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Income Tax Appellate Tribunal, BANGALORE BENCH “ B ”
Before: SHRI RAJPAL YADAV & SHRI JASON P. BOAZ
O R D E R
Per Shri Jason P. Boaz : These three appeals by the assessee for Assessment Years 2006-07, 2007-08 and 2008-09 are fixed for hearing on account of one of the issues being remanded to the Tribunal for reconsideration. 2. The Hon'ble High Court of Karnataka vide its judge ment dt.16.9.2014 in of 2013 (A.Y. 2006-07), 400 of 2013 (A.Y. 2007-08), 403 of 2013 (A.Y. 2008-09) and others had remanded one of the grounds of appeal raised by the assessee for fresh consideration. The ground remanded is as follows :-
ITA Nos.398, 1074 & 1410/Bang/2012 2 “ Whether the telecommunication expenses, insurance charges, personnel expenses, professional expenses, branch office expenses and other expenses incurred in foreign exchange should not be excluded from export turnover for the purpose of computing from export turnover for the purpose of computing deduction under Section 10A of the Act ? “ 3. In view of the same, these appeals are refixed for hearing. It is the case of the assessee that the Assessing Officer and the learned CIT(A) had wrongly excluded the expenses incurred in foreign currency from the export turnover while computing deduction under Section 10A of the Income Tax Act, 1961 (herein after referred to as 'the Act'). The learned Authorised Representative submitted that the assessee had made an alternate claim before the Tribunal that if such expenditure was to be excluded from the export turnover, then the same should also be excluded from the total turnover as held by the Hon'ble High Court of Karnataka in the case of CIT V Tata Elxsi Ltd. (2011) 349 ITR 98. The learned Authorised Representative submitted that the Tribunal accepted the alternate plea of the assessee and had not dealt with the original ground raised; viz. as to whether the expenses incurred in foreign currency should be excluded from export turnover at all. The learned Authorised Representative further submitted that this issue has been decided by the jurisdictional High Court of Karnataka in the assessee's own case vide orders dt.16.9.2014 (ITA No.660 of 2008 for Assessment Year 2001-02 and of 2008 for Assessment Year 2002-03) and vide order dt.20.10.2014 (ITA No.1131 of 2008 for Assessment Years 2003-04 and 2004-05). In the above decisions, the Hon'ble Karnataka High Court followed its own order in the case of CIT V Motor Industries Co. Ltd. in ITA No.776/2007 dt.13.6.2014 and held that the expenses incurred in foreign currency should not be reduced from export turnover while computing the ITA Nos.398, 1074 & 1410/Bang/2012 3 deduction under Section 10A of the Act. The learned Authorised Representative referred to the decision of the Hon'ble High Court of Karnataka in the case of CIT V Mphasis Ltd. in and ITA No.196 of 2009 dt.1.8.2014 and the decision of the co-ordinate bench of this Tribunal in Softek India P. Ltd. V ITO in IT(TP)A No.222/Bang/2014 dt.31.10.2014 wherein following the decision of the Hon'ble High Court of Karnataka in ITA No.776/2007 dt.13.6.2014, it was held that expenses incurred in foreign currency should not be reduced from export turnover while computing the deduction under Section 10A of the Act.
The learned Departmental Representative filed written submissions and was heard in the matter. The learned Departmental Representative contended that the decision of the Hon'ble High Court of Karnataka in the assessee's own case (supra) has not been accepted by the Department and on SLP had been filed before the Hon'ble Apex Court. In the written submissions filed it was contended that the delivery of computer software of the nature provided by the assessee company is definitely methodological, mechanical, practical, procedural, scientific and technological which cannot be provided by any layman without special training for doing so and therefore providing services relating to software development and consultancy falls within the meaning of ‘ technical service.’ 5.1 We have heard both parties and perused and carefully considered the material on record. In all these assessment years, the assessee had contended before the Assessing Officer that it is engaged in the business of development and export of computer software and in this context, the assessee incurred foreign currency expenses for software development, promotion and marketing. It was also submitted that expenses were incurred for ITA Nos.398, 1074 & 1410/Bang/2012 4 sending its employees outside India for executing software development services and also to secure and promote the said business. The Assessing Officer does not dispute the above factual position and accepts that the assessee is engaged in the business of development and export of computer software and the expenses in foreign currency were incurred for the purpose of software development. The Assessing Officer, however, has come to the view that development and export of computer software is methodological, mechanical, procedural, practical, scientific and technological which cannot be provided by any layman without special training and hence providing service relating to software development and consultancy falls within the meaning of ‘technical service’ and consequently the same has to be reduced from export turnover. 5.2 The learned CIT(A) has given an identical finding for all these years concluding that the assessee is engaged in development and export of computer software but nevertheless no developer of software who exports this product and subsequently incurs expenses on travel or maintenance of a branch office abroad can justifiably claim that for this purpose its activities are ‘ non-technical’ and the service it renders (since development of software is of the nature of a service provided on order) are of a “ general “ nature. The learned CIT(A) was also of the view that the intention of incentive provisions like section 10B of the Act is to encourage inflow of foreign exchange by encouraging exports and not to simultaneously facilitate the outflow of foreign exchange through the very activities of the 10B unit itself. It was therefore held by the learned CIT(A) that the Assessing Officer was correct in reducing the 1074 & 1410/Bang/2012 5 expenses incurred in foreign currency from export turnover in computing the deduction under Section 10A of the Act. 5.3 From the orders of assessment and the orders of the learned CIT(A) it is clear that the assessee who is engaged in the business of development of software has deputed it’s personal abroad for providing software development services and incurred various expenses in foreign currency for the purpose of development of software. On similar facts, the Hon'ble High Court of Karnataka in the case of Motor Industries Co. Ltd. (supra), considering the definition of export turnover under Section 80HHE of the Act has held as under at para 19 of its order :
“19. If the assessee is engaged in the business of providing technical services outside India in connection with the development or production of computer software then expenses if any incurred in foreign exchange in providing technical services outside India is liable to be deducted out of export turnover. The said provision has no application in the case of export out of India of computer software or its transmission from India to a place outside India by any means. The law makes a distinction between technical services rendered in connection with export of computer software and export of technical services for the purpose of development or production of computer software outside India. If the technical services rendered by the assessee’s Engineers is in connection with the export of computer software for the purpose of testing, installation and monitoring of software such a turnover do not fall within clause (ii) of subsection (1) of section 80HHE of the Act. Such a turnover falls within sub-clause (i) of subsection (1) of section 80HHE of the Act, that is export out of India of computer software or its transmission from India to a place outside India by any means. The expenditure incurred in the form of foreign exchange for such services cannot be excluded in computing the export turnover as it forms part of the export turnover. In the instant case as is clear from the order of the Assessing Authority, he proceeds on the assumption that the assessee is a company engaged in rendering technical services outside India in connection with production of said software. Therefore the expenditure incurred in foreign exchange in providing such technical services outside India of Rs.62.7 lakhs was excluded in computing the export turnover and total turnover for arriving at deduction under section 80HHE of the Act. The assessee is engaged in the business of export out of India of computer software and its transmission to places from India outside India. Before a computer software is exported, the Software Engineers of the assessee would have initial discussion with regard to the requirements, specifications etc. Thereafter computer software is manufactured and then it is transmitted from India to a place outside India. The software Engineers deputed abroad who among other things have to do testing, installation and monitoring of software supplied to the client. Though the said services are technical in nature it does not fall within clause (ii) of subsection (1) of 80HHE of the Act, of providing technical services outside India in connection with the development or production of computer software. It falls under sub-clause (i) of sub section (1) section 80HHE of the Act. Therefore, the said expenditure cannot be excluded in computing export turnover. In that view of the , 1074 & 1410/Bang/2012 6 matter we do not see any merit in this appeal. Accordingly, the said question of law is answered in favour of the assessee and against the revenue. Ordered accordingly.” 5.4 This decision was followed by the Hon'ble High Court of Karnataka in the case of Mphasis Ltd. (supra) and it was held that even for the purposes of section 10B of the Act, expenses incurred in foreign currency should be reduced from export turnover. The decision in Motor Industries Co. Ltd. (supra) case was followed by the Hon'ble High Court of Karnataka in the assessee's own case for Assessment Years 2001-02 to 2004-05 vide orders dt.16.9.2014 and 20.10.2014 (cited supra) and it was held therein that expenses incurred in foreign currency should not be reduced from export turnover for the purposes of computing deduction under Section 10A of the Act. The co-ordinate bench of this Tribunal in the case of Softech India Pvt. Ltd. V ITO in IT(TP)A No.222/Bang/2014 dt.31.10.2014, following the above decisions held that travelling expenses incurred in foreign currency should not be reduced from export turnover for the purpose of computing the deduction under Section 10A of the Act. 5.5 Respectfully following the decision of the Hon'ble High Court of Karnataka in the assessee's own case for Assessment Years 2001-02 to 2004-05 (supra), we hold that expenses incurred in foreign currency should not be reduced from export turnover for the purposes of computation of deduction under Section 10A of the Act. Consequently, Ground No.3.1 of the assessee's appeal for Assessment Years 2006-07 and 2007-08 and Ground No.1.1 of the assessee's appeal for Assessment Year 2008-09 are allowed. 6.1 In respect of telecommunication charges, it is the assessee's contention that the same has not been recovered from the customers, and not been included in the export turnover and ITA Nos.398, 1074 & 1410/Bang/2012 7 therefore there is no scope for reduction of the said expenditure from export turnover. In respect of insurance charges, referring to submissions made before the Assessing Officer, it was contended by the assessee that insurance charges were paid to protect the assessee against risk of bankruptcy of the overseas customers and not incurred for the purpose of export of computer software and therefore the same cannot be reduced from the export turnover. In respect of Assessment Years 2006-07 and 2007-08, the learned CIT(A) rejected the above contentions and held that both telecommunication charges and insurance charges should be reduced from export turnover. However, in respect of Assessment Year 2008-09, the learned CIT(A) at para 9.1 of his order has accepted the above contentions and quashed the exclusion of telecommunication charges and insurance charges by the Assessing Officer from the export turnover; which finding it appears has to been challenged by revenue. 6.2 In this factual matrix, in respect of Assessment Years 2006-07 and 2007-08, the Assessing Officer shall verify whether the expenditure incurred on telecommunication charges and insurance charges were recovered and included in the export turnover so that this expenditure are liable to be excluded from export turnover. On the other hand, if the expenditure incurred on telecommunication charges and insurance charges were not recovered and not included in the export turnover, the Assessing Officer shall not reduce the same from the export turnover. Further, from the submissions made before the Assessing Officer it is submitted that insurance charges were paid to protect the assessee against the risk of bankruptcy of the overseas customers and it was not incurred for the purpose of export of computer software. The Assessing Officer is directed to verify this aspect and reduce the 1074 & 1410/Bang/2012 8 insurance charges only if the said expenditure is incurred for the purpose of export of computer software. It is ordered accordingly. Consequently, Ground Nos.1.1 and 2.1 of the assessee's appeals for Assessment Years 2006-07 and 2007-08 are partly allowed for statistical purposes.
In the result, the assessee's appeals for Assessment Years 2006-07 and 2007-08 are partly allowed and the assessee's appeal for Assessment Year 2008-09 is allowed. Order pronounced in the open court on 20th March, 2015.