2015 (9) TMI 652 - AT - Income Tax

Computation of deduction u/s. 10B - whether the CIT(Appeals) was justified in directing the AO to exclude the expenditure incurred in foreign currency such as salaries, travelling and conveyance, sub-contracting, software development charges, communication, etc. from the export turnover, with reducing the same from the total turnover also? - Held that - CIT(Appeals) following the decision of the Hon ble High Court of Karnataka in the case of CIT v. Tata Elxsi Ltd. (2011 (8) TMI 782 - KARNATAKA HIGH COURT ) held that whatever is excluded from the export turnover, has also to be excluded from the total turnover. We are of the view that as of today, law declared by the Hon ble High Court of Karnataka which is the jurisdictional High Court is binding on us. We therefore hold that the order of CIT(A) does not call for any interference and accordingly the same is confirmed. - Decided against revenue. Rrefusing to admit the additional ground - Held that - A plain reading of the provisions of section 251 shows that the CIT(Appeals) has plenary powers in disposing of an appeal. His powers are co-terminus with that of the AO. The assessee has placed the business transfer agreement. The CIT(Appeals) has powers to consider the same after confronting it to the Assessing Officer for his comments. He could render a finding as to whether there was any payment for acquisition of goodwill and if so, what is the quantum of such payment. The question as to whether the ratio laid down by the Hon ble Supreme Court in the case of Smiffs Securities Ltd. (2012 (8) TMI 713 - SUPREME COURT) would apply to the case of the assessee is also a matter which could be investigated by the CIT(Appeals). In our view, the order refusing to admit the additional ground cannot be sustained. We are also of the view that since the claim has been made before the CIT(Appeals) for the first time and since the AO did not have an opportunity to examine the claim of assessee, it would be just and proper if the order of CIT(Appeals) on this issue is set aside and the issue is remanded to the AO for consideration de novo. - Decided in favour of assessee for statistical purposes.

Summary

Issues:
1. Whether certain expenditures incurred in foreign currency should be excluded from export turnover without reducing them from total turnover while computing deduction u/s. 10B of the Act.
2. Whether the assessee is entitled to depreciation on goodwill under section 32(1)(ii) of the Act and if the additional ground for depreciation on goodwill should have been admitted by the CIT(A).

Issue 1 - ITA No.672/B/14 (Revenue's appeal):
The main issue in this appeal was whether the CIT(Appeals) was correct in directing the AO to exclude certain expenses incurred in foreign currency from the export turnover without reducing them from the total turnover while calculating deduction under section 10B of the Income Tax Act. The AO argued that the expenses should only be reduced from export turnover as per the specific definition provided, without affecting total turnover. However, the CIT(Appeals, following the decision of the Karnataka High Court in a similar case, held that expenses excluded from export turnover should also be excluded from total turnover. The Tribunal upheld the CIT(A) decision, stating that the High Court's ruling was binding and confirmed the order.

Issue 2 - ITA No.705/B/14 (Assessee's appeal):
In this appeal, the question was whether the assessee was entitled to claim depreciation on goodwill under section 32(1)(ii) of the Act. The assessee, relying on a Supreme Court judgment, contended that goodwill should be considered an asset eligible for depreciation. The assessee raised an additional ground for depreciation on goodwill before the CIT(A), who refused to admit the ground for adjudication citing lack of factual basis on record. The Tribunal disagreed with the CIT(A) and held that the CIT(A) has plenary powers to consider such claims, even if not raised before the AO. The Tribunal set aside the CIT(A)'s order and remanded the issue to the AO for fresh consideration, allowing the assessee's appeal for statistical purposes.

In conclusion, the Tribunal dismissed the Revenue's appeal while treating the assessee's appeal as allowed for statistical purposes, emphasizing the importance of considering legal precedents and the powers of the CIT(A) in addressing additional grounds raised during the appeal process.