Saba Software India Pvt Ltd, PSIR Building, 90/8,MIDC Cross Road, A Andheri (E), Mumbai-400093 Vs. Income Tax Officer 8(3)(1), Aayakar Bhavan, M K Road, Mumbai-400020
June, 01st 2015
, " "
IN THE INCOME TAX APPELLATE TRIBUNAL " K" BENCH, MUMBAI
BEFORE HON'BLE S/SHRI VIJAY PAL RAO (JM), AND B.R.BASKARAN (AM)
, .. ,
( / Assessment Year : 2008-09)
Saba Software India Pvt Ltd, / Income Tax Officer
PSIR Building, 8(3)(1),
90/8,MIDC Cross Road, Aayakar Bhavan,
"'A' Andheri (E), M K Road,
( /Appellant) .. ( / Respondent)
. / . /PAN/GIR No. :AADCS8646N
/: Assessee by Shri Arun Chhabra
/ Revenue by : Shri N Padmanaban
/ Date of Hearing : 26.05.2015
/Date of Pronouncement : 29.5.2015
/ O R D E R
PER B.R.BASKARAN (AM)
The assessee has filed this appeal challenging the assessment order
dated 24.9.2012 passed by the AO in conformity with the direction issued
by Dispute Resolution Panel-II, Mumbai (DRP). The assessee has
challenged the transfer pricing adjustment made by AO as per the
direction of the DRP.
2. We heard the parties and perused the record. The assessee
company is engaged in the business of providing software development
services and it is a subsidiary of M/s Saba Software, Inc. USA. The
assessee company is a 100 percent export oriented Unit having
undertakings in Mumbai and Pune. The assessee entered into international
transactions with its Associated Enterprises exceeding 15 crores. In the
Transfer Pricing Study, the assessee submitted 15 comparables. However,
the TPO rejected 11 comparables and accepted only four comparables
submitted by the assessee. Further, the TPO included 19 more
comparables and thus, the TPO considered 23 comparables in total to
determine the ALP of the international transactions.
3. Before the DRP, the assessee challenged 8 comparables included by
TPO and also contested exclusion of 4 comparables submitted by the
assessee. The DRP accepted the contentions of the assessee in respect of
two comparables, viz., M/s Infosys Technologies Ltd and M/s Wipro Ltd
out of the 12 comparables (8 included by TPO and 4 excluded by TPO)
that were contested by the assessee. With regard to the remaining 10
items of comparables, the DRP did not pass any speaking order.
4. The Ld A.R contended that the DRP was not justified in not considering the
objections of the assessee with regard to the 10 items of comparables. Before
us, the Ld D.R could not contradict the contentions of the assessee. Under these
circumstances, in the interest of natural justice, we are of the view that the issue
relating to the 10 items of comparables that were objected by the assessee
needs to be examined afresh by the DRP. Accordingly, we set aside the order of
the AO/DRP in respect of the T.P. adjustment and restore the same to the file of
the AO/DRP with the direction to examine the same afresh by duly considering
the objections raised by the assessee with regard to the 10 comparables and
pass a speaking order thereon.
5. At the time of hearing, the Ld A.R submitted that the DRP did not address
the objection raised by the assessee with regard to the use of information
obtained by the department u/s 133(6) of the Act without confronting the same
with the assessee. Hence, we direct the AO/concerned tax authority to furnish
the said information to the assessee and duly consider the explanations that may
be furnished by the assessee in that regard.
6. In the result, the appeal filed by the assessee is treated as allowed for
The above order was pronounced in the open court on 29th May, 2015.
29 May, 2015
( /VIJAY PAL RAO) (.. ,/ B.R. BASKARAN)
/ Judicial Member /Accountant Member
Mumbai: 29th May,2015.
. ../ SRL , Sr. PS
/Copy of the Order forwarded to :
1. / The Appellant
2. / The Respondent.
3. () / The CIT(A)- concerned
4. / CIT concerned
5. , , /
DR, ITAT, Mumbai concerned
/ Guard file.
/ BY ORDER,
, /ITAT, Mumbai