TMI Blog2011 (12) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The learned CIT(A) has erred in directing the assessing officer to exclude foreign exchange and telecommunication expenses, which were excluded from the export turnover also from the total turnover. 2.1 It is submitted that if the items such as expenditure incurred in foreign exchange and telecommunication expenses which are to be excluded from the export turnover as per the statute are excluded from the total turnover also, then the very purpose of excluding the said items from the export turnover will get defeated as the effect of exclusion of the same from the total turnover (denominator) will nullify the effect of exclusion from the export turnover (numerator). 2.2 It is also submitted that the decision by the Special Bench of Chennai ITAT in the case of Sak Soft Ltd. (2009) 313 ITR (AT) 353 Chennai relied on by the learned CIT(A) has not become final as the Department has preferred further appeal in that case. 3. The learned CIT(A) has erred in deleting the interest charged u/s 234D. 3.1 It is submitted that the decision relied on by the CIT(A) ion the case of Ekta Promoters (305 ITR 1) has not become final as the Department has preferred furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no expenditure was incurred at all and the Appellant has not taken any loan for making any investment. 7. The learned CIT(A) erred in noting that prior to June 1, 2007, the Assessing Officer did not have the powers to estimate the expenditure allegedly incurred in earning exempt income and the impugned estimation is illegal and arbitrary. 8. Without prejudice to the above, the learned CIT(A) erred in not directing the Assessing Officer to include the expenditure incurred in the computation of income under section 80HHE. Further, the learned CIT(A) ought to have appreciated that the exclusion was not part of the directions under 263 and thus was beyond the scope of the impugned order. Others 9. The learned CIT(A) erred in levying interest under section 234B of the Act. 10. The Appellant craves leave to add, supplement, amend, delete or otherwise modify any of the grounds stated hereinabove at the time of hearing. 5. In regard to the Revenue s appeal, it was submitted by the learned CIT-DR that in respect of grounds 2 to 2.2, the issue was against the action of the learned CIT(A) in directing the Assessing Officer to exclude the foreign exchange an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;ble Bombay High Court in the case of Gem Plus Jewellery India Ltd., referred to supra, respectfully following the decisions of the Bombay High Court as also the Hon'ble Karnataka High Court, referred to supra, the findings of the learned CIT(A) on this issue stands confirmed. 9. In regard to grounds 3 to 3.2 in the Revenue s appeal, it was submitted by the learned CIT-DR that the issue was against the action of the learned CIT(A) in directing the deletion of the interest levied under section 234D of the Income Tax Act, 1961. It was the submission that the assessment order was passed on 30-08- 2007 which was after the date of introduction of the provisions of section 234D and consequently in view of the unreported decision of the Hon'ble jurisdictional High Court in the case of Commissioner of Income Tax-III, Chennai v. Indian Overseas Bank in Tax Case (Appeal) No. 534 of 2008 dated 30-09-2011, as the assessment order was passed after the introduction of the provisions of section 234D, the order of the learned CIT(A) is liable to be reversed. 10. In reply, the learned authorised representative submitted that the assessment year involved was the assessment year 2002-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly shows that these two issues do not arise out of the assessment order which is in fact an order giving effect to the order of the learned Commissioner of Income-tax, Chennai-I under section 263. Consequently, these issues would not arise out of the order of the learned CIT(A) also. In the circumstances, grounds 2 to 5 of the assessee s appeal stand dismissed as they do not arise out of the order of the learned CIT(A). 16. In regard to grounds 6 7 of the assessee s appeal which were against the disallowance made by invoking the provisions of section 14A, the learned authorised representative submitted that he did not wish to press the said grounds. Consequently, grounds No. 6 7 of the assessee s appeal stand dismissed as not pressed. 17. In regard to ground No.8 of the assessee s appeal, it was submitted by the learned authorised representative that the ground was against the action of the learned CIT(A) in not directing the Assessing Officer to include the expenditure which had been disallowed by invoking the provisions of section 14A for the purpose of computing the eligible income for deduction under section 80HHE of the Act. It was the submission that the disallowanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e expenditure which was taken as the foundation for the disallowance, obviously, the same would have to be treated as the business income as it would be the business expenditure which has been disallowed. But that is not the case here. The addition has been made by taking 2% of the exempted income. This is not a disallowance out of an expenditure but it is an income which is being assessed as relating to earning an exempted income. Adding this amount to the business income would, in net result, mean granting an assessee an additional expenditure which has not been claimed by the assessee but treating the disallowance out of the income as a deemed expenditure of an assessee which is not permissible. In the circumstances, we are of the view that the action of the learned Assessing Officer in treating the said disallowance as income from other sources is on a right footing. Consequently, ground No.8 of the assessee s appeal stands dismissed. 21. In the circumstances, the appeal of the assessee stands dismissed. 22. In the result, the appeal of the Revenue is partly allowed and the appeal of the assessee is dismissed. 23. The order was pronounced in the court on 23/12/2011. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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