DCIT, Bangalore V. M/s ANZ Operation & Technology Pvt. Ltd., Bangalore

MA 97/BANG/2009

• Counselvise Citation: [2010] 123 COUNSELVISE.COM (IT) 5151 (ITAT-BANGALORE)
• Duration Of Justice: 11 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 02-11-2010
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 29-10-2010
• Assessment Year: misc
• Appeal Filed On: 09-11-2009
• Court: TRIBUNAL
• Department Lawyers: GOUTAM DALVE
• Assessee Lawyers: PRATAP SINGH

Judgement Text

MP.97/BANG/2009 PAGE - 1 IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH 'B', BANGALORE BEFORE DR. O. K. NARAYANAN, VICE PRESIDENT AND SHRI. GEORGE GEORGE K, JUDICIAL MEMBER MISC.PETITION NO.97/BANG/2009 (IN I.T.A NO.69/BANG/2008) (ASSESSMENT YEAR : 2004-05) DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE -11(1), BANGALORE .. APPLICANT V. M/S. ANZ OPERATION & TECHNOLOGY P. LTD., EMBASSY GOLF LINKS BUSINESS PARK, OFF INTERMEDIATE RING ROAD, BANGALORE 560 052 .. RESPONDENT APPLICANT BY : SHRI. GOUTAM DALVE, CA RESPONDENT BY : SHRI. PRATAP SINGH, ADDL.CIT O R D E R PER DR. O. K. NARAYANAN, VICE PRESIDENT : THIS MISCELLANEOUS PETITION IS IN THE NATURE OF RE CTIFICATION PETITION. IT IS FILED BY THE REVENUE. THIS PETITI ON HAS BEEN FILED IN THE CONTEXT OF THE COMMON ORDER OF ITAT, BANGALORE BENC H, DATED.08/08/2008, PASSED IN ITA NO.69/BANG/2008 & ITA.26/BANG/2008. 2. THE TEXT OF THE PETITION FILED BY THE REVENUE IS EXTRACTED BELOW FOR A BETTER UNDERSTANDING OF THE ISSUE INVOLVED : MP.97/BANG/2009 PAGE - 2 'IN THE ORDER PASSED BY THE HON'BLE ITAT, BANGALORE BENCH, 'B' IN ITA NO.69/BNG/2008, DATED.8.8.2008, THE HON' BLE ITAT HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE. THE QUESTION OF REDUCING EXPENDITURE INCURRED IN FOREIGN EXCHANGE H AS NEITHER BEEN REFERRED TO NOR DISCUSSED IN THE ORDER PASSED BY THE HON'BLE ITAT. HOWEVER, IN PARA 10 ON PAGE 6 OF THE TRIBUNAL'S ORDER, THE ITAT HAS ALLOWED THE APPEAL F ILED BY THE ASSESSEE BY DIRECTING THE ASSESSING OFFICER TO REDU CE BOTH TELECOMMUNICATION CHARGES AND EXPENDITURE INCURRED IN FOREIGN CURRENCY FROM BOTH EXPORT TURNOVER AND TOTA L TURNOVER, WHILE ALLOWING THE DEDUCTION U/S.10A OF THE IT ACT. ' 3. WE HEARD BOTH SIDES AND CONSIDERED THE ISSUE. T HE TRIBUNAL HAS HELD THAT THE ASSESSEE HAS NOT DISPUTED THE QUANTUM OF THE TELECOMMUNICATION CHARGES AND THE EXPENDITURE INCUR RED IN FOREIGN CURRENCY REDUCED FROM THE EXPORT TURNOVER; THE GRIE VANCE WAS THAT SUCH DEDUCTION MUST BE MADE FROM THE TOTAL TURNOVER AS WELL TO ANSWER THE RULE OF PARITY. THIS RULE OF PARITY HAS BEEN U PHELD BY ITAT, CHENNAI, SPECIAL BENCH IN THE CASE OF SAKSOFT LTD., IN 313 ITR (AT) 353, WHERE THE SPECIAL BENCH HAS HELD THAT SUCH ADJ USTMENTS MADE IN THE EXPORT TURNOVER SHOULD BE MADE IN THE TOTAL TUR NOVER AS WELL. EVEN IF THE QUESTION OF REDUCING THE EXPENDITURE INCURRE D IN FOREIGN EXCHANGE HAS NOT BEEN SPECIFICALLY RAISED BY THE AS SESSEE, THE SAID MP.97/BANG/2009 PAGE - 3 ISSUE IS WRIT LARGE ON THE MATERIALS PLACED BEFORE THE TRIBUNAL. SUCH EXPENDITURE INCURRED BY THE ASSESSEE IN FOREIGN CUR RENCY ARE ANALOGOUS TO THE TELECOMMUNICATION CHARGES RAISED IN THE GROU NDS OF APPEAL. THEREFORE, AS A FINAL FACT-FINDING AUTHORITY, THE T RIBUNAL CANNOT OVERLOOK A DEMANDING ISSUE UNRESOLVED ON THE GROUND OF SIMPLE TECHNICALITIES. THEREFORE, WE FIND THAT THE TRIBUN AL HAS NOT MADE ANY MISTAKE PER SE IN PASSING THE SAID ORDER POINTED OU T BY THE REVENUE. 4. IN RESULT, THIS MISCELLANEOUS PETITION FILED BY THE REVENUE IS WITHOUT ANY MERIT. IT IS DISMISSED. ORDER PRONOUNCED ON TUESDAY, THE 02ND DAY OF NOVEMB ER, 2010, AT BANGALORE. SD/- SD/- (GEORGE GEORGE K) (DR. O. K. NARAYANAN) JUDICIAL MEMBER VICE PRESIDENT