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30.2 Accordingly, Eclerx is directed to be excluded.

31. The other issues agitated by the assessee in ground No. 2 in sub-grounds (c)(ii)(g) are left open.

32. Addressing the issues agitated in ground No. 3, it is seen that in order to determine the arm's length price for broking services rendered by the assessee to its AE, CUP method has been accepted by both the parties. The issue , it is seen has been discussed by the DRP at pages 18 to 23 in para 3 to 3.2. In the year under consideration, the assessee provided trade execution and clearing services on NSE and BSE for equity market both to its AE and third party clients. U pward adjustment was made by the TP O by c onsidering only off-shore clients and that too only top 10 FII clients as comparables. Th e comm ission from on-shore c lie nts was considered to be dissimilar on the grounds of distinctions on account of dissimilarity in the nature of functions performed and risks assumed. The said action has been opposed by the assesse e before the TP O a s well a s the DRP. Since the DRP confirmed the view of the TPO, the assessee is in appeal be fore the I TA T. Goldman Sachs (India) Securities P.Ltd. V DCIT ITA NO.1115 & 1546/MUM/2015 (A.Y.2010-11)

33. The ld. AR objects to the Approach/Methodology of selecting only top ten FIIs and not the entire pool of FIIs stating that there is no rationale given in the year under consideration to deviate from the accepted practice followed in the earlier years and also subsequent assessment year. It was submitted that for the deviation in the year under consideration, no justification for picking up of only top te n FIIs has be en gi ven. Ma intaini ng i ts objection s on all the p oints agitated be fore the TPO an d the D RP be fore the I TAT, the ld. AR submitted that first and foremost he would want to argue that the method all along followed in the earlier years on the issue be followed. Ignoring the past history on the issue of methodology without assigning any reasons where admittedly there is no change in facts and circumstances, the stand of the Revenue was opposed as being arbitrary. Referring to the record, it was submitted that in the orders, the respective authorities have given no valid reason for varying the methodology and picking up only top ten FIIs. Thus, the order is challenged on the grounds of consistency. It has been argued that in the prior assessment year as well as the subsequent assessment, similar broking services have been provided wherein CUP has been used as a method and average commission charged by the assessee to its AEs is compared with its third party clients. For ready Goldman Sachs (India) Securities P.Ltd. V DCIT ITA NO.1115 & 1546/MUM/2015 (A.Y.2010-11) refere nce, extrac t of the TP Study Report page 1 1 Form 3 CEB specific page 22 and TPO's order page 24 to 71 for assessment year 2008-09 was relied upon. Similarly referring to the Additional Paper Book again for 2009-10 assessment year, e xtract of TP Stud y Rep or t page 76; For m 3CEB page 88 TPO's order page 89 to 97 was referred to. The facts pertaining to subsequent assessment year i.e. 2011-12 assessment year placed in the additional Paper Book were relied upon wherein the TPO's order supported by the TP Study and Form 3CEB is available at page 116 and 143 and for 2013-13 assessment year, the TPO's order at page 161 to 185 relying up on the TP SR and Form 3CEB was relied upon. Thus, it was submitted that the same approach as in earlier years and subsequent years may be followed. 33.1 Referring to these facts, it was argued that there is no change in facts over the years, it was his prayer that a direction to the Revenue may be given to follow the same methodology. The said action, it was submitted is supported by the following legal precedent to name a few :

33.3 It has also been argued that there is no justification on record for rejection of domestic clients. The DRP has upheld the TPO's orders which has no justification on the reasoning that the assessee is exposed to foreign exchange risk which fact is absent in domestic clie nt, hence commission from domestic client should not be considered.

The ld. AR submitted that the said argument is hollow and incorrect in view of the fact that the assessee raises its invoices in INR for all clients whether domestic or FII. This fact, it was submitted, is evidenced from the Transfer Pricing Study Report page 594 of the Paper Book wherein the relevant extract narrates to Foreign exchange risk: GSISPL Goldman Sachs (India) Securities P.Ltd. V DCIT ITA NO.1115 & 1546/MUM/2015 (A.Y.2010-11) does not bear any foreign exchange risk as it invoiced its AEs in Indian rupees. Th us, i t wa s argued that between the transactions with the foreign and domestic third party clients there is no perceivable difference hence all third parties should be considered in the CUP analysis. 33.4 Without prejudice to the above arguments, it has also been argued that if for any reason the third parties i.e. domestic and foreign are not considered then brokerage charged to all FII third party clients should be considered because if it is so considered that there is a distinction between FII and domestic clients, then all FIIs should be considered for the purposes of determining the arms' length price.

33.5 Without prejudice to the above it was also alternatively argued that if all FIIs are not considered, then the TPO be directed to consider the top ten FIIs of the same jurisdiction where the AE is situated. It has been argued that in case the TPO/Revenue is of the view that there are certain differences which exist between the services rendered by the assessee to its third party clients and the service rendered by the assessee to its AE, then appropriate adjustments need to be made to the arm's length price in order to make it comparable to the international transaction, Goldman Sachs (India) Securities P.Ltd. V DCIT ITA NO.1115 & 1546/MUM/2015 (A.Y.2010-11) then the following adjustments to the average commission rate charged by the assessee to the third party clients, it was his prayer should be made; namely adjustments for significantly higher volume of transaction that the AE has compared to other clients and adjustment for difference in risks assumed for AEs versus third party clients.