INFOSYS LIMITED,BANGALORE vs. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-3(1)(1), BANGALORE

2.2. On facts and circumstances of the case and law applicable, the appellant is entitled for the claim of deduction under section 10AA of the Act on the above incomes included in the profits of eligible SEZ units.

3. Foreign tax credit relating to income eligible for deduction under section 10AA

3.1. The learned CIT(A) has erred in holding that foreign tax credit of Rs. 199,02,90,017/-(including Rs.32,49,54,756 in respect of Australia offshore income) in respect of income on which deduction under section 10AA has been claimed, shall be allowed subject to the forthcoming decision of the Supreme Court in Wipro Limited. The CIT(A) has erred in not appreciating that mere pendency of special leave petition before the Supreme Court is no bar to grant the relief concerned.

Page 3 of 16 3.2. The learned CIT(A) erred in not appreciating that foreign tax credit in respect of income on which deduction under section 10A / 10AA has been claimed has been allowed in appellant's own case for the earlier years by the High Court of Karnataka and ITAT, Bangalore.

4. Levy of interest under section 234B: 4.1. The levy of interest under section 234B is bad in law and liable to be quashed.

5. Prayer: 5.1. Based on the above grounds and other grounds adduced at the time of hearing, the appellant prays that the order passed under section 250 to the extent prejudicial to the appellant be quashed or in alternative the above grounds and relief prayed thereof be allowed.”

5. Aggrieved by the order of the AO, the assessee company preferred an appeal before ld. CIT(A)/NFAC. The Ld. CIT(A)/NFAC vide order dated 19.6.2024 partly allowed the appeal of the assessee. Aggrieved by the said order of the ld. CIT(A)/NFAC, the assessee has filed the present appeal before us.

5.1 The assessee has also filed the additional grounds of appeal at the time of hearing of the appeal with regard to the claim of deduction under section 37(1) of the Act in respect of foreign tax credit not eligible for relief under section 90 or 91 of the Act.

Page 4 of 16 5.2 The ground No 1 as raised by the assessee is general in nature & does not required any adjudication.

5.3 The ground No 2 deals with deduction under section 10AA of the Act in respect of various types of interest incomes, incentives and miscellaneous income pertaining to SEZ units established by the Assessee. Undisputed facts relating to the same are as under- The Assessee has established various SEZ units and the profits and gains of these SEZ units are eligible for deduction under section 10AA of the Act. During the year under consideration, the Assessee included the following incomes while computing profits of business of SEZ units and accordingly claimed deduction under section 10AA of the Act in respect of the various incomes, namely: 1. Interest on GLES (Group Leave Encashment Scheme) deposits with LIC 2. Interest on employee loan, incentives received, sale of scrap and others 3. Other miscellaneous income including incentives 4. Interest received on security deposits and others 5. Interest received on deposits with bank 6. Realized foreign exchange gain on forward contracts 7. Interest on loans to subsidiary 8. Interest received on debentures 9. Interest income from NCDs along with premium on NCD amortised 10. Interest on Overseas Tax refunds 11. Interest income from Government Securities including the premium amortised 12. Interest on government bonds and CST refund

Page 5 of 16 5.4 During the assessment proceedings, the deduction claimed under section 10AA of the act in respect of these incomes were justified by the Assessee by relying on the decision of full bench decision of the High Court of Karnataka in CIT v Hewlett Packard Global Soft Ltd [2017] 87 taxmann.com 182 and other similar decisions. In the computation of total income, these incomes were allocated to various units under section 10A & 10AA, based on the respective turnover. It was held that merely because these incomes have been assessed as business income will not automatically confer the benefits of the particular deductions once there is a stipulation that such income should be derived from a particular source. It was held that the above incomes are only attributable to the business but are not derived from the activity of the software development and export. Accordingly, it was held by the AO that the above-mentioned incomes are to be excluded from the business profit for the purpose of deduction under section 10AA of the Act.

5.5 The CIT(A)/NFAC however followed the decision of this Tribunal in Assessee’s own case for AY 2014-15 and AY 2015-16 in & 126/B/2019 dated 31.1.2023 and allowed deduction under section 10AA of the act in respect of interest on GLES, interest on loans given to employees and receipts from sale of scrap.

5.6 The CIT(A)/NFAC also followed the decisions of Hon’ble Karnataka High Court in the case of CIT v Hewlett Packard Global Soft Ltd [2017] 87 taxmann.com 182, DCIT v Motorola India Electronics P Ltd [2014] 46 taxmann.com 167, Green Agro Pack P Ltd v CIT dated 13.4.2010, Green Agro Pack P Ltd v CIT dated 26.8.2014, Wipro Ltd v DCIT [2016] 382 ITR 179 and allowed the deduction under section 10AA in respect of interest on deposits with Banks, interest on security deposits and realized gain on forward contracts. The Revenue has not challenged the above reliefs allowed by the CIT(A)/NFAC before this Tribunal.

Page 6 of 16 5.7 In respect of interest on non-convertible debentures (NCDs), it was held by the ld. CIT(A)/NFAC that considering the very nature of NCDs, investment in NCDs and deriving interest income thereon cannot be held to be an activity that is directly arising out of the business of the appellant and does not have any nexus to the business of the appellant. The interest income from NCDs basically is an income that is arising from a planned decision of the appellant to earn a certain amount of secured income by investment of its funds. Accordingly, the interest on NCDs was held to be not eligible for claim of deduction under section 10AA of the Act.

5.8 In respect of interest on loan to Subsidiaries, interest on Govt securities, interest on debentures and interest on tax refund, it was held that these incomes fall under the head Income from other sources and have also been declared by the Appellant in its return of income as such. It was held that these incomes do not constitute business income of the Appellant and also do not have nexus with the business operations of the appellant. Accordingly, the said incomes were held to be not qualifying for a deduction under section 10AA of the Act.

5.9 The AR relied on the decision of the full bench of Karnataka High Court in the case of CIT v Hewlett Packard Global Soft Ltd [2017] 87 taxmann.com 182 which has been followed by the Karnataka High Court and this Tribunal in Assessee’s own case for AY 2014 -15 & 2015 -16, to justify the allowability of deduction under section 10AA of the Act in respect of the above incomes. Statement of computation of total income for the AY under consideration was submitted and it was shown that all the above incomes were offered to tax as business income and not as income from other sources as held by the ld. CIT(A)/NFAC. It was argued that when the ld.CIT(A)/NFAC has allowed deduction under section 10AA of the Act in respect of interest on GLES, interest on loans given to employees, receipts from sale of scrap, interest on deposits with Banks, interest on security deposits and realized gain on forward contracts, the other incomes like interest on NCDs, interest on loan to Subsidiaries, interest on Govt

Page 7 of 16 securities, interest on tax refund, interest on govt. bonds & CST refund, incentives received and other miscellaneous incomes pertaining to SEZ units are also eligible for deduction under section 10AA of the Act.

5.10 The ld. DR on the other hand strongly relied on the findings as per the order of the CIT(A)/NFAC.

5.11 We have considered the rival contentions and perused the material on record. The ld. CIT(A)/NFAC has allowed deduction under section 10AA of the Act in respect of interest on GLES, interest on loans given to employees, receipts from sale of scrap, interest on deposits with Banks, interest on security deposits and realized gain on forward contracts pertaining to SEZ Units by following the decisions of the Karnataka High Court in the case of CIT v Hewlett Packard Global Soft Ltd [2017] 87 taxmann.com 182, DCIT v Motorola India Electronics P Ltd [2014] 46 taxmann.com 167, Green Agro Pack P Ltd v CIT dated 13.4.2010, Green Agro Pack P Ltd v CIT dated 26.8.2014, Wipro Ltd v DCIT [2016] 382 ITR 179. The Revenue has not challenged the reliefs allowed by the ld. CIT(A)/NFAC in respect of these incomes. The CIT(A)/NFAC has not allowed the deduction under section 10AA of the Act in respect of interest on NCDs for the reason that it is not a business income. In respect of other incomes like interest on NCDs, interest on loan to Subsidiaries, interest on Govt securities, interest on tax refund, interest on govt. bonds & CST refund, incentives received and other miscellaneous incomes, it is held by the ld.CIT(A)/NFAC that these incomes are offered to tax under the head Income from other sources and hence do not constitute business income of the Appellant and also do not have nexus with the business operations of the appellant. However, the AR has submitted the computation of total income of the Assessee company and has shown us that all the incomes on which deduction under section 10AA of the act was claimed offered to tax as business income and not under the head income from other sources. From the computation of total income, the incomes offered under the head income from other sources are only guarantee

Page 8 of 16 income, dividend income, income from venture capital fund and other miscellaneous income of Rs. 10,500. Thus, it is evident that interest on NCDs, interest on loan to Subsidiaries, interest on Govt securities, interest on tax refund, interest on govt. bonds & CST refund, incentives received and other miscellaneous incomes are offered to tax under the head Profits and gains of business and not under the head Income from other sources. The AO has also assessed these incomes under the head Profits and gains of business.

5.12 The full bench of the Hon’ble Karnataka High Court in the case of CIT v Hewlett Packard Global Soft Ltd [2017] 87 taxmann.com 182 held that interest income from fixed deposits and staff loans are eligible for deduction under section 10A. It was held that section 10A and 10B are special provisions and complete code in themselves and deals with profits and gains derived by the assessee of a special nature and character like 100% EOUs situated in SEZ, STPI etc. It was held that dedicated nature of business or their special geographical locations in STPI or SEZs. etc. makes them a special category of assessees entitled to 100% deduction, rather than it being a special character of income entitled to deduction from Gross Total Income under Chapter VI-A under Section 80-HH, etc. It was held that where the entire profits and gains of the entire undertaking making 100% exports of articles including software, the assessee is given 100% deduction of profit and gains of such export business and therefore incidental income of such undertaking by way of interest on the temporarily parked funds in Banks or even interest on staff loans would constitute part of profits and gains of such special Undertakings. Relevant extracts from the decision is as under- “35. The Scheme of Deductions under Chapter VI-A in Sections 80-HH, 80-HHC, 80- IB, etc from the 'Gross Total Income of the Undertaking', which may arise from different specified activities in these provisions and other incomes may exclude interest income from the ambit of Deductions under these provisions, but exemption

Page 9 of 16 under Section 10-A and 10-B of the Act encompasses the entire income derived from the business of export of such eligible Undertakings including interest income derived from the temporary parking of funds by such Undertakings in Banks or even Staff loans. The dedicated nature of business or their special geographical locations in STPI or SEZs. etc. makes them a special category of assessees entitled to the incentive in the form of 100% Deduction under Section 10-A or 10-B of the Act, rather than it being a special character of income entitled to Deduction from Gross Total Income under Chapter VI-A under Section 80-HH, etc. The computation of income entitled to exemption under Section 10-A or 10-B of the Act is done at the prior stage of computation of Income from Profits and Gains of Business as per Sections 28 to 44 under Part-D of Chapter IV before 'Gross Total Income' as defined under Section 80-B(5) is computed and after which the consideration of various Deductions under Chapter VI-A in Section 80HH etc. comes into picture. Therefore analogy of Chapter VI Deductions cannot be telescoped or imported in Section 10-A or 10-B of the Act. The words 'derived by an Undertaking' in Section 10-A or 10-B are different from 'derived from' employed in Section 80-HH etc. Therefore all Profits and Gains of the Undertaking including the incidental income by way of interest on Bank Deposits or Staff loans would be entitled to 100% exemption or deduction under Section 10-A and 10-B of the Act. Such interest income arises in the ordinary course of export business of the Undertaking even though not as a direct result of export but from the Bank Deposits etc., and is therefore eligible for 100% deduction. 36. …….

5.13 In the present case it is not in dispute that the Assessee has established SEZ units which are eligible for deduction under section 10AA of the Act. These SEZ units are into the business of development and export of computer software. The said business has given rise to profits and gains from export of computer software and other incidental and ancillary incomes derived in the normal course of business. It is not in dispute that the incomes on which deduction under section 10AA of the Act was not allowed by the ld. CIT(A)/NFAC are generated out of the business carried on by the SEZ units. As held by the Hon’ble Karnataka High Court, the dedicated nature of business of development and export of computer software carried out by the Appellant from the special geographical locations in SEZs. etc. makes it a special category entitled to the incentive in the form of 100% deduction under section 10AA which is akin to section 10-A or 10-B of the Act. The words ‘derived by an undertaking’ in section 10AA of the Act means all profits and gains of the SEZ unit including the incidental incomes arising in the ordinary course of business even though not as a direct result of export. All incidental activities resulting in incidental incomes in the SEZ units are out of business decisions and in view of commercial expediency, the incidental incomes cannot be de-linked from the profits and gains derived by the SEZ Units from export of computer software and cannot be taxed separately under income from other sources. Therefore, the offering of the various incomes by the assessee company as income from other sources should not come in the way of putting forth a claim of deduction. Consequently, all these incomes are an integral part of SEZ unit’s activity and hence eligible for deduction under section 10AA of the Act. Having allowed deduction under section 10AA of the act in respect of various categories of incomes, the ld. CIT(A)/NFAC was not right in disallowing

Page 11 of 16 deduction under section 10AA of the Act in respect of other categories of incomes like interest on NCDs, interest on loan to Subsidiaries, interest on Govt securities, interest on tax refund, interest on govt. bonds & CST refund, incentives received and other miscellaneous incomes.

5.14 The decision of full bench of Karnataka High Court in the case of CIT v Hewlett Packard Global Soft Ltd [2017] 87 taxmann.com 182 was followed by the Karnataka High Court in Assessee’s own case for the AY 2005-06 in 349 of 2019 decision dated 22.11.2022 and deduction under section 10A was allowed in respect of rental income from Infosys BPO Ltd and BSNL Chennai. [Page 611-622 of case law compilation] Similarly decision of this Tribunal in Assessee’s own case for the AY 2014-15 and AY 2015-16 has allowed deduction under section 10AA on interest and other incomes.

5.15 In view of the above, we hold that interest on NCDs, interest on loan to Subsidiaries, interest on Govt securities, interest on tax refund, interest on govt. bonds & CST refund, incentives received and other miscellaneous incomes are also eligible for deduction under section 10AA of the Act. The AO is directed to allow deduction under section 10AA of the Act in respect of these incomes. Thus, the ground No 2 as raised by the assessee is allowed.

Page 12 of 16 Karnataka High Court in the case of Wipro Ltd v DCIT 382 ITR 179 and allowed the foreign tax credit with respect to income on which deduction under section 10AA has been claimed subject to the decision of the Apex Court on the said issue.

6.1 The limited ground raised by the Assessee is that mere pendency of special leave petition before the Hon’ble Supreme Court is no bar to grant the relief concerned. We concur with the Assessee on this ground. Further, the decision in Wipro’s case was followed by the Hon’ble Karnataka High Court and by this Tribunal in Assessee’s own case for the earlier years and the foreign tax credit pertaining to 10AA of the Act income was allowed. Thus, the AO is directed to allow the foreign tax credit with respect to income on which deduction under section 10AA of the Act has been claimed as per the decision of the Hon’ble Karnataka High Court in Wipro Ltd v DCIT 382 ITR 179. Accordingly, the Ground No 3 of the Assessee is also allowed.

7.1 The ld. DR strongly objected to the admission of additional grounds of appeal.

Page 13 of 16 7.2 The additional ground on allowability of deduction under section 37(1) of the Act in respect of foreign taxes paid which is not eligible for relief under section 90 or 91 of the Act is a pure legal ground. The quantum of taxes paid overseas is available on record. Relief under section 90 has been claimed and allowed. It is only in respect of the quantum of overseas taxes paid, but not qualifying for relief under section 90, that the claim of deduction under section 37 is now being made. The facts being on record, and the claim being purely legal in nature, merits admission for adjudication. However, the additional ground of appeal needs verification and examination by the AO.

7.3 This Tribunal in Assessee’s own case for the AY 2014-15 and AY 2015-16 in 136, 226 and 227/Bang/2019 decision dated 31.1.2023 has remanded the issue of deduction under section 37 of the Act in respect of state taxes paid outside India to the file of the AO for fresh examination of facts and the AO was directed to keep in mind the ratio laid down by the Hon’ble Bombay High Court in the case of Reliance Infrastructure Ltd (supra) which is followed in the decision of the coordinate bench in the case of Onmobile Global Ltd. v ACIT [IT(TP)A Nos. 139 & 2560/Bang/2019 dated 10.08.2022] 7.4 Respectfully following the same, the additional ground of appeal in respect of the claim of deduction under section 37(1) of the Act in respect of foreign taxes paid amounting to Rs. 17,94,43,704/- which is not eligible for relief under section 90 or 91 of the Act, is also remanded to the file of the AO for fresh examination and verification. The AO is directed to decide the said claim in the light of the decisions in the case of Reliance Infrastructure Ltd [2016] 76 taxmann.com 257 (Bom), Onmobile Global Ltd. v ACIT [IT(TP)A Nos. 139 & 2560/Bang/2019 dated 10.08.2022] which were followed in Assessee’s own case for the AY 2014-15 and AY 2015-16. The additional grounds of appeal accordingly are allowed for statistical purposes.

8. The ground No 4 contesting the levy of interest under section 234B of the Act which is consequential in nature. The amount of interest if any will have to be worked out, post the giving effect to the findings of this decision.

In the result, the Appeal of the assessee is allowed for statistical purposes.

Now we take up the appeal in (A.Y. 2021-22)

“1. General ground:

1.1. The learned Commissioner of Income Tax (Appeals), Income Tax Department (hereinafter referred to as CIT (A) for short) has erred in passing the order under section 250 in the manner passed by him. The order so passed to the extent prejudicial to the appellant is bad in law and liable to be quashed.

2. Ground relating to disallowance of deduction under section 10AA:

2.1. The learned Assessment Unit, Income Tax Department and the CIT(A) have erred in reducing the following incomes from profits of the business of SEZ units in computing deduction under section 10AA for the reason that the said incomes are not derived from the activity of software development and export. i) Interest on non-convertible debentures (NCDs) amounting to Rs.74,02,59,443/- ii) Interest on loans to subsidiaries amounting to Rs.4,64,89,660/- iii) Interest on government securities and bonds amounting to Rs.108,25,98,057/- iv) Interest on debentures amounting to Rs. 29,32,56,243/- v) Interest on tax refunds amounting to Rs. 21,45,541/-

2.2. On facts and circumstances of the case and law applicable, the appellant is entitled for the claim of deduction under section 10AA of the Act on the above incomes included in the profits of eligible SEZ units.

3.1. The learned CIT(A) has erred in holding that foreign tax credit of Rs.184,71,09,049/-including Rs.40,39,50,848 in respect of Australia offshore income) in respect of income on which deduction under section 10AA has been claimed, shall be allowed subject to the forthcoming decision of the Supreme Court in Wipro Limited. The CIT(A) has erred in not appreciating that mere pendency of special leave petition before the Supreme Court is no bar to grant the relief concerned. 3.2. The learned CIT(A) erred in not appreciating that foreign tax credit in respect of income on which deduction under section 10A / 10AA has been claimed has been allowed in appellant's own case for the earlier years by the High Court of Karnataka and ITAT, Bangalore.

4. Levy of interest under section 234B: 4.1. The levy of interest under section 234B is bad in law and liable to be quashed.