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11. Without prejudice to its contention that the Assessee was in fact carrying out software development, the Assessee pleaded that GDC's activities can nevertheless be considered to fall under one or more categories of IT enabled services as per Notification No SO 890(E), dated 26 September 2000 (supra), viz "Data Processing", "Engineering and Design", "Support Centre" and "Remote maintenance".

12. The CIT(A) however rejected the plea of the Assessee and concurred with the view of the AO and in doing so, the CIT(A) followed his own order in assessee's case for the assessment year 2005-06. In AY 05-06, the CIT(A) called for a remand report from the AO who gave his report dated 21.2.2012 to the CIT(A). In the remand report the AO relied on facts as it emanated before him on the issue of deduction in Assessee's ITA Nos.1492-1495(B)12 & ITA No.265(B)/13 own case in the assessment for AY 06-07. In AY 06-07, the Assessee had filed before AO detailed charts explaining the activities carried out in GDC unit and the various phases in the course of developing software. The Assessee had claimed that it was modifying/implementing changes to Software code for SAP group entitles. The Assessee filed E- mail correspondences between consultants of SAP with overseas customers. The A0 called for sample invoices and softex forms. On perusal of the same the AO was of the view that the invoices are essentially raised against overseas SAP group entitles and SAP AG. Softex forms only state that software exports are made pursuant to agreement dated 8.4.2004 which is Cross Service Agreement between the Assessee and SAP AG. The payments were found to be made to individuals depending upon the man hours spent. Based on the above, the AO in AY 06-07 held in the order of assessment that the Assessee was not entitled to deduction u/s.10A of the Act for the following reasons:

25. The learned counsel for the assessee in his rejoinder brought to our notice that it is not correct to say that the assessee did not export any computer software. In this regard, our attention was drawn to page-23 & 24 of the paper book filed for the assessment year 2004-05 in which the particulars of exports out of India have been given. Our attention was also drawn to page-110 of the paper book which is the report of the Chartered Accountant in Form-56F certifying that the assessee had developed and exported software and was entitled to claim deduction u/s 10A of the IT Act, 1961. Our attention was also drawn to page-92 of the paper book which contained the softex form which is a form be given under the STPI Scheme, when the software is exported. The softex form gives the details of software exports and the amount realised on such exports. It was pointed out by the learned counsel for the assessee that the assessee had exported computer software. The AO in his remand report filed before the CIT(A), a copy of which is placed at page-62 of the assessee's paper book has not chosen either deny or affirm the contentions put forth by the assessee before the CIT(A) and the evident filed by the assessee in support of its contention. The learned counsel therefore, submitted that it is too late in the day for the DR to contend that the assessee has not exported computer software. It was also ITA Nos.1492-1495(B)12 & ITA No.265(B)/13 submitted that the learned counsel for the Assessee that the decision of the ITAT Cochin Bench in the case of Girnar Industries (supra) relied upon by the learned DR is no longer good law in the view of the decision of the Hon'ble Kerala High Court in the case of TATA Tea Ltd. Vs. ACIT 338 ITR 285 (Ker) taking a contrary view.

32. Softex Forms is a declaration given by the Assessee for Exchange Control purposes, duly certified by STPI authorities regarding software export through data-communication links. The invoice No. and date of invoice are also given in the Softex Forms. By way of sample we may have a look at Softex Form dated 25.10.2004 together with ten invoices referred to in the said form. Copies of these documents are placed at pages-92 to 105 of Assessee's paper book filed for AY 05-06. The Assessee has to realise 643499.68 Euros on the basis of Softex copy of which is at page 91 to 94. Let us look at Invoice at Sl.No.1 referred to in column-6 of the said Softex form viz., Invoice No.8999000327 dated 25.4.2003. This invoice has been raised on SAP AG. This is apparently because of the Cross Agreement which we have already referred to in the earlier part of this order. As per the Cross Agreement, the subsidiaries ITA Nos.1492-1495(B)12 & ITA No.265(B)/13 of SAP AG all over the world approach the Assessee for carrying out work through SAP AG. The Assessee bills SAP AG for these services. In this invoice there is a column "Agreement No./Contract/Purchase order No. and Date. In this column a number "4500438518 dated 30.10.2002 is given. By looking at this agreement/contract/purchaser order it is possible to know the scope of work performed by the Assessee for which invoice has been raised.

37. As far as the third condition viz., as to whether the Assessee exported computer software/ITES out of India, we are of the view that there can be no doubt on the satisfaction of this condition. Sample copies of Software Export Declaration (Softex) forms filed with the STPI (relating to/ corresponding to the invoices raised by the Assessee on overseas SAP entities) have been filed before the Revenue authorities. These Softex forms are certified by the STPI authorities as being exported out of the country.