CLEAR INFO ANALYTICS P.LTD, MUMBAI V. ASST CIT RG 15(1)(2), MUMBAI

ITA 2299/MUM/2017

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1490 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 31-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIKASH KUMAR AGARWAL
• Assessee Lawyers: SHAILESH S SHAH
• Keywords: Transfer pricing; International transaction
• Section: 143(3); 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES K , MUMBAI BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER IT(TP)A NO. 2299/MUM/2017 ASSESSMENT YEAR : 2012-13 CLEAR INFO ANALYTICS PRIVATE LIMITED, 1203A, FLOOR 12A, TOWER 2A, ONE INDIA BULLS CENTRE, JUPITER MILLS COMPOUND, 841, SENAPATI BAPAT MARG, ELPHISTON ROAD-WEST, MUMBAI [PAN : AACCC3323P] VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, RANGE-15(1)(2), MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SHAILESH S. SHAH, RESPONDENT BY : SHRI VIKASH KUMAR AGARWAL, DR DATE OF HEARING : 11-03-2019 DATE OF PRONOUNCEMENT : 15-03-2019 / O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER: T HE ASSESSEE HAS FILED THIS APPEAL, CHALLENGING THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER (AO) U/S 143(3) R.W.S 144C(13) OF THE INCOME TAX ACT (ACT), IN PURSUANT TO THE DIRECTIONS GIVEN BY THE LD. DISPUTE RESOLUTION PAN EL IT(TP)A NO. 2299/MUM/2017 : 2 : (DRP). THE ASSESSEE IS AGGRIEVED BY THE DECISION OF THE LD. DRP IN INCLUDING A COMPANY NAMED M/S. EXCEL INFOWAY S LTD.,I THE LIST OF COMPARABLES AND IN EXCLUDING A COMPANY NA MED M/S. R SYSTEM INTERNATIONAL LTD., FROM THE LIST OF COMPARABLES. 2. THE ASSESSEE-COMPANY IS ENGAGED IN THE BUSINESS O F PROVIDING INVESTMENT RESEARCH SUPPORT SERVICES EXCLUSI VELY TO ITS HOLDING COMPANY M/S. EXECUTION NOBLE RESEARCH LTD ., UK (FORMERLY KNOWN AS CLEAR CAPITAL LTD., UK). HENCE IT IS A CAPTIVE SERVICE PROVIDER. DURING THE YEAR UNDER CONS IDERATION, THE ASSESSEE RECEIVED A SUM OF RS. 2330.04 LAKHS FRO M ITS ASSOCIATED ENTERPRISES (AE) FOR PROVIDING THE SAID SE RVICES. IT WAS SUBMITTED THAT THE ASSESSEE WAS RAISING INVOICE ON I TS ASSOCIATED ENTERPRISE (AE) AT COST+15% MARK UP. THE ASSESSEE BENCHMARKED HIS TRANSACTIONS UNDER TRANSACTIO NAL NET MARGIN METHOD (TNMM) BY SELECTING 10 COMPARABLE COMPANIES. THE AVERAGE NET MARGIN OF COMPARABLE COM PANIES WAS 8.24%. ACCORDINGLY, THE ASSESSEE SUBMITTED THAT ITS INTERNATIONAL TRANSACTIONS WERE AT ARMS LENGTH. HOWEVE R, THE TRANSFER PRICING OFFICER (TPO) SELECTED THREE COMPAN IES, WHOSE OP/OC WAS 23.95%, WHILE THE ASSESSEES MARGIN WAS 15 % IT(TP)A NO. 2299/MUM/2017 : 3 : ONLY. ACCORDINGLY, THE TPO MADE TP ADJUSTMENT OF RS. 181.33 LAKHS. LD. DRP UPHELD THE ORDER OF TPO. 3. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF TAX AUTHORITIES IN INCLUDING M/S. EXCEL INFOWAYS LTD., AN D EXCLUDING M/S R SYSTEM INTERNATIONAL LTD. 4. WE SHALL FIRST DEAL WITH THE COMPARABLE COMPANY, M/S EXCEL INFOWAYS LTD. THE CONTENTION OF THE ASSESSEE IS THAT M/S. EXCEL INFOWAYS LTD., IS ENGAGED IN THE BUSINESS OF PROVIDING CUSTOMER CARE SERVICES AND HANDLING CLIEN TS BUSINESS RELATIONS THROUGH VOICE BASED SERVICES IN THE AREAS OF COLLECTIONS, TELEMARKETING AND CUSTOMER CARE. ON THE CONTRARY, THE ASSESSEE-COMPANY IS PROVIDING SUPPORT SE RVICES TO INVESTMENT RESEARCH CARRIED OUT BY ITS HOLDING COMPA NY. ACCORDINGLY HE SUBMITTED THAT THE SERVICES PROVIDED BY THE ASSESSEE COMPANY ARE TOTALLY DIFFERENT FROM THE SERVIC ES RENDERED BY M/S. EXCEL INFOWAYS LTD. ACCORDINGLY, H E THAT THE FUNCTIONS PERFORMED BY THE ASSESSEE AND THE ABOVE SAI D COMPANY ARE TOTALLY DIFFERENT. HE FURTHER SUBMITTED THAT THERE ARE FURTHER DIFFERENCES BETWEEN THE ASSESSEE AND THE A BOVE SAID COMPANY, VIZ., IT(TP)A NO. 2299/MUM/2017 : 4 : (A) THE ENTITY LEVEL OF EMPLOYEE COST OF M/S. EXCEL INFOWAYS LTD., IS AROUND 13%; WHILE EMPLOYEE COST OF THE ASSESSEE-COMPANY IS ABOVE 54%. (B) THE ASSESSEE IS A CAPTIVE SERVICE PROVIDER AND I S RISK FREE, WHEREAS M/S. EXCEL INFOWAYS LTD., HAS BEEN PROVIDING SERVICES TO THIRD PARTIES, WHERE RISK ELEMEN T IS MORE. (C) THE PROFITABILITY OF M/S. EXCEL INFOWAYS LTD., I S VERY MUCH FLUCTUATING AND THE PROFIT LEVELS ARE DECLINING O VER THE YEARS SUBSTANTIALLY. THE LD A.R SUBMITTED THAT ALL THESE ASPECTS HAVE BEEN CONSIDERED BY THE PUNE BENCH OF THE TRIBUNAL IN THE CA SE OF M/S. OCWEN FINANCIAL SOLUTIONS PRIVATE LIMITED VS. A CIT IN ITA NO. 2669/PUN/2016, DT. 21-01-2019 AND THE TRIBUNA L, BY FOLLOWING THE DECISION RENDERED BY THE ANOTHER BENCH IN THE CASE OF EMERSON CLIMATE TECHNOLOGIES (INDIA) PVT. LTD. , VS. DCIT IN ITA NO. 359 & 2847/PN/2016, DT. 25-04-2018, HAS HELD THAT M/S EXCEL INFOWAYS LTD CANNOT BE CONSIDERED A S A COMPARABLE DUE TO FLUCTUATING MARGINS. IT WAS HELD THA T THIS COMPANY DOES NOT PASS IN DIMINISHING REVENUE FILTER . IT(TP)A NO. 2299/MUM/2017 : 5 : ACCORDINGLY, LD. AR SUBMITTED THAT LD. DRP WAS NOT JUSTI FIED IN CONFIRMING THE INCLUSION OF M/S. EXCEL INFOWAYS LTD., 5. ON THE CONTRARY, LD. DR SUBMITTED THAT THE TRIBUNAL, IN THE CASE OF M/S. OCWEN FINANCIAL SOLUTIONS PRIVATE LIM ITED, HAS FOLLOWED THE DECISION RENDERED IN THE CASE OF EM ERSON CLIMATE TECHNOLOGIES (INDIA) PVT. LTD., WHOSE FUNCTIO NS ARE TOTALLY DIFFERENT. FURTHER, THE DECISION IN THE CASE OF EMERSON CLIMATE TECHNOLOGIES (INDIA) PVT. LTD., WAS RENDERED F OR A DIFFERENT ASSESSMENT YEAR. ACCORDINGLY, LD. DR SUBMIT TED THAT THE ASSESSEE CANNOT TAKE SUPPORT OF THE ABOVE SAID DECI SIONS. 6. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE REC ORD. WE NOTICED THAT THE PUNE BENCH OF THE TRIBUNAL EXAMINED THE COMPARABLE COMPANY, M/S. EXCEL INFOWAYS LTD., IN THE CASE OF M/S. OCWEN FINANCIAL SOLUTIONS PRIVATE LIMITED VS. A CIT IN ITA NO. 2669/PUN/2016, DT. 21-01-2019. FOR THE SAKE OF CONVENIENCE, WE EXTRACT BELOW THE RELEVANT DISCUSSIONS MADE BY THE PUNE BENCH OF THE TRIBUNAL IN THE ABOVE SAID CA SE: 12. WITH REGARD TO EXCEL INFOWAYS LIMITED, WE FIND THAT THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF EMERSON CLIMATE TECHNOL OGIES (INDIA) PVT. LTD. VS. DCIT (SUPRA.) HAS DECIDED WHETHER EXCEL INFOWAYS LIMI TED CAN BE COMPARABLE COMPANY OR NOT BY OBSERVING AS UNDER: ' 18. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD. THE LIMITED ISSUE WHICH ARISES IS AGAINST BENCHMARKING OF ALP OF THE IT(TP)A NO. 2299/MUM/2017 : 6 : INTERNATIONAL TRANSACTIONS ON ACCOUNT OF PROVISIONS OF ORACLE SUPPORT SERVICES (JT-ENABLES SERVICES) BY ASSESSEE TO ITS A SSOCIATED ENTERPRISE AND FOR BENCHMARKING OF ALP OF THE INTER NATIONAL TRANSACTIONS TO THE SAID CONCERN IE. EXCEL INFOWAYS LTD. WHICH HAS BEEN FINALLY SELECTED BY THE DRP, IS TO BE EXCLUDED SINCE IT IS SHOWING FLUCTUATING MARGINS. IT IS FURTHER OBSERVED THAT THE OPERATING MARGIN OF THE COMPANY HAD SHOWN DRASTIC FLUCTUATIONS RANGI NG FROM 247.74% IN F.Y. 2008-09 TO 2% IN FY 2014-15. THE AS SESSEE HAS POINTED OUT THE MARGINS SHOWN BY THE SAID CONCERN W ERE AS UNDER: FINANCIAL YEAR OP/TC MARGIN 2008-09 247.74% 2009-10 267. 31% 2010-11 238 .71%. 2011-12 41.48% 2012-13 75.70% 2013-14 30% 2014-15 2% 19. WE FIND THAT THE TRIBUNAL IN ASSESSEE'S OWN CASE IN ASSESSMENT YEARS 2011-12 & 2012-13 VIDE PARA 16 & 17 OF THE OR DER OF TRIBUNAL HAS EXCLUDED EXCEL INFOWAYS LTD., BECAUSE OF ITS FLUCTUATING MARGINS SHOWN BY THE SAID CONCERN. THE TRIBUNAL HELD THAT THE SAID CONCERN I.E. EXCEL INFOWAYS LIMITED WHICH IS IN THE PROCESS OF CLOSING DOWN ITS ITES SEGMENT AND ALSO BECAUSE OF THE FACTUM OF FLUC TUATING MARGINS, COULD NOT BE SELECTED AS FUNCTIONALLY COMPARABLE TO THE ASSESSEE. FOLLOWING THE SAME PARITY OF THE REASONS, WE HOLD THAT THE SAID CONCERN I.E. EXCEL INFOWAYS LIMITED, BECAUSE OF DIF FERENT FACTORS AND ALSO FLUCTUATING TO BE EXCLUDED FROM FINAL SET OF C OMPARABLES. ACCORDINGLY, WE H LD THE ASSESSING OFFICER IS DIREC TED TO RECOMPUTE MEAN MARGIN OF THE COMPARABLES AND DETERMINE ALP OF THE INTERNATIONAL TRANSACTIONS OF PROVISION OF ORACLE S UPPORT SERVICES (ITES) BY THE ASSESSEE TO ITS AES AFTER AFFORDING R EASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THUS, GROUN D NO. 3 RAISED IN APPEAL BY ASSESSEE IS ALLOWED.' IN THE CASE OF EXCEL INFOWAYS LIMITED, A CHART PROV IDED BEFORE US WHEREIN WE HAVE SEEN THAT THERE IS FLUCTUATING PROF IT MARGINS AND IT(TP)A NO. 2299/MUM/2017 : 7 : FOLLOWING THE SAME PARITY OF REASONING, EXCEL INFOW AYS LIMITED BECAUSE OF FLUCTUATING PROFIT MARGIN, IS TO BE EXCL UDED FROM THE FINAL SET OF COMPARABLES. 13. FURTHER, THE TPO HAS APPLIED DIMINISHING REVEN UE FILTER TO EXCLUDE THE COMPANIES FROM THE COMPARABLE SET WHEREAS, THE REVENU E OF EXCEL INFOWAYS LIMITED ALSO CLEARLY DEMONSTRATED DIMINISHING REVENU E TREND. IN SUCH SITUATION, WE REFER TO THE DECISION OF CO-ORDINATE BENCH OF THE T RIBUNAL, DELHI IN THE CASE OF BAXTER INDIA PVT. LTD. VS. ACIT (SUPRA.) WHERE THE T RIBUNAL HAS HELD AS FOLLOWS: '24. SO FAR AS EXCLUSION OF EXCEL INFOWAYS LTD. IS CONCERNED, WE ALSO FIND MERIT IN THE SUBMISSIONS OF THE ID. COUNSEL FO R THE ASSESSEE THAT THE ABOVE COMPANY SHOULD BE EXCLUDED FROM THE LIST OF COMPARABLES. THIS COMPANY FAILS TPO'S OWN FILTER OF DIMINISHING REVENUE AND ABNORMAL VOLATILITY IN REVENUE AND MARGINS. WE FIND FROM THE ORDER OF THE TPO AT PARA 7.5 (PAGE 24 - 25 OF THE TPO ORDER) WHERE THE TPO HAS OBSERVED THAT THE DEPARTMENT HAS APPLIED CONSIS TENT DIMINISHING REVENUE/ LOSS MAKING FILTER WHEREIN THE COMPANIES W ITH LOSSES/ DIMINISHING REVENUE FOR THE LAST THREE YEARS UPTO A ND INCLUDING THE FINANCIAL YEAR 2010-11 WERE REJECTED AS COMPARABLES . THE DEPARTMENT HAS EXCLUDED SUCH COMPANIES WITH CONSIST ENT LOSSES/ DIMINISHING REVENUE IN AN ENVIRONMENT WHERE INDIAN ECONOMY IS GROWING AT CONSISTENT RATE. HAVING HELD SO, THE ASS ESSING OFFICER INCLUDED EXCEL INFOWAYS LTD. AS A COMPARABLE WITHO UT CONSIDERING THE FACT THAT THE SAID COMPANY DOES NOT PASS THE DI MINISHING ITA NO.6158/DEL/2016 REVENUE FILTER. FROM THE SUBMISSIO NS OF THE ASSESSEE BEFORE THE TPO (AT PAGE 232 OF VOLUME -1 O F THE PAPER BOOK) WE FIND THE DETAILS OF THE OPERATING MARGIN O F THE COMPANY FROM FINANCIAL YEARS 2009-10 TO 201-15 ARE AS UNDER :- PARTICULARS FINANCIAL YEAR 2009-10 (INR'000) 2010-11 (INR'000) 2011-12 (INR'000) 2012-13 (INR'000) 2013-14 (INR'000) 2014-15 (INR'000) REVENUE 204,161.34 203,526. 39 76,096.9 5 76,098. 54 53, 792. 12 22,994. 38 OPERATING, COST 43986.99 50,751.2 4 55,991.5 7 47,539. 99 41,355. 78 22,895. 57 OPERATING PROFIT 160,174, 35 152,775. 14 23,105.3 8 28,558. 55 11,436. 34 98.81 OP/OC(%) 364.14% 301.30% 41.27% 60.07% 22.65% 0.43% 25. FROM THE ABOVE, IT IS CLEAR THAT ABOVE COMPANY DOES NOT PASS THE DIMINISHING REVENUE FILTER AS ADOPTED BY THE TPO HI MSELF SINCE ITS REVENUE HAS DECREASED CONSISTENTLY FROM FINANCIAL Y EARS 2009-10 TO IT(TP)A NO. 2299/MUM/2017 : 8 : 2011-12 IE. INCLUDING THE YEAR UNDER CONSIDERATION. FURTHER, THE ABOVE COMPANY HAS SUPER NORMAL PROFITS. WE FURTHER FIND THE SUBMISSIONS OF THE ASSESSEE THAT EXCEL INFOWAYS LTD . HAS SUPER NORMAL PROFITS DURING THE CURRENT YEAR HAS NOT BEEN CONTROVERTED BY THE REVENUE. WE FIND THE MUMBAI BENCH OF THE TRIBUN AL THE CASE OF DCIT VS. WILLIS PROCESSING SERVICES (INDIA) PVT. LT D. VIDE ITA NO.2152/MUM/2014 HAS UPHELD THE ORDER OF THE DRP RE JECTING EXCEL INFOWAYS LTD. AS COMPARABLE COMPANY ON THE GROUND T HAT THE COMPANY HAS A SUPER NORMAL PROFIT OF 203.80% AND LO W EMPLOYEE COST 10.02%. WE, THEREFORE, FIND MERIT IN THE SUBMI SSIONS OF THE ID. COUNSEL FOR THE ASSESSEE THAT EXCEL INFOWAYS LTD. S HOULD BE EXCLUDED FROM THE LIST OF COMPARABLE ON ACCOUNT OF SUPER NOR MAL PROFIT OF THE SAID COMPANY IN THE PRECEDING YEAR. 25.1 FURTHER, FROM THE ORDER OF THE TPO WE FIND HE HAS OBTAINED THE EMPLOYEE COST AND THE SALE FOR THE 1TES SEGMENT BY EXERCISE OF HIS POWERS U/S. 133(6), WHEREIN THE SAID COMPANY HAS AL LOCATED ENTIRE EMPLOYEE COST TO IT - BPO SEGMENT WITH NO ALLOCATIO N TO INFRA ACTIVITY SEGMENT WHICH ACCOUNTS TO 49% OF EXCELS TOTAL REVEN UE. IN OUR OPINION, IT IS HIGHLY IMPRACTICAL THAT NO EMPLOYEE HAS BEEN HIRED BY EXCEL FOR INFRA ACTIVITY SEGMENT. WE, THEREFORE, FI ND MERIT IN THE ARGUMENT OF THE ID. COUNSEL FOR THE ASSESSEE THAT T HE INFORMATION PROVIDED AS PER SECTION 133(6) BY EXCEL INFOWAYS LT D. IS UNRELIABLE AND SHOULD NOT BE USED TO COMPUTE EMPLOYEE COST FOR ITES SEGMENT THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF MOTO ROLA SOLUTIONS INDIA PRIVATE LIMITED VIDE ITA NO.5637/DEL/2011 HAS HELD THAT A COMPANY SHOULD BE REJECTED AS COMPARABLE IN CASE THERE IS CONTRADICTION IN THE FACTS OR DATA SOURCED FROM ANN UAL REPORT AND AS PER THE INFORMATION GATHERED U/S. 133(6). IN VIEW O F ABOVE DISCUSSION, WE HOLD THAT EXCEL INFOWAYS LTD. CANNOT BE CONSIDERED AS COMPARABLE AND SHOULD BE EXCLUDED FROM THE LIST OF COMPARABLES. WE HOLD AND DIRECT ACCORDINGLY.' THEREFORE, IT IS EXAMINED THAT BOTH, UNIVERSAL PRIN T SYSTEMS LIMITED AND EXCEL INFOWAYS LIMITED CANNOT BE CONSIDERED AS COMPARABLE COMPANIES WITH THAT OF THE ASSESSEE COMPANY. HENCE, GROUND NO. 4 IS, THUS, ALLOWED. 7. WE NOTICE THAT M/S EXCEL INFOWAYS LTD WAS NOT CONSIDERED AS A COMPARABLE COMPANY FOR THE REASON THA T THE PROFITS OF THE COMPANY WAS DECLINING AND IT WAS HAVING SUPER NORMAL PROFITS. THE YEAR-WISE PROFIT PERCENTAGE WOULD SHOW IT(TP)A NO. 2299/MUM/2017 : 9 : THAT THE SAME WAS CONSISTENTLY DECLINING FROM 364.14% IN FY 2009-10 TO 0.43% IN FY 2014-15. IN VIEW OF THE FLUC TUATING PROFIT, I.E., DIMINISHING PROFIT, THE ABOVE SAID COMPA NY WAS NOT TAKEN AS A COMPARABLE. EVEN THOUGH THE LD D.R CONTENDE D THAT THE DECISION IN THE CASE OF EMERSON CLIMATE TECHNOL OGIES (INDIA) PVT. LTD, WHICH WAS FOLLOWED BY THE PUNE BENCH OF TRIBUNAL IN THE CASE OF OCWEN FINANCIAL SOLUTIONS P LTD (SUPRA) WAS RELATED TO DIFFERENT ASSESSMENT YEAR AND F URTHER THE FUNCTIONS OF M/S EMERSON CLIMATE TECHNOLOGIES (IN DIA) PVT. LTD. WERE DIFFERENT, YET WE ARE OF THE VIEW THAT THE PRINCIPLE LAID DOWN IN THE ABOVE SAID CASE WITH REGAR D TO DIMINISHING REVENUE AND FLUCTUATING PROFIT CAN BE ADO PTED IN THE INSTANT CASE. FURTHER THE LD A.R HAS POINTED OUT THAT THERE IS DIFFERENCE IN THE FUNCTIONS PERFORMED BETWEE N THE ASSESSEE COMPANY AND M/S EXCEL INFOWAYS LTD. IN VIE W OF THE ABOVE, WE AGREE WITH THE CONTENTIONS OF THE ASSESSEE THAT M/S EXCEL INFOWAYS LTD CANNOT BE CONSIDERED AS A COMPARA BLE COMPANY IN THE HANDS OF THE ASSESSEE. 8. THE NEXT GRIEVANCE OF THE ASSESSEE IS THAT THE COMPARABLE COMPANY M/S R SYSTEM INTERNATIONAL LTD SHOULD NOT HAVE BEEN REJECTED BY TPO & LD DRP. THE LD A.R IT(TP)A NO. 2299/MUM/2017 : 10 : SUBMITTED THAT THE TPO HAS REJECTED THIS COMPANY ONLY FO R THE REASON THAT (A) IT IS HAVING DIFFERENT FINANCIAL YEAR AND (B) IT IS MAKING PERSISTENT LOSSES THE LD DRP HAS ALSO UPHELD THE SAME. THE LD A.R SUB MITTED THAT THE FINANCIAL RESULTS OF THE ABOVE SAID COMPANY ARE PUBLISHED ON QUARTERLY BASIS AND THE ASSESSEE HAS COL LATED THE FINANCIAL RESULTS FOR THE FINANCIAL YEAR 01-04-2011 TO 31-03- 2012 ON THE BASIS OF THE PUBLISHED RESULTS. AS PER TH E SAME, THE ABOVE SAID COMPANY WAS MAKING A PROFIT OF 2.17% O N SALES. HE SUBMITTED THAT THIS COMPANY WAS MAKING PROFI TS IN EARLIER YEARS ALSO. ACCORDINGLY, THE LD A.R SUBMITTED THAT THIS COMPANY SHOULD BE CONSIDERED AS A COMPARABLE COMPAN Y. 9. ON THE CONTRARY, THE LD D.R SUBMITTED THAT THE ASSES SEE IS FURNISHING NEW INFORMATION AND THE SAME REQUIRES EXAMINATION. 10. FROM THE SUBMISSIONS MADE BY LD A.R, WE NOTICE THA T THE ASSESSEE HAS COLLATED THE FINANCIAL RESULTS OF THE A BOVE SAID COMPANY FOR THE FINANCIAL YEAR 01-04-2011 TO 31- 03- 2012. FURTHER THE DETAILS FURNISHED BY THE ASSESSEE AL SO SHOW IT(TP)A NO. 2299/MUM/2017 : 11 : THAT THIS COMPANY CANNOT BE CATEGORISED AS PERSISTENT LOS S MAKING COMPANY. HENCE BOTH THE REASONS GIVEN BY THE TP O TO EXCLUDE THIS COMPANY WOULD, IN OUR VIEW, FAIL. HOWEV ER THE DETAILS FURNISHED BY THE ASSESSEE REQUIRE EXAMINATION AT THE END OF AO/TPO. ACCORDINGLY WE RESTORE THIS ISSUE TO TH E FILE OF THE AO/TPO FOR EXAMINING THE DETAILS FURNISHED BY THE COMPANY AND IF NO FAULT IS FOUND WITH THEM, THEN THE ABO VE SAID COMPANY SHOULD BE CONSIDERED AS A COMPARABLE COMPANY. 11. IN VIEW OF THE FOREGOING DISCUSSIONS, THE ISSU E RELATING TO ALP OF INTERNATIONAL TRANSACTIONS REQUIRES RE-EXAMINATIO N. ACCORDINGLY WE RESTORE THE SAME TO THE FILE OF AO/TPO F OR EXAMINING THEM AFRESH IN THE LIGHT OF DISCUSSIONS MAD E SUPRA. 12. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 15 TH DAY OF MARCH, 2019 SD/- SD/- (AMARJIT SINGH) (B.R. BASKARAN) /JUDICIAL MEMBER /ACCOUNTANT MEMBER /MUMBAI; /DATED : 15 TH MARCH, 2019 TNMM IT(TP)A NO. 2299/MUM/2017 : 12 : COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. DISPUTE RESOLUTION PANEL (DRP), MUMBAI 4. DIRECTOR OF INCOME TAX (IT & TP) 5. ADDL. COMMISSIONER OF INCOME TAX (TRANSFER PRICI NG) 6. D.R. ITAT, MUMBAI 7. GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASST. REGISTRAR) ! '!#$%, / ITAT, MUMBAI