ITAT A FORTNIGHTLY JOURNAL REPORTING ORDERS OF INCOME-TAX APPELLATE TRIBUNAL

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2 SELECTED ORDERS OF ITAT A FORTNIGHTLY JOURNAL REPORTING ORDERS OF INCOME-TAX APPELLATE TRIBUNAL May 10 - May 24, 2013 Volume 57 Issue 1 FOUNDER EDITOR : U.K. BHARGAVA EDITOR : RAKESH BHARGAVA EDITORIAL BOARD AGARWAL C.S., SENIOR ADVOCATE JAIN VED, FCA KAJI K.H., SENIOR ADVOCATE MUKESH M. PATEL, ADVOCATE RANKA J.K., SENIOR ADVOCATE SINGHANIA DR. VINOD K., TAX MANAGEMENT CONSULTANT SYALI M.S., SENIOR ADVOCATE VOHRA AJAY, ADVOCATE Selected Orders of ITAT comes in Six Volumes. Annual Subscription for 2013 : Rs. 5,300 for Six Volumes. Single Copy is Rs. 300 only. Selected Orders of ITAT is published on every 10th and 25th of the Month. Non-receipt of part must be notified within 60 days of the due date. This publication is sold with the understanding that authors/editors and publishers are not responsible for the result of any action taken on the basis of this work nor for any error or omission to any person, whether a purchaser of this publication or not. All disputes are subject to jurisdiction of the Delhi High Court. Address your editorial and subscription correspondence to Taxmann Allied Services (P.) Ltd., 59/32, New Rohtak Road, New Delhi Printed and Published by Amit Bhargava on behalf of Taxmann Allied Services (P.) Ltd. and Printed at Tan Prints (India) Pvt. Ltd., 44 Km. Mile Stone, National Highway, Rohtak Road, Village Rohad, Distt. Jhajjar (Haryana) and Published at 59/32, New Rohtak Road, New Delhi Editor : Rakesh Bhargava Phone : Fax : sales@taxmann.com MODE OF CITATION [2013] 57 SOT...(...) TOTAL PAGES INCLUDING COVER [176] SELECTED ORDERS OF ITAT MAY 10 - MAY 24,

3 A-2 Contents CONTENTS LIST OF CASES American Express Services India Ltd. v. Dy. CIT (Delhi)(URO) 22 Asstt. CIT v. Brijbasi Hi-tech Udyog Ltd. (Agra) 11 Capital IQ Information Systems (India) (P.) Ltd. v. Dy. CIT (Hyd.)(URO) 14 Dy. CIT v. Hellosoft India (P.) Ltd. (Hyd.)(URO) 4 Dy. CIT v. Mukeshbhai Babulal Shah (Rajkot) 45 Dy. DIT v. Nimbus Communications Ltd. (Mum.) 92 Dharti Dredgers & Infrastructure Ltd. v. Asstt. CIT (Hyd.) 31 Eaton Technologies (P.) Ltd. v. Dy. CIT (Pune)(URO) 8 General Atlantic (P.) Ltd. v. Dy. CIT (Mum.)(URO) 27 Gurdas Mann v. Dy. CIT (Chd.) 55 Hindustan Unilever Ltd. v. Addl. CIT (Mum.)(URO) 1 Jyotindra Natwarlal Naik v. ITO (Mum.) 114 Kansai Nerolac Paints Ltd. v. Dy. CIT (Mum.)(URO) 10 Kodava Samaja v. DIT (Bang.) 73 Narendra (S.) v. Addl. CIT (Mum.)(URO) 32 Saivani Educational Society v. DIT (Hyd.) 84 Societe Generale v. Dy. DIT (Mum.) 101 Sumitomo Corporation India (P.) Ltd. v. Dy. CIT (Delhi)(URO) 18 TATA Communications Ltd. v. Jt. CIT (Mum.) 1 Wills Processing Services (India) (P.) Ltd. v. Dy. CIT (Mum.)(URO) 34 SUBJECT INDEX BUSINESS EXPENDITURE Allowability of - Prior period expenses - Assessment year Assessee claimed deduction in respect of provision of optical fibre cable (OFC) charges on account of payment to department of telecom (DOT) - Assessing Officer held that such provision pertained to prior period expenses and, therefore, same could not be allowed - Whether bill of DOT was received during current financial year which meant that expenditure crystallized during year under consideration, and, therefore, Assessing Officer was to be directed to allow claim of deduction of provision of OFC charges - Held, yes - TATA Communications Ltd. v. Jt. CIT (Mum.) 1 - Provision of salaries - Assessment year Assessee, a public sector undertaking, made provision of salaries in view of impending pay revision of salary of its employees - Assessing SELECTED ORDERS OF ITAT MAY 10 - MAY 24,

4 Contents A-3 Officer however disallowed said provision observing that liability was not determinable during relevant previous year and that such liability arose in June 1999 when Pay Commission submitted its report - Whether since provision for salary was not a contingent liability, Assessing Officer was to be directed to allow claim of deduction of provision for salary as services rendered were in praesenti - Held, yes - TATA Communications Ltd. v. Jt. CIT (Mum.) 1 - Commission - Assessment year Assessee, a manufacturer of fire fighting equipment, claimed to have engaged an agent for effecting sales to a Government organization - It claimed deduction of 10 per cent commission paid to said agent - However, no correspondence between said agent and assessee was produced - Even Manager-Sales and Service denied of having any knowledge about said agent - Government department also affirmed that said agent was not attending their office on behalf of assessee - Agent filed his return only after initiation of enquiry by Assessing Officer and, thus, assessee s submission that agent was income-tax assessee was found to be false - Moreover, agent did not produce any evidence to justify commission received - Whether since both assessee and agent failed to prove that commission was paid against service rendered, commission payment could not be said to be an expenditure laid out wholly and exclusively for purpose of business - Held, yes - Whether further said amount would be disqualified under Explanation to section 37(1) as being opposed to public policy - Held, yes - Asstt. CIT v. Brijbasi Hi-tech Udyog Ltd. (Agra) 11 - Burden of proof - Assessment years to Assessee claimed deduction of expenditure incurred on production of films - Revenue authorities rejected assessee s claim - Whether since assessee failed to bring on record any evidence to establish its claim of having incurred expenditure for business purposes, merely because expenses had been met through cheque did not warrant its allowance - Held, yes - Whether, therefore, revenue authorities rightly rejected assessee s claim - Held, yes - Gurdas Mann v. Dy. CIT (Chd.) 55 - Foreign tour expenses - Assessment years to Assessing Officer rejected assessee s claim in respect of foreign tour expenses - Whether since assessee was unable to explain nature of said expenditure and also date of incurrence of said expenditure in corelation with dates of his foreign shows, impugned disallowance was to be confirmed - Held, yes - Gurdas Mann v. Dy. CIT (Chd.) 55 - Purchase of furniture - Assessment years to Whether expenditure incurred on purchase of new furniture could not be held to be replacement and same being in nature of capital expenditure, could not be allowed as a deduction - Held, yes - Gurdas Mann v. Dy. CIT (Chd.) 55 - Travelling expenses - Assessment year Whether, where company employed foreign nationals for its business, expense on return journey to their respective home countries on completion of assignment, was allowable - Held, yes - Sumitomo Corporation India (P.) Ltd. v. Dy. CIT (Delhi)(URO) 18 BUSINESS INCOME Chargeable as - Share dealings - Assessment year Whether income from purchase and sale of shares would be assessed as business income if intention of assessee behind their purchase and sale is to quickly realize profits - Held, yes - Whether, however, if intention of assessee behind purchasing and holding shares is to earn dividend and not to realize profit by turning over shares as it is done in course of business, profit arising on sale of shares would be assessable as capital gains under section 45 - Held, yes - Assessee bifurcated his dealing in purchase and sale of shares under two heads namely - (1) future and options which was treated as business income; and (2) purchase and sale of shares based on delivery in his books of account which SELECTED ORDERS OF ITAT MAY 10 - MAY 24,

5 A-4 Contents was shown as capital gain - Assessing Officer held that entire income was assessable as business income under section 28 - It was undisputed that in tax audit report, nature of business of assessee had been shown as trading of shares and assessee had no other business - Further, stock turnover ratio of assessee was 1:16 and capital turnover ratio was 1:14 which is normally found in business and not in investment - Dividend as percentage of average capital worked out to 0.05 per cent - Whether above facts clearly indicated that dominant intention of assessee behind purchase and sale of shares was to quickly realize profits by frequently turning over stock of shares and not to earn dividend from them - Held, yes - Whether, therefore, income arising from purchase and sale of shares was in nature of business income as defined under section 28 - Held, yes - Dy. CIT v. Mukeshbhai Babulal Shah (Rajkot) 45 CHARITABLE OR RELIGIOUS TRUST Registration procedure - Amendment to section 2(15) - Assessment year In view of retrospective amendment to section 2(15), advancement of any other object of general public utility shall not be a charitable purpose if it involves carrying on of commercial activities; if receipts from commercial activities is below Rs. 25 lakhs, it will be considered as a charitable purpose - Whether in later case, revenue cannot seek to revoke registration already granted to a trust by invoking section 12AA - Held, yes -Whether where objects of trust while granting registration under section 12A, had already been examined and no finding to effect that activities of assessee-trust were not genuine or not being carried out in accordance with its object, was recorded, DIT(E) could not re-examine objects of trust under section 12AA(3) to see if same were charitable in nature - Held, yes - Kodava Samaja v. DIT (Bang.) 73 - Profit element - Assessment year Whether where application for grant of registration is made after commencement of activities by assessee trust, Director of Income-tax (Exemption) justified to enquire about its activities - Held, yes - Whether merely because some profit has been earned by an educational institution, registration under section 12AA cannot be denied so long as provisions of sections 11, 12 and 12AA are complied with and its income has been applied for purpose of education in terms of section 11(2) and there is no violation of section 13 - Held, yes - Saivani Educational Society v. DIT (Hyd.) 84 CIRCULARS AND NOTIFICATIONS - Circular No. 9, dated DEPRECIATION Allowance/rate of - Owner - Assessment year Assessee had acquired part ownership of optical fibre cable pursuant to capacity sales agreement entered into between Flag Limited and other Telecommunication entities worldover and claimed depreciation thereof - Assessing Officer disallowed claim on ground that assessee was not complete owner of asset in question - Commissioner (Appeals) held that words wholly or partly have been inserted in section 32 with effect from and as such, assessee was eligible to claim depreciation on cable network even though entire network was not owned by it - Whether on facts, finding of Commissioner (Appeals) was to be upheld - Held, yes - TATA Communications Ltd. v. Jt. CIT (Mum.) 1 - User of asset - Assessment year Whether where assessee had successfully test run earth station before close of relevant financial year, depreciation was allowable on such assets - Held, yes - TATA Communications Ltd. v. Jt. CIT (Mum.) 1 - Owner - Assessment year Assessee was engaged in business of dredging, trenching, backfilling and reclamation services - For assessment year , it claimed depreciation on two dredgers stating that it had purchased same during financial year from a company incorporated in Taiwan - Agreement for sale of dredgers clearly indicated that seller had not SELECTED ORDERS OF ITAT MAY 10 - MAY 24,

6 Contents A-5 parted with its right of ownership of dredgers in favour of assessee - Said agreement conferred a right on seller to terminate agreement and take back possession of dredgers and forfeit payments already made in case of violation of conditions of payment and failure to extend bank guarantee - Effective date of agreement was date on which RBI would communicate approval to agreement and RBI had granted approval for dredgers on and respectively - Whether in aforesaid view of matter assessee was not owner of dredgers either wholly or partly - Held, yes - Whether, therefore, it was not entitled to claim depreciation on dredgers - Held, yes - Dharti Dredgers & Infrastructure Ltd. v. Asstt. CIT (Hyd.) 31 - Assessment year Whether UPS forms part of computer system and, therefore, entitled to 60 per cent depreciation - Held, yes - American Express Services India Ltd. v. Dy. CIT (Delhi)(URO) 22 EDUCATIONAL INSTITUTIONS - Profit element - Where education is imparted by an institution with purpose of profit, that is, purely on commercial basis, such institution would not be entitled to exemption under section 10(22) but it can claim exemption under section 11 if it applies 75 per cent of its income for charitable purposes and surplus, if any, has been invested in specified bonds and, further, provisions of section 13 are not violated - Held, yes - Saivani Educational Society v. DIT (Hyd.) 84 INCOME Chargeable as - Assessment year On receiving some AIR information, Assessing Officer assessed capital gain on sale of a property and interest on mutual fund in hands of assessee, an individual - Assessee submitted that capital gain and interest income had been offered for taxation in his HUF capacity - Whether once capital gain on sale of property and interest income shown in hands of HUF had been accepted by revenue, same could not be assessed again in hands of individual - Held, yes - Jyotindra Natwarlal Naik v. ITO (Mum.) 114 Deemed to accrue or arise in India - Business profit - Assessment year Whether where non-resident only allows a resident to exploit some rights vested in it on commercial basis, it cannot be said that non-resident has carried out any business activity in India - Held, yes - Dy. DIT v. Nimbus Communications Ltd. (Mum.) 92 - Royalties - Assessment year Assessee entered into an agreement with a foreign company (NSI) for obtaining licence for live telecast right of cricket series to be played outside India - Assessee sought for a certificate of nil deduction of TDS on ground that fees for live coverage would not be in nature of royalty - However, Assessing Officer held that payment of fees for live telecasting was in nature of royalty and assessee was liable to deduct tax at source - Tribunal in Asstt. DIT (International Taxation) v. Neo Sports Broadcast (P.) Ltd. [2011] 133 ITD 468/15 taxmann.com 175 (Mum.), has held that procedure of live telecasting, does not give birth to a work capable of copyright and any consideration for live broadcasting cannot be considered as royalty - Whether, in view of said decision, amount paid by assessee to NSI was not taxable in hands of NSI and, thus, assessee was not required to deduct tax at source from said payment - Held, yes - Dy. DIT v. Nimbus Communications Ltd. (Mum.) 92 INCOME FROM HOUSE PROPERTY Deductions - Interest on borrowed capital - Assessment years to Whether where rental income from individual flats owned by assessee and his wife had been included in their respective hands, deduction on account of interest paid on borrowed capital utilized for SELECTED ORDERS OF ITAT MAY 10 - MAY 24,

7 A-6 Contents purchase of said flats was to be allowed in equal proportion in hands of assessee and his wife - Held, yes - Gurdas Mann v. Dy. CIT (Chd.) 55 INCOME-TAX ACT, Section 4 101, Section Section 10(22) 84 - Section 12AA 73, 84 - Section Section 28(i) 45 - Section 32 2, 31, 23 - Section 37(1) 1, 11, 56, 19 - Section 92C 1, 4, 5, 8, 10, 14, 18, 22, 27, 32, 34 - Section 145A 1 MUTUAL CONCERN Assessable as - Branches - Assessment years to and Whether in case of assessee, a foreign company and its branch office situated in India, when funds are kept with one another, in view of principle of mutuality, neither income has to be charged to tax nor interest expenditure is required to be allowed as deduction - Held, yes - Societe Generale v. Dy. DIT (Mum.) 101 TRANSFER PRICING Computation of arm s length price - TNM method/comparables and adjustments - Assessment year Whether in course of transfer pricing proceedings, ALP determined by assessee has to be seen only with regard to international transaction with AEs and not on entire turnover/sales - Held, yes - Assesseecompany was engaged in export and import of home and personal care products - It entered into various international transactions with Associate Enterprises (AEs) - On basis of TNMM, arithmetic mean of comparables was worked out at per cent - Assessee claimed that since its profit margin (OP/TC) was per cent, international transactions entered into by it were at arm s length - TPO rejected some of comparables selected by assessee and, on basis of comparables short listed by him, arithmetic mean was worked out at per cent - Accordingly, TPO made certain adjustment to ALP determined by assessee - It was noted that TPO had applied mark up of per cent at entity level after taking into account entire transactions - Whether having regard to aforesaid legal position, impugned working of TPO was incorrect - Held, yes - Whether, even otherwise, since it was apparent from working of TPO that assessee s transactions fell within permitted range of +/- 5 per cent as mentioned in proviso to section 92C, impugned adjustment made by TPO, was to be set aside - Held, yes - Hindustan Unilever Ltd. v. Addl. CIT (Mum.)(URO) 1 - General principles - Assessment year Whether where assessee s income is exempt under section 10A, Assessing Officer has to prove shifting of profits by assessee to its Associated Enterprise before applying Transfer Pricing provisions - Held, no - Dy. CIT v. Hellosoft India (P.) Ltd. (Hyd.)(URO) 4 - TNM Method - Assessment years and Assessee adopted cost plus method for computing arm s length price of its transactions with associated enterprises - Transfer Pricing Officer held Transactional Net Margin Method to be most appropriate method - He accepted SELECTED ORDERS OF ITAT MAY 10 - MAY 24,

8 Contents A-7 only 2 out of 22 comparables selected by assessee and chose 15 other companies - Commissioner (Appeals) held that companies having very high turnover compared to assessee could not be treated as comparable - Filters applied by Transfer Pricing Officer were rejected and 11 other companies were selected as comparable - Assessing Officer was directed to allow benefit of (+)/(-) 5 per cent under proviso to section 92C(2) - Whether orders of Commissioner (Appeals) were justified - Held, yes - Whether benefit under proviso to section 92C(2) was available - Held, no -Whether Transactional Net Margin Method was most appropriate method - Held, yes - Dy. CIT v. Hellosoft India (P.) Ltd. (Hyd.)(URO) 4 - Comparables and adjustments - Assessment year Assessee-company was engaged in providing business support service and customer support services to its AE located abroad - During relevant assessment year, assessee made payment of Rs crore to its AE for setting up a new business centre in India - Assessee claimed that said transaction did not assume character of international transaction and, moreover, it did not have any bearing on income or profit of assessee since assessee itself had disallowed said expenditure while computing taxable profit - TPO rejected assessee s contention - He further held that since assessee could not demonstrate with evidence to satisfaction of Assessing Officer/TPO regarding nature of services rendered by AE and in absence of any benchmarking done by assessee, value of such international transaction had to be taken at NIL - Accordingly, an addition of Rs crore was made to assessee s income - Whether since assessee had suo motu added amount while computing its taxable income for impugned assessment year and no benefit of same had been taken either by capitalizing it and claiming depreciation on it, no adjustment could be made to assessee s ALP in respect of transaction in question - Held, yes - Whether, therefore, impugned addition made by authorities below was to be deleted - Held, yes - Eaton Technologies (P.) Ltd. v. Dy. CIT (Pune)(URO) 8 - Comparables and adjustments - Assessment year Assessee-company engaged in business of manufacturing of paints and varnishes entered into an international transaction with its associated enterprise (AE), Kansai Japan, for supply of technical know-how for which assessee made royalty payment to it - Assessee followed CUP method for determining arm s length price of royalty paid to its AE, on ground that there being similar payment of royalty made to two unrelated parties, internal CUPs were available - These two parties taken by assessee were Oshima Japan and Dupont USA and since royalty paid to them on domestic sales for supply of technical know-how was 3 per cent and 5 per cent, arithmetic mean of royalty rate was worked out by TPO at 4 per cent as per relevant provision of section 92CA - Commissioner (Appeals) however allowed some relief to assessee by revising said rate upwardly at 4.5 per cent - Subsequently, assessee submitted that terms and conditions of supply of technology were different in case of non-related party Dupont and associated enterprise of assessee - It contended that case of Dupont, therefore, was not a comparable case and there was no justification in taking said case into consideration for comparability analysis - Whether since relevant figures showed that domestic sales generated by assessee using technology of Dupont was quite comparable with domestic sales generated from use of technology of its AE there was thus no merit in stand of assessee that Dupont could not be taken as comparable - Held, yes - Kansai Nerolac Paints Ltd. v. Dy. CIT (Mum.)(URO) 10 - Comparables and adjustments - Assessment year Assessee was engaged in business of providing IT-enabled Services (ITES) and business support services, to its AE on a cost plus mark up basis - For computing Arm s Length Price (ALP) of international transaction, assessee adopted Transactional Net Margin Method (TNMM) - Assessee selected 15 comparables with an average profit margin of per cent on cost; therefore, margin earned by assessee at per cent on operating cost was treated as at arm s length because said margin was within plus/ minus 5 per cent range as provided in section 92C - In transfer pricing proceedings, TPO found some of filters applied by assessee to be not acceptable - TPO applied his own filters for selecting comparables - On basis of fresh set of comparables, TPO made an adjustment of Rs crore SELECTED ORDERS OF ITAT MAY 10 - MAY 24,

9 A-8 Contents to ALP determined by assessee - DRP set aside objections raised by assessee - On appeal, it was noted that companies with extraordinary circumstances, like those which suffered events like merger/de-merger, impacting financial results, could not be treated as comparables; companies having supernormal profit could not be considered as comparable; companies which were functionally dissimilar could not be taken as comparables; companies, who were industrial giants and market leaders having substantially high turnover could not be taken as comparables - Whether in view of above, impugned order was to be set aside and, matter was to be remanded back for disposal afresh - Held, yes - Capital IQ Information Systems (India) (P.) Ltd. v. Dy. CIT (Hyd.)(URO) 14 - Comparables and adjustments - Assessment year Assessee-company had indent sales and proper sales with both Associated Enterprises (AEs) and non-aes - Assessee claimed that it was merely a facilitator for indenting transactions, on which it earned commission - It considered commission per cent of non-ae indenting segment as arm s length commission for indent sales, after deducting 50 per cent discount on basis of volume - However, Transfer Pricing Officer took gross profit margin of non-ae trading segment as arm s length commission - Assessee claimed that since there was no change in assessee s operating model or activity, no adjustment was warranted, as in earlier years - Whether, nature of assessee s indenting transactions were different from its trading transactions and gross profit margin of latter could not be taken as arm s length commission for indenting transactions - Held, yes - Whether discount in commission percentage of non-ae indenting segment, on basis of volume, to make it comparable to AE segment was justified - Held, no - Whether adjustment could be made even if there was no change in assessee s operating model/activity - Held, yes - Sumitomo Corporation India (P.) Ltd. v. Dy. CIT (Delhi)(URO) 18 - Comparables and adjustments - Assessment year Whether if comparables are performing same functions then merely on ground of they are earning super profits cannot be excluded - Held, yes - Whether however, if certain extraordinary factors materially affected profit in a particular year then that aspects has to be taken into consideration and due adjustment is required to be made to net profit margin for bringing comparable on same platform at which an assessee is performing its functions - Held, yes - Whether an assessee is well within his right to demonstrate that a comparable supplied by it in transfer pricing analysis was not correct and had to be excluded and this right of assessee is not curtailed in any manner, whatsoever, in Rules - Held, yes - American Express Services India Ltd. v. Dy. CIT (Delhi) (URO) 22 - TNM Method/Comparables and adjustments - Assessment year Assessee-company was registered in India - It was providing private equity investment advisory services to its AE - Assessee selected 7 comparables for benchmarking ALP of its international transactions - It arrived at operating profit mean of comparable at per cent and claimed that assessee s mark up on operating cost at per cent with respect to services rendered to AE was at ALP - TPO did not accept comparables selected by assessee on ground that activities of assessee were akin to investment banking and merchant banking - Accordingly, TPO carried out search with keywords merchant banking/investment banking and advisory services - TPO selected 8 comparables and determined arithmetic mean of operating profits of comparables at per cent - It was clear from records that assessee was providing only advisory services and support services to its AE, who in turn took a decision for potential investment and further recommended for potential opportunities of investment to investment committee which in turn took a final decision of investment so recommended by AE - Tribunal had considered an identical issue in case of Carlyle India Advisors (P.) Ltd. v. Asstt. CIT [2012] 53 SOT 267 (URO)/ 24 taxmann.com 176 (Mum.) wherein nature of services and activity of assessee in that case was similar to assessee s activity of providing services - In said case TPO rejected comparables selected by assessee except one company i.e. IDC (India) Ltd. - Tribunal examined comparables selected by TPO and found that except one comparable i.e. IDC (India) Ltd. all other SELECTED ORDERS OF ITAT MAY 10 - MAY 24,

10 Contents A-9 comparables could not be taken into consideration for determination of ALP - Whether since nature and activities were identical, order of Tribunal in case of Carlyle India Advisors (P.) Ltd. (supra) was to be followed - Held, yes - Whether in absence of any change in business profile and other facts and circumstances as existed in assessment years and as well as functions of sole comparable company, contention of revenue that comparable found for assessment year could not be suitable comparison for assessment year was devoid of any merit and substance - Held, yes - Whether since only one comparable was considered to determine ALP, benefit of ± 5 per cent as provided under proviso to section 92C(2) would not be available to assessee - Held, yes - Whether current year data will be taken into consideration until and unless some exceptional circumstances are brought on record to show that one year data of comparable do not give true picture being influent by such circumstances - Held, yes - Whether when assessee had not made out a case that taking data for only current financial year did not present correct and fair financial result of comparable than there is no mistake in considering data for financial year in which international transaction had been entered into - Held, yes - General Atlantic (P.) Ltd. v. Dy. CIT (Mum.) (URO) 27 - Comparables and adjustments - Assessment year Whether, where foreign exchange gain related to business of assessee is part and parcel of operating income, same was to be included by TPO in computing arm s length price profit - Held, yes - S. Narendra v. Addl. CIT (Mum.)(URO) 32 - Comparables and adjustments - Assessment year Assessee-company rendered IT enabled services to AE - TPO rejected almost all comparables selected by assessee and introduced new comparables - He accordingly, recommended adjustment in arm s length price - Whether since information obtained by TPO by writing to various companies while selecting comparables was not available in public domain, it was incumbent on TPO to furnish same to assessee - Held, yes - Whether since said information was not supplied to assessee, same became secret information which could not be used against assessee - Held, yes - Whether further there was no uniformity in rejection of assessee s comparables and selection of comparables by TPO, issue had to be set aside to file of TPO for determining ALP afresh - Held, yes - Wills Processing Services (India) (P.) Ltd. v. Dy. CIT (Mum.)(URO) 34 SELECTED ORDERS OF ITAT MAY 10 - MAY 24,