Latest Expert Exchange Queries
sitemapHome | Registration | Job Portal for CA's | Expert Exchange | Currency Converter | Post Matrimonial Ads | Post Property Ads
 
 
News shortcuts: From the Courts | News Headlines | VAT (Value Added Tax) | Service Tax | Sales Tax | Placements & Empanelment | Various Acts & Rules | Latest Circulars | New Forms | Forex | Auditing | Direct Tax | Customs and Excise | ICAI | Corporate Law | Markets | Students | General | Indirect Tax | Mergers and Acquisitions | Continuing Prof. Edu. | Budget Extravaganza | Transfer Pricing
 
 
 
 
Popular Search: list of goods taxed at 4% :: VAT Audit :: ACCOUNTING STANDARDS :: ARTICLES ON INPUT TAX CREDIT IN VAT :: VAT RATES :: ICAI offer Get Windows 7,Office 2010 in Rs.799 Taxes :: Central Excise rule to resale the machines to a new company :: due date for vat payment :: form 3cd :: articles on VAT and GST in India :: ACCOUNTING STANDARD :: TDS :: empanelment :: cpt :: TAX RATES - GOODS TAXABLE @ 4%
 
 
From the Courts »
  Micro Spacematrix Solution P Ltd vs. ITO (ITAT Delhi)
 Micro Spacematrix Solution P Ltd vs. ITO (ITAT Delhi)
 CIT vs. Greenfield Hotels & Estates Pvt. Ltd (Bombay High Court)
 IndiaBulls Financial Services Ltd vs. DCIT (Delhi High Court)
 Maharao Bhim Singh of Kota vs. CIT (Supreme Court)
 Ravneet Takhar Vs. Commissioner Of Income Tax Ix And Ors.
 Jaiprakash Associates Ltd. Vs. Commissioner Of Income Tax
 Formula One World Championship Limited Vs. Commissioner Of Income Tax, International Taxation-3 And Anr.
 Commissioner Of Income Tax International Taxation-3 Delhi Vs. Formula One World Championship Ltd. And Anr.
 Reliance Communications Ltd vs. DDIT (ITAT Mumbai)
  Sushila Devi vs. CIT (Delhi High Court)

Deloitte Consulting India Pvt.Ltd., Fairmont, Level-2, Hiranandani Business Park,Powai, Mumbai-400076 Powai,Vs. The Income Tax Officer, Ward 2(2)(3), Aayakar Bhavan, Maharshi Karve Road, Mumbai-400020
July, 17th 2015
                    ,   "                      " 
     IN THE INCOME TAX APPELLATE TRIBUNAL "K" BENCH, MUMBAI

     BEFORE S/SHRI B.R.BASKARAN (AM) AND AMIT SHUKLA, (JM)
       .. ,        ,                                  

                   ./I.T.A. No.157/Mum/2012
                (   / Assessment Year: 2007-08)

 Deloitte Consulting India       / The Income Tax Officer, Ward
 Pvt.Ltd.,                           2(2)(3),
                                 Vs.
 Fairmont, Level-2,                   Aayakar Bhavan,
 Hiranandani Business Park,          Maharshi Karve Road,
 Powai,                               Mumbai-400020
 Mumbai-400076
        ( /Appellant)             ..     (    / Respondent)


          . /   . /PAN/GIR No. :AACCM6469N

            / Appellant by              S/Shri Madhur Agrawal
                                        And Ketan Ved
                /Rspondent by           S/Shri N K Chand and
                                        Premanand J

             / Date of Hearing
                                             : 10.6.2015
            /Date of Pronouncement : 15.7.2015

                                / O R D E R

PER B.R. BASKARAN (AM)

       The appeal filed by the assessee is directed against the order dated
9.12.2011 passed by Ld CIT(A)-5, Mumbai and it relates to the assessment
year 2007-08. Following two issues are contested before us:-
       (a)   Computation of deduction u/s 10A of the Act.
       (b)   Disallowance u/s 14A of the Act.


2.     The assessee is engaged in the business of software development
and is also providing information technology services. The assessee
                                     2                      I T A N o . 1 5 7 / Mu m / 2 0 1 2



claimed deduction u/s 10A of the Income Tax Act, 1961 (the Act) on the
profit generated from the business. In the Profit and Loss account, the
assessee had debited expenses reimbursed to its Associate Enterprises
(AE) relating to onsite managers' salary and expenses amounting to
Rs.4.83 crores. It is pertinent to note that the said reimbursement was an
International Transaction entered with its AE and the same required
Transfer pricing (T.P.) study. However, while computing the total income,
the assessee disallowed the above said amount of Rs.4.83 crores, i.e.,
while arriving the total income the above said amount was not claimed as
deduction. Accordingly, the assessee contended that it had not claimed
the   above   said   amount   of   Rs.4.83   crores   and      hence          no       T.P.
adjustment/study is required in respect of this transaction. The Transfer
pricing officer also did not examine this claim, since the assessee had
informed him that it has suo-motu disallowed the payment made by it to
its AE in relation to reimbursement of onsite managers' salary and
expenses.


3.     The AO noticed that the assessee had disallowed identical claim
made in the immediately preceding year also suo motu and the AO, in that
year, had taken the view that the amount so disallowed cannot be
considered as part of the income exempt u/s 10A of the Act. Accordingly,
by following the decision taken in that year, the AO held that the assessee
is not entitled for deduction under section 10A of the Act in respect of the
suo-motu disallowance of reimbursement of expenses made by the
assessee.





4.    The AO also noticed that the assessee has received a dividend
income of Rs.1.65 crores and claimed the same as exempt u/s 10(34) of
the Act. However, the assessee did not make any disallowance u/s 14A of
                                     3                  I T A N o . 1 5 7 / Mu m / 2 0 1 2



the Act on the ground that it did not incur any expenditure for earning the
dividend income. The AO did not accept the contentions of the assessee
and accordingly disallowed 5% of the dividend income u/s 14A of the Act.


5.     In the appellate proceedings, the ld. CIT (A) upheld the rejection of
claim u/s 10A of the Act in respect of expenditure disallowed by the
assessee suo motu. The ld. CIT (A), however, set aside the matter relating
to the disallowance to be made u/s 14A of the Act to the AO. Aggrieved,
by the order of Ld. CIT(A), the Revenue has filed this appeal before us.


6.     The ld. Counsel appearing for the assessee fairly admitted that the
issue relating to denial of deduction u/s 10A of the Act in respect of suo-
motu disallowance of expenditure was considered by the Tribunal in the
immediately preceding year, i.e. AY 2006-07, and the same decided
against the assessee by the Mumbai Bench of the Tribunal reported as
Deloitte Consulting India (P) Ltd. vs. Dy. CIT (2012) 150 TTJ 824 (Mum.)
(Trib.).   He further submitted that the assessee had filed Miscellaneous
Application against the order of the Tribunal passed for assessment year
2006-07, but it was also dismissed by the Tribunal. The Ld. AR, however,
contended that any amount disallowed while computing the income from
business would also be eligible for deduction u/s 10A of the Act, as the
amount so disallowed would also form part of business income. In this
regard, he placed reliance on the decision of Hon'ble Jurisdictional Bombay
High Court rendered in the case of CIT Vs. Gem Plus Jewellery India Ltd
(2011) 330 ITR 175(Bom). He submitted that the Tribunal, in AY 2006-07,
did not have occasion to consider the decision rendered by the Hon'ble
Bombay High Court referred above. Accordingly, the ld. AR submitted that
the deduction u/s 10A of the Act should be allowed on the suo motu
disallowance made by the assessee.
                                    4                  I T A N o . 1 5 7 / Mu m / 2 0 1 2




7.    He further submitted that the suo-motu disallowance made by the
assessee would not fall in the category of enhancement of income stated
in the proviso to sec. 92C(4) of the Act, since it was not an adjustment
made by the AO.     It is pertinent to note here that the proviso to sec.
92C(4) bars allowing deduction u/s 10A of the Act on the amount of
income enhanced by the AO on account of determination of Arms Length
Price. In this regard, the ld. AR placed reliance on the decision of
Bangalore Bench of the Tribunal rendered in the case of I Gate Global
Solutions Ltd. vs Assistant Commissioner Of Income (2007) 112 TTJ Bang
1002, wherein the Tribunal has held that the amount disallowed by the
assessee on its own after ascertaining Arm's Length Price (ALP) cannot be
considered to be a case of enhancement of income within the meaning of
proviso to Section 92C(4) of the Act and hence the assessee would be
entitled to exempt u/s 10A of the Act in respect of income declared in the
return of income. The ld. AR further submitted that the TPO has also not
suggested any adjustment and hence proviso to section 92C(4) will not
apply to the suo motu disallowance made by the assessee.


8.    The ld. DR, on the contrary, submitted that the identical
disallowance made on its own by the assessee was held to be not eligible
for deduction u/s 10A of the Act by the Tribunal in AY 2006-07. The Ld
D.R further submitted that the assessee has preferred appeal before the
Hon'ble High Court of Bombay challenging the order passed by the
Tribunal in AY 2006-07 and the same has also been admitted. He further
submitted that the decision rendered by the Jurisdictional High Court in
the case of Gem Plus Jewellery India Ltd (supra) cannot be applied to the
facts of the present case, since the disallowance made in that case under
the provisions of section 36(1)(iv) of the Act.   He submitted that the
                                     5                  I T A N o . 1 5 7 / Mu m / 2 0 1 2



disallowance u/s 36(1)(iv) of the Act is required to be made due to the
legal fiction created in the statute, whereas in the instant case, the
assessee itself has disallowed the expenditure, which otherwise is
allowable at ALP after carrying out transfer pricing study. Thus, the suo-
motu disallowance made by the assessee cannot be equated with the
amount disallowed as per the statutory provisions.      The ld. DR further
submitted that the assessee, in its Transfer Pricing Study furnished in form
No.3CEB, has claimed that the reimbursement of expenditure was at ALP.
The Ld D.R submitted that the assessee had suo motu disallowed the
same in the computation of income under the impression that the ALP
shall be determined at NIL value, in which case, the disallowance that is
required to be made would not be eligible for deduction u/s 10A of the Act
as per the proviso to section 92C(4) of the Act.


9.    The ld. DR placed reliance on the decision of Mumbai Bench of the
Tribunal in the case of M/s Agilisys IT Services India Pvt Ltd V/s ITO in
ITA No.2113/Mum/2011 (AY-2003-04) dated 29.4.2015, wherein suo motu
disallowance made by the assessee was held          to be not eligible for
deduction u/s 10B of the Act.


10.   In the rejoinder, the ld. AR submitted that the decision rendered in
the case of M/s Agilisys IT Services India Pvt Ltd (supra) is not applicable
to the facts to the instant case. The ld. AR submitted that the Transfer
Pricing Adjustment made in the above said case was pertaining to export
sales reported by the assessee and as per the proviso to 10B(3) sale
process have to be brought into India in foreign exchange within six
months. Since the sales relating to the Transfer Pricing Adjustment would
not result in receipt of foreign exchange, the Tribunal held that the
deduction u/s 10B of the Act would not be available in respect of Transfer
                                     6                   I T A N o . 1 5 7 / Mu m / 2 0 1 2



Pricing Adjustment suo motu made by the assessee. He submitted that, in
the instant case, the disallowance made by the assessee does not relate to
sales and hence the question of bringing the foreign exchange into India
does not arise.


11.   With regard to the disallowance made u/s 14A of the Act, the Ld A.R
reiterated the submissions that the assessee did not incur any expenditure
in earning the dividend income and hence no expenditure needs to be
disallowed u/s 14A of the Act. On the contrary, the ld D.R submitted that
the Ld CIT(A) has only set aside the matter to the file of the AO.


12.      We have heard rival submissions and perused the record.                     We
notice that the assessee had disallowed identical claim made in AY 2006-
07 and the same was also held to be not eligible for deduction u/s 10A by
the assessing officer on the reasoning that the income pertaining to suo
motu disallowance made by the assessee does not bear the character of
income having nexus with the software development activity carried on by
the assessee. The Tribunal has further noticed that the finding of the Ld
CIT(A) that the income arising out of the adjustment is not derived by the
undertaking from the Export has not been controverted by the assessee.
The Tribunal has further noticed that the assessee has not complied with
the provisions of sec. 10A in respect of the suo-motu disallowance made
by the assessee. In fact, it is the stand of the assessee that the
reimbursements made by it was at ALP as evidenced by the report filed in
Form 3CEB and it has also claimed the same as deduction by debiting the
reimbursements as an item of expenditure in the Profit and loss account.
Hence the suo-motu disallowance made by the assessee actually
contradicts its stand taken by it in the financial statements as well as in
the report furnished in Form 3CEB.
                                    7                  I T A N o . 1 5 7 / Mu m / 2 0 1 2




13.   Though the decision rendered in the case of M/s Agilisys IT services
India Pvt Ltd pertained to suo-motu disallowance made in respect of sale
receipts, the Tribunal has confirmed the rejection of deduction u/s 10B of
the Act only on the reasoning that the conditions prescribed under that
section has not been complied with in respect of addition made suo-motu
in respect of sale receipts. In the above said case, the assessee's sale
price was seen under priced while making Transfer pricing study and
accordingly the income was enhanced.         The assessee had claimed
deduction u/s 10B of the Act on the said enhancement made through T.P
study, which was rejected by the Tribunal.     The following observations
made by the Tribunal are relevant here:-
      "15. Coming to the conduct of the assessee, there is no doubt that
      the assessee has suo moto made transfer pricing adjustment. At
      this point assuming that there is no enhancement by the TPO and
      the assessee is allowed the benefit of section 10B of the Act then,
      every tax payer will first under price its sale with associated
      enterprises and thereafter suo moto enhance the sale price by
      making transfer pricing adjustment and claiming the deduction u/s
      10B of the Act, stating that under price sales originally declared by
      the assessee in its books of account have been brought in India in
      convertible foreign exchange thereby keeping a certain portion of
      the sale abroad.


      16. In our considered opinion and understanding of the law and
      the understanding of the legislative intention, we cannot permit the
      assessee to stretch the benevolent provision to avail the benefit
      which the legislature never intended to. In the case in hand, there
      is no dispute that the assessee has under priced its services to AE's
      and therefore made transfer pricing adjustment suo moto. This
      peculiar conduct of the assessee, if allowed to claim deduction u/s
      10B of the Act, will go against the legislative intention. We,
      therefore, decline to interfere with the finding of the lower
      authorities. In our considered opinion, the assessee is not entitled
      for deduction u/s 10B of the Act in respect of the addition of
      Rs.4,09,54,804/- suo moto made by the assessee as per Form 3CEB.
      The cases relied upon by the assessee have not considered the
                                     8                   I T A N o . 1 5 7 / Mu m / 2 0 1 2



      relevant provisions of the Act with legislative intent and are
      therefore distinguished from peculiar facts and modus operandi of
      the case in hand...





In the instant case, the assessee has determined the reimbursements at
ALP in form no. 3CEB, whereas in M/s Agilisys IT services India Pvt Ltd,
the ALP of sale receipts was determined at higher figure than that reported
and hence due adjustments were made.         In respect of the adjustments
made due to the TP study was held to be not eligible for deduction u/s
10B of the Act by the Tribunal for the reasons stated therein. In effect,
the sale price adjustment has not resulted in receipt of foreign exchange.


14.   In the instant case also, the assessee has not generated any foreign
exchange out of the suo-motu disallowance made by it.                In fact, the
assessee has actually spent money on reimbursements and hence there is
no question of generating any income out of suo-motu disallowance of the
expenditure incurred. Hence, in the absence of any income, it would not
be possible to say that the suo-motu disallowance of any expenditure
(which has already resulted in out go of money) would give rise to receipt
of any money, which can be called as income generated out of software
development activity. Thus, in our view, the ratio of the decision rendered
in the case of Agilisys IT services India Pvt Ltd can be applied in the facts
of the present case also. Even otherwise it is not a case of disallowance
that is required to be made under the statutory provisions due to legal
fiction. We notice that the Tribunal, while disposing of the identical issue
in AY 2006-07, has taken into account the decision rendered by the
Bangalore bench of Tribunal in the case of I Gate Global Solutions (supra).
Hence, for the additional reasons discussed supra and also by following
the decision rendered by the Tribunal in AY 2006-07 on identical issue, we
are of the view that the Ld CIT(A) was justified in confirming the order of
                                      9                   I T A N o . 1 5 7 / Mu m / 2 0 1 2



the AO in rejecting the claim for deduction u/s 10A of the Act in respect of
suo-motu disallowance made by the assessee.


15.     The next issue relates to the disallowance made u/s 14A of the Act.
We notice that the ld CIT(A) had only set aside the issue to the file of the
AO for fresh consideration in the light of decision rendered in the case of
Godrej & Boyce mfg. Co. Ltd (328 ITR 81) by the Hon'ble Bombay High
Court. Hence, we do not find any infirmity in the decision of Ld CIT(A) on
this issue.


15.    In the result, the appeal filed by the assessee is dismissed.
              Pronounced accordingly on 15th July, 2015.
                   15th July, 2015    

        Sd                                       sd

(    / AMIT SHUKLA)                   (..  / B.R. BASKARAN)
     / JUDICIAL MEMBER                   / ACCOUNTANT MEMBER

 Mumbai: 15th July,2015.

. ../ SRL , Sr. PS

        /Copy of the Order forwarded to :
1.  / The Appellant
2.      / The Respondent.
3.      () / The CIT(A)- concerned
4.       / CIT concerned
5.       ,     ,  /
      DR, ITAT, Mumbai concerned
6.      / Guard file.

                                                           / BY ORDER,
True copy
                                                        (Asstt. Registrar)
                                              ,   /ITAT, Mumbai

 
 
Home | About Us | Terms and Conditions | Contact Us
Copyright 2016 CAinINDIA All Right Reserved.
Designed and Developed by Binarysoft Technologies Pvt. Ltd.
Quality Assurance Services Testing and Re-testing

Transfer Pricing | International Taxation | Business Consulting | Corporate Compliance and Consulting | Assurance and Risk Advisory | Indirect Taxes | Direct Taxes | Transaction Advisory | Regular Compliance and Reporting | Tax Assessments | International Taxation Advisory | Capital Structuring | Withholding tax advisory | Expatriate Tax Reporting | Litigation | Badges | Club Badges | Seals | Military Insignias | Emblems | Family Crest | Software Development India | Software Development Company | SEO Company | Web Application Development | MLM Software | MLM Solutions