TaxTMI 
TaxTMI 
TaxTMI 
2012 (12) TMI 592
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.... under section 92CA of the Act dt.27.9.2010 suggested Transfer Pricing adjustment of Rs.4,75,86,539 on the issue of interest chargeable to its associated enterprises. In view of the transfer pricing adjustment, a draft order under section 144C of the Act was passed on 31.12.2009. The assessee company filed objections thereto before the DRP on 29.01.2010. The DRP vide directions dt.27.09.2010 referred to above did not accept the assessee's objections to the TP adjustment and directed the Assessing Officer to complete the assessment accordingly. Besides the above, other several other additions were made to the income returned by the Assessee in the draft assessment order. After the order of the DRP, a fair assessment order was passed determining total income as proposed in the draft assessment order and in accordance with the directions of the DRP on the draft assessment order. The Assessing Officer accordingly passed the order of assessment on 28.10.2010. The various issues will be now dealt with as projected in the grounds of appeal raised by the Assessee before us. 3. Grounds 1 to 4 are general in nature and do not call for any specific adjudication. Grounds 5 to 9 raised by the ....
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....orders in earlier years in the assessee's own case. The learned counsel for the assessee further pointed out that the DRP, in its order dt.26.9.2011 on page 2 and para 3 thereof, while acknowledging that relief has been granted by the Tribunal on this issue in the assessee's own case in earlier years, has mechanically and without application of mind upheld the adjustment determined by the TPO stating that this issue has not reached finality as the Department has filed further appeal under section 260A against the Tribunal order. The learned counsel for the assessee contended that the interest determined in the TPO's order is not an arms length rate determined in comparable uncontrolled transaction and therefore prayed that it be set aside in conformity with the Tribunal's findings in the assessee's own case for earlier years and placed on record a copy of the decision of the co-ordinate bench of the Tribunal in the assessee's own case for Assessment Year 2004-05 in ITA No.1072/Bang/2007 dt.30.1.2009. 5.4 The learned Departmental Representative supported the orders of the authorities below on this issue and submitted that they be confirmed. 5.5 We have heard both parties and perus....
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....diture incurred in earning income which does not form part of the total income under the Act, will not be allowed as deduction while computing total income. In accordance with the aforesaid provisions, the Assessee had quantified a sum of Rs.82,80,707/- as expenditure incurred in earning exempt income which has to be disallowed and added to total income by applying the provisions of Sec.14-A of the Act. The above working was done by the Assessee based on the estimated time spent by the functionaries responsible for managing company's investments and cash surpluses. The AO was of the view that the Assessee in working the aforesaid sum had considered only direct expenses on employees/directors by way of salaries, staff welfare, traveling, communication etc. He was of the view that there were various other expenses on corporate establishment which are left out as non-allocable expenses and all that establishment helps the functionaries in some manner in carrying out investment functions. He held that investment was a key function of corporate office. He also found that the quantum of investment was in the range of Rs.3459.50 crores against reserves and surplus of Rs.6135.60 Crores at ....
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....rd, we also find that the quantum of dividend income is roughly about 3% of the total income returned by the Assessee, though this is not the only basis for our conclusion. We are also of the view that provisions of Sec.14A of the Act contemplate disallowance of indirect expenses on an estimate basis whereas provisions of Sec.80M of the Act do not contemplate any such estimation. Therefore the decision of the Hon'ble Karnataka High Court in the case of Maharashtra Apex Corporation Ltd. (supra) referred to by the learned counsel for the Assessee will not be applicable to the present case. Thus grounds No.10 & 11 are partly allowed. 9. Grounds 12 to 16 project the grievance of the Assessee with regard to the rejection of the claim by the AO for set off of loss incurred by seven STP units (which was entitled to claim deduction u/s.10A of the Act) against other business income of the Assessee (non STP units) for the same assessment year. The loss sought to be set off is a sum of Rs.23,37,10,661/-. The AO held that Sec.10A was a special provision. He held that as per Sec.10-A of the Act only profits of unit earned in ten consecutive years is to be allowed as deduction over 10 assessmen....
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.... own case for earlier assessment years that the issue was covered in favour of the assessee, the Assessing Officer stated that this issue is still under dispute as the department has filed further appeals in the preceeding years. The learned counsel for the assessee submitted that the DRP in its order issued directions on the basis that the losses incurred by certain 10A units should be set off against the profits earned by other 10A units. It was submitted by the learned counsel for the assessee that the directions of the DRP violated, the settled legal position as it is in direct conflict with the decision of the Hon'ble Apex Court in the case reported at 161 ITR 320 in the matter of set off of losses from priority industry. 7.3 The learned Departmental Representative supported the orders of the authorities below. 7.4 We have heard both parties and perused and carefully considered the material on record. We find that the identical issue was considered by a co-ordinate bench of the Tribunal in the assessee's own case for Assessment Year 2004-05 in ITA No.1072/Bang/2007 (supra), wherein the Tribunal confirming the finding of the learned CIT(A), at para 16.4 on pages 29 and 30 the....
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....e decision of the Tribunal in Assessee's own case for AY 07-08, we direct the AO to allow the set off as claimed by the Assessee. Grounds No.12 to 16 are thus allowed to the above extent. 12. In Grounds 17 to 19, the Assessee has challenged the order of the AO whereby the AO did not allow claim for deduction on account of deferred compensation paid on behalf of the Assessee to one Mr.Vivek Paul by a trust from and out of the contributions by the Assessee to the Trust. The material facts giving raise to the aforesaid grounds of appeal are as follows. 13. The assessee had constituted a deferred compensation plan. Mr. Vivek Paul, its whole-time director who had exercised his employment in the US was a participant under the plan. Under the Plan, the assessee-company was required to contribute a proportion of the basic salary of the participating employee to a grantor trust (as defined in the Internal Revenue Code of the US) settled for this purpose, with the objective of providing a deferred compensation to the participating employee at the time of his separation. In this regard, the Trust Deed and other documents were produced to the AO. 14. During the previous years relevant to th....
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....year in which the contributions were made to the Trust, viz., AY 2004- 05 & AY 2005-06, which the AO has taken note of. The AO has invoked the same prohibition, when the deferred compensation is paid to the employee-director, who is the participant under the trust, out of such contributions made by the assessee to the trust in the earlier years. However, the AO failed to note that Section 40A(9) was inserted by the Finance Act, 1984 with retrospective effect from 1-4-1980. Section 40A(10) ensured that the insertion of section 40A(9) with retrospective effect does not result in disallowance of bonafide incurred expenditure out of the contributions disallowed u/s 40A(9). This limited purpose of section 40A(10) is not to deny a deduction for bonafide incurred expenditure in a subsequent period, which meets with requirements of section 37(1) of the Act. It was submitted that the AO has considered irrelevant factors for proposing the disallowance and further, having disallowed the deferred compensation claimed by the assessee, the AO has not recomputed the enhanced deduction u/s 10A. 19. The learned DR relied on the order of the AO. 20. We have considered the rival submissions. The re....
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....g, machinery, plant or furniture acquired or constructed by the fund, trust, company, association of persons, body of individuals, society or other institution out of the sum paid by the assessee, be transferred to him, and where any claim is so made, such asset shall be transferred, as soon as may be, to him." 22. It is clear from the aforesaid provisions of Sec.40A(10) & (11) of the Act that contribution after 1.4.1984 to a trust to be eligible for deduction has to be in conformity with the provisions of Sec.36(1)(iv) & (v) of the Act as laid down in Sec.40A(9) of the Act. The provisions of Sec.36(1)(iv) & (v) of the Act read as follows: "Other deductions. 36. (1) The deductions provided for in the following clauses shall be allowed in respect of the matters dealt with therein, in computing the income referred to in section 28 - .......... .......... (iv) any sum paid by the assessee as an employer by way of contribution towards a recognised provident fund or an approved superannuation fund, subject to such limits as may be prescribed for the purpose of recognising the provident fund or approving the superannuation fund, as the case may be ; and subject to such conditions as....
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..... The AO is therefore directed to computed the enhanced profits on which eligible deduction u/s.10A of the Act should be allowed. Thus the aforesaid grounds are allowed to the extent indicated above. 24. In Grounds No.20 to 23, the Assessee has projected its grievance against the order of the AO whereby the AO disallowed claim of the Assessee for depreciation of Rs.19,46,23,236/- on imported software products used by the Assessee in-house. The assessee claimed depreciation amounting to Rs.19,46,23,236/- on software purchased both locally and imported and used in its business and furnished the details thereof to the Assessing Officer in the course of assessment proceedings. The Assessing Officer was of the opinion that the provisions of section 40(a)(ia) of the Act are applicable and proposed to disallow the depreciation claimed on such purchases. The assessee submitted that the software purchased by it is in the nature of goods and the provisions of section 40(a)(ia) were not applicable to it and also that no order has been passed under section 201(1) of the Act treating it as an assessee in default in respect of payments for imported software. It was submitted by the learned Au....
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....thereby reducing the profits of the units on which deduction u/s.10A of the Act is claimed. 27. On the above grounds it was submitted by the learned counsel for the assessee that Wipro Limited is a set up which evolves growth plans of the assessee and the manner in which the plans will be achieved and the medium and long term vision is defined by Wipro Corporate and it evaluates various business opportunities and investment strategies. It was submitted that expenditure incurred by the corporate was for the development of business of the company. It was submitted by the learned counsel for the assessee that the functioning of Wipro Corporate is independent of the software business OR other business divisions, as those business are run as independent profit centres and their expenses are separately incurred and recorded. It was submitted that the Assessing Officer agreed for the allocation of interest and exchange difference on PCFC loans as claimed by the assessee. Further, the Assessing Officer was of the view that expenditure booked by Wipro Corporate Division related to various divisions. The Assessing Officer's stand was that if no allocation was made, then the profits eligible....
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....n by the assessee is, therefore, allowed and the order of the Commissioner (Appeals) is reversed in this aspect." 11.5. The Hon'ble Tribunal in its decision in ITA Nos:426,427,468 & 469/Bang/2006 dt:30.5.2008 in assessee's own case has dealt with this issue exhaustively and had concluded that - "6. Another issue which arises before us is in respect of allocation of common expenditure. As per the assessing officer, 57% of revenue is generated by Wipro Technologies; therefore, he has allocated the common expenses in that ratio. It will be useful to reproduce the allocation of rates and taxes as made by the assessing officer: Rates and taxes Of an amount of Rs.4,65,72,898/- an amount of Rs.3.1. crores Pertains to Wipro Infotech and has been wrongly accounted in the books. Only the balance amount is being taken as common expenditure.(Net allocation of Rs.1,55,72,898/-) for allocation. From the above, it is clear that when direct expenses of rates and taxes were known in respect of unit whose income is deductible u/s 10A then otherwise allocation cannot be made. The allocation of common expenditure cannot be made on the basis of revenue generated. The assessee himself has agreed to a....
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....the assessee claimed that a similar issue was considered by the co-ordinate bench of the Tribunal for Assessment Year in ITA No.1072/Bang/ 2007 (supra) and held in favour of the assessee and therefore its ground be accepted and relief be accordingly granted. 33. The learned Departmental Representative supported the orders of the authorities below. 34. We have heard both parties, carefully perused and considered the material on record. We have also perused the order of the co-ordinate bench of the Tribunal in the assessee's own case for Assessment Year 2004-05 in ITA No.1072/Bang/07 (supra) and find that the discussions are at para 24 onwards and the relevant findings are at para 24.2 to para 24.3 which are extracted hereunder : " 24.2. We have carefully considered the argument put-forth by the Ld. A.R. and also the reasoning of the Ld. AO and the Ld. CIT (A) in their respective orders. The Hon'ble Tribunal, for the AYs 2001-02 and 02-03 in the assessee's own case had an occasion to deal with an identical issue. After deliberations, the Hon'ble Tribunal had concluded thus - "34.4. The learned CIT(A) has also not recorded a finding that such goods or services have b....
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....elation to software development activity and hence the same is to be excluded. The learned counsel for the assessee further submitted that the DRP applied the decision in the case of Liberty India Vs. CIT (317 ITR 218) (SC) rendered in the context of section 80-IB deduction and concurred with the finding of the Assessing Officer. 38. The learned Departmental Representative relied on the finding on this issue in the orders of the authorities below. 39. We have heard both parties, carefully perused and considered the material on record. We find that this issue has been considered by the co-ordinate bench of this Tribunal, in the assessee's own case for Assessment Year 2004-05 in ITA No.1072/Bang/2007 dt.30.1.2009, wherein on page 19 in para 12.5 thereof, the Bench followed its earlier order wherein it was held as under : "12.5. We have carefully considered the rival submissions and also perused the decisions on which reliance has been placed by either party. (1) In respect of Scrap sale amount, we find that the Hon'ble Tribunal in its decision for the AYs 2001-02 & 02-03 in the assessee company's own case in ITA Nos: 426,427,468 & 469/B/2006, following its earlier d....
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.... this has not been challenged by the department in thereafter, then the question cannot be permitted to be reopened and the only question then will be if netting should be allowed. In the instant case the interest receipts have not been taxed as income from other sources. The assessing officer has also not discussed the nature of the interest income. It is not the case of the revenue that interest income is not business income of the undertaking eligible for deduction u/s 10A. Under the circumstances, we hold that the learned CIT(A) was justified in directing for not excluding the interest for the purpose of computing deduction u/s 10A as the assessing officer has not treated the interest income as income from Other sources or has not held that such income does not belong to the undertaking to which section 10A is applicable". 40. In view of the finding in the decision of the co-ordinate Bench of the Tribunal (supra) and respectfully following the same, we are of the considered view that the said decision holds good for this assessment year also with regard to interest income, exchange gain and income from sale of scrap. Ground No.30 to 37 are thus allowed. 41. In Grounds No.38 ....
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....'ble Tribunal in assessee's own case for the AYs 2001-02 and 02-03 had an occasion to consider a similar issue. After an exhaustive deliberation and also drawing strength from its earlier decision in the case of Tata Elxsi Ltd. in ITA No: 315/Bang/2006 has confirmed the order of the Ld. CIT(A) on the issue. Respectfully following the said decision of the Hon'ble Tribunal, we are of the considered view that no interference is called for." 43. In view of the above decision, we are of the considered view that no interference is called for and consequently the grounds of appeal at S.Nos. 38 to 40 are dismissed. 44. In Ground No.41, the Assessee has challenged the action of the AO in excluding the Foreign taxes (VAT/GST) from the total turnover while computing deduction u/s.10-A of the Act. The learned counsel for the assessee submitted that the assessee is aggrieved by the action of the Assessing Officer in excluding the foreign tax (VAT / GST) collected from customers from the export turnover and total turnover and thereby granting a lower deduction under section 10A of the Act for STP units. The learned counsel for the assessee submitted that the Assessing Officer excluded the coll....
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....reimbursement, travel reimbursements, incentive awards and other reimbursements and deductions under section 10A, 10B and 10AA of the Act were computed by the assessee including the said amounts in the 'export turnover' of the undertakings. The assessee also received communication link reimbursements in convertible foreign exchange as a component in the realization of the sales price for the computer software exported. The assessee submitted to the Assessing Officer that the nomenclature of the reimbursement is only representative of the customers having paid the price for the computer software developed and delivered in terms of identified expenses which are reimbursed pursuant to the contract of sale of computer software and that the amounts realized in convertible foreign exchange by way of reimbursements and incentive rewards are to be included as part of 'export turnover'. 49. The learned counsel for the assessee submitted that the Assessing Officer did not concur with the assessee's claim and held that reimbursements and incentive rewards cannot be turnover of the assessee, and least of all, a part of 'export turnover', as it is not consideration received for export of compu....
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....e submitted that the Assessing Officer excluded the expenditure incurred in foreign currency from 'export turnover' on the basis of the definition of 'export turnover' contained in section 10A of the Act and held that the said expenditure having been incurred in providing technical services outside India requires to be excluded from the 'export turnover'. The Assessing Officer did not agree with the contention raised by the assessee that no such expenditure is required to be excluded as it is not in the business of providing technical services but in the business of computer software. It is submitted by the learned counsel for the assessee that in spite of Tribunal's decision, of earlier years in its own case being in its favour, the DRP has concurred with and confirmed the findings of the Assessing Officer. 53. The learned Departmental Representative on this point supported the orders of the authorities below. 54. We have heard both parties, carefully perused and considered the material on record. We find from the record that this Tribunal in the assessee's own casein ITA No.1072/Bang/2007 (supra) has considered a similar issue in favour of the assessee at paras 15 to 15.4 on pa....
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.... of six months. 58. In Ground No.59 to 71, the Assessee has projected its grievance against the action of the AO in denying deduction u/s.10-A of the Act to its undertakings at Bangalore. The stand of the Assessee on the above issue was that the learned AO after noticing that the undertakings were established at various points of time for various business reasons erred in holding that all the undertakings were established prior to 1993. It is further claimed that the learned AO erred in refusing to recognize that each of the new undertakings were different from one another and exist independently and are eligible for deduction under Section 10A. That, establishing each new undertaking is an expansion of business could not be held against the appellant. It is further claimed that the learned AO having himself employed turnover as a key throughout the assessment order for assessing the total income, erred in giving a conflicting finding that allocation of common expenses of Wipro Technologies division to the various units in STPI and SEZ would result in the undertakings not being run independently. It is pleaded that the learned AO having sought and verified various unit-wise detail....
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.... 60. It was submitted by the learned counsel for the assessee that citing similar reasons as in the earlier years assessment orders, the Assessing Officer disallowed the claim for deduction under section 10A in respect of other undertakings in Bangalore formed at various points in time as a result of expansion of business as if they were formed in 1993 for all the undertakings were located in STPs with original licences issued in 1992. In this manner, the learned counsel for the assessee submits, the Assessing Officer concluded that the assessee had only two undertakings at Bangalore and since these undertakings commenced operations prior to 1.4.1993, they were not eligible for deduction under section 10A of the Act. It is submitted that the Assessing Officer also was of the view that the undertakings are not independent since common expenses were allocated on the basis of turnover to all the units as per the method of accounting followed by the assessee and that the software development centres situated in various countries executed the work of all units. The Assessing Officer observed that the appellate orders granting relief to the assessee were contested by the Department befor....
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....the deduction will be permissible for ten years to the existing undertakings which were earlier allowed exemption u/s 10B, but that will be equally applicable for section 10A because both the sections are similar. Hence, we confirm the finding of the learned CIT (A) that the assessee is entitled deduction u/s 10A." Considering the facts and circumstances of the issue and respectfully following the verdict of the Hon'ble Tribunal referred supra, we are of the considered view that the assessee company is entitled for deduction u/s 10A and, hence, we confirm the finding of the Ld. CIT(A) on this count." 63. After careful consideration of the facts and circumstances of this issue and respectfully following the decision of the Tribunal, for Assessment Year 2004-05 (supra), we are of the considered view that the assessee company is entitled for deduction under section 10A and therefore direct the Assessing Officer to allow the same in accordance with law. Grounds No.59 to 71 are allowed to the extent indicated above. 64. In Ground No.72 to 76, the Assessee has projected its grievance against the action of the AO in not allowing the deduction under section 80-IB in respect of the eligi....
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....imilarly in respect of excluding income from trading activity of printers and monitors was also decided by the Tribunal in the aforesaid order as follows: "19.4 We have heard both parties and have carefully perused and considered the material on record. We find that a similar issue was considered by the Tribunal in the assessee's own case for A.Y. 2004-05 (supra) wherein the Tribunal following its earlier order for Asst. Years 2001-02 and 2002-03 at pages 43 and 44 at paras 25.3 and 25.4 have held the issue against the assessee as under : " 25.3. Rival submissions were duly considered. The Hon'ble Tribunal in its order referred supra, has dealt with a similar issue in the assessee's own case for the AYs.01-02 & 02-03, comprehensively. After taking into account the Ld.AO's action, the findings of the Ld. CIT(A) and also a detailed rebuttal submitted by the assessee, the Hon'ble Tribunal has observed thus - 33.5. We have heard both the parties. As per section 80IB(3), the deduction is available as a percentage of profit and gains derived from the industrial undertaking. The industrial undertaking has not been defined u/s 80IB of the I.T.Act. Industrial undertaking has been defined....
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....T (A) was justified in holding that profit from sale of monitor is not includible for computation of deduction u/s 80-IB." 25.4. Respectfully following the said decision, we are of the considered view that (i) profit from AMC cannot be included and (ii) the profit from sale of monitors cannot be included for computation of deduction u/s 80-IB." Respectfully following the decision of the Tribunal in the assessee's case for A.Y. 2004-05 (supra) and earlier years (supra), we are of the considered opinion and hold that the profit from sale of monitors and printers are not to be included in computation of deduction u/s.80 IB of the Act. These grounds raised by the assessee are accordingly dismissed." 67. Parties agreed before us that the aforesaid decision of the Tribunal would apply to the present assessment year also as the facts and circumstances are identical. Respectfully following the decision of the tribunal referred to above, Ground of appeal relating to allocation of corporate overheads to 80IB unit is allowed, while the ground relating to including income from trading activity of monitor and printers is dismissed. Thus Grounds 76 to 76 are decided accordingly. 68. ....
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....parate footing and doesn't bar the assessee from claiming set off of losses of eligible business against the undertaking which is not entitled to claim deduction u/s.80-IA of the Act. Therefore the provisions of sections 80IA of the Act cannot be a bar to claim set off. Moreover the deeming provisions contained in sec.80IA(5) cannot override the sec.70(1) of the Act. The ITAT Banglore in the case of Swarnagiri Wire Insulations Pvt.Ltd., Vs The ITO, Ward-3(1), Hubli, ITA No.200(Bang.)/2010 21.05.2010 has held that Sec.80-IA(5) cannot override the right of an Assessee for set off or being a bar to claim set off of loss u/s.70(1) of the Act. In the case of Swarnagiri Wire Insulation Pvt.Ltd., the Tribunal held as under: " The carried forward loss of the eligible business was required to set off first against the income of the subsequent years of eligible business while determining the profits eligible for deduction under section 80IA of the Act and set off losses from other sources under the same head is not permissible. However, it should not forgotten that section 80IA of the Act is a beneficial section permitting certain deduction in respect of certain Income under Chapter VIA of....
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....ained. It was further submitted that each unit has retained all such income and expenses pertaining to the business carried on by it and the transactions between the units were recorded on an arm's length basis and hence there is no need for allocation of expenses of Wipro Corporate to other Business units. 76. According to the AO, the profit of the undertaking is apparently over-stated and the depreciation adjusted profit of Rs. 34,78,67,020/- is arrived at without considering the Corporate expenses allocable to unit. Referring to the reasons discussed while dealing with 10A profits, the AO first allocated expenses of Wipro Corporate of Rs 2,62,49,109/- to Wipro Consumer Care Division (on the basis of turnover of Wipro Consumer Care division as a % of total turnover of the Company) and made a further allocation of Rs. 57,76,956/- to the industrial undertaking by applying the turnover ratio (i.e. turnover of the industrial undertaking as a % of the turnover of Wipro Consumer Care Division). The DRP agreed with the AO. 77. The ld. AR for the assessee contended that the issue of allocation of corporate expenses has already been exhaustively considered by the Hon'ble Tribunal in the....
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....ection against the Assessing Officer's finding before the DRP on this issue. Further, it is seen that there are no details of this issue on record. Since there is no cause of grievance on this issue to the assessee as no dispute on this issue arises out of the order of the DRP, this ground of appeal is found to be infructuous and is accordingly dismissed." The position in the present assessment year remains the same. Following the order of the Tribunal referred to above, Gr.No.82 is dismissed. 81. In Ground No.83, the Assessee has projected its grievance against the action of the AO in not giving credit to foreign tax paid. It is the grievance of the Assessee that the learned AO erred in not allowing full credit of foreign taxes in respect of units eligible for deduction u/s 10A ignoring the principles set in appellant's own case by the CIT(A) while granting deduction u/s 80-O in AY 1990-91, which has attained finality. The learned AO erred in overlooking the specific provisions of section 90, 90(1), DTAA, appellate orders in appellant's own case and the decision of the Hon'ble Supreme Court in 263 ITR 706 while granting foreign tax credit. 82. It is not in dispute before us that....