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TMI Blog2015 (8) TMI 312X X X X Extracts X X X X X X X X Extracts X X X X ..... eated as capital expenditure. Such an admission has been retracted by challenging this issue before the Ld.CIT(A) as well as before us. It is a trite law that mere admission or acquiescence by the assessee cannot the foundation of the assessment, if later on the assessee points out that such an admission was against the facts or provision of law. It is not a case here that on account of admission by the assessee during the assessment proceedings, the AO was precluded to make further enquiry or investigation of facts. Here facts and material for deciding the issue is already on record. Thus in our opinion, this matter should be restored back to the file of the AO to deal and decide this issue afresh after examining the details and nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .CIT(A) is set aside and the addition made by the AO is deleted - Decided in favour of assessee. Disallowance of reversal of provisions - Held that:- Erstwhile assessee had made a provision for customer claims of ₹ 71,48,625/- in the A.Y. 2005-06, which was suo motu disallowed in the computation of income of that year. In A.Y. 2006-07 the assessee has included this reversal in its computation of income. Thus the assessee has not claimed any deduction of ₹ 71,48,625/-. The AO has wrongly added back the said provision on some wrong notion that matter was sub-judice in the earlier year. It has been pointed out before us that, this issue was not sub-judice at all. Accordingly, we restore this matter back to the file of the AO to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the expenditure to the extent of ₹ 11,40,266/- treating it to be revenue expenditure and the balance was confirmed on the ground that assessee itself has agreed before the AO that they are capital expenditure. 3. Now before us, the learned counsel has submitted that various decisions of the High Court have come, wherein it has been held that software expenses are in the nature of revenue expenditure. Therefore these additions were contested before first appellate authority are now before the Tribunal. In support of his contention, reliance was placed on the decisions of Delhi High Court in CIT Vs. M/s. Amway India reported in (2012) 346 ITR 341 and CIT Vs. Asahi India Safety Glass reported in (2011) 64 DTR (Del) 63. Thus he submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment, if later on the assessee points out that such an admission was against the facts or provision of law. It is not a case here that on account of admission by the assessee during the assessment proceedings, the AO was precluded to make further enquiry or investigation of facts. Here facts and material for deciding the issue is already on record. Thus in our opinion, this matter should be restored back to the file of the AO to deal and decide this issue afresh after examining the details and nature of software expenses and in accordance with the judicial precedence. Accordingly, the ground raised by the assessee is treated as partly allowed for statistical purpose. 6. In Ground No. 2 the assessee has challenged the alternative claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ENVAT credit of ₹ 57,39,710/- pertains to service tax, which was payable on account of services rendered by the assessee. As per the service tax law, the service tax is payable as and when the payment/fees for under lying services provided by the assessee are realized. The CENVAT credit is available only on account of laws laid down under Central Excise Act. Here there is no valuation of stock of goods. Section 145A is a non obstante clause to section 145 and provides that the valuation of purchase and sale of goods and inventory for the purpose of determining the income chargeable under the head profit and gains has to be adjusted so as to include the amount of any tax, duty, cess, or fee paid or incurred by the assessee to bring the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack the reversal mainly on the ground that matter was sub-judice before the appellate forum. However, this fact is not correct, as before the Ld.CIT(A) it was clearly mentioned that assessee had not preferred any appeal on this score in the earlier year and this matter is not sub-judice. In A.Y. 2005-06 the Ld.CIT(A) has decided entirely a different issue which related to provision of service tax demand of ₹ 30 lakhs. Thus the finding of the Ld.CIT(A) in this year that this issue has been dealt by the earlier Ld.CIT(A) in A.Y. 2005-06 is absolutely incorrect and has no bearing to the present issue, as the nature of the provision were entirely different. 12. The Ld. DR submitted that this matter should be restored back to the file o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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