TMI Blog2014 (4) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... that the same is answered in favour of the assessee and against the revenue. This controversy has been dealt with by a Division Bench of this Court in the case of Hindustan Uni Liver Ltd. v/s. Deputy Commissioner of Income Tax & anr. (2010 (4) TMI 206 - BOMBAY HIGH COURT) . Deduction of data line cost from export turn over - Deduction u/s 10A - Expenses which AO desired to pick were not incurred in relation to export and, therefore, cannot be termed as deductions permissible from export turnover - Held that:- These expenses have been incurred for the purposes of the business of software development at the software units in India. It is that finding which the Assessing officer was unable to controvert or unable to bring any contrary mater ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to this claim of both sides are kept open. The Assessing Officer shall decide the claim or issue strictly in accordance with law. - INCOME TAX APPEAL NO. 2501 OF 2011 - - - Dated:- 30-4-2014 - S.C. DHARMADHIKARI G.S. KULKARNI, JJ. Mr.Tejveer Singh for the appellant. Mr.Atul K. Jasani for the respondent. ORDER 1 This appeal filed by the revenue questions the order passed by the Income Tax Appellate Tribunal delivered on 25th May, 2011. The assessment year is 2006-2007. 2 The three grounds based on which the questions of law have been framed, are considered by the Tribunal. 3 We find that at para 5 of the present appeal memo the grounds have been summarized. They have been overlapping to some extent and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ow the same. Mr.Singh submits that the export turnover is defined to mention the consideration in respect of export and that may include computer software received in or brought into India by convertible foreign exchange in accordance with subsection (3) of Section 10A but that does not include freight, telecommunication charges. He submits that, in this case the data line cost, therefore, should have been deducted from this consideration. 6 Mr.Jasani submits that the Tribunal has not decided any wider or larger controversy. It has gone through the factual position. There were two contentions raised and which have been noted by the Income Tax Appellate Tribunal. The Tribunal found merit in the alternate contention. The Tribunal found tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not incur any freight expenses. It explained that the telecommunication charges were incurred in the business of software development at the software undertakings of the assessee in India. The alternate argument was that the exercise that the assessee had undertaken was justified in the light of the law laid down by the Tribunal and particularly the Special Bench in the case of Income Tax Officer v/s Sak Soft Ltd., reported in 313 ITR (AT) 353. Reliance was also placed upon a judgment of this Court in the case of Commissioner of Income Tax v/s Gem Plus Jewellery India Ltd., reported in (2011) 330 ITR 175 (Bom.). The Tribunal may have discussed the alternate contention but what it has expressed on primary contention, according to us, does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d before us by the revenue. 8 Insofar as the last question and which has been formulated at para 4(3) on page 5 of memo of appeal, we are of the opinion that the Tribunal has directed the Assessing officer to recompute the transfer pricing adjustment. The Tribunal may have expressed some prima facie opinion in relation thereto, however, it has directed the Assessing officer to complete the same after giving an opportunity to the assessee in accordance with law. It is in these circumstances that we are unable to find any substance in the complaint of Mr.Tejveer Singh that direction of the Tribunal or prima facie observations are binding the Assessing Officer in the fresh exercise. When the exercise is afresh the Assessing officer is direc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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