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TMI Blog2013 (1) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... xure-A thereto, which was the calculation of the deductions. Therefore, it is absolutely clear that the AO had applied his mind to the very issue which is now sought to be raised under Section 147. That would mean that the present venture of invoking Section 147 is nothing but a mere change of opinion, which is impermissible in law. It is also a case which was beyond the jurisdiction of the revenue audit which had pointed to the so-called discrepancies on points of law, particularly, on an interpretation of Section 10B as an audit party could not have commented on a point of law and, particularly, on an interpretation of Section 10B - writ petition allowed - in favour of assessee. - WP(C) 13838/2009 - - - Dated:- 22-1-2013 - MR. BADAR DURREZ AHMED AND MR. R.V.EASWAR, JJ. For the Petitioners : Mr S. Krishnan For the Respondents : Mr Kamal Sawhney JUDGMENT BADAR DURREZ AHMED, J (ORAL) 1. This writ petition impugns the notice dated 24.02.2009 issued under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as the said Act ) seeking to re-open the assessment for the assessment year 2005-06. 2. The learned counsel for the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment year 2005- 06. Question No.11(b) of the questionnaire reads as under :- 11(b). Please give a note on DTA supply and why it has been included in export turnover. In response, the petitioner submitted a reply on 13.09.2007. As regards question No. 11(b), the reply given by the petitioner was as under:- 11.(b) The summary of sales is as follows. 1. Physical Export as per chart enclosed 90030302 2. Constructive Export 94274982 3. Typesetting scanning 3126464 4. Exchange Fluctuation Gain 842763 (A) Export Turnover 188274511 5. Domestic Sales 30529807 6. Wastage Sales 2002090 (B) Local Turnover 32531897 (A) Export Turnover 188274511 (B) Local Turnover 32531897 Total Turnover (A) + (B) 220806408 Brief Note on Constructive Exports Regarding constructive Sales purchase order is received from overseas publishers. According to copy right act the ownership copy rights of the title book vests with overseas publishers. The same facts are stated on the front Page of the book photocopy of a sample is enclosed. Since the assessee company does not own cop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customized electronic data by way of scanning and typesetting charges. During the year only the EOU has been in operation, as the domestic unit was stated to be closed down in A.Y.2004-05. The assessee has made domestic sales which has been shown as local turnover. 8. Export turnover as per section 1 013 Explanation 2(iii) has to be worked out exclusive of freight, telecommunication charges or insurance attributable to the delivery of articles or things or computer software outside India. The telecommunication charges incurred on transmitting the electronic data (i.e. typesetting and scanning charges) have to be excluded from the gross receipts. Assesee has taken a leased inter-net connection from BSNL through which type-set and scanned data files are uploaded to the foreign publisher. During the year the assessee has paid Rs.2,01,632/- to BSNL for this facility, a per reply dated 28.9.07. Accordingly, an amount of Rs.2,01,632/- is excluded from total export turnover shown at Rs.18,82,74,51 II- as per report in Form 56G. So the revised total export turnover would be Rs.18,80,72,879/- which is worked out as under: FOB value of exports including DTA (domestic tariff area) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the reason of failure on the part of the assessee to disclose fully truly all material facts necessary for assessment and in view of sub-clause (c) of Expl.2 below section 147, I have reason to believe that income of Rs.1,31,65,878/- chargeable to tax in A.Y.2005-06 has escaped assessment. 8. On going through the purported reasons, it is apparent that the assessment is being re-opened on the ground that the supply to domestic tariff area did not amount to exports. The learned counsel for the petitioner has contended that this would amount to a mere change of opinion and that it is also based on an audit note. The learned counsel for the petitioner also pointed out that the audit personnel could not comment on an interpretation of Section 10B of the Income Tax Act as that would be a comment on a point of law, which is not permissible in view of the Supreme Court decision in the case of Indian and Eastern Newspaper Society v. CIT: 119 ITR 996 (SC). 9. For the sake of completing the facts, we may point out that the petitioner had filed his return pursuant to the notice and had also given his objections to the said notice which had been disposed of by an order dated 07.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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