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10. The appellate craves leave to add, to alter, to amend or delete any of the grounds that may be urged at the time of hearing of the appeal.

4. Though various grounds are raised in these appeals, but they all relate to determination of the arm's length price in software development service segment and marketing service agreement. We therefore, adjudicate the issue of arm's length price segment wise.

5. Software development service segment:

The facts in brief borne out from the record are that the assessee is engaged in the profession of providing technical support and marketing services to its AEs as a capital service provider. The assessee is compensated on total cost plus market basis for rendering these services. Assessee made a transfer pricing study for determination of the ALP for software development service segment IT(TP)A Nos.303 and 422/Bang/2015 which was considered by the TPO and he finally has taken the following 11 comparables for determination of the arm's length ALP: 
       i.       Mindtree Ltd.
       ii.      Thinksoft Global Services Ltd.
       iii.     Tata Elxsi
       iv.      Larsen& Toubro Infotech Ltd.
7. The Revenue as well as the assessee are against the exclusion of R S Software (India) Ltd., made by the DRP. Since both the parties have agreed for the inclusion of the R S Software (India) Ltd., we direct the TPO to include R S Software (India) Ltd., in the list of comparables for determination of the arm's length price.

IT(TP)A Nos.303 and 422/Bang/2015

8. The assessee is against the inclusion of Larsen& Toubro Infotech Ltd., and the Tata Elxsi Ltd. With respect to Larsen& Toubro Infotech Ltd., the learned Counsel for the assessee has contended that this company earns the Revenue from both services and product and no breakup is available in its Annual Report. The company has high ownership of intangibles and has significant brand value. The exclusion of this company was examined by the Tribunal in the case of DCIT Vs. Novell Software Development India Pvt. Ltd., in IT(TP)A No. 281/Bang/2015, CO No.101/Bang/2015 for assessment year 2010-11 and DCIT Vs. Electronics for Imaging India P. Ltd., [(2016) 70 taxmann.com 299 (Bang.Trib)] for assessment year 2010-11. Copy of these orders are placed on record. The learned Counsel for the assessee further contended that in the case of Novell Software Development India Pvt. Ltd., the Tribunal has relied upon the order of the Tribunal in the case of Electronics for Imaging India P. Ltd., (supra) wherein the Tribunal has examined the profile of Larsen & Toubro Infotech Ltd., and directed the AO/TPO to verify the details of revenue earned by this company and if the revenue earned by this company consists of software development services as well as the product, then in the absence of segmental data this company cannot be considered as functionally comparable to the software development service segment of the assessee.

IT(TP)A Nos.303 and 422/Bang/2015 "24. We heard the rival submissions and perused the material on record. It is undisputed fact that company has incurred expenditure in foreign currency of Rs.9.57 crore out of total expenditure of Rs.11.33 crores. It indicates that it is engaged in the onsite development of software, whereas the assessee company is only an offshore service provider. When the entity i.e., Akshay Software Technology Ltd., was operating outside India having a different geographical market, cost of labour, etc., would earn the returns which are commensurate to those economic conditions. Thus, the assets and risk profile, pricing as well as prevailing marketing conditions were different in a company which is engaged in onsite development software from the companies engaged in the offshore development of software like the assessee company. Therefore, this company cannot be compared with that of the assessee company and we uphold the rejection of this company from the list of comparables. This view is also supported by the decision of the coordinate bench in the case of Trilogy E-Business Software V. DCIT[TS 748 ITAT 2012(Bang) TP].