2011 (3) TMI 1333 - HC - Income Tax

Exemption u/s 10A denied - acquisition of majority shares by the American company of which respondent was a subsidiary company - Held that - The company itself was set up in the previous year relevant for the assessment year 2001-02 and therefore there can be no transfer of the assessee to foreign company because the respondent company was really a subsidiary company in India of the American company from the very beginning of relevant assessment year. We find force in the finding of the Tribunal that the denial of assessee s claim of exemption on the profit earned from the export of computer software under Section 80HHE on technicalities as untenable - Decided in favor of the assessee.

Summary

Issues:
- Eligibility for exemption under Section 10A of the I.T. Act
- Denial of exemption under Section 80HHE
- Transfer of majority shares to an American company
- Tribunal's decision in favor of the respondent
- Revenue's appeal against the Tribunal's orders

Analysis:
The judgment addresses the issue of eligibility for exemption under Section 10A of the I.T. Act. The respondent, engaged in the development and export of computer software, was initially denied the benefit due to the transfer of majority shares to an American company. However, the Tribunal ruled in favor of the respondent, emphasizing that the company was set up in the previous year relevant for assessment, and the share transfer did not violate Section 10A(9). The Tribunal also criticized the assessing officer for denying the alternative claim under Section 80HHE due to document delays, which the Tribunal found unjustified.

Regarding the denial of exemption under Section 80HHE, the Tribunal found the assessing officer's actions unreasonable, as the remand was for document submission, even though delayed. The judgment highlights that the purpose of Sections 10A and 80HHE is to promote software development in India, and the Tribunal's decision in favor of the respondent aligns with this objective. The deletion of Section 10A(9) by the Finance Act, 2003, further supports the Tribunal's ruling that the transfer of the company to a foreign entity should not disqualify the export exemption.

The judgment concludes that there is no substantial legal question arising from the Tribunal's order, as the Tribunal's factual findings support the respondent's case. Consequently, the revenue's appeals are dismissed, upholding the Tribunal's decision in favor of the respondent based on the technicalities and factual circumstances surrounding the case.