2009 (3) TMI 230 - AT - Income Tax

Summary

Issues Involved:

1. Entitlement to deduction under section 80HHF.
2. Nature of assessee's activities: export of film software or provision of services.
3. Interpretation of "export or transfer by any means" under section 80HHF.
4. Ownership and proprietary rights in film software.
5. Admission and relevance of additional evidence.

Issue-wise Detailed Analysis:

1. Entitlement to Deduction under Section 80HHF:

The primary issue was whether the assessee was entitled to the deduction under section 80HHF. The assessee claimed it was engaged in the business of manufacturing television film software, providing professional services to foreign parties for shooting cinematographic films in India. The assessee argued that its activities were akin to a construction contract, involving the production of films and their transfer outside India, with proceeds received in convertible foreign exchange. However, the AO held that the assessee was merely a service provider, arranging raw materials, technicians, and equipment for foreign clients, and thus, not entitled to the deduction under section 80HHF.

2. Nature of Assessee's Activities: Export of Film Software or Provision of Services:

The assessee contended that it was involved in the business of exporting film software, evidenced by the organization of entire film shootings in India and the conversion of raw films into final film negatives. The CIT(A) accepted this argument, emphasizing the purposive interpretation of "export or transfer by any means" and the receipt of proceeds in convertible foreign exchange. However, the Revenue argued that the assessee was merely providing services, as the foreign clients retained control and ownership of the film negatives, and the assessee had no right to sell these films in India.

3. Interpretation of "Export or Transfer by any Means" under Section 80HHF:

The CIT(A) interpreted "export or transfer by any means" broadly, applying a purposive interpretation to encourage foreign film shootings in India. However, the Tribunal disagreed, emphasizing the need for a bilateral transaction involving the transfer of proprietary rights from the transferor in India to the transferee outside India. The Tribunal referenced the principle of ejusdem generis and the case of Lall's Gem Exports, concluding that merely handing over film software to foreign clients' representatives in India did not constitute export or transfer outside India.

4. Ownership and Proprietary Rights in Film Software:

The Tribunal examined the agreements between the assessee and its foreign clients, finding that the assessee did not acquire any proprietary rights in the film software. The agreements indicated that the assessee provided production services, including crewing, casting, and equipment procurement, but the foreign clients were the producers and owners of the film negatives. The Tribunal noted that the assessee received production fees and was not responsible for losses if the negatives were unsatisfactory, further supporting the view that the assessee was a service provider, not an exporter or transferor of film software.

5. Admission and Relevance of Additional Evidence:

The CIT(A) admitted additional evidence, including the import-export code (IEC) certificate and photographs of film shootings, to support the assessee's claim. The Tribunal acknowledged the admission of this evidence but emphasized that the core issue was whether the assessee's activities met the criteria for deduction under section 80HHF. The Tribunal found that the additional evidence did not alter the fundamental nature of the assessee's activities as service provision rather than export or transfer of film software.

Conclusion:

The Tribunal concluded that the assessee was not entitled to deduction under section 80HHF, as its activities did not involve the export or transfer of film software outside India. The Tribunal emphasized the need for a bilateral transaction involving the transfer of proprietary rights and found that the assessee's agreements and activities indicated service provision rather than export. Consequently, the appeals of the Revenue were allowed.