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7. On the facts and in the circumstances of the case the Dispute Resolution Panel erred in directing the TPO/AO to exclude the comparable M/s ICRA Online Ltd & M/s Sundaram Business Services Ltd. by applying new filter i.e 75% Export filter in ITES segment, without appreciating the fact that the direction IT(TP)A No. 404/Bang/2015 IT(TP)A No. 553/Bang/2015 actually amounts to setting aside of the draft order, which is beyond the mandate given to DRP vide provisions by Section 144C(8).

11.2.1 The assessee on its part submitted that 'ICRA' anyhow ought to be excluded from the set of comparables on the grounds of functional comparability.

11.3.1 We have considered the rival contentions and carefully perused the material on record. We find that the assessee has objected to the inclusion of 'ICRA' on the ground that it is not functionally comparable to the assessee; both before the TPO as well as the DRP. The DRP, however, has not adjudicated on its functional comparability of 'ICRA', but instead proceeded to render a finding that this company requires to be excluded by applying 75% export earning filter. In this regard, it is seen that the TPO applied the filter of 25% of export earnings. The DRP order however states that "In the preceding paras, it has been held by us that 75% export earning filter needs to be applied consistently for the ITES segment also as against the 25% export earning filter applied by the TPO." But, we find that there is no such discussion or decision been rendered by the DRP as claimed. In the absence of any such discussion or decision being rendered, as claimed, applying the 75% export earning filter suo moto is not tenable. Further, if any new IT(TP)A No. 404/Bang/2015 IT(TP)A No. 553/Bang/2015 filters are applied, it is imperative to examine whether the application of such a filter has any impact on the other companies about their inclusion or exclusion in the set of comparables. That 'ICRA' was not selected as a comparable by TPO's in other cases cannot be a valid ground for exclusion in this case also, unless the reasons for such exclusion in other cases are known. In view of the above, we deem it appropriate to remand the issue of comparability of this company i.e., ICRA Online Ltd., to the file of the TPO with the direction that the filter applied suo moto by the DRP in the case of 'ICRA' be applied to the entire set of comparable companies.

11.4.3 We have considered the rival contentions and carefully perused the material on record. This company, 'Sundaram', was selected as a comparable by the TPO and the assessee had accepted the same without any objection. We find that the DRP suo moto examined the comparability of this company and directed its exclusion from the set of comprables on the ground that it fails the 75% export earning filter, a new filter introduced by the DRP, which was not applied either by the TPO or the assessee. The DRP order, in this regard, states that "It has already been held in the preceding paras that 75% export earning filter has to be consistently applied for ITES segment also". We, however, IT(TP)A No. 404/Bang/2015 IT(TP)A No. 553/Bang/2015 find that there is no such discussion or decision rendered by DRP, as claimed. In the absence of any such discussion or decision, as claimed, applying the 75% export earning filter suo moto is not tenable. Also, if any new filters are applied, it is necessary to examine whether the application thereof has any import on the other comparbles companies regarding their inclusion or exclusion from/into the final set of comparables. Since we have taken the stand that if any new filter is applied, it should be applied uniformly on the entire set of comparable companies, we deem it appropriate to remand the issue of comparablity of this company, Sundaram Business Services Ltd., back to the file of the TPO with a direction that the 75% export earning filter, applied, suo moto, by the DRP, be applied on the entire set of comparable companies.

12.2 Before us, the learned DR for Revenue assailed the decision of the DRP, contending that this company, 'Infosys' qualified all the filters applied by the TPO and also that the DRP has failed to consider all the material facts discussed in the TP order. It was also submitted that the DRP had, suo moto, applied new filters like on-site filter employee cost filter, 75% export earning filter, etc., not applied by either the assessee in its TP study or the TPO in his order u/s 92CA of the Act. Therefore, it would be proper if the entire issue of comparability of all comparable companies be remanded back to the file of the TPO for fresh consideration, in the light of the introduction of new filters by the DRP.