TaxTMI 
TaxTMI 
2012 (11) TMI 105
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.... The assessee is a company carrying business of export of computer software and has earned profit in purchase and sale of shares and commodities. The assessee filed its return of income on 29-12-2006 declaring total income at Rs.7,93,712/-. The case was selected for scrutiny. During the course of assessment proceedings on perusing the computation of income along with the audited financial statement and tax audit report, the A.O. noticed that the company has income from the business of software of Rs.69,57,681/- which has been claimed as exempt u/s. 10A and the taxable income from software business has been computed at Rs. Nil. A.O. called for various details from the assessee in respect of claim made u/s. 10A. After going through the sub....
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.... assessee made detailed submissions in support of its claim. After considering the submissions of assessee CIT (A) allowed the benefit of Sec. 10A to assessee by holding as under:- "4.3. I have carefully considered the submissions made by the A.R. of the appellant. I have also gone through the decisions, referred to above, which are relied upon by the A.R. of the appellant and the observations of the Assessing Officer in the assessment order. While rejecting the appellant's claim u/s.10A of the Act and thereby making an addition of Rs.69,57,681/-, the Assessing Officer has not appreciated the facts of the case. Similar issue arose in the appellant's own case for Assessment Years 2001-02 and 2002-03, wherein the issue in question has alre....
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....ies of the same as supporting evidence. Time sheet was required to ascertain the details of report. The Ld. D.R. further pointed out that the assessee has not been able to explain as to whether for making changes in the software sold whether the software were brought back to India or the same has been done in the clients country. The assessee has also not furnished information as to whether it has supplied source code to the clients. In view of all the aforesaid facts, the Ld. D.R. strongly supported the order of the A.O. 8. On the other hand the Ld. A.R. submitted that on identical facts of the case in assessee's own case for A.Y. 2002-03, Hon'ble Tribunal has allowed the appeal of the assessee vide ITA No.2544/Ahd/2005 vide order dated....
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....r years and therefore the assessee should be allowed the benefit of deduction by following orders of ITAT of earlier years. 10. We have heard the rival submissions and perused the material on record. It is undisputed fact that on identical matter, the co-ordinate Bench of Tribunal had allowed the appeal of assessee. In the present case, the Revenue could not controvert by bringing any material on record that the factual position in the current year is different from that of earlier years. Since the facts in the current year are identical to those of A.Y. 2002-03 and A.Y. 2008-09 and since the matter has already been decided in favour of the assessee by the co-ordinate Bench and the Hon'ble High Court we find no reason to take a contrary ....
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....ld have sold it only in case of emergency. He was of the view that the assessee was buying and selling the shares as if it was stock in trade and for earning profits. He relying on the decision of ITAT "C" Bench, Ahmedabad in ITA No.3154/Ahd/2002 held that the short term capital gain shown by the assessee at Rs. 4,26,285/- as business income. Aggrieved by the action of the A.O. assessee carried the matter before the CIT (A). 13. Before the CIT (A), Ld. A.R. submitted that the company is primarily engaged in the business of export of software, the dealing in the share was merely undertaken to deploy funds to take the benefit of stock market. The activity of purchase and sale was carried out by one of the directors and for which no help....
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.... was received during the year. 6.3. Having considered the facts of the case, I hold that the appellant cannot be said to have traded in shares. A.O. is directed to assess the income from such activity as short-term capital gain. This ground of appeal is allowed." 14. Aggrieved with the order of CIT (A), Revenue is now in appeal before us. 15. Before us the Ld. D.R. relied on the order of A.O. 16. On the other hand, the Ld. A.R. apart from the submissions made before the CIT (A), further submitted that the assessee has treated the gains as short term capital gain and the investments have been shown in the balance sheet as investments and not as stock in trade. He placed on record the Investment Schedule-E forming part of the Bala....