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Income Tax Appellate Tribunal, “A” BENCH : BANGALORE
Before: SHRI SUNIL KUMAR YADAV & SHRI. INTURI RAMA RAO
Per Sunil Kumar Yadav, Judicial Member
This appeal is preferred by the Revenue on following grounds:
The order of the Learned CIT (Appeals) is opposed to law and the facts and circumstances of the case.
2. The Ld. CIT(A) erred in directing the TPO to reconsider the working and rework the ALP without appreciating the fact that no fresh facts were brought before him apart from those which were already discussed in the orders of A.O / TPO.
3. The Ld. CIT(A) erred in following the order of the ITAT for the assessment year 2006-07 in of 2010 without appreciating the fact that the ITAT in its order had directed the Assessing Officer to refer the matter to the EP which in turn should dispose off the assessees objections judicially by a speaking order taking into consideration the judicia precents on the issue and also the order of the Tribunal in ITA No. 1231 of 2010 dt, 5.8.2011 in the case of M/s Genisys Integrating Systems India Pvt Ltd., where similar issues have been considered while the CIT(A) does not have such powers consequent to the amendment of section 251(1)(a) by the Finance Act, 2001 wef 01.06.2001
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4. The CIT(A) erred in directing the AO to exclude the expenditure for delivery of software and the expenditure incurred in foreign currency from the total turnover also while computing the deduction u/s10A, of the I.T. Act, without appreciating the fact that there is no provision that such expenses should he reduced from the total turnover also, as clause (iv) of the explanation to section 1OA provides that such expenses are to be reduced only from the export turnover.
5. The CIT(A) erred in not appreciating the fact that the jurisdictional High Court's decision in the case of Tata Elxsi Limited 349 ITR 98 not been accepted by the department and an appeal has before the Hon'ble Supreme Court.
For these and such other grounds that may be urged at the time of hearing, it is humbly prayed that the order of the CIT(A) be reversed and that of the Assessing Officer be restored.
With regard to Ground Nos. 1 and 2, it was contended by the learned DR that CIT(A) has no jurisdiction to set aside the matter to the AO for reconsideration of the issue. The CIT(A) can only call for a remand report from the AO on certain new facts and issues on which he wants certain information from the AO. But he cannot remand the matter back to the AO for readjudication of the issue. Since he remanded the matter back to the AO, the order of the CIT(A) deserves to be set aside.
The learned counsel for the assessee supported the order of the CIT(A).
Having carefully examined the order of the CIT(A), we find that CIT(A) has remanded the matter back to the AO which he cannot do as per the provisions of the Act. Earlier, he was allowed to do so, but later on by virtue of amendment he cannot remand the matter back to the AO. Therefore, we set aside the order of the CIT(A) and direct him to readjudicate the issues raised before us in the light of assessee’s contentions. If he wants comments from the AO he can call for a remand report but he has to adjudicate the issues himself. Accordingly, the matter is restored to the CIT(A) for readjudication of the issues after affording opportunity of being heard to the assessee.
Apropos Ground Nos. 4 and 5, the issue is covered by judgment of the jurisdictional High Court in the case of Tata Elxsi Ltd., 349 ITR 98. While adjudicating the issue, the CIT(A) has followed the judgments of the jurisdictional High Court. We therefore find no infirmity in his order. Accordingly, we confirm his order. Accordingly, appeal of the Revenue is partly allowed for statistical purposes.
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In the result, appeal of the Revenue is partly allowed for statistical purposes.
Pronounced in the open court on 29th January, 2018.