2015 (9) TMI 652

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....sessment year 2008-09. ITA No.672/B/14 (Revenue's appeal) 2. The only issue that arises for consideration in this appeal is as to whether the CIT(Appeals) was justified in directing the AO to exclude the expenditure incurred in foreign currency such as salaries, travelling and conveyance, sub-contracting, software development charges, communication, etc. from the export turnover, without reducing the same from the total turnover also, while computing deduction u/s. 10B of the Act. 3. According to the AO, as per the definition of export turnover given in clause (iv) to Explanation 2, the expenses incurred for freight expenses attributable to the delivery of the product or software outside India should be reduced from the export turn....

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.... bad in law and therefore not sustainable. 2. That the learned CIT(A) erred in not admitting the additional ground submitted by the appellant in course of the appeal proceedings and deciding the same on merits. 3. That the learned CIT(A) has erred in not exercising her powers under section 250 of the Income- tax Act, 1961. 4. That the learned CIT(A) has erred in upholding the action of the AO in not granting depreciation on goodwill to the Appellant. 5. That the Appellant craves leave to add to and/or to alter, amend, rescind, modify the grounds herein below or produce further documents before or at the time of hearing of this Appeal." 8. The assessee is a company engaged in the business of development of software with 'Samsu....

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.... year under appeal. 12. Accordingly, the assessee, by relying on the above judicial precedent which considered goodwill to be eligible for depreciation under section 32(1)(ii) of the Act, raised an additional ground for allowability of depreciation on goodwill in the appeal filed before the CIT(Appeals). 13. Before the CIT(A), the assessee submitted that under the provisions of section 253(1) of the Act, the powers of the CIT(Appeals) are coterminus with that of the Assessing Officer and therefore he can do what the Assessing Officer can do. Reliance was placed by the assessee on the decision of Hon'ble Supreme Court in CIT v. Kanpur Coal Syndicate (1964) 53 ITR 225) (SC) and Jute Corporation of India Ltd. v. CIT (1991) 187 ITR 688 (S....

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.... before the AO u/s. 154 of the Act making a claim for depreciation on goodwill. The CIT(A) was of the view that since the matter was being pursued before the AO wherein the factual basis of the claim will be examined, the assessee's grievance will be adequately redressed. Even on that basis, the CIT(A) refused to admit the additional ground. 16. Aggrieved by the order of CIT(Appeals), the assessee has preferred the present appeal before the Tribunal. 17. We have heard the submissions of the ld. counsel for the assessee, who reiterated the submissions as were made before the CIT(A). 18. The ld. DR relied on the order of CIT(A). 19. We have given a careful consideration to the rival submissions. A plain reading of the provisions o....