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2013 (11) TMI 891 - AT - Income TaxAllowability of deduction under section 10B and under section 80HHE of the Act - Deduction under section 10B is allowable to 100% export oriented undertakings engaged in the export of articles, things or computer software and which have been approved for this purpose by the competent authority. Deduction under section 80HHE is available in respect of profit from the export of computer software or from its transmission to a place outside India or from providing technical services outside India in connection with development/production of computer software - Assessee is engaged in contract research activity on behalf of the foreign pharmaceutical companies and is also engaged in medical transcription activity Held that - The matter restored to the file of Commissioner(A), to decide the issue afresh in the light of various judgments s.a. CIT vs. Black & Veatch Consulting (P) Ltd 2012 (4) TMI 450 - BOMBAY HIGH COURT , wherein it has been held that deduction under section 10B has to be allowed before setting off brought forward losses. Also, in the light of judgments in the case of Shirke Constructions Ltd. 2007 (5) TMI 194 - SUPREME Court , wherein it has been held that brought forward loss has to be adjusted before allowing deduction under section 80HHC. Treatment of expense regarding renovation of director s office which being the rented premises, a capital expenditure of revenue expenditure Held that - In view of Explanation -1 to section 32(1) inserted from assessment year 1988-89, the capital expenditure incurred by way of renovation or extension or improvement even in rented premises has to be considered as owned by the assessee on which depreciation is allowable - Full details of expenditure has not been brought on record either in the order of AO or in the order of CIT(A). Further CIT(A) has also mentioned that copy of agreement with landlord had not been produced by the assessee which in our view is necessary in understanding the true nature of expenses - Matter requires fresh examination and hence restored this issue also, back to CIT(A) for passing a fresh order.
Issues Involved:
1. Legal validity of the assessment order. 2. Disallowance of claim of deduction under section 10B and section 80HHE. 3. Disallowance of expenses on purchase of CD-Roms and headphones. 4. Disallowance of computer software expenses. 5. Disallowance of expenses treating the same as capital in nature. 6. Levy of penalty under section 271(1)(c). Detailed Analysis: 1. Legal Validity of the Assessment Order The appellant raised disputes regarding the legal validity of the assessment orders for both assessment years 2003-04 and 2005-06. However, these grounds were not pressed by the appellant's representative at the time of the hearing. Consequently, these grounds were dismissed as not pressed. 2. Disallowance of Claim of Deduction under Section 10B and Section 80HHE The appellant claimed deductions under section 10B and section 80HHE for Contract Research Organization (CRO) and Medical Transcription (MT) activities. The Assessing Officer (AO) disallowed these claims on several grounds: - The AO noted that the appellant was not an approved 100% Export Oriented Unit (EOU) for the purpose of section 10B during the assessment year 2003-04. - The AO observed that the activities of the appellant did not qualify as manufacturing or production of computer software. - The AO also held that there was a net loss from the CRO and MT activities, making the appellant ineligible for deductions under section 80HHE. - The AO and CIT(A) held that brought forward losses had to be set off before considering any claim for deduction. The Tribunal noted that the CIT(A) had upheld the AO's decision on technical grounds without examining whether the appellant's activities were eligible for the deductions claimed. The Tribunal set aside the CIT(A)'s order and restored the issue to the CIT(A) for fresh examination in light of relevant judgments, including those from the High Court of Bombay and the Supreme Court. 3. Disallowance of Expenses on Purchase of CD-Roms and Headphones This ground was not pressed by the appellant's representative during the hearing, and thus, it was dismissed as not pressed. 4. Disallowance of Computer Software Expenses In the assessment year 2005-06, the appellant raised a dispute regarding the disallowance of computer software expenses amounting to Rs.17,160/-. This ground was also not pressed by the appellant's representative, leading to its dismissal as not pressed. 5. Disallowance of Expenses Treating the Same as Capital in Nature The AO treated repair expenses of Rs.27,57,933/- incurred at the director's office as capital in nature and allowed depreciation at 15%, disallowing the balance amount. The CIT(A) confirmed this disallowance, noting that the appellant had not produced the agreement with the landlord. The Tribunal observed that the nature of the expenses and the agreement with the landlord were crucial for determining whether the expenses were capital in nature. The Tribunal restored this issue to the CIT(A) for fresh examination and decision after allowing the appellant an opportunity for a hearing. 6. Levy of Penalty under Section 271(1)(c) The AO had levied a penalty under section 271(1)(c) in relation to the disallowance of the claim of deduction under section 10B amounting to Rs.75,19,697/-, which was confirmed by the CIT(A). Given that the Tribunal had already set aside the CIT(A)'s order regarding the deduction claims, the issue of penalty was also restored to the CIT(A) for a fresh decision in light of the new findings on the quantum appeal. Conclusion The appeals were partly allowed for statistical purposes, with the Tribunal setting aside the CIT(A)'s orders on several grounds and restoring the issues for fresh examination and decision. The Tribunal emphasized the need for a detailed evaluation of the eligibility for deductions under sections 10B and 80HHE and the nature of the expenses treated as capital in nature. The issue of penalty under section 271(1)(c) was also restored for reconsideration in light of the new findings.
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