2008 (10) TMI 653 - AT - Income Tax

Challenged the Order passes u/s 263 - erroneous and prejudicial to the interests of revenue - Profit and Loss - HELD THAT - From the records, it is seen that the AO had called for several details from the assessee relating to aforesaid loss. The assessee had filed necessary details enclosing with letters dated 11-11-2005 and 10-2-2006. Along with letter dated 11-10-2005 the assessee had enclosed balance-sheet as on March 31,2003 and Profit and Loss account for the year ending 31-3-2003. While dealing u/s 263 of the Act, the learned CIT was of the view that as there were no details available regarding discontinued operation loss at ₹ 18,15,85,000/- he proceeded in the matter u/s 263. The issue relating to allowability of ₹ 10.67 crores has been discussed by the learned CIT(A) and the facts in that issue are also similar to the present issue which was subject matter of order u/s 263 passed by the learned CIT, Further, From the order of the learned CIT, It is seen that the learned CIT himself had occasion to deal with the entire facts and the details. We had occasion to go through the details filed by the assessee before the AO. We have also seen details of Wipro Net Division in the Profit and Loss Account for the period ending 31-3-2003 which was enclosed with Setter dated 11-11-2005 send by the assessee. Considering this factual matrix, we are of the view that the order passed by the AO is not erroneous and prejudicial to the interests of revenue as held by the learned CIT. We, therefore, quash the order of the learned CIT dated 26.9.2007 passed u/s 263 of the act. Thus, we restore the order of the AO on this issue. It is ordered accordingly. In the result, the appeal filed by the assessee is allowed.

Issues Involved:
1. Claim of deduction under section 80-IB of the Act in respect of maintenance charges.
2. Charging of interest under sections 234B and 234D of the Act.
3. Consideration of miscellaneous income and rental income as part of income eligible under section 10A.
4. Eligibility of deemed exports for deduction under section 10A.
5. Exclusion of foreign taxes (VAT/GST) from export and total turnover.
6. Disallowance of amounts representing support services contribution in determining the profits eligible for deduction under section 10A.
7. Deduction on the sale of monitors integral to computers manufactured by the assessee under section 80-IB.
8. Expenditure in respect of discontinued business.
9. Expenditure of software imports.
10. Allocation of corporate expenses.
11. Exclusion of scrap sales while granting deduction under section 10A.
12. Treatment of interest income for deduction under section 10A.
13. Exclusion of exchange fluctuation from receipts for computing deduction under section 10A.
14. Treatment of rental income and other income for deduction under section 10A.
15. Export sale proceeds received in India beyond the stipulated period.
16. Reimbursement of communication links, incentives, rewards, and telecommunication expenses.
17. Claim of loss of 10A units.
18. Eligibility for deduction under section 10A.
19. Disallowance of provision for warranty.
20. Un-availed MODVAT credit.
21. Exclusion of excise duty and sales tax from total turnover for deduction under section 80HHC.
22. Computation of deduction under section 80HHC.
23. Reversal of warranty provision under section 80-IB.
24. Credit for foreign taxes paid.
25. Expenditure relating to Madivala Research and Development Unit.
26. Transfer pricing adjustment.
27. Validity of notice under section 143(2).
28. Loss from discontinued operations.

Detailed Analysis:

1. Claim of deduction under section 80-IB of the Act in respect of maintenance charges:
The Tribunal upheld the CIT(A)'s decision disallowing the claim of deduction under section 80-IB on AMC receipts, as the facts were similar to previous years where the same decision was made.

2. Charging of interest under sections 234B and 234D of the Act:
Interest under section 234B was confirmed as mandatory and to be charged as per the Act's provisions. For section 234D, the Tribunal followed the Special Bench's decision in Ekta Promoters P. Ltd., holding the interest charge to be prospective, thus allowing the assessee's appeal.

3. Consideration of miscellaneous income and rental income as part of income eligible under section 10A:
The Tribunal dismissed the assessee's claim for including miscellaneous and rental income under section 10A, as the assessee had accepted the position in previous years.

4. Eligibility of deemed exports for deduction under section 10A:
The Tribunal confirmed the CIT(A)'s decision disallowing deemed exports for deduction under section 10A, referencing the decision in Tata Elxsi Ltd.

5. Exclusion of foreign taxes (VAT/GST) from export and total turnover:
The Tribunal upheld the exclusion of foreign taxes from export turnover and total turnover, as per the Tribunal's reasoning in previous years.

6. Disallowance of amounts representing support services contribution in determining the profits eligible for deduction under section 10A:
The Tribunal remanded the issue to the AO, directing the assessee to provide relevant details to ascertain the market value of transferred goods or services.

7. Deduction on the sale of monitors integral to computers manufactured by the assessee under section 80-IB:
The Tribunal upheld the CIT(A)'s decision disallowing deduction under section 80-IB on the sale of monitors, as the facts were similar to previous years.

8. Expenditure in respect of discontinued business:
The Tribunal upheld the CIT(A)'s decision allowing the expenditure related to discontinued business, referencing the assessee's own case for previous years.

9. Expenditure of software imports:
The Tribunal confirmed the CIT(A)'s decision allowing the expenditure on software imports as revenue expenditure, based on previous Tribunal decisions.

10. Allocation of corporate expenses:
The Tribunal upheld the CIT(A)'s decision on the allocation of corporate expenses, confirming that 20% of common expenses is appropriate.

11. Exclusion of scrap sales while granting deduction under section 10A:
The Tribunal confirmed the CIT(A)'s decision to include scrap sales in the computation of profit for deduction under section 10A, referencing previous Tribunal decisions.

12. Treatment of interest income for deduction under section 10A:
The Tribunal upheld the CIT(A)'s decision not to exclude interest income from the computation of deduction under section 10A, as the AO had not treated it as income from other sources.

13. Exclusion of exchange fluctuation from receipts for computing deduction under section 10A:
The Tribunal confirmed the CIT(A)'s decision to include exchange fluctuation gains in the computation of profit for deduction under section 10A, referencing previous Tribunal decisions.

14. Treatment of rental income and other income for deduction under section 10A:
The Tribunal upheld the CIT(A)'s decision to remit the issue back to the AO for evaluation based on previous years' findings.

15. Export sale proceeds received in India beyond the stipulated period:
The Tribunal confirmed the CIT(A)'s decision to include collections made after six months in the export turnover, referencing previous Tribunal decisions.

16. Reimbursement of communication links, incentives, rewards, and telecommunication expenses:
The Tribunal directed the AO to exclude only the portion of telecommunication expenses attributable to the delivery of software outside India and to consider similar exclusions in total turnover.

17. Claim of loss of 10A units:
The Tribunal directed the AO to set off brought forward losses of units with positive income for deduction under section 10A, referencing previous Tribunal decisions.

18. Eligibility for deduction under section 10A:
The Tribunal confirmed the CIT(A)'s decision allowing deduction under section 10A for undertakings commencing production after April 1, 1994, referencing previous Tribunal decisions.

19. Disallowance of provision for warranty:
The Tribunal upheld the CIT(A)'s decision allowing the provision for warranty as a deductible expense, based on previous Tribunal decisions.

20. Un-availed MODVAT credit:
The Tribunal remanded the issue to the AO to verify details and re-compute the income as per previous Tribunal directions.

21. Exclusion of excise duty and sales tax from total turnover for deduction under section 80HHC:
The Tribunal dismissed the revenue's appeal, confirming the exclusion of excise duty and sales tax from total turnover, referencing Supreme Court decisions.

22. Computation of deduction under section 80HHC:
The Tribunal upheld the CIT(A)'s decision to consider only the turnover and profits of the eligible business for deduction under section 80HHC, referencing previous Tribunal decisions.

23. Reversal of warranty provision under section 80-IB:
The Tribunal confirmed the CIT(A)'s decision allowing the reversal of warranty provision as part of the eligible profit for deduction under section 80-IB.

24. Credit for foreign taxes paid:
The Tribunal restored the issue to the CIT(A) for reconsideration, referencing previous Tribunal decisions.

25. Expenditure relating to Madivala Research and Development Unit:
The Tribunal confirmed the CIT(A)'s decision allowing the expenditure as a deductible expense, referencing previous Tribunal decisions.

26. Transfer pricing adjustment:
The Tribunal upheld the CIT(A)'s decision rejecting the TPO's adjustment for interest on trade advances, as there was no comparable uncontrolled transaction identified.

27. Validity of notice under section 143(2):
The Tribunal confirmed the CIT(A)'s decision that the notice under section 143(2) was presumed to have been served on time, as the assessee could not provide convincing evidence to the contrary.

28. Loss from discontinued operations:
The Tribunal quashed the CIT's order under section 263, restoring the AO's order allowing the loss from discontinued operations, as the relevant details were submitted and verified during the assessment.

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