NESS TECHNOLOGY (INDIA) P.LTD,MUMBAI vs. ASST CIT CEN CIR 34, MUMBAI

During the course of hearing before us, the Authorised Representative (AR) of the assessee stated that the earlier three years the Tribunal had decided the issue in favour of the assessee, that the Hon’ble Bombay High Court had upheld the order of the Tribunal for A.Ys. 2005-06 and 2006-07. The Departmental Representative (DR) left the issue to the discussion of the bench. 4.We have heard the rival submissions and perused the materials before us. We find that while deciding the ITA No. 5712 of 2010 (dated 24.9.2012), the Hon’ble Juri ictional High Court had framed the following question of law: “Whether on the facts and in the circumstances of the case, the Tribunal, in law, was right in holding that the communication charges, professional fees and expenses incurred in foreign exchange for travelling should be reduced from the total turnover as well as from export turnover for applying the provisions of Section 10A of the Income Tax Act, 1961?” Answering the question, the Hon’ble Court held as under: “2.Counsel for the parties state that the aforesaid question stands answered against the revenue in view of the decision of this Court in the case of CIT vs. Gem Plus Jewellery India ltd. Reported in [2011] 330 ITR 175 (Bom). In this view of the matter, we see no ITA/7016/Mum/2012 (A.Y. 2008-09)Ness Technologies (India) Private Limited reason to entertain the appeal. Accordingly, the appeal is dismissed with no order as to costs.” We find that on 25.09.2012, while deciding the appeal No. 584 of 2012, the Hon’ble High Court had taken the similar view. As that issue stands decided in favour of the assessee by the order of the Hon’ble High Court,so respectfully following the same,we are deciding ground no.13 in favour of the assessee. 5.Ground no.14-16 deal with not granting credit of taxes deducing at source (Rs.24.12 lacs)/charging of interest u/s. 234B and 234C of the Act. The AR stated that the assessee filed rectification application in that regard, that authority concerned may be directed to decide the issues raised in the application.DR left the issues to the discretion of the Bench. 6.We find that the assessee had filed application u/s.154 of the Act before the AO on 27.2.2013 and it has not been disposed by him till date. We direct that the rectification application filed by the assessee should be disposed within six weeks of receipt of our order.Grounds no.14-16 are allowed for statistical purposes.

Ground no.17 pertains to initiating penalty proceedings u/s.271(1)(c)of the Act. In our opinion,it is a premature issue and has to be rejected. Ground no.17 stands dismissed. As a result appeal filed by the assessee stands partly allowed. फलतः िनधा"रती "ारा दािखल क" गई अपील अंशतः मंजूर क" जाती है. Order pronounced in the open court on 1st January, 2016. आदेश क" घोषणा खुले यायालय म# $दनांक 01 जनवरी, 2016 को क" गई । (पवन "सह/ Pawan Singh) (राजे"" / RAJENDRA) "याियक सद"य / JUDICIAL MEMBER लेखा लेखा सद"य सद"य / ACCOUNTANT MEMBER लेखा लेखा सद"य सद"य मुंबई/Mumbai,"दनांक/Date: 01.01.2016 Jv.Sr.PS. आदेश क" आदेश क" "ितिलिप "ितिलिप अ"े अ"ेिषत िषत/Copy of the Order forwarded to : आदेश आदेश क" क" "ितिलिप "ितिलिप अ"े अ"े िषत िषत 1.Appellant /अपीलाथ"

Respondent /""यथ" 3.The concerned CIT(A)/संब" अपीलीय आयकर आयु", 4.The concerned CIT /संब" आयकर आयु" 5.DR “K ” Bench, ITAT, Mumbai /िवभागीय "ितिनिध, केकेकेके खंडपीठ,आ.अ.अिध.मुंबई 6.Guard File/गाड" फाईल स"यािपत "ित //// आदेशानुसार/ BY ORDER, उप/सहायक पंजीकार Dy./Asst.