9911796707
TMI Blog2010 (3) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... e of any contrary material placed on record by the revenue against the factual matrix of the case shown by the assessee before the ld. CIT and also at this stage and respectfully following the decision of the Special Bench of the Tribunal in ITO vs. Sak Soft Ltd. (2009 -TMI - 70680 - ITAT MADRAS-D) we are of the view that the issue is squarely covered by the order of the Special Bench of the Tribunal, and hence, the order passed by the AO is not found to be erroneous in so far as it is prejudicial to the interests of the revenue and accordingly we cancel the order passed by the ld. CIT u/s.263 and uphold the order passed by the AO. X X X X Extracts X X X X X X X X Extracts X X X X ..... and Insurance expenses were not separately recovered in the invoices. Hence, the question of excluding these expenses to work out the export turnover does not arise and in support sample copies of invoices were also produced. However, the ld. CIT after considering the assessee's submission was of the view that in order to properly examine the assessee's case out of the purview of clause(4) of Explanation 2 to Sec. 10A of the Act, scrutiny of the basic records maintained by the assessee was required and accordingly he set aside the assessment with the direction to the AO to examine the facts in the aforesaid respect and take decision as per law after providing opportunity of being heard to the assessee. 3. Being aggrieved by the order of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O be restored. 5. On the other hand the ld. DR supports the order of the ld. CIT. 6. We have carefully considered the submissions of the rival parties and perused the material available on record. In Malabar Industrial Co. Ltd. vs CIT (2000)243 ITR 83 (SC) Their Lordships have taken the view at page 88 of 243 ITR that "The phrase "prejudicial to the interests of the Revenue" has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss of revenue as a consequence of an order of the Assessing Officer cannot be treated a prejudicial to the interests of the Revenue. For example, when an Income tax Officer adopted one of the courses permissible in law and it has resulted in loss of Revenue; or where two vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice outside India are to be excluded both from the export turnover and from the total turnover, which are the numerator and denominator respectively in the formula. The appeals filed by the Department are thus dismissed…….", we are of the view that the issue is squarely covered by the order of the Special Bench of the Tribunal(supra), and hence, the order passed by the AO is not found to be erroneous in so far as it is prejudicial to the interests of the revenue and accordingly we cancel the order passed by the ld. CIT u/s.263 and uphold the order passed by the AO. The grounds taken by the assessee are therefore, allowed.
7. In the result assessee's appeal is allowed.
(Order pronounced in the open court on 4.3.2010.) X X X X Extracts X X X X X X X X Extracts X X X X
|
