TMI Blog2018 (12) TMI 1752X X X X Extracts X X X X X X X X Extracts X X X X ..... Revenue Authorities cannot be a ground for invoking Section 263 - AO should have done this or that is not a prerogative while invoking Section 263 by the CIT. In the present case, AO has taken cognizance of all the material provided by the Assessee during the Assessment Proceedings and after verifying the same has passed just and proper order. Therefore, in light of the above findings, the order of the Commissioner u/s 263 of the Act is set aside. - Decided in favour of assessee. - ITA No. 3231/DEL/2013 - - - Dated:- 27-12-2018 - SHRI G. D. AGRAWAL, VICE PRESIDENT AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER For the Appellant : Dr. Rakesh Gupta Sh. Somil Aggarwal, Advs For the Respondent : Ms. Pramita M. Biswas, CIT (DR) OR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 50,421/-. The said claim of deduction was revised to ₹ 50,52,24,355/- by way of filing revised return on 20.08.2008. The assessee company revised its return as it did not consider the gain on account of currency fluctuation of export proceed amounting to ₹ 1,23,33,934/- in its original I. T. return. The assessee company is a Private Ltd. Company and its entire share capital is held by its two directors Dr. Anil Gupta, an NRI and Mrs. Seema Gupta. The Shareholding pattern of the assessee company is as under:- Name of the Shareholder No. of Equity Shares held Percentage of Holding Dr. Anil Gupta 19126 99% D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee to its shareholder on account of buy-back of shares. The assessee filed appeal before the CIT(A). The CIT(A) allowed the appeal of assessee granting relief and allowed exemption under section 10A of the Act. 4. The Commissioner of Income Tax, Delhi-V issued show cause u/s 263 on 26/3/2013 to the assessee. The assessee filed replies to the said show cause notice. The Commissioner of Income Tax passed order u/ s 263 of the Act on 28/03/2013, thereby holding that the order passed by the Assessing Officer on 31/12/2010 for Assessment Year 2007-08 is erroneous and prejudicial to the interest of the Revenue and set aside/cancelled the said assessment order and directed the Assessing Officer to make a fresh assessment. 5. The Ld. AR sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this year but since last 7 years, this deduction was being claimed. The submissions of assessee were also filed before the TPO explaining the nature of business, nature of undertaking and details about ALP. The order of the TPO determining ALP mentioning that records as per rule 10D and other details asked were submitted and taken on record and regarding export of software no adverse inference is drawn by the TPO. The submissions filed before the Assessing Officer by the assessee, explained about the nature of export business of the assessee, nature of undertaking, note on section 10, foreign inward remittance certificate, software export return, EEFC account, foreign exchange gain, reason for high profit and role of Dr. Anil Gupta. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve manner and ultimately disallowed the claim, then how that order can be said to be prejudicial to the interest of the revenue as the order under revision has to be erroneous and prejudicial both 243 ITR 83(SC). The Ld. AR relied upon the decision of the Tribunal in case of Hukmi HUF vs CIT (Del) (Trib). The Ld. AR submitted that the issue of deduction u/s 10A has been the subject matter of appeal before the CIT(A) and the same is pending for disposal before Income Tax Appellate Tribunal. Hence, it is a case of merger with respect to the issue of deduction u/s 10A and therefore, initiation of proceedings u/s 263 on the issue of deduction u/s 10A is not possible in law. The Ld. AR relied upon the following judicial decisions wherein it has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as held in 357 ITR 388 (Del). The Ld. AR finally submitted that Section 148 of the Income Tax Act too was attempted on the same ground and the Hon ble High Court quashed notice u/s 148 on the ground that the said issue was subject matter of assessment, how can there be then 263 proceeding. 6. The Ld. DR submitted that the order of the CIT(A) is just and proper as the Assessing Officer has not properly discussed the issue u/s 10A. 7. We have heard both the parties and perused the material available on record. From the records, the Assessing Officer has specifically raised query regarding exemption u/s 10A during the original assessment proceedings and all the details were given by the assessee during the assessment proceedings which i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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