2014 (11) TMI 604 - AT - Income Tax

Re-computation of deduction u/s 10A Insurance and commission expenses - Whether CIT(A) was correct on facts and circumstances of the case and in law in deleting the reduction in respect of Insurance & Commission expenses and on account of expenses incurred in foreign currency, both from the export turnover , for the purpose of recomputing the deduction u/s 10A Held that - The assessee had not incurred various expenses in foreign exchange for providing Technical services outside India - when the expenses were not included in export turnover, there was no question of exclusion of the same from the export turnover - the communication expenses were related to domestic usage and there was no nexus with export of services. Explanation 2(iv) to sec. 10A of the Act provides that freight, telecommunication charges or insurance attributable to the delivery of the articles or things or computer software outside India or expenses, if any, incurred in foreign exchange in providing the Technical services outside India not to be included in export turnover in CIT Vs Gem Plus Jewellery India Ltd. 2010 (6) TMI 65 - BOMBAY HIGH COURT the same has been decided - since export turnover has been defined by Parliament and there is a specific exclusion of freight and insurance, the expression export turnover cannot have a different meaning when it forms a constituent part of the total turnover for the purposes of the application of the formula - A construction of a statutory provision which would lead to an absurdity must be avoided. Moreover, a receipt such as freight and insurance which does not have any element of profit cannot be included in the total turnover - Freight and insurance do not have an element of turnover the order of the CIT(A) is upheld Decided against revenue.

Summary

Issues:
1. Whether certain expenses incurred in foreign exchange and insurance & communication expenses should be excluded from the export turnover for computing deduction u/s 10A of the IT Act.

Analysis:
The appeal was filed by the department against the order of CIT(A)-XV, New Delhi. The primary issue raised was whether the expenses of Rs. 3,74,35,152/- in foreign exchange and Rs. 31,92,504/- in insurance & communication should be excluded from the export turnover for the purpose of recomputing the deduction u/s 10A of the Act. The assessee, engaged in Business Process Outsourcing, argued that these expenses were not part of the turnover and hence should not be excluded. The AO, however, excluded these amounts from the export turnover, resulting in a recomputed deduction. The CIT(A) disagreed with the AO, stating that the expenses were not required to be excluded as they were not part of the sale consideration and lacked a nexus with export services.

The CIT(A) analyzed the relevant provisions of Section 10A and the agreements of the appellant with overseas clients. It was found that the expenses were not to be recovered separately from clients and were not part of the sale consideration, hence not included in the export turnover. The CIT(A) also noted that the expenses were not incurred for providing technical services outside India, and there was no nexus between communication expenses and the export of services. Therefore, the CIT(A) allowed the appeal, stating that none of the identified expenses should be excluded from the export turnover for computing the deduction u/s 10A.

The department appealed the CIT(A)'s decision, but the Tribunal upheld the CIT(A)'s findings. The Tribunal emphasized that when expenses were not included in the export turnover, there was no basis for their exclusion. Citing precedents like CIT Vs Gem Plus Jewellery India Ltd. and CIT Vs Tata Elxsi Ltd., the Tribunal concluded that the expenses in question should not be excluded from the export turnover. Consequently, the appeal of the department was dismissed, affirming the CIT(A)'s decision.

In conclusion, the Tribunal's judgment clarified that certain expenses incurred in foreign exchange and insurance & communication expenses should not be excluded from the export turnover for computing the deduction u/s 10A of the IT Act. The decision was based on the lack of nexus between these expenses and the export of services, as well as the interpretation of relevant statutory provisions and judicial precedents.