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The TPO during the TP Adjustment proceeding rejected Avance on the ground that this companies is engaged in software trading, sales of hardware and other services and no segmental information is available. DRP upheld the action of on the basis of order for A.Y. 2010-11.Before Tribunal, the assessee has placed on record the financial statement of Avance. Perusal of financial statement reveals that this company has earned Rs. 140 Crore from sale of software out of total sales of Rs. 176 Crore. This company has approximately 80% of its income from software product. Thus, segmental information as placed before us is available at (Page No. 204 to 205 of Paper Book). Further, while rejecting Empower, the TPO held that this company is engaged in selling of hardware and no segmental are available. From the financial statement placed before Tribunal at (Page No. 207 to 219 of the Paper Book) As per discussion available on Page No. 22 of Annual Report of this comparable (Page No. 209) the company has earned more than 80% of its revenue from software sales. Similarly, Sonata was rejected by TPO by taking view that this company is engaged in software trading, consultancy services. We have noted that this comparable was accepted in A.Y. 2020-11 by TPO himself in its order dated 29.01.2014. Further, financials of this comparable shown that this company has earned Rs. 584 Crore from distribution of software product out of total sales of Rs. 597 Crore, thus, earned 97.49% of its total revenue from software product (Page No. 224 of the Paper Book). SVAM Software was rejected by TPO on the ground that this comparable is engaged in software development, sale purchase of software and computer related hardware. The revenue of software is only Rs. 2 Crore against the total revenue of Rs. 20 Crore. From the financial of this company it is noted that entire income of Rs. 2.09 Crore is shown from sales (sale of product). Considering the nature and activities carried out by all these 4 comparable company which are primarily engaged in distribution of software product as noted above. The software distribution company are held to be good comparable to distributor satellite channels in Turner International India (P.) Ltd. vs. ACIT (supra). Therefore, we accept the submission of ld. AR of the assessee to accept these comparable as comparable with assessee and direct the AO/TPO to work out the T.P. Adjustment afresh. Needless to order that before passing the order, the TPO/Assessing Officer shall grant opportunity to the assessee. In the result, the grounds related to comparability of comparable are allowed in accordance with the aforesaid directions. Considering the fact that we have allowed the functional comparability, therefore, discussions on alternative adjustment held by DRP have become academic.

Shanti Prime Publication Pvt. Ltd.

Section 92, 92B, 92CA, 199, 234B of Income Tax Act, 1961—Transfer Pricing—  The assessee challenged the order of Tribunal’s dated 13.04.2018 before Hon’ble Bombay Hon’ble High Court in Writ Petition before the; vide W.P. No. 3508/2018. The Hon’ble High Court vide order dated 03.01.2019 set- aside the order of Tribunal dated 28.07.2017 and restored the matter back to the Tribunal for fresh adjudication. The Hon’ble High Court also directed to decide the characterization of distribution fee i.e. Royalty or not. Tribunal held that distribution fee cannot be termed as ‘Royalty’ thus; discussion on the royalty agreement selected for comparability has become academic. Next ground relates to short deduction of TDS, MAT credit and interest u/s 234B. Although, no specific submission was made by ld. representative of the parties. However, keeping in view the principle of natural justice, the AO was directed to verify the TDS details and grant appropriate relief to the assessee as per law. Similarly on MAT Credit, the AO was directed to verify the fact and grant relief to the assessee in accordance with law. So far as levy of interest u/s 234B was concerned, this interest is consequential, thus, the AO is directed to work out the interest as per law. And one other ground relates to initiation of penalty u/s 271(1)(c),that ground of appeal was premature and needs no specific direction. Therefore, the appeal of the assessee was partly allowed. --- SONY PICTURES NETWORKS INDIA PVT. LTD. vs. Deputy CIT. [2020] 23 ITCD Online 39 (MUM)

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