THE COMMISSIONER OF INCOME TAX vs. M/S NIT DATA GLOBAL DELIVERY SERVICES PVT. LTD.

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 12TH DAY OF NOVEMBER 2020 PRESENT THE HON’BLE MR. JUSTICE ALOK ARADHE AND THE HON’BLE MR. JUSTICE H.T.NARENDRA PRASAD I.T.A. NO.427 OF 2012 BETWEEN: 1. THE COMMISSIONER OF INCOME-TAX

C.R.BUILDING

QUEENS ROAD

BANGALORE. 2. THE ASSISTANT COMMISSIONER OF INCOME-TAX

CIRCLE - 11(5), C.R.BUILDING

QUEENS ROAD, BANGALORE. ... APPELLANTS (BY SRI.K.V.ARAVIND, ADV.,) AND: M/S NIT DATA GLOBAL DELIVERY SERVICES PVT. LTD. GLOBAL VILLAGE TECH PARK TOWER - E, 9TH FLOOR MYLASANDRA, PATTANGERE VILLAGE RVCE POST, BANGALORE - 560 058 (AMENDED AS PER COURT ORDER DATED 12.11.2020) ... RESPONDENT (BY SRI.K.K.CHYTHANYA, ADV.) - - - THIS ITA IS FILED UNDER SECTION 260-A OF I.T. ACT, 1961 ARISING OUT OF ORDER DATED 25.07.2012 PASSED IN ITA

2 NOS.684 & 713/BANG/2011 FOR THE ASSESSMENT YEAR 2006- 07, PRAYING TO: (I) FORMULATE THE SUBSTANTIAL QUESTIONS OF LAW STATED THEREIN. (II) ALLOW THE APPEAL AND SET ASIDE THE ORDERS PASSED BY THE ITAT, BANGALORE IN ITA NOS. 684 & 713/BANG/2011 DATED 25.07.2012 AND CONFIRM THE ORDER OF THE APPELLATE COMMISSIONER CONFIRMING THE ORDER PASSED BY THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - 11 (5), BANGALORE. THIS ITA COMING ON FOR FINAL HEARING, THIS DAY, ALOK ARADHE J., DELIVERED THE FOLLOWING: JUDGMENT

Mr.K.V.Aravind, learned counsel for the revenue.

Mr.K.K.Chythanya., learned counsel for the assessee. This appeal under Section 260A of the Income Tax Act, 1961 (hereinafter referred to as the Act for short) has been preferred by the revenue. The subject matter of the appeal pertains to the Assessment year 2006-07. The appeal was admitted by a bench of this Court vide order dated 28.02.2013 on the following substantial questions of law: (i) Whether the appellate authorities were correct in holding that the assessee is entitle to claim deduction under Section 10A of the Act, in respect of its units 2, 3 & 4

3 despite the assessee failing to satisfy the conditions stipulated commencement of units from a particular date when the assessee's units had already commenced much before obtaining the licence for the bonded warehouse and contrary to the provisions of Section 10A of the Act? (ii) Whether the tribunal was correct in directing to exclude telecommunication expenses from export turnover and total turnover when there is no provision in Section 10A mandating exclusion of expenses from total turnover when excluded from export turnover? (iii) Whether the appellate authorities were correct in including the foreign exchange gain for units 5 & 6 for computing exemption under Section 10A of the Act, when the same was incidental and not derived from the export? (iv) Whether the appellate authorities were correct in treating the foreign exchange gain as export profits without taking into

4 consideration the date of raising the sale bill, date on which foreign exchange remittance was received and the date on which the assessee has converted the foreign exchange into Indian rupee? (v) Whether the tribunal was correct in accepting the alternate contention of the assessee to exclude income from recruitment fee/ body shopping from total turnover when there is no provision is Section 10A requiring exclusion of such fee from total turnover? 2. Learned counsel for the assessee submitted that the first substantial question of law has already been answered against the revenue and in favour of the assessee by a bench of this court vide judgment dated 20.06.2014 passed in I.T.A.No.403/2008 c/w I.T.A.No.402/2008 (COMMISSIONER OF INCOME- TAX AND ANOTHER VS. M/S CARITOR (INDIA) PVT. LTD.). The aforesaid submissions could not be disputed by learned counsel for the revenue.

5 3. With regard to second and fifth substantial questions of law, it is pointed out by the learned counsel for the assessee that the aforesaid issues are no longer res integra and they have already been answered against the revenue by judgment of the Supreme Court in 'COMMISSIONER OF INCOME-TAX, CENTRAL -III VS. HCL TECHNOLOGIES LTD.', 404 ITR 719. Learned counsel was unable to dispute the aforesaid legal position. 4. Learned counsel for the assessee further submitted that the third substantial question of law has already been decided against the revenue and in favour of the assessee by a judgment passed by a division bench of this court dated 22.11.2011 passed in I.T.A.No.1189/2006 (THE COMMISSIONER OF INCOME TAX AND ANOTHER VS. M/S INFOSYS TECHNOLOGIES LTD.) and has already been answered against the revenue and in favour of the assessee. The aforesaid submission also could not be disputed by

6 learned counsel for the revenue. 5. With regard to fourth substantial question of law, it is pointed out that the same has been answered in favour of the assessee and against the revenue by a judgment of High Court of Bombay in 'COMMISSIONER OF INCOME TAX VS. GEM PLUS JEWELLERY INDIA LTD.', 330 ITR 175. The aforesaid submission also could not be disputed by learned counsel for the revenue. 6. For the reasons assigned in the aforementioned judgments, the substantial question of law framed in this appeal are answered against the revenue and in favour of the assessee. In the result, we do not find any merit in this appeal, the same fails and is hereby dismissed. Sd/- JUDGE Sd/- JUDGE ss

7 AAJ/HTNPJ:

ITA No.427/2012 26.02.2021

ORDER ON I.A.NO.1/2021 Mr.K.V.Aravind, learned counsel for the revenue. Mr.Sharath S., learned counsel for the assessee. Heard on I.A.No.1/20121 for correction of the judgment dated 12.11.2020 passed in ITA No.427/2012. After hearing the learned counsel for the parties, it is directed that the name of respondent in the cause of title of the judgment be read as M/s NTT Data Global Advisory Services Pvt. Limited instead of M/s NTT Data Global Delivery Services Pvt. Ltd. This order shall be read in conjunction with the judgment dated 12.11.2020 passed in ITA No.427/2012. Accordingly, I.A.No.1/2021 is disposed of. Sd/- JUDGE Sd/- JUDGE ss