The TPO is required to be consistent in matters relating to selection of comparables. If a comparable has been included or rejected in an earlier year, he is not entitled to take a different view in a later year if there is no change in circumstances

The order passed by the TPO for assessment year 2009-10 reveals that these comparables has been excluded/included as prayed for herein above. The transfer pricing documentation maintained by the assessee in respect of Rotem RS 1 project office and Rotem RS 3 project office reveals that this contract has been entered into by the assessee, way back in 2001 and 2007 respectively. It is also observed that the international transactions undertaken by the assessee in the year under consideration are similar to the international transactions undertaken by the assessee for assessment year 2009-10 and 2011-12.

Further neither the TPO nor the DR has been able to point out even a single distinguishing feature in respect of the assessment year in question which could have prompted the TPO to take a different view from assessment year 2009-10 and 2011-12. Without any proper reason or change in the functionality and financial data, it cannot be held that these companies are to be excluded/included (as prayed for herein above), in the intermediary period of the assessment year under consideration. The TPO has to bring some material on record to show as to why these comparables which were excluded/included (as prayed for herein above) in the earlier year and also in succeeding year, cannot be excluded/included in the year under consideration.