Facts of the Case
- The Assessee, Microsoft India (R&D) Pvt. Ltd., is engaged in
software development and IT-enabled services.
- For AY 2011-12, it declared income of over ₹201 crore.
- The case was referred to the TPO for determining ALP of
international transactions.
- The TPO proposed a transfer pricing adjustment exceeding ₹240
crore.
- Final assessment was completed under Sections 143(3)/144C.
- Both Assessee and Revenue filed cross appeals before ITAT, which
partly allowed relief.
- Aggrieved, both parties filed appeals before the Delhi High Court
under Section 260A.
Issues
Involved
- Whether ITAT was justified in excluding certain comparables
(Infosys, Persistent Systems, Wipro Technology Services).
- Whether an assessee can challenge comparables initially selected by
itself.
- Whether absence of segmental data justifies exclusion of
comparables.
- Whether transactions under Section 92B(2) cease to be “uncontrolled
transactions”.
- Whether ITAT was justified in remanding corporate tax issues
instead of deciding them finally.
Petitioner’s
Arguments (Assessee)
- Comparables selected were functionally dissimilar and involved
software products along with services.
- Lack of segmental data makes such companies unsuitable for
benchmarking.
- ITAT wrongly remanded issues like rental income classification
despite settled law.
- Remand leads to prolonged litigation despite availability of
complete facts and binding precedents.
Respondent’s
Arguments (Revenue)
- ITAT erred in excluding comparables that passed the filters applied
by TPO.
- Assessee cannot challenge comparables that it had itself included
in TP documentation.
- Filters applied were more stringent and satisfied by excluded
companies.
- ITAT exceeded jurisdiction by re-evaluating comparables already
accepted.
Court’s
Findings / Order
On
Comparables
- Exclusion of Infosys Ltd., Persistent Systems Ltd. justified
due to:
- Mixed revenue from software products and services
- Absence of segmental data
- Exclusion of Wipro Technology Services Ltd. justified
because:
- Transactions were deemed international transactions under Section
92B(2)
- Hence not “uncontrolled transactions” under Rule 10B
On Assessee
Challenging Its Own Comparables
- Court held:
- There is no estoppel against law
- Assessee can challenge wrongly included comparables
On Revenue’s
Appeal
- No substantial question of law arises
- Revenue’s appeal dismissed
On
Assessee’s Appeal
- ITAT erred in routinely remanding issues
- Tribunal must decide issues where sufficient material exists
- Matter remanded back to ITAT for limited adjudication on corporate
tax issues
- Other issues (like Section 10A claim remand) upheld
Important Clarifications by Court
- Functional similarity is key in transfer pricing comparability, not merely filters
- Segmental data absence is a valid ground for exclusion
- Deemed international transactions under Section 92B(2) cannot be treated as uncontrolled
- Remand should be used sparingly, not
routinely
- Acceptance of comparables earlier does not bar later challenge
Sections
Involved
- Section 92B – International Transactions
- Section 92B(2) – Deemed International Transactions
- Section 10B / Rule 10B(1)(e) – Comparable Uncontrolled Transactions
- Section 143(3) – Assessment
- Section 144C – DRP Proceedings
- Section 260A – Appeal to High Court
- Section 10A – Deduction
Link to download the order -https://delhihighcourt.nic.in/app/case_number_pdf/2021:DHC:11-DB/SVN04012021ITA2472019_153320.pdf
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