Itxa/3474/2010 Of The Commissioner Of Income Tax-7, Mumbai v. M/S. Tata Infotech Limited, Mumbai

* 1 * ITXA.3474.2010 30.6.2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 3474 OF 2010 The Commissioner of Income Tax-7V/S.M/s. Tata Infotech Limited(Amalgamated with Tata ConsultancyServices Ltd) .....Appellant ...Respondent * * * Mr. Suresh Kumar, Advocate for the appellant. Mr. F.B. Andhyarujina with Mr. Sameer G. Dalal, Advocate for the respondent. CORAM :- J.P. DEVADHAR & SMT. R.P. SONDURBALDOTA, JJ. 30 June 2011. P.C. :- 1. Heard. 2. The question raised in this Appeal, is whether the ITAT was justified in setting aside the order passed by the CIT under Section 263 of the Income Tax Act, 1961. 3. The assessment year involved herein is A.Y. 2004-05. 4. The respondent-assessee is engaged in the business of export of software. In the assessment year in question, the assessing officer allowed deduction under Section 10A of the Act in respect of the four STP units of the assessee. Explanation 2(iv) below Section 10A, defines the term `export turnover’ and provides that the said expression shall not include freight, telecom charges or insurance attributable to delivery of the articles or things or computer software outside India. The assessing officer while allowing deduction under Section 10A, excluded the above expenditure from the `export turnover’ as well as `total turnover’. 5. The CIT was of the opinion that the assessing officer should have excluded the expenditure incurred in foreign exchange for delivery of software outside India only from the export turnover’ as per‘Explanation 2(iv) below Section 10A, but, not from the total turnover’‘since there was no such prescription under Section 10A of the Act. Accordingly, the CIT passed an order under Section 263 of the Act and directed the assessing officer to revise the assessment order. excluded the expenditure incurred in foreign exchange for delivery of software outside India only from the export turnover’ as per‘Explanation 2(iv) below Section 10A, but, not from the total turnover’‘since there was no such prescription under Section 10A of the Act. Accordingly, the CIT passed an order under Section 263 of the Act and directed the assessing officer to revise the assessment order. 6. Aggrieved by the aforesaid order, the assessee filed an appeal before the ITAT and the Tribunal by the impugned order set aside the order passed by the CIT under Section 263 of the Act. before the ITAT and the Tribunal by the impugned order set aside the order passed by the CIT under Section 263 of the Act. 7. The question to be considered in this Appeal is whether the ITAT was justified in holding that under Section 10A of the Income Tax Act, was justified in holding that under Section 10A of the Income Tax Act, the expenditure liable to be excluded from the export turnover’ is also‘liable to be excluded from the total turnover’. ‘liable to be excluded from the total turnover’. ‘ 8. This Court in the case of Commissioner of Income Tax V/s. Gem Plus Jewellery India Ltd reported in [2011] 330 ITR 175 (Bom) has held the expression `export turnover’ cannot have a different meaning when it forms a constituent part of the total turnover’ for the‘purposes of the application of the formula. In the absence of any specific definition of the expression total turover’ to the contrary, what is‘excluded from `export turnover’ must also be excluded from the `total turnover’. (Bom) has held the expression `export turnover’ cannot have a different meaning when it forms a constituent part of the total turnover’ for the‘purposes of the application of the formula. In the absence of any specific definition of the expression total turover’ to the contrary, what is‘excluded from `export turnover’ must also be excluded from the `total turnover’. Gem Plus Jewellery India Ltd reported in [2011] 330 ITR 175 (Bom) has held the expression `export turnover’ cannot have a different meaning when it forms a constituent part of the total turnover’ for the‘purposes of the application of the formula. In the absence of any specific definition of the expression total turover’ to the contrary, what is‘excluded from `export turnover’ must also be excluded from the `total turnover’. (Bom) has held the expression `export turnover’ cannot have a different meaning when it forms a constituent part of the total turnover’ for the‘purposes of the application of the formula. In the absence of any specific definition of the expression total turover’ to the contrary, what is‘excluded from `export turnover’ must also be excluded from the `total turnover’. 9. In this view of the matter, we see no infirmity in the order passed by the ITAT. Accordingly, the appeal is dismissed.by the ITAT. Accordingly, the appeal is dismissed. [SMT. R.P. SONDURBALDOTA, J] [J.P. DEVADHAR, J]