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TMI Blog2019 (12) TMI 400X X X X Extracts X X X X X X X X Extracts X X X X ..... on claimed u/s.10A of the Act on the revenue account, corresponding to 12% of cross charges made by the assessee to its overseas foreign company (ATI Canada) - HELD THAT:- As considered the arguments of assessee on the applicability of principle of consistency . The said rule demands that no disturbance is to be caused for in the assessment years when the facts of the issue are identical. In this regard, we also considered the binding judgment of CIT Vs. Gopal Purohit [ 2010 (1) TMI 7 - BOMBAY HIGH COURT]. Despite the labour demonstrated by the Ld.DR for the Revenue, we find that no differential facts were brought to our notice for the AO to deviate from his line of accepting the claim of assessee in the past years. When the facts and circumstances are identical, the AO should be barred from taking a different view in the matter. The principle of res judicata is not attracted considering the principle of consistency . Therefore, without going to the merits of the issue i.e., allowability or otherwise of the said parties, we are of the opinion that on the legal principle of consistency itself, the assessee should get relief. Accordingly, Ground No.3 is allowed. - I.T.A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and book profit declared at ₹ 11,49,08,105/-. In the order u/s.143(3) r.w.s. 147 of the Act, re-assessment was completed, and the assessment was quantified of ₹ 18,84,55,281/-. The Assessing Officer (AO) made various additions and the same are extracted as under: Amount Rs. i) Income from business before deduction u/s.10A 12,06,65,632 ii) Adjustment u/s.92CA as per order of TPO 17,88,20,166 iii) Income from other sources as admitted 96,35,115 iv) Bad debts written off 25,60,343 Total Income 31,16,81,256 Less: Deduction u/s.10A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is evident that the principle of parity demands inclusion of such gains in the definition of export turnover when the same are included in the definition of total turnover. The said principle stands now consolidated by the order of Hon'ble Supreme Court in the said case CIT Vs. HCL Technologies Ltd., (supra). 6.3. Ld.Counsel for the assessee also submitted that the decision of the Hon'ble Madras High Court in the case of CIT Vs. Pentasoft Technologies Ltd., (2013) [33 taxmann.com 570] (Madras) is for treating the said foreign exchange fluctuation gains as part of the export sales for the purpose of deduction u/s.10A of the Act. The relevant para reads as under: 4. In order to allow a claim under section 10A of the Act, what all is to be seen is whether such benefit earned by the assessee was derived by virtue of export made by the assessee. The exchange value based on upward or downward of the rupee value is not in the hands of the assessee. In other words, the assessee does not determine the exchange value of the Indian rupee. It has to be remembered but for the fact that the assessee is an export house, there was n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Master Service Agreement entered into with ATI Canada. 2.2.2. The Ld. AO while passing the captioned re-assessment order dated 31 March 2015, has denied the deduction under section 10A of the Act on the mark up amount of INR. 1,81,28,047 charged to ATI Canada, without providing any cogent reason there of . 7.1. Aggrieved, assessee is in appeal before the CIT(A) and the CIT(A) despite the submissions of assessee, upheld the action of AO, stating as under: 7.3 The submissions of the appellant have been carefully examined. The submissions before me that the amount of ₹ 1,81,28,047/- received from M/s. Soctronics Private Limited, which have been formed by taking over Mis. G D Microsystems Private Limited. The analysis of me is as under: a) M/s. Soctronics Private Limited is a unlisted Private company incorporated on 20.03.2000 b) It is involved in software, publisher, consultancy and supply c) It has paid up share capital of ₹ 5,00200/-. d) M/s. Soctronics Private Limited is a VLC Design Services Company As submitted by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Hon'ble High Court of Bombay in the case of CIT Vs. Gopal Purohit (2010) [188 Taxman 140] (Bombay), which was confirmed by the Hon'ble Apex Court. For the sake of completeness, para 3 of the said order is reproduced here under: 3. Insofar as Question (b ) is concerned, the Tribunal has observed in paragraph 8.1 of its judgment that the assessee has followed a consistent practice in regard to the nature of the activities, the manner of keeping records and the presentation of shares as investment at the end of the year, in all the years. The revenue submitted that a different view should be taken for the year under consideration, since the principle of res judicata is not applicable to assessment proceedings. The Tribunal correctly accepted the position, that the principle of res judicata is not attracted since each assessment year is separate in itself. The Tribunal held that there ought to be uniformity in treatment and consistency when the facts and circumstances are identical , particularly in the case of the assessee. This approach of the Tribunal cannot be faulted. The revenue did not furnish any justification for adopting a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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