TaxTMI 
TaxTMI 
2020 (11) TMI 135
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....ts and circumstances giving rise to appeal for AY 2005-06 are that the assessee which is in the business of rendering Software Development Services, filed its return of income for AY 2005-06 declaring total income of Rs. 2,19,86,860/-. An order of Assessment dated 30.12.2008 under Section 143(3) of the Income-tax Act, 1961 ("the Act") was passed by the Assessing Officer (AO) computing total income at Rs. 725,277,770. The three additions that were made by the AO in this order were as follows:- (i) Expenditure on Software of Rs. 95,66,521 which was claimed as revenue expenditure was disallowed and treated as capital expenditure. However depreciation @ 60% was allowed thereby the disallowance on account of treating expenditure on software as revenue expenditure was Rs. 38,26,608 and this sum was added to the total income of the Assessee; (ii) The Assessee had claimed deduction u/s.10A of the Act at Rs. 134,80,27,117/-. The AO found that in applying the formula for claiming deduction u/s.10A of the Act, the Assessee had reduced telecommunication expenses incurred in foreign currency both from the Export turnover and total turnover. According to the AO, as per the definition of Expo....
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....l in nature and depreciation at 60% was allowed on those expenses without making proper and necessary verification; (ii) The AO ought to have verified whether the technical services rendered outside India by the Assessee that were deducted while computing Export turnover of the various STPI units were technical services rendered outside India in connection with business of export of computer software or was a separate business of rendering technical services outside India distinct from and unrelated to the business of export of computer software and if it was so distinct and unrelated then the eligibility of the said receipts to deduction u/s.80HHE of the Act had to be examined; and (iii) interest received on income tax refund was directed to be taxed. 6. The Assessee did not file an appeal before the Tribunal against the order of the CIT under section 263 of the Act. According to the Assessee, it was of the bonafide belief that the assessment has been completely set aside and the AO was directed to make a fresh assessment. 7. The CIT(A) by an order dated 15.2.2010 dismissed the appeal of the Assessee against the order of assessment dated 30.12.2008, which is the order impugn....
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....o file an appeal before the Tribunal, against the order of the CIT(A) dated February 15, 2010. The last day for filing the appeal before the Tribunal against the order of the CIT(A) dated March 09, 2010 was May 07, 2010. The Assessee has filed the subject appeal on July 15, 2017 with a delay of 2625 days (May 08, 2010 to July 15, 2017). 10. In support of the application to condone delay in filing appeal, one Mr. Marshal Correia, Managing Director of the Assessee has filed affidavit, in which, the facts stated above have been elaborated. The learned counsel for the assessee reiterated the contents of the affidavit as above and has prayed for condonation of delay in filing the appeals. His submission was that in tax matters, substantive rights cannot be denied on the basis of technicalities and a liberal approach should be adopted in the matter of condoning delay in filing appeal. The ld. DR, however, opposed prayer for condoning delay on the ground that the delay is inordinate. 11. We have given a careful consideration to the rival submissions and we find that it is only on the receipt of Tribunal's order in the appeal arising out of proceeding subsequent to the order passed by th....
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....al of doubts, it is hereby declared that, for the purposes of this sub-section,- (a ) an order passed on or before or after the 1st day of June, 1988] by the Assessing Officer shall include- (i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income-tax Officer on the basis of the directions issued by the Joint Commissioner under section 144A ; (ii) an order made by the Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Chief Commissioner or Director General or Commissioner authorised by the Board in this behalf under section 120; (b) "record" shall include and shall be deemed always to have included] all records relating to any proceeding under this Act available at the time of examination by the Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal filed on or before or after the 1st day of June, 1988, the powers of the Commissioner under this sub-section shall extend and shall be deemed alway....
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....taining to the TP adjustment to the extent of the USA portion and the balance TP adjustment of Rs. 40,729,859 pertaining to non-USA portion was on appeal before the CIT(A). 15. Meanwhile, the CIT initiated revisionary proceedings u/s. 263 of the Act and pronounced an order u/s. 263 of the Act dated 17.2.2009 wherein the CIT had set aside the assessment order to the office of the AO, and the AO was directed to make a fresh assessment. By the said order, the CIT held that the AO ought to have verified whether the technical services rendered outside India by the Assessee that were deducted while computing Export turnover of the various STPI units were technical services rendered outside India in connection with business of export of computer software or was a separate business of rendering technical services outside India distinct from and unrelated to the business of export of computer software and if it was so distinct and unrelated, then the eligibility of the said receipts to deduction u/s.80HHE of the Act had to be examined. 16. The Assessee had not filed an appeal before the Tribunal against the order of the CIT under Section 263 of the Act as the Assessee was of the bonafide ....