appeal was dismissed on 30 March 2012. It is, therefore, contended that when the Petitioner had filed original return for the assessment year 2004-05, the TPO had not even passed any order for any earlier year and the earliest order being, for the A.Y.2002-03, was passed by the TPO on 10 February 2005. The learned counsel for the Petitioner submitted that the assessee, in order to avoid any further litigation, gave up his claim in respect of the allowability of the expenses much before the TPO passed any adverse order. Thus, the Petitioner is entitled to claim the benefit of deduction under Section 10A of the Act in respect of Rs.5.86 Crores which were added on its income in the Revised Return. It is submitted that the prohibition imposed by the first proviso to Section 92C(4) of the Act would not apply because that prohibition would come into effect only if the total income of the assessee is enhanced after computation of income under Section 92(4) of the Act is made. It is submitted that when the assessee gives up its claim even before the TPO passes an order, the assessee does not lose the benefit of deduction under Section 10A of the Act. It is submitted that the Tribunal has not at all considered prima facie merits of the Petitioner's case and therefore, no deposit/ payment of penalty was called for in the facts of the present case.
