DCIT CIR 6(3), MUMBAI V. MAERSK GLOBAL SERVICES CENTRES (I) P.TLD, MUMBAI

ITA 2492/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87950 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-01-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: K
• Next Hearing Date: 07-01-2015
• Assessment Year: 2009-2010
• Appeal Filed On: 11-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S D SRIVASTAVA
• Keywords: Depreciation; Transfer pricing; International transaction; Initiation of penalty proceedings; Capital expenditure
• Section: 143(3); 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH K, MUMBAI BEFORE SHRI R. C. SHARMA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA NO. 2594/MUM/2014 ASSESSMENT YEAR: 2009-10 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD. 4 TH AND 5 TH FLOOR, PRUDENTIAL BUILDING, CENTRAL AVENUE ROAD, HIRANANDANI BUSINESS PARK, POWAI, MUMBAI- 400 076 PAN:AADCM 7786 M VS. DCIT CIRCLE- 6(3) AAYAKAR BHAVAN MUMBAI (APPELLANT) (RESPON DENT) ITA NO. 2492/MUM/2014 ASSESSMENT YEAR: 2009-10 DCIT CIRCLE- 6(3) AAYAKAR BHAVAN MUMBAI VS. M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD. 4 TH AND 5 TH FLOOR, PRUDENTIAL BUILDING, CENTRAL AVENUE ROAD, HIRANANDANI BUSINESS PARK, POWAI, MUMBAI- 400 076 PAN:AADCM 7786 M (APPELLANT) (RESPON DENT) ASSESSEE BY : SHRI PORUS KAKA & SHRI MANISH KANTH REVENUE BY : SHRI S.D. SRIVASTAVA DATE OF HEARING : 07.01.2015 DATE OF ORDER : 16 . 01 .20 1 5 ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 2 O R D E R PER AMIT SHUKLA, JM: THESE ARE THE CROSS APPEALS FILED BY THE EITHER P ARTIES, AGAINST ORDER/DIRECTION DATED 18.12.2013 GIVEN BY D ISPUTE RESOLUTION PANEL-I, MUMBAI (DRP) U/S 144 C(5) TO THE ASSESSING OFFICER FOR THE QUANTUM OF ASSESSMENT U/S 143(3) FOR THE A.Y. 2009- 10. 2. WE WILL FIRST TAKE UP ASSESSEES APPEAL BEING IT A NO. 2594/M/2014. FROM GROUND NO. 1 TO 12, THE ASSESSEE HAS MAINLY CHALLENGED TRANSFER PRICING ADJUSTMENT OF RS.18,03, 47,422/- MADE TO THE ASSESSEES TOTAL INCOME ON VARIOUS LEGAL AND FACTUA L GROUNDS. AT THE OUTSET LEARNED SENIOR COUNSEL, SHRI PORUS KAKA SUBM ITTED THAT MOST OF THE ISSUES HAVE BEEN DECIDED BY THE HONBLE SPECIAL BENCH IN THE CASE OF THE ASSESSEE IN THE A.Y. 2008-09 IN ITA NO. 7466 /M/2012. THE ONLY ISSUE WHICH IS NOW BEEN CONTESTED BEFORE THE TRIBUN AL IS, EXCLUSION AND INCLUSION OF CERTAIN COMPARABLES. 3. THE BRIEF FACTS OF THE CASE ARE THAT, THE ASSESS EE COMPANY IS WHOLLY OWN SUBSIDIARY OF MAERSK GSC HOLDINGS A/S, W HICH IN TERM IS A DOWNSTREAM SUBSIDIARY OF APMM GROUP [CALLED AS MAER SK GROUP] WHICH IS WORLDS LARGEST SHIPPING COMPANY/GROUP. THE ASSE SSEE COMPANY IS MAINLY ENGAGED IN PROVIDING BACK OFFICE SUPPORT TO ITS AES, WHICH RELATES TO PROCESSING, DATA ENTRY, RECONCILIATION OF STATEM ENTS, AUDIT OF SHIPPING DOCUMENTS SUCH AS BILLS OF LADING AND OTHER IS TECH NICAL SUPPORT SERVICES. IT ALSO PROVIDES IT ENABLED SERVICES SUCH AS PROCES S SUPPORT, PROCESS OPTIMIZATION AND TECHNICAL SUPPORT. THE FUNCTIONAL PROFILE OF THE ASSESSEE COMPANY WHETHER IT IS A LOW END SERVICES OR HIGH EN D SERVICES HAS BEEN ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 3 DEALT BY THE HONBLE SPECIAL BENCH IN THE CASE OF T HE ASSESSEE IN PARA 80, WHICH READS AS UNDER:- 80. A PERUSAL OF THE FUNCTIONAL PROFILE OF THE ASSE SSEE COMPANY SHOWS THAT ALTHOUGH THE SERVICES CLAIMED TO BE PROV IDED BY IT TO THE AES AS - SERVICES SUCH AS PROCESS SUPPORT, PROC ESS OPTIMIZATION AND TECHNICAL SUPPORT ARE NOT IN THE N ATURE OF LOW END SERVICES SUCH AS VOICE OR PROCESSING AS THEY RE QUIRE SOME DEGREE OF SPECIAL KNOWLEDGE AND DOMAIN EXPERTISE IN THE CONCERNED FIELD, THE REVENUE GENERATED FROM SERVICE S WAS ONLY ABOUT 10% OF THE TOTAL REVENUE GENERATED DURING UND ER CONSIDERATION. THERE WERE ALSO' SOME OTHER SERVICES RENDERED TO THE ASSESSEE COMPANY TO ITS AES AS IT ENABLED SERVI CES SUCH AS THE DIFFERENCE BETWEEN EQUIPMENT MANAGEMENT SYSTEM AND TRANSFER PLAN IN GLOBAL CUSTOM SERVICES STUDY, CONT RACT DRAFTING, VARIOUS AUDIT FUNCTIONS BASED ON DIFFERENT BUSINESS STRATEGY, TENDER HANDLING ETC. WHICH, AS RIGHTLY SUBMITTED BY THE LD, D.R., CANNOT BE STRICTLY CONSIDERED AS LOW-END SERVICES A S THEY INVOLVED SOME DEGREE OF SPECIAL KNOWLEDGE AND EXPERTISE IN T HE RELEVANT FIELD. HOWEVER, THESE SERVICES AGAIN ONLY INCIDENTA L TO THE MAIN SERVICES RENDERED BY THE ASSESSEE INVOLVED A INFORM ATION COLLATION FROM SHIPPER CUSTOMER/AE AND POPULATING THE SAME IN TO VARIOUS PROCESSES AND SYSTEMS PROVIDED BY THE AE. THESE MAI N SERVICES RENDERED BY THE ASSESSEE TO ITS AE'S THUS INVOLVED PRIMARILY DATA ENTRY. TRANSCRIPTION, CONSOLIDATION, CO-ORDINATION, PREPARATION, PROCESSING AND REVIEW OF SHIPPING DOCUMENTS AND SUC H OTHER SIMILAR SUPPORT SERVICES WHICH WERE PLAINLY COMPRIS ING OF ' BACK OFFICE SUPPORT SERVICES RENDERED BY THE ASSESSEE TO ITS AES IN THE NATURE OF LOW-END SERVICES. THE PROFILE OF WORK-FOR CE EMPLOYED BY THE ASSESSEE DURING THE YEAR UNDER CONSIDERATION CO MPRISED OF 96% OF GRADUATES AND POST- GRADUATES WHEREAS ONLY 4 % WORK FORCE WAS PROFESSIONAL SUCH AS CA, B.TECH ETC. WHIC H AGAIN GOES TO SHOW THAT THE FUNCTIONS PERFORMED BY THE ASSESS EE COMPANY TO ITS AES ERE MAINLY IN THE NATURE OF PROVIDING BA CK OFFICE SUPPORT SERVICES OF LOW END NATURE. GOING BY THE FU NCTIONS PERFORMED BY THE ASSESSEE TO ITS AES DURING THE YEA R UNDER CONSIDERATION, WE ARE OF THE VI W THE ASSESSEE WAS A CAPTIVE CONTRACT SERVICE PROVIDER MAINLY RENDERING BACK OFF ICE SUPPORT SERVICES AND SUCH SERVICES RENDERED BY: IT TO. ITS A S INVOLVING SOME DEGREE OF SPECIAL KNOWLEDGE AND EXPERTISE FORM ED ONLY SMALL PORTION OF THE SERVICES RENDERED BY IT WHICH ESSENTIALLY WERE IN THE NATURE OF INCIDENTAL SERVICES. ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 4 4. IN THE TRANSFER PRICING DOCUMENT FOR THE A.Y. 20 09-10 THE ASSESSEE REPORTED FOLLOWING INTERNATIONAL TRANSACTION WITH I TS AE IN RESPECT OF THE FOLLOWING SERVICES:- NATURE OF SERVICES AMOUNT (RS.) IT ENABLED SERVICES SUCH AS TRANSACTION PROCESSING, DATA ENTRY, ACCOUNTING AND OTHER SUPPORT SERVICES 112,06,18,971/- IT SERVICE CENTRE ACTIVITY - IT SERVICES 22,92,64,214/ - THE ASSESSEE HAD SHOWN ITS OPERATING PROFIT UPON TO TAL COST AT 13.29%. IN THE TRANSFER PRICING STUDY REPORT, THE ASSESSEE HAD CHOSEN 13 COMPARABLE WHICH WERE AS UNDER:- 1. ALLSEC TECHNOLOGIES LTD. 2. COSMIC GLOBAL LTD. 3. SYSTEMS INTERNATIONAL (SEGMENTAL) 4. SPANCO TELESYSTEMS AND SOLUTIONS LTD. (SEGMENTAL ) 5. INFORMED TECHNOLOGIES INDIA LTD. 6. ICRA ONLINE LTD. 7. ICRA TECHNO ANALYTICS LTD. 8. DATAMATICS FINANCIAL SERVICES LTD. 9. CALIBER POINT BUSINESS SOLUTIONS LTD. 10. INHOUSE PRODUCTIONS LIMITED 11. KPIT CUMMINS GLOBAL BUSINESS SOLUTIONS LTD. 12. E4E HEALTHCARE BUSINESS SERVICES PVT. LTD. (FOR MERLY, NITTANY OUTSOURCING PVT. LTD. 13. SHREEJAL INFO HUBS LTD. ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 5 THE AVERAGE OP/TC OF SUCH COMPARABLES WORKED OUT AT 10.93% AND HENCE IT WAS REPORTED THAT ASSESSEES MARGIN ARE AT ARMS LENGTH. HOWEVER, THE TPO REJECTED ALL THE COMPARABLES SELEC TED BY THE ASSESSEE, EXCEPT FOR ONE COMPARABLE NAMELY, COSMIC GLOBAL LTD. THE ASSESSEES COMPARABLES WERE REJECTED ON THE GROUND THAT THEY WERE NOT ENGAGED INTO KPO KIND OF ACTIVITIES OR DID NOT FULF ILLED THE SELECTION CRITERIA ADOPTED BY HIM. THE TPOS REASONING FOR RE JECTING THE COMPARABLES OF THE ASSESSEE HAVE BEEN ILLUSTRATED F ROM PAGES 17 TO 19 OF THE TPOS ORDER. THE OTHER RELEVANT FACTORS ADOP TED BY THE TPO FOR REJECTING THE ASSESSEES COMPARABLES AND SEARCHING FOR HIS OWN COMPARABLES HAS BEEN ELABORATELY DISCUSSED IN THE T POS ORDER WHICH ARE NOT BEING DISCUSSED. THE TPO AFTER DETAILED DIS CUSSION HAS FINALLY ADOPTED 5 COMPARABLES WITH AN AVERAGE MARGIN OF 43. 07%. THE LIST OF SUCH COMPARABLES WITH THEIR OP/TC ARE AS UNDER:- 5. THE DRP BY AND LARGE HAS UPHELD THE COMPARABLES FINALLY CHOSEN BY THE TPO, AFTER GIVING DIRECTION TO THE AO FOR MA KING CERTAIN ADJUSTMENTS AS PER DISCUSSION APPEARING IN PARA 4.4 ONWORDS. SR. NO. PARTICULARS OP/TC 1 ACCENTIA TECHNOLOGIES LTD. 52.50% 2 CORAL HUB LTD. 35.48% 3 ECLERX SERVICES LTD. 57.34% 4 COSMIC GLOGAL 40.61% 5 CROSSDOMAIN SOLUTIONS PVT. LTD. 29.40% AVERAGE 43.07% ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 6 6. BEFORE US, LEARNED SENIOR COUNSEL, SHRI PORUS KA KA SUBMITTED THAT AT THIS STAGE AND IN WAKE OF SPECIAL BENCH DECISION, THE ASSESSEE IS MAINLY CHALLENGING 3 COMPARABLES SELECT ED BY THE TPO NAMELY: (I) CORAL HUBS LTD. [VISHAL INFORMATION TECHNOLOGY LTD.] (II) ECLERX SERVICES LTD. (III) ACCENTIA TECHNOLOGIES LTD. AND IS ALSO CHALLENGING THE REJECTION OF 2 COMPARAB LES COMPANIES BY THE TPO WHICH WERE SELECTED BY THE ASSESSEE. THESE TWO COMPARABLE COMPANIES ARE: (I) ALLSEC TECHNOLOGIES LTD. AND (II ) R. INTERNATIONAL LTD. (SEGMENTAL). 7. REGARDING CORAL HUBS LTD. ( ERSTWHILE VISHAL INF ORMATION TECHNOLOGIES LTD.), THE LEARNED SENIOR COUNSEL SUBMITTED THAT, T HE TPO HAD SELECTED THE SAID COMPARABLE ON THE GROUND THAT IT IS ENGAGE D IN THE HIGH END IT ENABLE SERVICES AND DATA PROCESSING SERVICES AND FU RTHER, THIS COMPANY CLEARS ALL THE FILTERS ADOPTED BY THE ASSESSEE AS W ELL AS BY THE TPO. HE SUBMITTED THAT, THE SAID COMPANY CANNOT BE TAKEN AS COMPARABLE, BECAUSE IN THE EARLIER YEARS SUCH A COMPARABLE HAS BEEN REJECTED BY THE TRIBUNAL IN ASSESSEES OWN CASE RIGHT FROM A.YL. 20 05-06 TO 2008-09. IN THE A.YS. 2008-09, THE DRP ITSELF HAS REJECTED THIS COMPARABLE. THE MAIN REASON FOR REJECTING THIS COMPARABLE WAS THAT THE SAID COMPANY HAS MAINLY OUTSOURCED ITS ITES SERVICES. NOT ONLY T HIS, IN A.Y. 2006-07 ALSO THE TRIBUNAL HAS REJECTED THE SAID COMPANY AS COMPARABLE ON SAME REASONING. THEREFORE, THERE BEING NO CHANGE IN THE FACTS AND CIRCUMSTANCES OF THE CASE, CONSISTENT VIEW SHOULD B E TAKEN. REGARDING ECLERX SERVICES LTD. HE SUBMITTED THAT, IT TOO HAS BEEN REJECTED BY THE SPECIAL BENCH IN THE EARLIER YEARS. REGARDING, ACCE NTIA TECHNOLOGIES LTD. ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 7 HE MADE HIS DETAIL SUBMISSIONS, AS TO WHY, SAME CAN NOT BE INCLUDED. THE SAME SHALL BE DEALT IN LATER PART OF THIS ORDER . 8. ON THE OTHER HAND LD. DR STRONGLY RELIED UPON OR DER OF THE TPO AS WELL AS THE DRP AND SUBMITTED THAT EARLIER YEARS P RECEDENCE CANNOT BE FOLLOWED IN SUCH CASES AS THE FINANCIALS OF THE CUR RENT YEAR HAS TO BE SEEN FOR THE COMPARABILITY ANALYSIS. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PER USED THE RELEVANT MATERIAL PLACED BEFORE US. THE ONLY DISPUTE BEFORE US, AS CONTENDED BY THE LEARNED SENIOR COUNSEL, IS RESTRICTED TO EXCLUS ION OF 3 COMPARABLES ADOPTED BY THE TPO, THAT IS, M/S. CORAL HUBS LTD. ( ERSTWHILE VISHAL INFORMATION TECHNOLOGIES LTD.); M/S. ECLERX SERVICE S LTD.; AND ACCENTIA TECHNOLOGIES LTD.; AND INCLUSION OF 2 COMPARABLES S ELECTED BY THE ASSESSEE, THAT IS, ALLSEC TECHNOLOGIES LTD. AND R. SYSTEM INTERNATIONAL LTD. (SEGMENTAL), 10. FIRST OF ALL, WE SHALL DISCUSS VISHAL INFORMATI ON TECHNOLOGIES LTD. NOW KNOWN AS CORAL HUBS LTD. THIS COMPANY HAS BEEN SUBJECT MATTER OF DISPUTE IN ASSESSEES CASE, WHETHER TO BE INCLUDED AS COMPARABLE OR NOT, SINCE EARLIER YEARS. IN A.Y. 2005-06, THE TRIBUNAL HAS EXCLUDED THE SAID COMPARABLE ON THE GROUND THAT THIS COMPANY HAS OUTS OURCED ITS CONSIDERABLE PORTION OF ITS ITES BUSINESS, WHEREAS THE ASSESSEE IS CARRYING OUT ENTIRE OPERATION BY ITSELF. SIMILARLY IN A.Y. 2006-07 ALSO THE TRIBUNAL HAS EXCLUDED THE SAID COMPARABLE ON SIMILA R GROUND. IN A.Y. 2008-09, DRP ITSELF HAS DIRECTED THE AO NOT TO INCL UDE CORAL HUBS AS A COMPARABLE COMPANY, WHICH FACT HAS BEEN NOTED BY TH E SPECIAL BENCH IN ASSESSEES OWN CASE IN PARA 13 OF THE ORDER. THU S, CONSISTENT WITH THE VIEW TAKEN IN THE EARLIER YEARS AND THERE BEING NO CHANGE IN FACTS AND CIRCUMSTANCES IN THIS YEAR, WE ACCEPT THE ASSESSEE S CONTENTION THAT THE ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 8 CORAL HUBS LTD. (VISHAL INFORMATION TECHNOLOGIES LT D.) HAS TO BE EXCLUDED FROM THE LIST OF FINAL COMPARABLES. ACCORD INGLY, CORAL HUBS LTD IS DIRECTED TO BE EXCLUDED. 11. REGARDING TO M/S. ECLERX SERVICES LTD., IT HAS BEEN SUBMITTED BY THE LD. COUNSEL THAT HONBLE SPECIAL BENCH IN A.Y. 2008 -09 HAS DIRECTED THE TPO TO EXCLUDE THIS COMPANY FROM THE LIST OF FINAL COMPARABLES. THE RELEVANT DISCUSSION AND FINDING REGARDING M/S. ECLE RX SERVICES LTD. BY THE HONBLE SPECIAL BENCH IS AS UNDER:- IN SO FAR AS M/S. ECLERX SERVICES LIMITED IS CONCE RNED, THE RELEVANT INFORMATION IS AVAILABLE IN THE FORM OF AN NUAL REPORT FOR FINANCIAL YEAR 2007-08 PLACED AT PAGE 166 TO 183 OF THE PAPER BOOK. A PERUSAL OF THE SAME SHOWS THAT THE SAID COM PANY PROVIDES DATA ANALYTICS AND DATA PROCESS SOLUTIONS TO SOME OF THE LARGEST BRANDS IN THE WORLD AND IS RECOGNIZED AS EX PERTS IN CHOSEN MARKETS FINANCIAL SERVICES AND RETAIL AND MA NUFACTURING. IT IS CLAIMED TO BE PROVIDING COMPLETE BUSINESS SOLUTI ONS BY COMBINING PEOPLE, PROCESS IMPROVEMENT AND AUTOMATIO NS. IT IS CLAIMED TO HAVE EMPLOYED OVER 1500 DOMAIN SPECIALIS TS WORKING FOR THE CLIENTS. IT S CLAIMED THAT ECLERX IS A DIFF ERENT COMPANY WITH INDUSTRY SPECIALIZED SERVICES FOR MEETING IN TWO BU SINESS VERTICALS FINANCIAL SERVICES AND RETAIL AND MANUFACTURING. IT IS CLAIMED TO BE ENGAGED IN PROVIDING SOLUTIONS THAT DO NOT JUST RED UCE COST, BUT HELP THE CLIENTS INCREASE SALES AND REDUCE RISK BY ENHANCING EFFICIENCIES AND BY PROVIDING VALUABLE INSIGHTS THA T EMPOWER BETTER DECISIONS. M/S. ECLERX SERVICES PVT. LTD. IS ALSO CLAIMED TO HAVE A SCALABLE DELIVERY MODEL AND SOLUTIONS OFFERE D THAT INCLUDE DATA ANALYTICS, OPERATIONS MANAGEMENT, AUDITS AND RECONCILIATION, METRICS MANAGEMENT AND REPORTING SE RVICES. IT ALSO PROVIDES TAILORED PROCESS OUTSOURCING AND MANAGEMEN T SERVICES ALONG WITH A MULTITUDE OF DATA AGGREGATION, MINING AND MAINTENANCE SERVICES. IT IS CLAIMED THAT THE COMPAN Y HAS A TEAM DEDICATED T DEVELOPMENT AUTOMATION TOOLS TO SUPPORT SERVICE DELIVERY. THESE SOFTWARE AUTOMATION TOOLS INCREASE PRODUCTIVITY, ALLOWING CUSTOMERS TO BENEFIT FROM FURTHER COST SAV ING AND OUTPUT GAINS WITH BETTER CONTROL OVER QUALITY. KEEPING IN VIEW THE NATURE OF SERVICES RENDERED BY M/S. ECLERX SERVICES PVT. L TD. AND ITS FUNCTIONAL PROFILE, WE ARE OF THE VIEW THAT THIS CO MPANY IS ALSO MAINLY ENGAGED IN PROVIDING HIGH END SERVICES INVOL VING SPECIALIZED KNOWLEDGE AND DOMAIN EXPERTISE IN THE F IELD AND THE ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 9 SAME CANNOT BE COMPARED WITH THE ASSESSEE COMPANY W HICH IS MAINLY ENGAGED IN PROVIDING LOW END SERVICES TO THE GROUP CONCERNS. 83. FOR THE REASONS GIVEN ABOVE, WE ARE OF THE VIEW THAT IF THE FUNCTIONS ACTUALLY PERFORMED BY THE ASSESSEE COMPAN Y FOR ITS AES ARE COMPARED WITH THE FUNCTIONAL PROFILE OF M/S. EC LERX SERVICES PVT. LTD. AND MOLD-TEC TECHNOLOGIES LTD., IT IS DIF FICULT TO FIND OUT ANY RELATIVELY EQUAL DEGREE OF COMPARABILITY AND TH E SAID ENTITIES CANNOT BE TAKEN AS COMPARABLES FOR THE PURPOSE OF D ETERMINING ALP OF THE TRANSACTIONS OF THE ASSESSEE COMPANY WIT H ITS AES. WE, THEREFORE, DIRECT THAT THESE TWO ENTITIES BE EX CLUDED FROM THE LIST OF 10 COMPARABLES FINALLY TAKEN BY THE AO/TPO AS PER THE DIRECTION OF THE DRP. IN THIS YEAR ALSO, THERE BEING NO CHANGE IN THE FAC TS AND CIRCUMSTANCES, THEREFORE, RESPECTIVELY FOLLOWING THE DECISION OF T HE SPECIAL BENCH WE DIRECT THE TPO TO EXCLUDE THIS COMPANY FROM THE LIS T OF COMPARABLES AS IT IS NOT FUNCTIONALLY COMPARABLE WITH THE ASSESSEE. 12. NOW COMING TO THE ACCENTIA TECHNOLOGIES LTD., A S POINTED OUT BY THE LD. COUNSEL, IT IS SEEN FORM THE ANNUAL REPORT OF THE SAID COMPANY, IT IS A PARENT COMPANY PROVIDING HIGH END MANAGEMENT S OLUTIONS IN HEALTH CARE. IT IS MAINLY MEDICAL TRANSCRIPTION COMPANY DO ING MEDICAL CODING, MEDICAL BILLING AND RECEIVABLES MANAGEMENT SERVICES . THE BPO SERVICES HAS NOT BEEN STARTED IN THIS YEAR THAT IS IN THE F. Y. 2008-09. THE TPO HAS INCLUDED THIS COMPANY MAINLY ON THE GROUND THAT IT IS A KPO AND IS PROVIDING HIGH END ITES RELATED SERVICES IN THE FIE LD OF HEALTH CARE. ONCE IT IS EVIDENT FROM THE ANNUAL REPORT FOR THE A.Y. 2 008-09 THAT IT HAS NOT STARTED ITS DATA PROCESSING OUTSOURCING OR KPO SERV ICES, IT CANNOT BE HELD TO BE A GOOD COMPARABLE FOR BENCH MARKING THE ASSESSEES MARGIN FOR THE F.Y. 2008-09, THAT IS, FOR A.Y. 2009-10. MO REOVER THIS COMPANY HAS SUBSTANTIAL GOODWILL BEING A PARENT COMPANY AND THEREFORE, CANNOT BE HELD TO BE COMPARABLE WITH THE COMPANY WHICH IS MAINLY A CAPTIVE ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 10 SERVICE PROVIDER. THEREFORE, WE ARE OF THE OPINION THAT THIS COMPANY CANNOT BE CONSIDERED TO BE COMPARABLE IN THE PRESEN T YEAR FOR BENCH MARKING THE MARGIN OF THE ASSESSEES COMPANY. ACCOR DINGLY, THE SAME IS REJECTED. 13. NOW COMING TO THE TWO COMPARABLES INCLUDED BY T HE ASSESSEE. SO FAR AS R. SYSTEM INTERNATIONAL LTD. (SEGMENTAL) IS CONCERNED, IT HAS BEEN POINTED OUT BY THE LEARNED SENIOR COUNSEL THAT THIS COMPANY WAS ACCEPTED AS A COMPARABLE BY THE TPO IN ASSESSEES O WN CASE IN THE A.Y. 2007-08 AND ALSO BY THE DRP IN A.Y. 2008-09. THE TP O HAS REJECTED THIS COMPARABLE IN THIS YEAR, SIMPLY ON THE GROUND THAT IT IS NOT PURELY A KPO SERVICE PROVIDER AND HAVING CALENDAR YEAR ENDING. O N THE CONTRARY THE BPO SEGMENT OF R. SYSTEM IS FUNCTIONALLY COMPARABLE TO THE ASSESSEE AND SIMPLY BECAUSE IT IS FOLLOWING CALENDAR YEAR AC COUNTING IT CANNOT BE REJECTED. IN A.Y. 2008-09, THE DRP IN THE LIGHT OF FUNCTIONS PERFORMED BY THE ASSESSEE AS WELL AS BPO SEGMENT OF R. SYSTEM INTERNATIONAL, HAS ACCEPTED THE SAME TO BE COMPARABLE COMPANY. THIS FA CT HAS ALSO BEEN NOTED BY THE SPECIAL BENCH IN PARA 12 OF THE ORDER. 14. THUS, CONSISTENT WITH THE FACT THAT IN A.Y. 200 7-08, TPO HIMSELF HAS ACCEPTED R. SYSTEM AS A GOOD COMPARABLE AND DRP IN A.Y. 2008-09 HAS ALSO ACCEPTED THE SAME TO BE COMPARABLE, WHICH HAS BEEN UPHELD BY THE SPECIAL BENCH, THEREFORE, WE DO NOT FIND ANY REASONS TO DEVIATE FROM SUCH A PRECEDENCE OF THE EARLIER YEARS, SO AS TO COME TO A DIFFERENT CONCLUSION WITHOUT ANY MATERIAL DIFFERENCE ON RECOR D FOR THIS YEAR. THUS, WE DIRECT THE TPO/AO TO INCLUDE R. SYSTEM INTERNATI ONAL LTD. IN THE LIST OF FINAL COMPARABLES FOR BENCH MARKING THE ASSESSEE S MARGIN. ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 11 15. LASTLY, WITH REGARD TO ALLSEC TECHNOLOGIES LTD. IT IS SEEN THAT TPO HAS REJECTED THE SAID COMPARABLES ON THE GROUND THA T IT IS A CONSISTENT LOSS MAKING COMPANY AND MOREOVER THIS COMPANY DOES NOT QUALIFY 75% EXPORT FILTER. THE ADDITIONAL GROUND FOR REJECTING THE SAID COMPARABLE IS THAT, IT IS NOT ENGAGED IN KPO SERVICES. ON THE OTH ER HAND THE CASE OF THE LEARNED SENIOR COUNSEL BEFORE US IS THAT, DEPAR TMENT/TRIBUNAL HAS ACCEPTED THIS TO BE COMPARABLE IN A.Y. 2005-06, 200 6-07 & 2007-08. IN A.Y. 2008-09 COMPANY WAS REJECTED ON ACCOUNT OF EXT RAORDINARY EVENT OF MERGER WHICH FACT IS NOT PREVALENT IN THIS YEAR AND THEREFORE, THE SAME SHOULD BE ACCEPTED AS COMPARABLE IN A.Y. 2009- 10 AS IT IS FUNCTIONALLY COMPARABLE WITH THE ASSESSEES PROFILE AND FUNCTIONS. REGARDING TPO OBJECTION WITH REGARD TO EXPORT FILTE R, HE SUBMITTED THAT EXPORT IN THIS YEAR WAS AROUND 74.45% WHICH IS ALM OST NEAR TO 75% THRESHOLD. FURTHER, IT IS NOT A PERSISTENT LOSS MAK ING COMPANY WHICH IS EVIDENT FROM THE FOLLOWING PROFIT MARGIN IN THE VAR IOUS ASSESSMENT YEARS. A.Y. 2005-06 : 28.70%; 2006-07 : 28.51%; 200 7-08 : 27.31%; 2009-10 : (-)8.90%. IT WAS ONLY IN THIS YEAR THAT T HE COMPANY HAD INCURRED LOSSES, THEREFORE, THIS CANNOT BE THE GROU ND FOR REJECTING IT TO BE A COMPARABLE COMPANY. 16. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND MAT ERIAL ON RECORD, WE FIND THAT THIS COMPANY WAS CONSIDERED TO BE A GOOD COMPARABLE RIGHT FROM THE A.Y. 2005-06 TO 2007-08. IN A.Y. 2008-09, IT WAS NOT ACCEPTED TO BE COMPARABLE AS THERE WAS AN EXTRAORDINARY EVEN T OF MERGER. SO FAR AS TPOS ALLEGATION THAT IT IS A CONSISTENT LOSS MA KING COMPANY, WE FIND THAT IT IS ONLY IN THIS YEAR I.E., IN A.Y. 2009-10 IT HAS INCURRED LOSS, OTHERWISE IT WAS PROFIT MAKING COMPANY AS STATED AB OVE. THIS CANNOT BE THE SOLE GROUND FOR REJECTING IT AS COMPARABLE. AS FUNCTIONAL ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 12 COMPARABILITY IS TO BE SEEN. HOWEVER, WHETHER, LOSS IS ON ACCOUNT OF NORMAL OPERATING BUSINESS OR SOME OTHER FACTORS HAS NEITHER BEEN DISCUSSED NOR ANALYZED BY THE TPO. IF THIS COMPARAB LE HAS BEEN ACCEPTED TO BE GOOD COMPARABLE IN THE EARLIER YEARS AS WELL AS IN THE SUBSEQUENT YEAR THEN, THERE IS NO REASON TO REJECT THE SAME IN THIS YEAR. HOWEVER, TPO IS DIRECTED TO CARRY OUT COMPARABILITY ANALYSIS OF THIS COMPANY AND ALSO EXAMINE THE OPERATING MARGIN OF TH IS COMPANY TO SEE WHETHER LOSS IS ON ACCOUNT OF SOME OTHER FACTORS O THER THAN BUSINESS OPERATIONS. THUS, THIS COMPARABLE IS SET ASIDE TO T HE FILE OF THE TPO/AO TO CARRY OUT FRESH ANALYSIS AFTER GIVING OPPORTUNIT Y TO THE ASSESSEE. 17. IN VIEW OF THE AFORESAID FINDING, THE TPO/AO IS DIRECTED TO WORK OUT THE FINAL AVERAGE MEAN OF THE COMPARABLES AS PE R THE DIRECTIONS GIVEN ABOVE AND BENCH MARK THE ASSESSEES MARGIN. I F THE MARGIN OF THE COMPARABLES FALLS WITHIN +/- 5 RANGE, THEN NEEDLESS TO SAY THAT, NO ADJUSTMENT SHOULD BE MADE. THUS THE GROUNDS RELATIN G TO TPO ADJUSTMENT (GROUND NO. 1 TO 12) IS TREATED AS PARTL Y ALLOWED FOR THE STATISTICAL PURPOSE. 18. IN GROUND NO. 13, THE ASSESSEE HAS CHALLENGED T HE DISALLOWANCE OF RS.1,47,48,864/- ON ACCOUNT OF SOFTWARE LICENSE EXP ENSES. THE ASSESSING OFFICER NOTED THAT ASSESSEE HAS INCURRED FOLLOWING EXPENSES FOR OBTAINING SOFTWARE LICENSES:- I LICENSE COST OF SOFTWARE PAID TO HEWLETT PACKARD INDIA SALES P. LTD. 1,25,91,473/- II CLEMENTINE LICENSE SOFTWARE TO SOUTH ASIA PVT. L TD. 12,14,131/- III CISCO CALL MANAGER LICENSE TO JQ NETWORK PVT. L TD. 8,07,046/- IV DAME WARE REMOTE CONTROL LICENSE TO INCOME SYSTE MS P. LTD. 1,36,214/- 1,47,48,864/- ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 13 THE ASSESSING OFFICER TREATED THE SAID EXPENDITURE AS CAPITAL IN NATURE AND ALLOWED DEPRECIATION @ 25%. THE DRP ON THE OTHE R HAND UPHELD THE AOS FINDING THAT IT IS A CAPITAL EXPENDITURE, HOWEVER DIRECTED THE AO TO ALLOW DEPRECIATION @ 60%. 19. BEFORE US, LEARNED COUNSEL SUBMITTED THAT THE I SSUE OF ALLOWABILITY OF SOFTWARE EXPENSES IS NOW COVERED BY THE DECISION OF THE CIT VS. ASAHI INDIA SAFETY GLASS LTD. REPORTED IN (2012) 34 6 ITR 329; AND BOMBAY HIGH COURT IN THE CASE OF CIT VS. RAY CHEM R PG LTD. 346 ITR 138 (BOM), THEREFORE, THE SOFTWARE EXPENSES SHOULD BE ALLOWED AS REVENUE EXPENSES. ON THE OTHER HAND LD. CIT/DR STRO NGLY RELIED UPON THE ORDER OF THE DRP. 20. AFTER CONSIDERING THE RIVAL SUBMISSION AND THE RELEVANT FINDING OF THE DRP, WE ARE OF THE OPINION THAT THIS MATTER SHO ULD BE RESTORED BACK TO THE FILE OF THE AO TO CONSIDER THE ALLOWABILTY O F SOFTWARE EXPENSES IN THE LIGHT OF DECISION OF DELHI HIGH COURT IN THE CA SE OF CIT VS. ASAHI INDIA SAFETY GLASS LTD. (SUPRA) AND CIT VS. RAYCHEM RPG LTD. (SUPRA). ACCORDINGLY THE GROUND RAISED BY THE ASSESSEE IS TR EATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSE. 21. IN GROUND NO. 14, THE ASSESSEE HAS CHALLENGED T HE ADDITION OF RS.15,64,558/- ON ACCOUNT OF MISMATCH OF INTEREST I NCOME AS PER CERTIFICATE OF TDS VIS-A-VIS INTEREST INCOME SHOWN AS PER BOOKS OF ACCOUNT. DURING THE COURSE OF THE ASSESSMENT PROCEE DINGS, THE ASSESSEE WAS REQUIRED TO FURNISH RECONCILIATION OF INTEREST RECEIPTS AS PER THE INFORMATION GIVEN IN AIR DATA AND P& L ACCOUNT. IN RESPONSE, THE ASSESSEE SUBMITTED A RECONCILIATION VIDE LETTER DAT ED 27.02.2013, WHICH HAS BEEN INCORPORATED AT PAGE 3 OF THE ASSESSMENT O RDER. THE ASSESSEES MAIN EXPLANATION WAS THAT THE DIFFERENCE IS ON ACCOUNT OF ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 14 INTEREST WHICH HAS ACCRUED TO THE ASSESSEE AND SHOW N IN THE BOOKS IN THE EARLIER YEARS ON WHICH TAX HAS BEEN PAID, WHERE AS THE BANK HAS CONSIDERED THE INTEREST INCOME IN THIS YEAR IN THE TDS CERTIFICATE. HOWEVER, THE AO REJECTED THE ASSESSEES CONTENTION AND ADDED THE AMOUNT OF RS.15,64,558/-, BEING THE DIFFERENCE IN 2 6AS AND INTEREST RECEIPTS DECLARED IN P&L ACCOUNT. BEFORE THE DRP IT WAS REITERATED THAT DIFFERENCE IS DUE TO INTEREST ACCRUED AND SHOWN IN THE BOOKS OF ACCOUNT IN THE EARLIER YEARS BUT CONSIDERED BY THE BANK FOR THE YEAR UNDER CONSIDERATION AS PER THE TDS CERTIFICATE ISSUED BY THEM. THE RECONCILIATION FOR SUCH DIFFERENCE OF INTEREST WHIC H WAS FILED BEFORE THE AO WAS ALSO FILED BEFORE THE DRP WHICH HAS BEEN REP RODUCED BY THE DRP, AT PAGES 15 AND 16 OF ITS ORDER. HOWEVER, THE DRP UPHELD THE CONTENTION OF THE AO ON THE GROUND THAT TAXABILITY OF INCOME HAS TO BE TAKEN ON THE BASIS OF INCOME OF THAT ASSESSMENT YEA R AND THE INCOME OF ANY OTHER YEAR CANNOT BE ASSESSED. 22. BEFORE US LEARNED SENIOR COUNSEL, SHRI PORUS KA KA SUBMITTED THAT THE INTEREST INCOME IN QUESTION HAS ALREADY BEEN OF FERED FOR TAX ON ACCRUED BASIS IN THE EARLIER YEARS AND THEREFORE SA ME CANNOT BE DOUBLY TAXED IN THIS YEAR ON THE GROUND THAT THE BANK HAS CONSIDERED THE INCOME IN THIS YEAR AS PER THEIR TDS CERTIFICATE. T HEREFORE, NO ADDITION IS CALLED FOR. THE LD. CIT/DR ON THE OTHER HAND SUBMIT TED THAT THIS MATTER SHOULD BE REMITTED BACK TO THE FILE OF THE AO TO SE E THAT, THERE IS NO DOUBLE TAXATION AND IF SOME INTEREST INCOME HAS BEE N TAXED IN THE EARLIER YEARS THEN IT SHOULD BE EXCLUDED IN THIS YE AR, PROVIDED THE ASSESSEE IS ABLE TO DEMONSTRATE AND RECONCILE THE S AME. ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 15 23. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND ON PERUSAL OF THE ASSESSEES SUBMISSIONS FILED BEFORE THE TPO AS WELL AS THE DRP, WE FIND THAT THE ASSESSEE HAD SHOWN ACCRUED INTEREST FOR RS .39,64,386/- IN ITS P&L ACCOUNT IN THE A.Y. 2008-09. AS PER THE TDS CER TIFICATE FOR THE YEAR ENDING 31 ST MARCH, 2008, INTEREST OF RS.26,92,977/- HAS BEEN S HOWN TO BE EARNED IN A.Y. 2008-09. THUS THE ASSESSEE SEEMS TO HAVE OFFERED EXCESS INTEREST INCOME ON ACCRUAL BASIS. THERE IS T HUS APPARENT MISMATCH IN THE INTEREST INCOME AS PER THE BOOKS AN D TDS CERTIFICATE. THEREFORE, IN THE INTEREST OF JUSTICE, WE RESTORE T HIS MATTER BACK TO THE FILE OF THE AO, TO EXAMINE THIS ISSUE AND IF THE IN TEREST INCOME WHICH IS A PART OF TDS CERTIFICATE IN THIS YEAR HAS ALREADY BE EN TAXED IN THE EARLIER YEARS, THEN THE SAME SHOULD NOT BE DOUBLY TAXED HER E IN THIS YEAR ALSO. THE ASSESSEE WILL FURNISH REQUISITE RECONCILIATION AND INFORMATION TO THE AO. ACCORDINGLY, THIS GROUND IS SET ASIDE AND RESTO RED BACK TO THE FILE OF THE AO. 24. GROUND NO. 15 RELATES TO INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C). SINCE THIS GROUND IS PREMATURE, THEREFOR E, NO ADJUDICATION IS REQUIRED, HENCE DISMISSED. 25. GROUND NO. 16 RELATES TO LEVY OF INTEREST U/S 2 34B. SINCE NO ARGUMENT HAS BEEN PLACED BEFORE US, THEREFORE, WE T REAT THE SAID GROUND AS CONSEQUENTIAL. ACCORDINGLY GROUND NO. 16 IS DISMISSED. 26. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS P ARTLY ALLOWED FOR THE STATISTICAL PURPOSE. ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 16 REVENUES APPEAL; ITA NO. 2492/MUM/2014 27. NOW WE WILL TAKE DEPARTMENTS APPEAL, VIDE WHIC H FOLLOWING GROUNDS HAVE BEEN RAISED:- WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE HONBLE DRP WAS CORRECT IN LAW IN CONSI DERING COMPANIES, PERFORMING LOW END INCOME TECHNOLOGY ENA BLES SERVICES AS COMPARABLES FOR THE PURPOSE OF CONDUCTI NG FAR (FUNCTIONS, ASSETS AND RISES) ANALYSIS FOR DETERMIN ING THE ARMS LENGTH PRICE OF INTERNATIONAL TRANSACTION OF THE AS SESSEE, WHO IS ENGAGED IN PROVIDING HIGH END INCOME TECHNOLOGY ENA BLES SERVICES (ITES)? WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE HONBLE DRP WAS CORRECT IN CONSIDERING LO SS MAKING AS WELL AS ABNORMALLY LOW MARGIN COMPANIES AS COMPARAB LES FOR THE PURPOSE OF BENCHMARKING ANALYSIS UNDER TRANSACTIONA L NET MARGIN METHOD (TNMM)? WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF TH E CASE AND IN LAW, THE HONBLE DRP WAS CORRECT IN LAW IN GRANTING WORKING CAPITAL ADJUSTMENT TO THE ASSESSEE WHEN IT HAS FAIL ED TO FURNISH SCIENTIFICALLY WORKED OUT WORKING CAPITAL ADJUSTME NT WITH RESPECT TO THE COMPARABLES ADOPTED BY IT? 28. AT THE OUTSET, LEARNED SENIOR COUNSEL SUBMITTED THAT SO FAR AS GROUND NO. 1 IS CONCERNED, THE SAME HAS BEEN DISCUS SED BY THE HONBLE SPECIAL BENCH IN DETAIL AND IN VIEW OF THE FINDING GIVEN THEREIN, THERE IS NOT MUCH MERIT IN THE GROUNDS RAISED BY THE DEPARTM ENT. SO FAR AS GROUND NO., 2 AND 3 IS CONCERNED, LEARNED SENIOR CO UNSEL SUBMITTED THAT THE GROUND RAISED BY THE REVENUE IS FACTUALLY INCOR RECT AS THE DRP HAS NOT TAKEN ANY LOSS MAKING COMPARABLE OR HAS DIRECTE D THE TPO TO GRANT ANY WORKING CAPITAL ADJUSTMENT. LD. CIT/DR ADMITTED THIS FACT RAISED BY THE SENIOR COUNSEL. ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 17 29. SO FAR AS THE ISSUE RAISED IN GROUND NO. 1, WE FIND THAT THE SPECIAL BENCH HAS DISCUSSED IN DETAIL THE FUNCTIONAL PROFIL E OF THE ASSESSEE COMPANY AND ALSO WHETHER THE ITES SERVICES PROVIDED BY THE ASSESSEE COMPANY IS A LOW END SERVICE OR HIGH END SERVICE. T HIS HAS BEEN DISCUSSED IN PARA 80 OF THE ORDER OF THE SPECIAL BE NCH. IN VIEW OF THE ORDER OF THE SPECIAL BENCH, WE DO NOT FIND ANY MERI TS IN THE GROUNDS RAISED BY THE DEPARTMENT AND ACCORDINGLY GROUND NO. 1 RAISED BY THE DEPARTMENT IS DISMISSED. REGARDING GROUND NO. 2 AND 3, WE AGREE WITH THE CONTENTION OF THE LEARNED SENIOR COUNSEL THAT I N THE IMPUGNED ORDER, DRP HAS NOT GIVEN ANY DIRECTION TO THE AO/TPO TO CO NSIDER ANY LOSS MAKING COMPANY AS COMPARABLE FOR THE PURPOSE OF BEN CH MARKING THE ASSESSEES MARGIN. FURTHER NO DIRECTION WITH REGARD TO THE WORKING CAPITAL ADJUSTMENT HAS BEEN GIVEN BY THE DRP. THERE FORE, GROUND RAISED BY THE REVENUE DOES NOT STAND AND HENCE THE SAME AR E DISMISSED. ACCORDINGLY THE DEPARTMENTAL APPEAL IS DISMISSED. 30. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSE, WHEREAS THE REVENUES APPE AL IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16 TH DAY OF JANUARY, 2015. SD/- SD/- (R.C. SHARMA) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 16.01.2015 *SRIVASTAVA ITA NO. 2594/MUM/2014 ITA NO. 2492/MUM/2014 M/S. MAERSK GLOBAL SERVICE CENTRES (INDIA) PVT. LTD . ASSESSMENT YEAR: 2009-10 18 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR K BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.