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8. The Ld. Counsel for the assessee reiterated what has been
stated during the course of the Transfer Pricing proceedings and
also before the DRP. The Ld. Counsel straightaway drew our
attention to the copies of Softex form filed by the assessee with the
STPI authorities. It is the say of the Ld. Counsel that this evidence
clearly show that the services are merely in the nature of Software
Development Services. In support of his contention, the Ld.
Counsel filed a complete set of documents to substantiate his claim
of Software Development Services provider.
10. We have given a thoughtful consideration to the rival
submissions and have carefully perused the orders of the
authorities below. We have also considered the relevant
documentary evidences brought on record. In our considered
opinion, the entire dispute revolves around the nature of business
of the assessee. The assessee claims itself to be a Software
Development Service Provider whereas the TPO has treated the
assessee as engaged in providing contract Research &
Development Services. This dispute gets strength from the
nomenclature used by the assessee in Form No. 3CEB and also in
its Transfer Pricing Study Report. However, the documentary
evidences filed in the form of copies of Softex Forms and the order
of the STPI authorities paint an altogether different picture. In our
considered opinion, these documents have not been properly
appreciated by the Revenue authorities. Had these documents
been examined qua the nature of business of the assessee, the
resultant product would have been different. Therefore, in the
interest of justice and fair play, we restore this issue to the file of the
TPO. The TPO is directed to re-examine the entire issue by denovo
assessment. The TPO is directed to decide the issue on the basis
of Softex Form filed with the STPI authorities and related orders of
the STPI authorities. The assessee is directed to furnish necessary
details and the TPO is directed to examine the same after giving
reasonable opportunity of being heard to the assessee. Needless to
mention, the TPO shall also decide all other related issues with the
TP adjustments relating to working capital adjustments and
differences in the risks. Ground No. 4,5 & 6 are treated as allowed
for statistical purpose".