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8. On facts and in law, the Ld. CIT(A)/ Ld. AO/ Ld. Ld. TPO have violated the provisions of Rule 10B (2) of the Rules by arbitrarily adding a new company, Stup Consultants Pvt. Ltd. as comparable to the Appellant, disregarding the fact that the Company is functionally dissimilar to the Appellant as the Company is a full service project delivery consultancy company offering integrated planning, architectural, engineering and project management services to varied industries and ignoring that there was an abnormal increase in the income growth during FY 2007-08.

27. At the very outset, ld. AR for the taxpayer in order to compress the issue raised in the appeal fairly conceded that in case appeal filed by the Revenue is dismissed, the taxpayer only challenges the inclusion of Stup Consultants Pvt. Ltd. as a comparable. So, in view of our findings returned in the preceding paras, dismissing the appeal filed by the Revenue, we would examine the suitability of Stup Consultants Pvt. Ltd. as a comparable for benchmarking the international transactions undertaken by the taxpayer with its AE.

STUP CONSULTANTS PVT. LTD. (STUP)

28. Perusal of para 9.5 of the TP order shows that the taxpayer has challenged the inclusion of Stup that it is functionally dissimilar and it fails export filter of < 25%. But the TPO retained Stup as a suitable comparable.

29. The taxpayer challenged Stup before the ld. CIT (A) as is evident form ground no.7 extracted at page 449 of the paper book but ld. CIT (A) has not returned any findings on this issue.

30. When we examine the submissions made by the taxpayer before the ld. CIT (A), available at pages 411 to 453 of the paper book, relevant page 452, which is based upon Prowess Data Base, it has come on record that Stup Consultants Pvt. Ltd. is purely a consultancy firm which, renders consultancy and project management services for power, transportation, telecommunications, commercial, institutional, recreational and manufacturing facility infrastructure, whereas the taxpayer is into providing engineering design services in the form of customs software for planning and set up of power plants, hence Stup is not functionally comparable vis-à-vis the taxpayer.