TMI Blog2021 (2) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... the submissions made by the learned counsel on either side, while leaving the substantial questions of law open, we are remitting the matter back to the Assessing Officer for fresh consideration. The Assessing Officer shall decide the matter, on merits and in accordance with law, after taking into consideration the judgment above. - T.C.A.No.1156 of 2010 - - - Dated:- 5-2-2021 - THE HON'BLE MR. JUSTICE M.DURAISWAMY AND THE HON'BLE MRS.JUSTICE T.V.THAMILSELVI For the Appellant : Mr.R.Venkatanarayanan for M/s.Subbaraya Aiyar For the Respondent : Mr.T.Ravikumar, Senior Standing Counsel JUDGMENT (Judgment was delivered by M.DURAISWAMY, J.) Challenging the order passed by the Income Tax Appellate Tribunal, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g office maintenance expenses, local conveyance, communication etc., of the Branch at Kuwait and ₹ 6,04,133/- as sales commission paid to non-residents for procurement of orders, thus, the entire expenditure of ₹ 3,38,07,380/- does not represent expenditure provided for technical services outside India. According to the appellant, the same cannot be excluded from the export turnover. The Assessing Officer held that the freight, telecommunication charges or insurance which are attributable to delivery of goods out of India are to be considered while reducing from consideration received in convertible foreign exchange. If such expenses are not attributable to delivery of goods outside India, such expenses are not required to be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are part of expenditure incurred in respect of development of software/data and hence did not form part of export turnover? 4.Heard Mr.R.Venkatanarayanan, learned counsel for the appellant and Mr.T.Ravikumar, learned senior standing counsel for the respondent. 5.The learned counsel appearing for the appellant submitted that the issue involved in the present appeal is covered by the decision of this Court made in T.C.A.Nos.961 962 of 2008 [M/s.Polaris Consulting Services Ltd., (formerly known as M/s.Polaris Software Lab Limited), No.34, IT Highway, Navalur, Chennai 603 103 Vs. The Deputy Commissioner of Income Tax] dated 23.10.2018 wherein the Hon'ble Division Bench of this Court held as follow: ... 10.To be no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to ensure that the software developed works as required. 6.Defect fixing Rectifying errors that have arisen during the testing process. 7.Production parallel run-Undertaking a dry run of the developed software system. 8.Customer user acceptance Final acceptance of the Software developed. 11.The assessee's contention was that activity No.7 (supra) is usually undertaken onsite at the client's location. Activity Nos.4 to 6 and 8 can happen offshore and/or onsite. The need to send the personnel of the assessee to clients' location arises based on the nature of project, its size and complexity and the requirements of the client. Further they reiterated that all the activities are integral part of software d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract and related statements of work and invoices, the assessee contended that it is engaged only in the activity of developing computer software and is not a technical services provider. The assessee also contended that there is a distinction in law between development of computer programme and rendering of technical services and in this regard referred to Section 10AA of the Act, defining 'export turnover'. 6.The learned counsel for the appellant as well as the learned senior standing counsel for the respondent submitted that in view of the judgment of the Hon'ble Division Bench of this Court, cited supra, the matter may be remitted back to the Assessing Officer for fresh consideration. 7.In view of the submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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