TMI Blog2012 (7) TMI 455X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 263 of the Act cannot be survived - appeal of the assessee is allowed. - ITA No. 2227/Hyd/2011 - - - Dated:- 25-5-2012 - SHRI CHANDRA POOJARI, SHRI SAKTIJIT DEY, JJ. Appellant by: Shri P. Murali Mohan Rao Assessee by: Mrs. Subhashree Anant Krishnan O R D E R PER CHANDRA POOJARI, AM: This appeal filed by the assessee is directed against the order of the CIT, III, Hyderabad u/s 263 of the Income Tax Act, 1961 dated 31.03.2011 for the A.Y. 2006-07. 2. The assessee raised as many as five grounds 1. The Hon'ble learned CIT-III, Hyderabad has erred while passing the order under section 263 of the Income Tax Act, 1961 wherein the order under section 263 has been passed based on the change of opinio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption u/s 10A. The Assessing Officer completed the assessment u/s 143(3) of the Act by determining the taxable income of Rs. 38,10,962/- by allowing the exemption u/s 10A by modifying the deduction u/s 10A. By virtue of the powers conferred in the Act u/s 263, the CIT has examined the assessment records of the assessment year 2006-07 and on examination it was noticed that the order dated 19.12.2008 passed by the assessing officer was erroneous and prejudicial to the interest of the revenue for the following reasons. 4. The exemption allowed u/s 10A on Export turnover of Rs. 3,68,65,176 was not in order as the company was not received the foreign exchange amounting to Rs. 1,75,17,477/- during the year. Thus there was a difference of Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the amount which was said to have been credited to the bank account of the assessee company maintained in foreign country for that purpose is also considered as deemed to be received in India as per sub section (3) of Section 10A (Explanation 2). It was also clarified that the amount of foreign exchange received in India during the F.Y. 2005-06 includes not only towards export turnover sale proceeds during that year but also proceeds of some exports made in earlier years. 8. The AR submitted that the company has "Indian business" and "the US branch" and he drew our attention to the copy of income tax return filed for the assessment year under consideration. He submitted that the assessee has claimed that US branch has loss and because o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s 10A to the assessee after verifying all the information from the assessee which is evident from the assessment order dated 19.12.2008. The CIT assumed jurisdiction only on the basis of clarification issued by the CBDT on 9-3-2009 which is very much later to the order passed by the assessing officer on 19.12.2008. In our opinion, the CIT is not correct in assuming his jurisdiction by directing the assessing officer to re examine the deduction and also the CIT is not correct in assuming his jurisdiction by following the clarification issued by the CBDT on 9-3-2009 which is not before the assessing officer while allowing the deduction under section 10A of the I.T. Act. It is only a change of opinion by the CIT. on change of opinion, the CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T under section 263 of the Act and restore the order of the Assessing Officer." 12. It is also on record that the assessee preferred the appeal against the impugned assessment order before the CIT(A) and raised the ground that the Assessing Officer erred in calculating the exemption u/s. 10A of the I.T. Act after deducting the telephone charges from the export turnover. The amount of expenditure reduced from the export turnover should also be reduced from total turnover. The CIT(A) inter-alia allowed this ground in favour of the assessee. In our opinion the jurisdiction of the CIT(A) is coterminus with that of the Assessing Officer. The First Appellate Authority while adjudicating the ground before him can look into and adjudicate upon fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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