9911796707
TMI Blog2021 (8) TMI 1185X X X X Extracts X X X X X X X X Extracts X X X X ..... thereby deleting the addition u/s 10B of the I.T Act, 1961. 3. That on the facts and the circumstances of the case the Ld. CIT(A) has erred in relying upon the information contained in the alleged compact disc, the contents of which he has himself not discussed in the appellate order nor has he discussed the contents of the email trail or other correspondence that has led him to delete the addition. 4. That on the facts and the circumstances of the case the Ld. CIT(A) has erred in not appreciating that the principle of Res Judicata does not apply to Income Tax proceedings and allowability of exemption u/s 10B of the I.T. Act, 1961 depends upon the facts and circumstances of the relevant assessment year. 5. That on the facts and the circumstances of the case the Ld. CIT(A) has erred in not appreciating the fact that AO has not commented on the documentary evidence in form of a compact disc regarding the output software of the appellant under Rule 46A as no hard copies of compact disc was filed. 6. That the appellant craves for the permission to add, delete or amend the grounds of appeal before or at the time of hearing of appeal. 2. Briefly stated facts of the case are that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized that the assessee could not submit any evidence regarding job work done from third parties. The learned DR also supported the grounds raised and submitted that the Ld. CIT(A) has allowed relief to the assessee without verifying the contains of the 'compact disc' provided by the assessee in the form of additional evidences. 7. On the other hand, the Learned counsel of the assessee submitted that during the period when the information was sought by the Assessing Officer, the assessee was out of India and therefore could not furnish the information to the Assessing Officer. He submitted that there was a reasonable cause in failure to supply information to the Assessing Officer and, therefore, assessee is covered fully under Rule 46A of Income-Tax Rules, 1962 (in short 'the Rules') for filing additional evidence. The Learned Counsel justified the finding of the learned CIT(A) in admitting additional evidences. On the issue of the merit, the learned Counsel submitted that all evidences for justifying the deduction under section 10B have been filed before the Learned CIT(A), which were forwarded to the Assessing Officer for his comments. The Learned CIT(A) after taking into conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... immigration support. Also, the appellant enclosed a copy of the relevant page of his passport as per which he departed from India on 30.07.2011 and came back on 11.01.2012. A copy of the US visa submitted by the appellant carries the following remarks: "Upon endorsement serves as temporary 1-551 evidencing permanent residence for one year". 3.2 These documents alongwith explanation given by the appellant make it abundantly clear that the appellant was not in India during the period 12.07.2011 to 31.12.2011 when most of the documents were sought by the AO. From this it follows that if the appellant was not available during the time most of the documents/submissions were sought by the AO, he had a reasonable cause for not submitting the same during the course of assessment proceedings. The appellant was, thus, prevented by sufficient cause from producing the evidence which he was called upon to produce by the Assessing Officer and hence his case gets covered by Rule 46A(l)(b) &(c). In view of these facts, the additional evidence filed by the appellant during the course of appellate proceedings is hereby admitted." 8.1 The Ld. CIT(A) pointed out that assessee was not in India dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of his claim u/s 10B of the Income Tax Act. However, the AO in his remand report commented that the proof of domain ownership was issued by M/s Moniker Online Services, Inc whereas the appellant did not deal with the said concern during the relevant assessment year. In response to the AO's objection, the appellant submitted that the domains were purchased in previous years since this represents the modus operandi of the appellant's business. As regards output software, the appellant submitted a compact disc to give an overview of the nature of services provided by him. However, the AO has not commented on the documentary evidence in the form of a compact disc regarding the output software of the appellant. From these facts it is evident that the appellant could give authentic evidence with regard to input software licenses purchased and the output software produced by him. 5.8 As regards AO's requirement for production of I-mail trail of correspondence made by the appellant for procuring the input software, the appellant provided these details in the form of a compact disc alongwith a print out of the same as additional evidence. While submitting the same, the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... long with the documents substantiating the export turnover, the appellant also gave a copy of Foreign Inward Remittance Certificate (FIRC) and softtex forms. A copy of renewal letter issued by STPI valid upto 31.03.2011 was also submitted. As regards the agreement entered into by the appellant, copies of service agreement entered in the past and which were continuing during the year under consideration were also submitted, along with proof of domain ownership to substantiate the genuineness of the claim. The appellant submitted voluminous documents in support of his stand on this issue because of the fact that this was the main ground on the basis of which deduction u/s 10B of the Income Tax Act was denied by the AO. By submitting all these documents, the appellant not only produced proof regarding exports but also corroborated the fact that the foreign exchange was received by him within the stipulated time and that the exports made by him were in pursuance of service agreements, valid during the year under consideration. The appellant, by submitting these documents could conclusively establish that it was exporting IT Enabled Services. 5.12 As regards AO's observation that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re a number of judicial pronouncements as per which if particular deduction has been allowed in the first assessment year in which the claim was made, the AO cannot withdraw relief for subsequent years if there has been no change in the facts and circumstances of the case. In the case of CIT Vs Excel Industries Ltd. (2013) (358 ITR 295) (Supreme Court), it appeared from the record that in several assessment years, the revenue accepted the order of the Tribunal in favour of the assessee but in respect of some assessment years, the matter was taken up in appeal before the Hon'ble High Court without any success. It was held by the Hon'ble Apex Court that the revenue could not be allowed to change its stand on the issue and ought to let the matter rest rather than spend the tax payers money in pursuing litigation. In the case of CIT Vs Western Outdoor Interactive (P) Ltd. (2012) TIOL 625 (Mumbai), it was held that unless relief granted for the first assessment year in which the claim was made and accepted is withdrawn or set aside, the Income Tax Officer cannot withdraw the relief for subsequent years. The issue in this case related to grant of exemption u/s 10A of the Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
