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Clarification on direct tax benefits on issues relating to export of computer software
January, 24th 2013
                                    F. No. 178/84/2012-ITA.I
                                       Government of India
                                        Ministry of Finance
                                     Department of Revenue
                                   Central Board of Direct Taxes

                                                                 New Delhi, the 17th January 2013

                                        Circular No. 01/2013

     Subject: Issues relating to export of computer software-Direct tax benefits-
              Clarification reg.

     The Indian Software Industry has been the beneficiary of direct tax incentives under the
     provisions like Sections 10A, 10AA & 10B of the Income -tax Act, 1961 in respect of their
     profits derived from the export of computer software. These provisions prescribe incentives
     to "units" or "undertakings", established under different schemes, which are/were deriving
     profits from export of computer software subject to fulfilling the prescribed conditions.

2.   It has been represented by the software companies that several issues arising from the above
     mentioned provisions are giving rise to disputes between them and the Income-tax
     authorities leading to denial of tax benefits and consequent litigation and, therefore, require
     clarification. Various issues highlighted by the Software Industry have been examined by
     the Board and the following clarifications are hereby issued -

           (i)   (a) WHETHER "ON-SITE" DEVELOPMENT OF COMPUTER SOFTWARE QUALIFIES AS
                 AN EXPORT ACTIVITY FOR TAX BENEFITS UNDER SECTIONS 10A, 10AA AND 10B OF
                 THE INCOME TAX ACT, 1961; AND

                 (b) WHETHER RECEIPTS FROM DEPUTATION OF TECHNICAL MANPOWER FOR SUCH
                  "ON-SITE" SOFTWARE DEVELOPMENT ABROAD AT THE CLIENT'S PLACE ARE
                  ELIGIBLE FOR DEDUCTION UNDER SECTIONS 10A, 10AA AND 10B.


           (a) CBDT had earlier issued a Circular (Circular No. 694 dated 23.11.1994) which
               provided that a unit should not be denied tax-holiday under sections 10A or 10B
               on the ground that the computer software was prepared `on-site', as long as it
               was a product of the unit, i.e., it is produced by the unit. However, certain doubts
               appear to have arisen following the insertion of Explanation 3 to sections 10A
               and 10B (vide Finance Act, 2001) and Explanation 2 to section 10AA (vide
               Special Economic Zones Act, 2005) providing that "the profits and gains
               derived from on site development of computer software (including services for
               development of software) outside India shall be deemed to be the profits and
               gains derived from the export of computer software outside India", and a
               clarification has been sought on the impact of the Explanation on the tax-benefits
               as compared to the situation that existed prior to the amendments.

                 The matter has been examined. In view of the position of law as it stands now, it
                 is clarified that the software developed abroad at a client's place would be
                 eligible for benefits under the respective provisions, because these would
                 amount to `deemed export' and tax benefits would not be denied merely on this
                 ground. However, since the benefits under these provisions can be availed of
                 only by the units or undertakings set up under specified schemes in India, it is
                 necessary that there must exist a direct and intimate nexus or connection of
                                     -2-


       development of software done abroad with the eligible units set up in India and
       such development of software should be pursuant to a contract between the client
       and the eligible unit. To this extent, Circular No. 694 dated 23.11.1994 stands
       further clarified.

  (b) It has also been brought to notice that it is a common practice in the software
      industry to depute Technical Manpower abroad (at the client's place) for
      software development activities (like upgradation, testing, maintenance,
      modification, trouble-shooting etc.), which often require frequent interaction
      with the clients located outside India. Due to the peculiar nature of software
      development work, it has been suggested that such deputation of Technical
      Manpower abroad should not be considered detrimental to the benefits of the
      exemption under sections 10A, 10AA and 10B merely because such activities are
      rendered outside the eligible units /undertakings.

       The matter has been examined. Explanation 3 to sections 10A and 10B and
       Explanation 2 to section 10AA clearly declare that profits and gains derived from
       `services for development of software' outside India would also be deemed as
       profits derived from export. It is therefore clarified that profits earned as a result
       of deployment of Technical Manpower at the client's place abroad specifically
       for software development work pursuant to a contract between the client and the
       eligible unit should not be denied benefits under sections 10A, 10AA and 10B
       provided such deputation of manpower is for the development of such software
       and all the prescribed conditions are fulfilled.

(ii)   WHETHER IT IS NECESSARY TO HAVE SEPARATE MASTER SERVICE AGREEMENT
       (MSA) FOR EACH WORK CONTRACT AND TO WHAT EXTENT IT IS RELEVANT.


       As per the practice prevalent in the software development industry, generally two
       types of agreement are entered into between the Indian software developer and
       the foreign client. Master Services Agreement (MSA) is an initial general
       agreement between a foreign client and the Indian software developer setting out
       the broad and general terms and conditions of business under the umbrella of
       which specific and individual Statement of Works (SOW) are formed. These
       SOWs, in fact, enumerate the specific scope and nature of the particular task or
       project that has to be rendered by a particular unit under the overall ambit of the
       MSA. Clarification has been sought whether more than one SOW can be
       executed under the ambit of a particular MSA and whether SOW should be given
       precedence over MSA.

       The matter has been examined. It is clarified that the tax benefits under sections
       10A, 10AA and 10B would not be denied merely on the ground that a separate
       and specific MSA does not exist for each SOW. The SOW would normally
       prevail over the MSA in determining the eligibility for tax benefits unless the
       Assessing Officer is able to establish that there has been splitting up or
       reconstruction of an existing business or non-fulfilment of any other prescribed
       condition.
                                      -3-



(iii)    WHETHER RESEARCH AND DEVELOPMENT (R&D) ACTIVITIES PERTAINING TO
         SOFTWARE DEVELOPMENT WOULD BE COVERED UNDER THE DEFINITION OF
         "COMPUTER SOFTWARE" STIPULATED UNDER EXPLANATION 2 TO SECTIONS 10A
         AND 10B.


         The definition of "computer software" stipulated under Explanation 2 to sections
         10A and 10B includes "any customized electronic data or any product or service
         of similar nature, as may be notified by the Board....". The CBDT had already
         issued Notification No. 890(E) dated 26.09.2000 specifying such items. The
         notification includes Engineering and Design but does not specifically include
         Research and Development activities related to software development in respect
         of which clarification has been sought.

         After examining the matter, it is clarified that the services covered by the
         aforesaid Notification, in particular, the `Engineering and Design' do have the in-
         built elements of Research and Development. However, for the sake of clarity, it
         is reiterated that any Research and Development activity embedded in the
         `Engineering and Design', would also be covered under the said Notification for
         the purpose of Explanation 2 to the above provisions.




(iv)     WHETHER TAX BENEFITS UNDER SECTIONS 10A, 10AA AND 10B WOULD CONTINUE
         TO REMAIN AVAILABLE IN CASE OF A SLUMP-SALE OF A UNIT/UNDERTAKING.


         The vital factor in determining the above issue would be facts such as how a
         slump-sale is made and what is its nature. It will also be important to ensure that
         the slump sale would not result into any splitting or reconstruction of existing
         business. These are factual issues requiring verification of facts. It is, however,
         clarified that on the sole ground of change in ownership of an undertaking, the
         claim of exemption cannot be denied to an otherwise eligible undertaking and the
         tax holiday can be availed of for the unexpired period at the rates as applicable
         for the remaining years, subject to fulfilment of prescribed conditions.

  (v)    WHETHER IT IS NECESSARY TO MAINTAIN SEPARATE BOOKS OF ACCOUNT FOR AN
         ASSESSEE IN RESPECT OF ITS ELIGIBLE UNITS CLAIMING TAX BENEFITS UNDER
         SECTIONS 10A AND 10B.


         Since there is no requirement in law to maintain separate books of account, the
         same cannot be insisted upon. However, since the deductions under these
         sections are available only to the eligible units, the Assessing Officer may call
         for such details or information pertaining to different units to verify the claim
         and quantum of exemption, if so required.

  (vi)   WHETHER TAX BENEFITS UNDER SECTION 10AA CAN BE ENJOYED BY AN ELIGIBLE
         SEZ UNIT CONSEQUENT TO ITS TRANSFER TO ANOTHER SEZ.


         This issue relates to cases where an eligible SEZ unit is shifted from one SEZ to
         another SEZ on account of commercial exigencies. This shifting is permissible
         under Instruction No.59 (F.No.C-4/2/2010-SEZ) issued by Department of
         Commerce (SEZ Division), provided approval from the Board of Approvals
         (BOA) has been obtained. Doubts have been raised whether such shifting of an
                                              -4-


                eligible unit would deprive the unit/undertaking of tax benefits, provided there is
                no splitting or reconstruction of an existing business.

                The matter has been examined and it is clarified that the tax holiday should not
                be denied merely on the ground of physical relocation of an eligible SEZ unit
                from one SEZ to another in accordance with Instruction No. 59 of Department of
                Commerce (referred to above) and if all the prescribed conditions are satisfied
                under the Income-tax Act, 1961. It is further clarified that the unit so relocated
                will be eligible to avail of the tax benefit for the unexpired period at the rates
                applicable to such years.

        (vii)   WHETHER NEW UNITS/UNDERTAKINGS SET UP IN THE SAME LOCATION WHERE
                THERE IS AN EXISTING ELIGIBLE UNIT/UNDERTAKING WOULD AMOUNT TO
                EXPANSION OF THE EXISTING UNIT/UNDERTAKING.


                Whether setting up of new unit/undertaking in a location (covered by sections
                10A, 10AA or 10B), where an eligible unit is already existing, would amount to
                expansion of such already existing unit is a matter of fact requiring examination
                and verification. However, it is clarified that setting up of such a fresh unit in
                itself would not make the unit ineligible for tax benefits, as long as the unit is set-
                up after obtaining necessary approvals from the competent authorities; has not
                been formed by splitting or reconstruction of an existing business; and fulfils all
                other conditions prescribed in the relevant provisions of law.

3.    The above may be brought to the notice of all concerned.


                                                                            (SURABHI SHARMA)
                                                                             Under Secretary (ITA.I)
                                                                                 Telefax: 23093070

To,
      1. The Chairperson, Members and all other officers of the CBDT of the rank of Under
         Secretary and above.
      2. All Chief Commissioners/Directors General of Income-tax.
      3. The Director (PR, PP & OL), Mayur Bhawan, New Delhi for printing in the quarterly
         tax bulletin and for circulation as per usual mailing list (100 Copies).
      4. The Comptroller and Auditor General of India (40 copies).
      5. All Directors of Income-tax, New Delhi.
      6. The Director General of Income-tax, NADT, Nagpur.
      7. Guard File.

                                                                            (SURABHI SHARMA)
                                                                             Under Secretary (ITA.I)
 
 
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