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But the TPO did not agree with the above study and matrix because M/s VJIL Consulting Ltd had incurred losses for 2 years including the relevant financial year, and there was no foreign exchange earnings of M/s Shree Tulsi Online.com during the relevant financial year. The other reason was that the assessee had used 3 years' data, instead of one year data, the assessee informed. But the assessee contended that retention of loss making comparable companies alongside profitable companies tends to even out the risk profile of comparable companies, and so a company with losses cannot be rejected outright as a comparable on that ground alone, if it is still a going concern or its losses do not exceed its net worth. Appropriate analysis for reasons for losses has to be undertaken before selection or rejection of a comparable company. The assessee felt that loss filter applied by the TPO was erroneous and should be rejected. Reference was drawn to the decision of the Income Tax Appellate Tribunal (ITAT), Delhi in Sony India Private Limited (reference: ITA No. 1189/Del/2005, 819&820/DeI!2oo7). In the said case, the Tribunal had observed that the facts and circumstances surrounding the company should determine its status as a comparable, not its financial result. The Tribunal had also stated that exclusion of loss-making comparable is not justified as the loss situation is normal for the business. Further, Para 3.65 of the Transfer Pricing Guidelines for Multinational Enterprises and Tax Administrations issued by the Organization for Economic Co- operation and Development ("the OECD Guidelines") states, "......Loss-making comparable that satisfy the comparability analysis should not however be rejected on the sole basis that they suffer losses." The assessee informed that VJIL Consulting Ltd is not a persistent loss making company. As per the annual report, the company experienced losses due to decrease in turnover, provision for doubtful debts and change in accounting procedures. Further, as per the annual report, the operations of the company were badly affected due to differences in the management.