9911796707
TMI Blog2007 (10) TMI 314X X X X Extracts X X X X X X X X Extracts X X X X ..... software received in or brought into India by the assessee; and (iii) Such consideration is received or brought into India in convertible foreign exchange. Assessee was asked about the nature of business and was required to produce evidence with regard to actual export of computer software/data transmitted out of India by any mode and to establish the nexus between the foreign exchange receipt by the assessee and the export claim by the assessee. 4. In response to the above the assessee replied as under: "At the hearing on 15th Nov., 2002 you had asked about the business and our claim under s. 80HHE of the Act. Below we are giving in simple layman's terms the nature of business and basis of our claim. The financial data is stored in our computer and is delivered to our clients via the internet (e-mail and/or FTP) thus there is no customs clearance or shipment, etc. which is required for normal export of goods. We would like to point out that before transmitting the customized electronic data to our customers, we collect various documents, segregate the same, capture the relevant data into a proprietary database and extract only the required data from the proprietary database ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that assessee could not establish the nexus between export activity and the receipt of foreign exchange. Aggrieved by the above order assessee approached the first appellate authority. 6. It was submitted before the CIT(A) that assessee had satisfied all the three conditions which were essential to claim the benefit of s. 80HHE. Firstly, assessee is in the business of exporting customized data as defined in cl. (b) of Expln. 2 to s. 80HHE. Secondly, assessee has received the entire consideration from export of customized data in convertible foreign exchange within six months of the close of the accounting year and thirdly, assessee has furnished with the return of income for the asst. yr. 2001-02 report of the chartered accountants and auditors M/s Natvarlal Vepari Co. certificate in Form No. 10CCAF. It was submitted that, without giving any further opportunity AO rejected the claim of the assessee with regard to s. 80HHE, which violated the principles of natural justice. He collected the information without giving opportunity to the assessee and decided the issue against the assessee. One of the reasons given by the AO was that assessee failed to comply with the requirement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the deduction claimed by the appellant cannot be denied by the AO. For the technical objection raised by the AO, as per para 9.6 of the assessment order which is based on the letter received from Dy. Commr. of Customs (Appg), Mumbai, dt. 30th Jan., 2003. During the course of appellate proceedings, the appellant pointed out that the said letter was not made available to the appellant and the AO relied on the said letter for the purpose of rejecting the claim of the appellant. In the remand report, the ITO, Ward-14(3)-3, Mumbai dt. 25th July, 2003 has mentioned that the letter received from customs authorities, contents of which are reproduced in para 8.4 of p. 9 of the assessment order, 'this is clearly just the position of law and not any specific detail or evidence about either the assessee or the case under consideration'. The AO has not provided the copy of the letter received from customs authorities because it is just a position of law. In such a case, the specific reference to the letter received from the customs authority was not required to be mentioned. The basic principle is that if a particular material is used against the appellant, it has to be supplied for rebuttal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmunication facilities through internet and all the details are further given. Page 31 is a letter from the Union Bank of India dt. 24th Jan., 2003 with regard to the export of software in non-physical form. The letter is addressed to the Dy. General Manager, RBI. It reads as under: "Sub.: Export of software in non-physical form. In reference to ADMA Series Circular No. 1, dt. 8th Jan., 1999, our exporter customers, M/s Malhar Information Services have submitted details of software exports made by them in non-physical form for the period January, 1999 to December, 2002. We are forwarding the said details duly certified by us seeking your permission to regularize the transactions. We may mention here that the said exports could not be declared under Softex forms since the exporters/branches were not aware of the provisions. This anomaly was pointed out by the RBI inspectors during their recent inspection of foreign exchange transactions of our branch. We request you to condone the lapse and permit regularization of transactions." 10. Counsel again brought our attention to paper book p. 35, which is a letter from Union Bank of India, which certifies that the transactions o ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
