TaxTMI 
TaxTMI 
2016 (1) TMI 786
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.... 2. The petitioner is a Company registered under the Companies Act. The petitioner filed its return of income for the Assessment Year 2008-09 on 30.09.2008 declaring total income of Rs. 1.76 crore (rounded off). The assessment was taken in scrutiny. Assessment was framed under section 143 (3) of the Income-tax Act, 1961 ("the Act" for short) on 02.02.2012. It is this assessment which the Assessing Officer seeks to reopen for which the impugned notice dated 18.11.2014 came to be issued. The petitioner was supplied with the reasons recorded by the Assessing Officer for issuing such notice, relevant portion of which reads as under: "In this case, the return of income for the A.Y.2008-09 declaring income of Rs. 1,76,295/- was filed o....
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.... is also not available. However, based on the total turnover (Rs.50977.42 lakh), the proportionate amount to be excluded from the 'export turnover' would be Rs. 515.14 lakh for Mahape Unit and Rs. 23.94 lakh for Pune Unit. As per the definition u/s.10A, 'export turnover' does not include telecommunication charges, freight and insurance incurred for export of software. Accordingly, allowable deduction u/s.10A would be Rs. 91.66 crore. Thus there was excess allowance of deduction u/s.10A to the tune of Rs. 1,02,03,278/- (Rs.96,48,60,352/- minus Rs. 95,46,57,074/-). Thus as per the arm's length price is determined by the A.O. u/s.92C(3), no deduction shall be allowed u/s.10A or section 10AA or section 10B. Further,....
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....-section (4) of section 92-C, this addition made by way of arm's length price would not qualify for deduction under section 10-A of the Act, despite which such deduction was granted by the Assessing Officer in the original assessment. The second reason was that, according to the Assessing Officer, export turn over for the purpose of exemption under section 10A would not include telecommunication charges, freight and insurance incurred in the export of software, despite which the assessee had included the same which resulted into excess deduction being granted. 5. Learned counsel Mr.Soparkar for the petitioner pointed out that the notice in question was issued beyond the period of four years from the date of the assessment order. Ther....
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....er due to failure on the part of the assessee to disclose truly and fully all necessary material facts, a prime requirement under the provisions of section 147 of the Act which enables the Assessing Officer to reopen an assessment previously framed after scrutiny beyond the period of four years of the assessment order. If at all it was an error on the part of the Assessing Officer to grant larger relief than what was justified under the legal provisions. At any rate, this would not be a ground for reopening an assessment beyond four years. There were multiple other remedies available to the revenue to exercise within the time frame provided under the statute, but to reopen an assessment beyond the period of four years of the assessment orde....
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....of software. However, in case such expenses are reduced for the purpose of export turnover, the same would also be required to be reduced from total turnover." 10. Thus, in the return filed the assessee had pointed out to the Assessing Officer that for computing export turn over, telecommunication charges for export of computer software were not considered as telecommunication expenses. The same are fixed in nature and not incurred specifically for export of software. However, in case such expenses are reduced for the purpose of computing export turn over, the same are also to be reduced from the computation of total turn over. In other words, according to the assessee, if such charges were to be eliminated from the denominator of the ra....