Itta/320/2013 Of The Commissioner Of Income Tax-Iv v. M/S Planet Online Pvt Ltd

IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH ATHYDERABAD THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAAND THE HON’BLE SRI JUSTICE K.C. BHANU I.T.T.A. No. 320 of 2013 DATE: 07.08.2013 Between: The Commissioner of Income Tax-IV,Hyderabad. … Appellant And M/s. Planet Online Pvt., Ltd.,Secunderabad. … Respondent This Court made the following: THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTI SENGUPTAANDTHE HON’BLE SRI JUSTICE K.C. BHANU I.T.T.A. No. 320 of 2013 JUDGMENT:(Per the Hon’ble the Chief Justice Sri Kalyan Jyoti Sengupta) This appeal is preferred against the judgment and order of the learnedTribunal, dated 16.11.2007, in relation to the assessment year 2003-04 and sought to be admitted on the following suggested question of law. Whether in the facts and circumstances of the case, the orderof the Tribunal in holding that only 5% of the soft link charges areattributable to delivery of software attracting CI(iii) of Expl.2 toSec.10B of the Income Tax Act is not perverse and liable to be setaside? Going by the aforesaid suggested question of law, it appears that therevenue’s grievance is with regard to fixing of 5% of the expenses attributedto delivery of software attracting. We are of the view that this is entirely adiscretionary order and such assessment is always based on discretion. Unless the discretion is found to be absurd, this Court in exercise of itsjurisdiction under Section 260A of the Income Tax Act, 1961, shall notinterfere with the same. According to us, fixing of 5% of the expenses asdisallowance for delivery of software attracting is not irrational. We, therefore,do not find any element of law in this appeal. Accordingly, the appeal is dismissed. _____________________ K.J. SENGUPTA, CJ ________________ K. C. BHANU, J Date: 07.08.2013ES