2009 (7) TMI 923 - AT - Income Tax

Issues Involved:

1. Deduction under Section 80HHE of the Income-tax Act.
2. Exclusion of certain receipts from Export turnover.
3. Definition and applicability of "computer software" under Section 80HHE.
4. Eligibility of projects for relief under Section 80HHE.
5. Estimation of expenditure for earning dividend income under Section 80M of the Income-tax Act.

Issue-wise Detailed Analysis:

1. Deduction under Section 80HHE of the Income-tax Act:
The assessee claimed a deduction of Rs. 8,73,88,358 under section 80HHE in the Return of Income. The Assessing Officer reduced the allowable deduction to Rs. 5,33,997 by adjusting the export turnover from Rs. 42,10,00,414 to Rs. 25,81,65,326. The adjustments involved excluding receipts related to maintenance/support charges, consultancy charges, and receipts from CPC India. The Assessing Officer reasoned that these receipts were not covered under Section 80HHE as they were related to software changes and services utilized in India.

2. Exclusion of Certain Receipts from Export Turnover:
The CIT(A) sustained the exclusion of Rs. 4,47,37,074 (maintenance/support charges), Rs. 1,65,64,862 (consultancy charges), and Rs. 81,91,691 (CPC India receipts) from the export turnover. The CIT(A) grouped the receipts into two types: those related to released new software versions and maintenance charges for the year of release, and those unrelated to released software versions. The CIT(A) held that only the former category was eligible for deduction under Section 80HHE.

3. Definition and Applicability of "Computer Software" under Section 80HHE:
The CIT(A) analyzed the concept of "development of software" and rejected the claim that development is a continuous process. The CIT(A) held that only receipts related to released new software versions and maintenance charges for the year of release qualified for deduction. The assessee argued that all activities, including enhancements, bug fixing, and maintenance, should be considered part of software development. The CIT(A) disagreed, stating that the services rendered were more related to assistance in software application rather than development.

4. Eligibility of Projects for Relief under Section 80HHE:
The CIT(A) held that projects for CPC India and COSMIS Systems were not eligible for relief under Section 80HHE as the software developed remained in India. The CIT(A) stated that deduction is allowable only if the software is exported out of India. The assessee contended that the software was shipped outside India and the proceeds were received in convertible foreign exchange.

5. Estimation of Expenditure for Earning Dividend Income under Section 80M:
The CIT(A) estimated the expenditure for earning dividend income at 5% of the total dividend income, reducing it from the Assessing Officer's ad hoc estimate of 15%. The CIT(A) held that only actual expenditure incurred in earning dividend income should be deducted, not an estimated proportion.

Conclusion:
The Tribunal referred the issues back to the Assessing Officer for fresh examination, emphasizing that the receipts incidental to activities involving the writing of computer software are eligible for deduction. The Tribunal also directed the Assessing Officer to consider the retrospective applicability of the CBDT Notification and the definition of "computer programme" under the Copyrights Act, 1957. The Tribunal instructed the Assessing Officer to allow deductions if the assessee proves that the services provided were in connection with the development or production of computer software. The Tribunal also referred the issue of estimating expenditure for earning dividend income back to the Assessing Officer for decision based on the Special Bench decision in the case of ITO v. Dagao Capital Management (P.) Ltd.

← Previous Next →