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16. Assessee company sought to exclude this company as comparables due to extra ordinary events in the form of amalgamation during the FY 2006-07 and relied upon decision rendered by ITAT, Delhi Bench in COWI India P. Ltd. (ITA No.5709/Del/2011) (available at pages 699 to 715 of the Paper Book-III) and ITAT, Hyderabad Bench in case of Capital IQ 8 ITA No6455/Del./2012 Information System India Pvt. Ltd. (ITA No.1961/Hyd/2011) (available at pages 812 to 839 of the paper book).

17. Coordinate Bench of ITAT, Delhi as well as Hyderabad in the cases of COWI India P. Ltd. and Capital IQ Information System India Pvt. Ltd. (supra) respectively ordered to exclude this company as a valid comparable due to extra ordinary circumstances, such as, merger and demerger which has certainly effected the financial results as the amalgamation took place in FY 2006-07 relevant to AY 2007-08.

18. More so, we are inclined to order the exclusion of this company for the reason that the annual report of this company is not available for FY 2006-07 and in these circumstances, it is not feasible to rely upon the material made available to the TPO in response to the notice u/s 133 (6) of the Act. Furthermore, there is a wide gap between employee cost of the assessee vis-à-vis the comparable company i.e. 13.98% of sales in case of ACCENTIA and 48.93% respectively.

19. Application of filter of employee cost to sales has been considered by the coordinate Bench of ITAT, Bangalore in case of M/s. e4e Business Solutions India Pvt. Ltd. (ITA No.819/Bang/2011) (available at pages 716 to 740 of the Paper Book-III), so the employee cost filter is a time tested filter for the 9 ITA No6455/Del./2012 purpose of selecting the comparables. So, we are of the considered view that ACCENTIA is not a valid comparable for benchmarking international transaction in assessee's case. BODHTREE CONSULTING LTD. (BODHTREE)

GROUND NO.4

43. Ground no.4 is not pressed, hence the same is dismissed as not pressed.

GROUND NO.5

44. Ground No.5 is premature, hence needs no adjudication.

45. In view of what has been discussed above, the present appeal is partly allowed.

Order pronounced in open court on this 18th day of January, 2017. 

         Sd/-                                   sd/-
  (S.V. MEHROTRA)                          (KULDIP SINGH)
ACCOUNTANT MEMBER                        JUDICIAL MEMBER

Dated the 18th day of January, 2017
TS


Copy forwarded to:
     1.Appellant
     2.Respondent
     3.CIT
     4.CIT (A)
     5.CIT(ITAT), New Delhi.                         AR, ITAT
                                                    NEW DELHI.