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TMI Blog2012 (8) TMI 641X X X X Extracts X X X X X X X X Extracts X X X X ..... ere furnished by assessee the matter is remitted back to the file of the Assessing Officer to examine this issue afresh. Direction to the Assessing Officer to grant exemption under section 10A on the assessed income, which was enhanced due to disallowance of the employer's as well as employees' contribution towards PF/ESIC. Exclusion of expenditure on 'Internet Service Provider' from export turnover - Held that:- As the assessee received consideration against software i.e., goods & the agreement, invoices and the turnover clearly show that the assessee did not recover any such expenditure. Therefore, there is no scope for any exclusion from export turnover on account at such expenses. If at all on presumption, it is to be excluded f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal at the time of hearing. 3. Brief facts of the issue are that it was noticed by the Assessing Officer that an amount of Rs. 5,59,271 being employees' contribution was paid after the due date and he treated the same as deemed income of the assessee in terms of provisions of section 36(1)(va) of the Act. The CIT(A) confirmed the same placing reliance on the order of the Tribunal in assessee s own case for the assessment years 2001-01 and 2001-02 in I.T.A. No. 354/Hyd/2006 dated 11.1.2008 wherein the Tribunal held as follows: "9. One more ground in addition to common ground raised in the appeal for assessment year 2000-01 is in respect of disallowance of employees' contribution to PF after due date. The Assessing Officer assessed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgement of Supreme Court in the case of CIT vs. Alom Extrusions Ltd. (319 ITR 306) wherein it was held that omission of second proviso to Section 43B and amendment of 1st proviso by Finance Act, 2003 bringing about uniformity in payment of tax, duty, cess and fee on one hand and contribution to employees' welfare fund, on the other hand, are curative in nature and thus effective retrospectively with effect from 1st April, 1988, i.e., the date of insertion of first proviso. Being so, if the assessee has deposited the contribution before due date of filing of return under the I.T. Act, and the date of payment was after the due date under the Employees Provident Fund Act would not be denied deduction. 6. Before us the AR contended that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lised by the assessee within the period of stipulated in law. The assessee had realised a larger amount in terms of Indian rupees as a result of a foreign exchange fluctuation that took place in the course of the export transaction. The gains had to be taken into account for the purpose of section 10A. CIT v. Shah Originals [2010] 327 ITR 19 (Bom) distinguished. (iv) That it was an admitted position that the assessee had deposited both the employer's and the employees' contribution towards provident fund and ESIC, though beyond the due date including the grace period. The Officer added these payments to the total income of the assessee. The disallowance which was effected by the Assessing Officer had not been challenged by the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the order of the ITAT for earlier years. 10. We have heard both the parties on this issue. This issue was covered by the Tribunal in ITA No. 354/Hyd/2006 for A.Y. 2000-01. In para 7.4 of the order the Tribunal held as follows: "7.4 Now we examine the facts of the case in the light of the above discussion. The AO noticed that the expenses attributable to the delivery of the software was under Internet Service Provider, since the assessee got leased line exclusively. The A.O. deducted this amount from consideration treating it as communication charges. We find that the said expenditure on 'Internet Service Provider (ISP)' does not come within the scope of Telecommunication charges as provided in clause (iv) of Explanation 2 to sec. 10A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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