TMI Blog2015 (12) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... e allowed only if variation between price charged/paid in respect of international transaction and arm's length price determined by taking results of comparables cases does not exceed 5% and, in case such variation is more than 5%, then no such benefit can be allowed on standard basis. We find support from the ratio laid down by Mumbai Bench of Tribunal in Thyssenkrupp Industries India (P.) Ltd. Vs. Addl.CIT (2013 (11) TMI 930 - ITAT MUMBAI -). In view thereof, the ground of appeal raised by the assessee is allowed - Decided in favour of assessee. Excise duty paid / payable - whether was not part of the total turnover within the meaning of section 10B? - Held that:- The issue raised before us is identical to the issue before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any of the above grounds of appeal, if necessary. 4. The Revenue in ITA No.256/PN/2011 has raised the following grounds of appeal :- 1) Whether on the facts and in the circumstances of the case, the CIT(A) has erred by allowing the appeal of the assessee and considered excise duty paid/ payable by the assessee as not part of the total turnover within the meaning of Section 10B, following the decision of the Hon'ble High Court, Bombay in the case of CIT Vs. Sudarshan Chemical Industries Ltd., (245 ITR 769) ignoring the fact that the decision of Sudarshan Chemical Industries was given in relation to deduction u/s.80HHC and does not apply to Sec.10B, as is clear from the decision of the Hon'ble Supreme Court in the case of CIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is error in assessment of income while considering deduction/exemption under section 10B of the Income Tax Act, 1961, sales turnover, expenses and profits of international outsourcing activity has not been excluded and that solely of the Export Oriented Undertaking has not been considered. c) The appellant craves leave to add, amend or alter any of the grounds oc) of appeal. 6. The learned Authorized Representative for the assessee placed reliance on the ratio laid down by the Hon'ble Supreme Court in National Thermal Power Co. Ltd. Vs. CIT (1998) 229 ITR 383 (SC) for the admission of additional grounds. The learned Authorized Representative for the assessee pointed out that it had made a wrong claim in the return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od instead of RMP method. However, before us, the only grievance of the learned Authorized Representative for the assessee was that the TPO had not allowed +/- 5% adjustment before making the aforesaid addition. The plea of the assessee before us is that in view of proviso to section 92C(2) of the Act, no adjustment is to be made since the variation between the price paid in respect of the international transaction and the arm's length price determined by the TPO did not exceed 5%. We find merit in the plea of the assessee and benefit of proviso to section 92C(2) of the Act, can be allowed only if variation between price charged/paid in respect of international transaction and arm's length price determined by taking results of compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orks (Supra). The Hon'ble Supreme Court held that while interpreting the words total turnover in the formula in Section 80HHC of the Act, one has to give a schematic interpretation and the various amendments made therein show that receipts by way of brokerage, commission, interest, rent, etc. do not form part of business profits, as they have no nexus with the activity of export, and therefore, Excise duty and sales tax also cannot form part of the total turnover under Section 80HHC(3) of the Act. 47. We also find the Tribunal in assessee's own case in ITA No.1597/PN/2007 relating to assessment year 2003-04, order dated 31-07-2009 and in ITA No.1441/PN/2007 relating to assessment year 2004-05, order dated 07-09-2011 had hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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