TMI Blog2019 (7) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... ing were not used to earn income and therefore, denied deduction under Section 80IA As contended that the assessee's business of production, sale, installation and maintenance of ATMs by providing necessary software is a very high security risk, as they dispense large amounts of cash and in view of special type of machine, provision of maintenance service is an integral part of manufacturing and selling activity, the above submissions made by Mr.M.P.Senthil Kumar were never pleaded either before the Assessing Officer, or before the CIT(A) or before the Tribunal either in the same tenor or in a different manner. Therefore, such a plea cannot be raised at this juncture - assessee has not made out any ground to interfere with the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncern, whereas, M/s.Chip Trans was a third party. This aspect of the matter was considered by the Assessing Officer, the CIT(A) as well as the Tribunal and factually, it was found that the stand taken by the assessee does not merit consideration We cannot be called upon to review and redo the factual exercise in an appeal filed under Section 260A of the Act. Therefore, no substantial question of law arises with regard to the disallowance made under Sections 40A(2)(a) and 40A(2)(b) in respect of purchase of software from M/s.Diebold Inc., and M/s.Chip Trans, and there is no ground made out by the assessee to interfere with the order of the Tribunal in this regard. - Tax Case (Appeal) No.596 of 2008 - - - Dated:- 24-6-2019 - Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urchase of software? (iv) Whether on the facts and in the circumstances of the case the Tribunal is right in law in disallowing ₹ 3,36,46,054/- in respect of purchase of software from M/s.Diebold Inc., U.S.A. and M/s.Chiptrans Private Limited? (v) Whether on the facts and in the circumstances of the case the Tribunal is right in law in confirming the disallowance of brokerage/commission amounting to ₹ 41,64,000/- paid by the appellant? 3.We have heard Mr.M.P.Senthil Kumar, learned counsel for the appellant/assessee; and Mr.T.Ravi Kumar, learned Senior Standing Counsel for the respondent/Revenue. 4.Mr.T.Ravi Kumar, learned Senior Standing Counsel raised a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... President (Sales Operations) of the assessee company, the Tribunal noted that even the person in-charge of sales was not aware of the marketing activity done by the sales agents and he was not aware of the details of orders procured by the sales agents and even the Vice President of the Bank of Punjab Limited, to whom the assessee sold ATM machines, was not aware of the sales agents. The assessee was dealing with the Bank of Punjab Limited and the business was continuous one. Therefore, the Tribunal opined that the assessee failed to establish that there was necessity to identify once again the Bank of Punjab Ltd., as its customer. Further, the Tribunal noted that there is nothing on record to show that the assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ware was usually ₹ 50,568/-. The Assessee was selling the software set at loss when the purchase was made from Chip Trans and made exorbitant profit when the purchase was made from Diebold Inc........... 20...............There is no plea by the Assessee that Chip Trans, USA, is not a specified person and Sec.40A(2)(a) is not applicable. Admittedly, as enumerated in the facts of the case, Mr.Harish Murthy, MD., of the Assessee company was interested in HMA Data Systems P. Ltd., and also in Chip Trans, USA. The Assessee is a specified person as per Sec.40A(2)(a) of the Act. In our opinion, the conditions laid down in Sec.40A(2)(a) are squarely applicable to the facts of this case. The purchase price paid by the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and M/s.Chip Trans, and there is no ground made out by the assessee to interfere with the order of the Tribunal in this regard. 12.This leaves us with the first issue, viz., deduction under Section 80IA of the Act on AMC (Annual Maintenance Charges of ATM) in respect of ATM machines sold. 13.As rightly pointed out by T.Ravi Kumar, the assessee was not able to establish before the Assessing Officer by producing records. The Assessing Officer after examining the facts of the case, found that the income earned from AMC (Annual Maintenance Charges of ATM), installation and technical charges, consultation charges and licence fee of software do not constitute income from the industrial undertak ..... X X X X Extracts X X X X X X X X Extracts X X X X
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