2018 (2) TMI 1463 - HC - Income Tax

Addition 41(1) - remission of liability - sum towards waiver of sales tax - Held that - The facts in this case are identical with that of the Sales Tax Deferral Scheme of the State of West Bengal in which the State had identically permitted the collection of sales tax but deferred the payment by 12 years. The assessee, like in the case of Sulzer India Limited (2014 (12) TMI 267 - BOMBAY HIGH COURT), approached for a pre-deposit, which was permitted. In the circumstances, it was held that Section 41(1) of the Act does not apply. Deduction u/s 10A - exclusion of telecommunication charges from export turnover - Held that - Explanation 2(iv) to Section 10A of the Act is concerned, this issue is covered by the decision in the case of Commissioner of Income Tax vs. Genpact India, 2011 (11) TMI 119 - DELHI HIGH COURT). In that case, the Court turned down the submission of the Revenue that the telecommunication charges are to be excluded in the concept of export turnover. For the same reasons in this case too, the Court is of the opinion that the decision of the ITAT does not call for interference

Summary

Issues:
1. Whether the remission of liability was correctly brought to tax under Section 41(1)(a) of the Income Tax Act, 1961.
2. Whether the exemption upheld under Section 10A of the Act was warranted considering Explanation 2(iv) to Section 10A regarding the exclusion of telecommunication charges from export turnover.

Analysis:

1. Remission of Liability under Section 41(1)(a):
The appeal challenged the ITAT's findings on the remission of liability under Section 41(1)(a) of the Income Tax Act. The assessee, engaged in digital electronic systems and software services, declared income for the assessment year 2004-05. The AO added back the sum related to waiver of sales tax under Section 41(1) of the Act. The CIT(A) granted relief to the assessee based on the Bombay High Court's judgment in Commissioner of Income Tax vs. Sulzer India Limited. The ITAT upheld the CIT(A)'s decision. The Court noted that the Supreme Court in Commissioner of Income tax vs. M/s Balkrishna Industries Ltd. approved the Sulzer India Limited judgment, emphasizing that Section 41(1) does not apply in cases of deferred tax payments. The Court found no legal question, thus dismissing the appeal.

2. Exemption under Section 10A and Explanation 2(iv):
Regarding the exemption under Section 10A and the applicability of Explanation 2(iv) excluding telecommunication charges from export turnover, the CIT(A) and ITAT ruled in favor of the assessee. The Court referred to the decision in Commissioner of Income Tax vs. Genpact India, where it was held that telecommunication charges should not be excluded from export turnover. Following the same reasoning, the Court concluded that the ITAT's decision was sound and did not warrant interference. No legal question arose in this regard, leading to the dismissal of the appeal.