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TMI Blog2018 (6) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... before the Tribunal and cannot be urged before this Court as held by this Court in CIT v/s. Tata Chemicals [2002 (4) TMI 42 - BOMBAY HIGH COURT]. Set off of R & D Expenses - We find that once it is not disputed by the Revenue before the Tribunal that, the order of the Assessing Officer on set off of R & D Expenses was beyond the scope of the directions given by the Commissioner of Income Tax in exercise of its power under Section 263 of the Act, the occasion to examine the correctness of the same, would not arise. In view of the above, the Question No.(b), in the above facts of the case, is academic and, therefore, does not give rise to any substantial question of law. - Income Tax Appeal No. 1361 of 2015 - - - Dated:- 12-6-2018 - M. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the scope of 263 order? 3 We pointed out to Mr. Pinto that the questions as framed would result in the Appeal being dismissed as they, prima facie, seems to uphold the view of the Tribunal. This is so, as the Tribunal has in respect of question Nos. (a) (b) held as the question seeks them to hold. Mr. Pinto, learned Counsel for the Revenue states that the Officer of the Revenue insists on the questions as framed by the Officer of the Department being pressed alone and they do not permit the Department's Counsel to reframe the questions as to bring out the correct controversy. 4 It is an Advocate who is best equipped to frame the question of law which would give rise to substantial question of law in the context of the or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ? 9 Respondent is engaged in the business of software development and export of software. It has an 100% EOU, registered with the Development Commissioner, Visakhapatnam. In its return of income, Respondent had claimed benefit of exemption under Section 10B of the Act in respect of its 100% EOU. The Assessment was completed on 29th March, 2006 under Section 143 (3) of the Act. 10 On 27th September, 2007, the Commissioner of Income Tax [CIT] passed an order in exercise of its power under Section 263 of the Act, holding that the Assessment Order was erroneous and prejudicial to the interest of Revenue. This to the extent exemption was allowed under Section 10B of the Act in respect of non-receipt of foreign exchange within six months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer had gone beyond the issue which were directed to be considered denovo by the CIT in its order under Section 263 of the Act. Therefore, to that extent, the order was without jurisdiction. Notwithstanding the above finding, the CIT(A) proceeded further to decide the issue, inter alia, with regard to R D Expenses on merits, held that Respondent is entitled to set off R D Expenses with the profits of STIP units as the R D Expenses have a direct nexus with the export business of the STIP unit. 13 Being aggrieved with the order dated 12th January, 2011 of the CIT(A), both the Revenue as well as Appellant filed the Appeal to the Tribunal. 14 The Appellant's basic contention was that once the CIT(A) had by its o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l for the Revenue sought to invite our attention to the scope of the order passed by the CIT(A) under Section 263 of the Act and, in particular, the use of the words 'de novo assessment' in the order, so as to challenge the order of the Tribunal. We do not wish to enter into this controversy, as the question as urged, is beyond the issue raised before the Tribunal and cannot be urged before this Court as held by this Court in CIT v/s. Tata Chemicals 256 ITR 395. In any case, it may be pointed out that the earlier Assessment Order dated 29th March, 2006 has not been cancelled by the order of CIT under Section 263 of the Act, for passing a fresh Assessment Order. (iii) In the above view, the question No.(a) does not give rise to an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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