax audit report (placed at page 193 of p/b) and same was there before both the tax authorities below, therefore placing reliance on Hon'ble Apex Court decisions rendered in 'Sanghvi Reconditioners Pvt. Ltd. reported in AIR 2010 SC 1089', 'Greater Mohali Area Development Authority reported in AIR 2010 SC 3817', The National Textile Corporation Ltd. reported in 12 SCC 695' and 'NTPC Vs CIT' (supra). 9. Having admitted the additional ground, next remains a question as to whether claim for deduction u/s 36(1)(va) of Act r.w. 'Checkmate Services Pvt Ltd.' (Supra) is still available to the assessee when contribution is not remitted to ESI/PF fund within the due date prescribed by the respective Acts. 10. We note that, appellant has set-up a ground for allowance on two counts (i) contribution is remitted within a grace period of five days allowed (ii) due-date of 15....