$ 27 * IN HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: 03.11.2017 + ITA 935/2017 PR. COMMISSIONER OF INCOME TAX -9 Appellant versus WSP CONSULTANTS INDIA PVT. LTD. Respondent Advocates who appeared in this case: For Appellant : Mr. Ruchir Bhatia, Adv. For Respondent : Mr. Kamal Sawhney and Mr. Shikhar Garg and Mr. Prashant Maherchandani, Advs CORAM:- HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON BLE MR. JUSTICE SANJEEV SACHDEVA S. RAVINDRA BHAT, J. (OPEN COURT) CM No. 39550/2017 (condonation of delay) For reasons stated in application, delay in filing appeal is condoned. Application is disposed of. ITA 935/2017 1. Revenue s appeal urges that impugned order to extent it excluded three comparables in ALP determination, of assessee s income, is erroneous. ITA 935/2017 Page 1 of 4 2. assessee is subsidiary of Cyprus based company and is global business provider involved in design, engineering, management consultancy services across built and nature environment worldwide. It provides services to transform built environment and restore natural environment and its expertise in relative fields. 3. brief facts of case are that assessee provides design and engineering services to private environment transporter and infrastructure sectors, its subsidiary Cyprus based entity which engages itself in these and other related activities. 4. TPO, who had to consider report filed by assessee for ALP determination, took into consideration 16 comparables and derived ALP bringing to tax sum of Rs. 6,55,34,938/-. DRP to which assessee appealed, deleted 7 comparables and at same time included 7 more. After giving effect to DRP s direction, final adjustments of RS. 3,87,54,545/- was made by AO. 5. Being aggrieved assessee filed appeal challenging inclusion of 3 comparables i.e. Ashok Leyland Projects Services Ltd., Kitco Ltd. and Mitcon Consultancy & Engineering Services Ltd., ITAT upheld assessee s contentions. 6. As far as first comparable - Ashok Leyland Projects Services Ltd. is concerned, ITAT was of opinion that major part of Revenue derived was from wind energy segment and ITA 935/2017 Page 2 of 4 secondly that during relevant year there was extraordinary event being merger of ALPSL with Ashok Leyland Wind Project Services Ltd. and another company which presented clear possibility of differential advantage. 7. With respect to M/s Kitco Ltd. Tribunal held that it was substantial government undertaking and prominent business was from government entity. So far as Mitcon Consultancy & Engineering Services Ltd. was concerned, Tribunal noticed that less than 75% of revenue derived by this entity was from consultancy services. Besides it is also engaged in diversified activities such as training and engaging in laboratories and research etc. 8. We have heard counsel for Revenue who urges that rationale for exclusion of three comparables which were high income entities is unpersuasive. 9. This Court is of opinion that rationale that Ashok Leyland was deriving major part of its revenue from wind energy segment and that there was extraordinary event of merger and likewise M/s Kitco Ltd. deriving income from government entity and Mitcon Consultancy & Engineering Services Ltd, is deriving less than 75% revenue from consultancy services, is reasonable basis for their exclusion. 10. Any inclusion or exclusion of comparables per se cannot be treated as question of law unless it is demonstrated to Court that ITA 935/2017 Page 3 of 4 Tribunal or any other lower authority took into account irrelevant consideration or excluded relevant factors in ALP determination that impact significantly. 11. In present case, we find no such error. Consequently, appeal is without merits and is, therefore, dismissed. S. RAVINDRA BHAT (JUDGE) SANJEEV SACHDEVA (JUDGE) NOVEMBER 03, 2017 rs ITA 935/2017 Page 4 of 4 Pr. Commissioner of Income-tax -9 v. WSP Consultants India Pvt. Ltd