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Income Tax Appellate Tribunal, “F” BENCH, MUMBAI
These cross appeals by the revenue and assessee are arising out of the order of Commissioner of Income Tax (Appeals)-20, Mumbai [in short CIT(A)], in appeal No. CIT(A)-20/Addl.CIT-12(2)/IT-120/2013-14 dated 28.10.2016. The Assessment was framed by the Assistant Commissioner of Income Tax, Range-9(1), Mumbai (in short ‘ACIT’) for the A.Y. 2011-12 vide order dated 20.01.2014 under section 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’).
At the outset, Ld. Counsel for the assessee drew our attention to the grounds raised before CIT(A) i.e. Ground Nos.4, 5 & 6, which reads as under:
“4. The learned Assessing Officer erred in disallowing software expenses of ₹ 82,65,724/- on the ground that no tax has been deducted at source. The Ld. Assessing Officer erred in not considering the submission of the appellant in this regard.
5. The learned Assessing Officer erred in disallowing software expenses of ₹9,02,966/- on the ground that TDS is not deducted adequately.
6. Without prejudice and in alternate, the appellant submits that the learned Assessing Officer ought to have granted depreciation on software licenses treated as capital expenditure.”
Similarly, he draw our attention to the grounds raised by the revenue which reads as under:-
“1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the disallowance under section 40(a)(ia) of the I.T. Act, 1961 amounting to ₹91,68,690/-. 2. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has failed to observe that there was also alternate addition made on account of non-deduction of TDS aggregating to ₹91,68,690/-. 3. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) has failed to observe that the software license fee was in the nature of fees for professional or technical services covered under section 194J of the I.T. Act, 1961.” 4. Finally, Ld. Counsel took us through the order of CIT(A) and argued that none of the above referred grounds are adjudicated by CIT(A). He only requested that let the matter go back to the file of the CIT(A) for fresh adjudication and accordingly, the C.O. of the assessee and the appeal of revenue both can be set aside.
On the other hand, the Ld. Sr. D.R. did not object and agreed with the submissions of the Ld. Counsel for the assessee that the CIT(A) has not adjudicated these issues.
We have heard the rival contentions and gone through the facts and circumstances of the case. We find from the order of CIT(A) that the above raised issues have not at all been adjudicated. Hence, we restore this matter back to the file of the CIT(A) to adjudicate the above referred issues and decide according to law.
In the result, appeal filed by the revenue and cross objection filed by the assessee both are allowed for statistical purposes.
Order pronounced in the open court on 19-06-2018. AadoSa kI AadoSa kI Gaao AadoSa kI AadoSa kI GaaoGaao GaaoYaNaa Kulao mao idnaMk YaNaa Kulao mao idnaMk YaNaa Kulao mao idnaMk 19.06.2018 kao kI YaNaa Kulao mao idnaMk kao kI kao kI ga[ kao kI ga[ ga[- . ga[