2012 (6) TMI 413 - AT - Income Tax

Deduction u/s 10A - exclusion of expenditure incurred on account of freight, telecommunication charges, insurance attributable to delivery of articles or computer software, from export turnover while the same is included in total turnover - Held that - In absence of definition of total turnover, the meaning of the said term for purposes of sections 80HHC and 80HHE and 80HHF are to be applied. Parity is to be maintained with export turnover. Expenses on freight, telecommunication charges or insurance attributable to delivery of articles or things or computer software, required to be excluded from export turnover, are also to be excluded from total turnover for computing exemption u/s 10B/10A. See ITO Vs. Sak Soft Ltd (2009 (3) TMI 243 (Tri)) Similarly, reimbursement of onsite expenses are to be excluded from both export and total turnover for the purpose of computation of benefit under S.10A. Adjustment of profits u/s 10A(7) r.w.s. 80IA(10) - assessee contended that only the profit making companies from the Transfer Pricing Report of the assessee are to be considered in order to determine the ordinary profits - Held that - Phrase more than ordinary profits referred in section 80IA(10) is different from arm s length price as referred u/s 92C. Issue set aside to the file of the AO with a direction to verify the comparable in the light of the decisions of the in the case of Tweezerman (India) P. Ltd. and Digital Equipment India Ltd. Decided in favor of assessee for statistical purposes.

Summary

Issues Involved:

1. Deduction under Section 10A related to communication charges.
2. Reimbursement of onsite expenses as part of total turnover.
3. Adjustment of profits under Section 10A(7) read with Section 80IA(10).

Issue-wise Detailed Analysis:

1. Deduction under Section 10A related to communication charges:

The assessee, a domestic company providing software development services, claimed deductions under Section 10A for the assessment years 2003-04 and 2004-05. The Assessing Officer restricted these deductions, which the CIT(A) upheld. The primary contention was whether communication charges should be reduced from both the export turnover and total turnover. The Tribunal referenced the decision in the case of ITO Vs. Sak Soft Ltd., which established that expenses excluded from export turnover should also be excluded from total turnover for computing exemptions under Sections 10B/10A. The Tribunal followed this precedent and allowed the assessee's appeal, directing that communication charges be excluded from both export turnover and total turnover.

2. Reimbursement of onsite expenses as part of total turnover:

For the assessment year 2004-05, the issue was whether the reimbursement of onsite expenses should be included in the total turnover. The Assessing Officer had added these reimbursements to the total turnover and excluded them from the export turnover. The CIT(A) upheld this decision. The Tribunal, referencing the case of M/s Virtusa (India) Ltd., determined that reimbursement of miscellaneous and travel expenses should be excluded from both export and total turnover while computing the deduction under Section 10A. The Tribunal directed the Assessing Officer to exclude these expenditures from both export and total turnover, thereby allowing the assessee's appeal on this issue.

3. Adjustment of profits under Section 10A(7) read with Section 80IA(10):

The assessee, a subsidiary of a US-based company, was subject to transfer pricing scrutiny. The Assessing Officer observed that the assessee's profit margins were significantly higher than the industry average and invoked Section 10A(7) read with Section 80IA(10) to rework the deductions. The CIT(A) upheld this reworking. The assessee argued that the profit margins were within the inter-quartile range and that the ordinary profits should be determined based on the facts of the case, not just the industry average. The Tribunal, referencing the decisions in Tweezerman (India) P. Ltd. and Digital Equipment India Ltd., noted that "ordinary profits" differ from "arm's length price" and set aside the issue to the Assessing Officer for reconsideration in light of these decisions. Consequently, the appeals for the assessment years 2003-04 and 2005-06 were allowed for statistical purposes.

Conclusion:

The Tribunal allowed the appeals for statistical purposes, directing the Assessing Officer to re-evaluate the deductions and profit adjustments in accordance with the established legal precedents and the specific facts of the case. The judgment emphasized the need for consistency in excluding certain expenses from both export and total turnover and clarified the interpretation of "ordinary profits" under the relevant sections of the Income Tax Act.