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2015 (9) TMI 652 - ITAT BANGALORE

2015 (9) TMI 652 - ITAT BANGALORE - TMI - Computation of deduction u/s. 10B - whether the CIT(Appeals) was justified in directing the AO to exclude the expenditure incurred in foreign currency such as salaries, travelling and conveyance, sub-contracting, software development charges, communication, etc. from the export turnover, with reducing the same from the total turnover also? - Held that:- CIT(Appeals) following the decision of the Hon’ble High Court of Karnataka in the case of CIT v. Tata .....

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d - Held that:- A plain reading of the provisions of section 251 shows that the CIT(Appeals) has plenary powers in disposing of an appeal. His powers are co-terminus with that of the AO. The assessee has placed the business transfer agreement. The CIT(Appeals) has powers to consider the same after confronting it to the Assessing Officer for his comments. He could render a finding as to whether there was any payment for acquisition of goodwill and if so, what is the quantum of such payment. The q .....

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m of assessee, it would be just and proper if the order of CIT(Appeals) on this issue is set aside and the issue is remanded to the AO for consideration de novo. - Decided in favour of assessee for statistical purposes. - ITA No.705/Bang/2014, ITA No.672/Bang/2014 - Dated:- 26-8-2015 - SHRI N.V. VASUDEVAN AND SHRI ABRAHAM P. GEORGE, JJ. For The Appellant : Shri K.R. Pradeep, CA For The Respondent : Shri Anurag Sahay, CIT-III(DR) ORDER Per N.V. Vasudevan, Judicial Member ITA No.672/B/14 is an app .....

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evelopment charges, communication, etc. from the export turnover, without reducing the same from the total turnover also, while computing deduction u/s. 10B of the Act. 3. According to the AO, as per the definition of export turnover given in clause (iv) to Explanation 2, the expenses incurred for freight expenses attributable to the delivery of the product or software outside India should be reduced from the export turnover. However, the provisions of section 10B do not provide for exclusion of .....

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er is excluded from the export turnover, has also to be excluded from the total turnover. 5. Aggrieved by the order of the CIT(Appeals), the revenue is in appeal before the Tribunal. 6. The only grievance of the Revenue is that the decision of Hon ble High Court of Karnataka in Tata Elxsi (supra) has not attained finality and a SLP by the department is pending before the Hon ble Supreme Court. We are of the view that as of today, law declared by the Hon ble High Court of Karnataka which is the j .....

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e additional ground submitted by the appellant in course of the appeal proceedings and deciding the same on merits. 3. That the learned CIT(A) has erred in not exercising her powers under section 250 of the Income- tax Act, 1961. 4. That the learned CIT(A) has erred in upholding the action of the AO in not granting depreciation on goodwill to the Appellant. 5. That the Appellant craves leave to add to and/or to alter, amend, rescind, modify the grounds herein below or produce further documents b .....

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was ₹ 30,42,60,000, out of which the price of net tangible assets acquired was ₹ 17,32,24,951 and the balance was goodwill. The said goodwill acquired at ₹ 13,10,35,049 formed a part of the fixed assets of the assessee and duly appeared in the books of account of the company. 9. The assessee company had not claimed any depreciation on goodwill under the provisions of the Act during the assessment proceedings. 10. After the conclusion of the Assessment proceedings, in the case o .....

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tion of law has arisen in the facts and circumstances of the present case whether the assessee is entitled to depreciation on goodwill in the year under appeal. 12. Accordingly, the assessee, by relying on the above judicial precedent which considered goodwill to be eligible for depreciation under section 32(1)(ii) of the Act, raised an additional ground for allowability of depreciation on goodwill in the appeal filed before the CIT(Appeals). 13. Before the CIT(A), the assessee submitted that un .....

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not supported by a revised return of income in view of the decision of the Hon ble Supreme Court in the case of Goetze (India) Ltd. v. CIT (2006) 284 ITR 323 (SC) and that the said prohibition does not extend to making a claim before the appellate authorities under Act. For the above proposition, the assessee placed reliance on the decision of the Hon ble Bombay High Court in CIT v. Prithvi Brokers & Shareholders Pvt. Ltd. [TS-463-HC-2012(BOM)]. 15. The CIT(Appeals), however, was of the vie .....

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essment proceedings. The CIT(A) was of the view that to admit an additional ground, the facts required for adjudication of additional ground should be available on record. Since the facts are not available on the records of the AO, the CIT(A) was of the view that additional ground cannot be admitted for adjudication. He also observed that the assessee has also filed an application before the AO u/s. 154 of the Act making a claim for depreciation on goodwill. The CIT(A) was of the view that since .....

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order of CIT(A). 19. We have given a careful consideration to the rival submissions. A plain reading of the provisions of section 251 shows that the CIT(Appeals) has plenary powers in disposing of an appeal. His powers are co-terminus with that of the AO. Judicial precedent on the issue viz., the judgment of the Hon ble Supreme Court in the case of Kanpur Coal Syndicate (supra) clearly lays down the scope of the powers of the CIT(Appeals). Exercise of the power by the CIT(Appeals) is not depend .....

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