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TMI Blog2007 (7) TMI 441X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 143(1) on 8-11-2000. Notice under section 148 was issued on 4-4-2002, i.e., within a period of four years. Thus, it is not a case where the original assessment was completed under section 143(3) and where the reopening is beyond a period of four years as claimed by the assessee. As the return was processed under section 143(1), it cannot be said that the Assessing Officer formed an opinion and hence, there cannot be a question of change in opinion. Hence the re-opening is valid. We apply the judgment of the Apex Court in the case of Asstt. CIT v. Rajesh Jhaveri Stock Brokers (P.) Ltd. [2007] 291 ITR 500 as the facts are similar and uphold the reopening of assessment. For these reasons these grounds of the assessee are dismissed. 5. Coming to next ground of appeal regarding computation of exemption under section 10B, section 10B as applicable for the assessment year 1998-99 read as follows: "Special Provision in respect of newly established hundred per cent export-oriented undertakings. - (1) Subject to the provisions of this section, any profits and gains derived by an assessee from a hundred per cent export-oriented undertaking (hereafter in this section referred to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecalculation of exemption under section 10B 2.erred in confirming the action of the Assessing Officer, of recalculating the exemption allowable under section 10B at Rs. 1,56,350 as against Rs. 28,94,353 claimed by the Appellant; 3.erred in confirming the non-allowability of exemption under section 10B on the technical charges/fees received of Rs. 20,00,000 for software installation/implementation without appreciating the facts properly; 4.should have appreciated that the fees received was part of the operational income of the business of the appellant and therefore eligible for exemption under section 10B; 5.erred in confirming the action of the Assessing Officer, of reducing the training income received of Rs. 1,48,000 while working the profits exempt under section 10B; 6.failed to appreciate that the income from technical service fees as well as training income was intrinsically and inextricably linked with the export activity of the appellant and hence eligible for exemption under section 10B; 7.erred in confirming the action of the Assessing Officer, in denying the exemption under section 10B on the interest income by treating the same as income from, other sources; 8.sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch articles and things should not be less than 75 per cent of the total sales in the previous year. (e)That the proviso mandates that the sales of the computers software ought to have been made locally i.e., in the domestic market. That in the instant case the assessee had not sold any software product in the domestic market but received fees in form of consultancy service and this cannot be considered 'sale'. That professional and consultancy fees received, have not been derived from sale of computer software. (f)That since the professional fee earned is income which is not derived from or directly relatable to the sale of computer software, such services rendered do not qualify for deduction under section 10B and the assessee does not satisfy the deeming provisions of sub-section (2)(ib) to section 10B. 17.4 The first appellate authority, after considering the detail arguments of the assessee upheld the order of the Assessing Officer. Further aggrieved the assessee is in appeal before us. 18. The learned Counsel for the assessee Shri R.R. Vora reiterated the contentions made by him before the first appellate authority and Ms. Geeta Ravi Chandran, learned Departmental Represe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertain application objects. Assessee had developed a static website and further implemented the ICRM modules as well as developed WEB strategies for M/s. Fortune Financial Services (India) Ltd. for such implementation of ICRM Modules etc. in FFS. The assessee received professional fees of Rs. 20 lakhs. The assessee claims the above income was part of operational income and has to be considered as part of turnover. Thus, he submits that export turnover in question exceeds 75 per cent of the total turnover and thus the deeming provision of sub-section (2)(ib) of section 10B makes it eligible for deduction. 19.5 The learned Departmental Representative submits that the receipt in question is not local sales and that the receipt cannot be said to be derived from the export-oriented undertaking. 20. On a careful consideration of the facts and circumstances of the case we hold as follows: 20.1 Section 10B, sub-section (2)(ia) reads as follows:- "(2)(ia) : in relation to an undertaking which begins to manufacture or produce any article or thing on or after the 1st day of April, 1994, its exports of such articles and things are not less than seventy-five per cent of the total sales ther ..... 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