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Income Tax Appellate Tribunal, BANGALORE BENCH “ B ”
Before: SHRI GEORGE GEORGE K & SHRI JASON P. BOAZ
Appellant By : SMT. Preeti Garg, CIT (D.R). Respondent By : Shri Keerthi Narayan Iyengar, C.A. Date of Hearing : 6.8.2015. Date of Pronouncement : 12.08.2015. O R D E R Per Shri Jason P. Boaz, A.M. : This appeal by the Revenue is directed against the order of the Commissioner of Income Tax (Appeals)-IV, Bangalore dt.20.10.2014 for Assessment Year is 2009-10.
The facts of the case, briefly, are as under :- 2.1 The assessee is engaged in the business of development of software and indenting sale of application embedded business and industrial software. The assessee company, formerly known as Phillips Semi-conductors India Pvt. Ltd. was incorporated on 18.7.2006 as a 100% EOU set up under the STPI Scheme; is a private limited company registered in India and is a subsidiary of NXP BV, a Netherlands company. For Asst. Year 2009-10, the 2 IT(T.P)A No.1662/Bang/2014 assessee filed its return of income on 30.9.2009 declaring income of Rs.47,88,62,424 under the normal provision of the Act and taxable income of Rs.16,80,79,423 under MAT provisions. The return was processed under Section 143(1) of the Act and the case was taken up for scrutiny. 2.2 In the period under consideration, the assessee had reported the following international transactions :- Provision of Software Development Services Rs.258,21,78,120. Provision of Order Gathering Services. Rs.14,34,45,438 In view of the above international transactions entered into by the assessee, the Assessing Officer made a reference under Section 92CA of the Act to the Transfer Pricing Officer (‘TPO’) for determining the Arm’s Length Price (‘ALP’) of these international transactions, after obtaining necessary approval from the CIT-III, Bangalore. The TPO vide order under Section 92CA of the Act dt.11.1.2013 proposed a T.P. Adjustment of Rs.28,11,31,440 to the ALP of international transactions in respect of software development services rendered by the assessee. The Assessing Officer then issued a draft order of assessment under Section 143(3) r.w.s. 144C of the Act dt.14.3.2013 which was sent to the assessee; to which the assessee submitted that it would not be filing its objections thereto before the Dispute Resolution Panel. In this view of the matter, the Assessing Officer concluded the final order of assessment under Section 143(3) rws 144C of the Act vide order dt.30.4.2013 determining the assessable income of the assessee at Rs.76,22,25,096; which included the T.P. Adjustment of 3 IT(T.P)A No.1662/Bang/2014 Rs.28,11,31,440 to the ALP of international transactions in respect of the software development services rendered by the assessee as proposed by the TPO in the order under Section 92CA of the Act. 2.3 Aggrieved by the assessment order for Assessment Year 2009-10 dt.30.4.2013, the assessee filed an appeal before the CIT (Appeals) – IV, Bangalore. The learned CIT (Appeals) disposed off the assessee's appeal vide order dt.20.10.2014 allowing the assessee partial relief.
Aggrieved by the order of the CIT (Appeals) –IV, Bangalore dt.20.10.2014 for Assessment Year 2009-10, Revenue has preferred this appeal raising the following grounds :- “
1. The order of the learned CIT (Appeals) is opposed to law and facts of the case.
2. The CIT (Appeals) erred in holding that foreign exchange loss/gain is operating in nature when such loss/gain that is attributable to the operating activity is not derived from the operating activity.
3. The learned CIT (Appeals) erred in law in directing to include forex gain/loss as part of operating income/loss without ascertaining the nexus with the business activity of the taxpayer.
4. The learned CIT (Appeals) erred in concluding that forex gain/loss are to be treated as operating in nature as while they may be incidental but cannot be deemed as operating in nature since, they are not critical to operational activities of the business conducted by the taxpayer.
5. The CIT (Appeals) has erred in directing the Assessing Officer to allow depreciation @ 60% on net working equipments and active components as against 15% allowed by the Assessing Officer without appreciating the finding recorded by the A.O. There is no definition of “computers” as per the Income Tax Act and it is not possible to expand the scope of “computers” even to networking equipments and active components for the purpose of claiming depreciation at a higher rate of 60%.
6. On these and any other grounds that may be urged at the time of hearing, it is prayed that the order of the CIT (Appeals) in so far as it relates to the above grounds may be reversed and that of the Assessing Officer may be restored.
4 IT(T.P)A No.1662/Bang/2014 7. The appellant craves leave to add, alter, amend and/or delete any of the grounds mentioned above.” 4. The Grounds raised at S.Nos.1, 6 & 7 are general in nature and not being specifically urged before us, are dismissed as infructuous. 4.1 In the Grounds raised at S.Nos.2 to 4, Revenue contends that the learned CIT(A) erred in holding that foreign exchange loss / gain to be operating in nature without ascertaining the nexus between the forex gain/loss with the business activity of the assessee and without appreciating that this gain/loss is not derived from the operating activity of the assessee. The learned Departmental Representative was heard in support of the grounds raised. 4.2 Per contra, the learned Authorised Representative supported the impugned order of the learned CIT(A) in holding that foreign exchange gain / loss to be part of the operating revenue for the purpose of computing the assessee's margin for comparison with the margin of the comparable companies. The learned Authorised Representative contended that revenue’s appeal on this issue is liable to be dismissed as the issue of foreign exchange gain being part of the operating revenue’s for the purpose of computing the assessee's margin has been held in favour of the assessee by the decision of the co- ordinate benches of this Tribunal, inter alia, in the case of Amba Research India Pvt. Ltd. in IT(TP)A No.1376/Bang/2014 dt.17.4.2015 which has followed the decisions of earlier co-ordinate benchof thisTribunal in the case of Triology E-Business Software India Pvt. Ltd. (supra) and Sap Labs India (P) Ltd. (2011)
44. SOT 156 (Bang).
5 IT(T.P)A No.1662/Bang/2014 4.3 We have heard the rival contentions and perused and carefully considered the material on record; including the judicial decisions cited and placed reliance upon. We observe that it has not been disputed that the foreign exchange gain/loss has arisen as a consequence of the realization of the consideration for rendering software development services and therefore there is no reason for its exclusion from the operating revenues for the purpose of calculating the operating margin of the assessee. We find that this proposition has been upheld by a co-ordinate bench of this Tribunal in the case of Amba Research India Pvt. Ltd. in IT(TP)A No.1376/Bang/2014 dt.17.4.2015 wherein at para 5.7 thereof it has been held as under :- “ 5.7 We have heard the rival contentions and perused and carefully considered the material on record; including the judicial decisions cited and placed reliance upon. We observe that it has not been disputed that the foreign exchange gain has arisen as a consequence of the realization of the consideration for rendering ITES services and therefore there is no reason for its exclusion from the operating revenues for the purpose of calculating the operating margin of the assessee. We find that this proposition has been upheld by a co-ordinate bench of this Tribunal in the case of Mindteck (India) Ltd. in IT(TP)A No.70/Bang/2014 dt.21.8.2014 wherein at para 11 thereof it has been held as under :- “11. We have considered the rival submissions. It is not disputed by the Revenue that the foreign exchange fluctuation has arisen as a result of the realization of the consideration for rendering software development services. It is therefore incurred in the normal course of business and therefore there is no reason why it should be excluded from determining the operating revenue for the purpose of calculation of operating margin. In our view, the analogy drawn by the DRP regarding exclusion of interest expenses while computing operating margins is not proper. In our view, foreign exchange gain on realization of consideration for rendering software development services should be regarding as part of the operating revenue. Following the decision of the ITAT, Bangalore Bench in the case of SAP Labs (supra), we hold that the operating revenue for the assessee be computed by including the foreign exchange gain.” Following the decision of the co-ordinate benches of this Tribunal in the case of Sap Labs India (Pvt.) Ltd. (surpa), Triology E Business Software India Pvt. Ltd. (supra) and 6 IT(T.P)A No.1662/Bang/2014 Mindteck (India) Ltd. (supra), we hold that operating revenue should be computed by including the foreign exchange gain. Consequently, the grounds at S.Nos.2 to 4 raised by revenue are dismissed.” Following the decision of the co-ordinate benches of this Tribunal in the case of Sap Labs India (Pvt.) Ltd. (surpa), Triology E Business Software India Pvt. Ltd. (supra), Mindteck (India) Ltd. (supra) and Amba Research India Pvt. Ltd. (supra), we hold that operating revenue should be computed by including the foreign exchange gain/loss. Consequently, the grounds at S.Nos.2 to 4 raised by revenue are dismissed. CORPORATE TAX 5.1 The Ground raised at S.No.5 is in respect of the assessee's claim for depreciation on networking equipment and active components. Revenue contends that in the impugned order, the learned CIT (Appeals) erred indirecting the Assessing Officer to allow depreciation @ 60% on net working equipment and active components as against 15% allowed by the Assessing Officer, without appreciating the finding recorded by the Assessing Officer. It is contended that there being no definition of the word “Computers” as per the Act, it is not correct to expand the scope of computers to even net working equipment and active components for the purpose of claiming depreciation @ 60%. The learned Departmental Representative was heard in support of the ground raised. 5.2 Per contra, the learned Authorised Representative supported the order of the learned CIT (Appeals) in granting the assessee depreciation @ 60% on computer net working equipment and active components except for the metallic racks as per his finding at para 4.1 of the impugned order. It is submitted by the learned Authorised 7 IT(T.P)A No.1662/Bang/2014 Representative that the very same issue was before co-ordinate benches of this Tribunal in the assessee's own case for Assessment Year 2007-08 and in its order in IT(TP)A No.1174/Bang/2011 dt.14.11.2014, the matter was remanded back to the file of the Assessing Officer for examination afresh. The learned Authorised Representative further submitted that the above order of the co-ordinate bench was followed by another co-ordinate bench of this Tribunal in the assessee's own case for Assessment Year 2008- 09 in IT(TP)A No.1560/Bang/2012 dt.5.3.2015. The learned Authorised Representative prayed that in view of the above, the ground raised by Revenue be dismissed. 5.3 We have heard both the learned Authorised Representative and the learned Departmental Representative and perused and considered the material on record; including the judicial decision cited. On an appreciation of the material on record, we find that the same issue was before co-ordinate benches of this Tribunal in the assessee's own case for both Assessment Years 2007-08 and 2008-09. In its order in IT(TP)A No.1560/Bang/2012 dt.15.3.2015 for Assessment Year 2008-09, the co-ordinate benche followed the order of the Tribunal for Assessment Year 2007-08 and at paras 5.3.1 & 5.3.2 thereof the co-ordinate bench has held as under :- “ 5.3.1 We have heard both the learned Authorised Representative and the learned Departmental Representative and perused and considered the material on record; including the judicial decision cited. On an appreciation of the material on record, we find that the same issue was before a co-ordinate bench of this Tribunal in the assessee's own case for Assessment Year 2007-08. In its order in IT(TP)A No.1174/Bang/2011 dt.14.11.2014, at para 11 thereof the co-ordinate bench has held as under :- “
11. We have considered the rival submissions and are of the view that the issue requires a fresh consideration in the light of the submissions made by the Assessee before the DRP. As far as depreciation on Networking equipment is concerned, the AO has not called upon the Assessee to demonstrate as to how Networking equipment on which depreciation was claimed at 60%, 8 IT(T.P)A No.1662/Bang/2014 satisfied the requirements being classified as “Computers”. This specific objection by the Assessee before the DRP has not been controverted. Therefore there was lack of proper opportunity afforded to the Assessee before the AO. Therefore the issue requires to be examined afresh by the AO after due opportunity to the Assessee of being heard. As far as depreciation on active components and 19 inch heavy racks, the position remains the same, in as much as the AO has not given due opportunity of being heard to the Assessee. Before DRP the Assessee has explained the nature of the components and racks on which depreciation was claimed at 60% and as to how they were in the nature of “Computers”. These submissions have not been considered by the DRP. In the circumstances, we are of the view that this issue also requires to be examined afresh by the AO after due opportunity to the Assessee of being heard to the Assessee. We hold and direct accordingly. The relevant ground of appeal is treated as allowed for statistical purpose.” 5.3.2 Following the above decision of the co-ordinate bench of this Tribunal in the assessee's own case for Assessment Year 2007-08 (supra), we remand the issue back to the file of the Assessing Officer for fresh consideration, after affording the assessee adequate opportunity of being heard and to file details / submissions required. It is ordered accordingly. Consequently, the Grounds at S.Nos.3.1 to 3.3 are treated as allowed for statistical purposes only.” 5.3.2 Following the above decisions of the co-ordinate benches of this Tribunal in the assessee's own case for Assessment Year 2007-08 and 2008-09(supra), we remand the issue back to the file of the Assessing Officer for fresh consideration and adjudication thereon after affording the assessee adequate opportunity of being heard and to file details / submissions required. It is ordered accordingly. Consequently, the Ground at S.Nos.5 is treated as allowed for statistical purposes only.
6. In the result, Revenue’s appeal for Assessment Year 2009-10 is partly allowed for statistical purposes only. Order pronounced in the open court on 12th August, 2015.