2015 (7) TMI 1113 - AT - Income Tax

Eligibility for deduction u/s 10B - income earned by the assessee from the on site development of software through its associated enterprises under sub contract - Held that - We have gone through the agreements as well as the work orders received by the assessee from the clients and found that the work of software development was undertaken by the assessee and risk and reward under the agreements belongs to the assessee and not to the associated enterprises of the assessee. The assessee has received the entire consideration of development of software in foreign exchange and earned profit on that part of the job executed by the associated enterprises under sub-contract after reducing the expenses incurred by the assessee. Assessee is eligible for deduction with regard to the income earned by the assessee company from the onsite development of software carried out by the AE. It is also noteworthy to mention that the payment made by the assessee to the AE for the work done by the AE at the site of the customer has been accepted by the TPO to be at Arm s Length Price. Therefore, there cannot be any imputation that the assessee has been trying to shift the profits out of India by outsourcing the work to the AE.- Decided in favour of the assessee.

Summary

Issues:
Whether the assessee is eligible for deduction u/s 10B for income earned through associated enterprises under sub-contract.

Analysis:
The Revenue challenged the CIT(A)'s order, arguing that the deduction u/s 10B should not be allowed for income earned through sub-contracting software development activity with associated enterprises. The Revenue contended that the deduction is only applicable to profits from on-site development of computer software, not for profits from associated enterprises. The CIT(A) relied on a previous tribunal decision and allowed the deduction. The tribunal found that the assessee received work orders for software development, with some work done in India and some by associated enterprises abroad. The tribunal noted that the assessee bore the risk and received consideration in foreign exchange for the software development. The tribunal referenced a similar case involving Mphasis Software Services Pvt. Ltd. to support its decision.

The tribunal examined the agreements and work orders, determining that the assessee retained control and ownership of the intellectual property rights. The tribunal noted that the assessee was responsible for risks and rewards of sub-contracting work, ensuring compliance with customer requirements. The tribunal concluded that the development of software by associated enterprises was under the supervision and control of the assessee, making it eligible for deduction u/s 10B. The tribunal highlighted that the payment to associated enterprises was at an arm's length price, preventing profit shifting accusations. The tribunal aligned the case with Mphasis Software Services India, upholding the CIT(A)'s decision.

Regarding the cross-objection on the validity of reopening, the tribunal deemed it unnecessary to address due to the favorable decision on the deduction u/s 10B. As the Revenue's appeal and the assessee's cross-objection were both dismissed, the tribunal upheld the CIT(A)'s order. The tribunal pronounced the decision on July 31, 2015.

This detailed analysis showcases the tribunal's thorough examination of the eligibility for deduction u/s 10B concerning income earned through associated enterprises under sub-contract. The decision aligns with precedent cases and emphasizes the control and ownership aspects crucial for determining eligibility for tax deductions in such scenarios.