2016 (11) TMI 1670 - AT - Income Tax

Computation of deduction u/s.10AA - excluding foreign exchange gain from the profits of the business - HELD THAT - Foreign currency expenditure cannot be considered as part of export turnover and at the same time it also cannot be formed part of the total turnover as held by ITO Vs. SAK SOFT LTD. 2009 (3) TMI 243 - ITAT MADRAS-D . Accordingly we direct the AO not to include the same in export turnover as well as total turnover while computing deduction u/s.10A of the Act. Accordingly this ground of Revenue is remitted back to the file of AO to reconsider. DRP directing the AO to include forex gain from profits of the business for computing deduction u/s.10AA - HELD THAT - This issue came for consideration before the jurisdictional High Court in the case of CIT Vs. Pentasoft Technogies Ltd. 2010 (7) TMI 75 - MADRAS HIGH COURT wherein held that gain due to fluctuation in foreign exchange rate directly related to export sales could not be treated as other than part of profit from export of the assessee. Accordingly we do not find any infirmity in the direction of the DRP and the same is confirmed.

Summary

Issues:
1. Exclusion of foreign exchange gain from the profits of the business for deduction u/s.10AA of the Act.
2. Inclusion of forex gain from profits of the business for computing deduction u/s.10A of the Act.

Issue 1: Exclusion of Foreign Exchange Gain for Deduction u/s.10AA:

The appeal concerned the exclusion of foreign exchange gain from the profits of the business for the computation of deduction u/s.10AA of the Act. The DRP directed the AO to delete the exclusion of certain foreign exchange expenditures from the export turnover of the business. These expenses included travel expenses, IT & Technical Support services, and reimbursements to related entities. The DRP concluded that these expenses could not be excluded from export turnover and directed the AO to recompute the deduction u/s.10A accordingly. The Tribunal, after hearing both parties, held that foreign currency expenditure cannot be considered part of export turnover or total turnover. Citing a previous judgment, the Tribunal directed the AO not to include foreign exchange gain in export turnover or total turnover while computing deduction u/s.10A. The issue was remitted back to the AO for reconsideration.

Issue 2: Inclusion of Forex Gain for Deduction u/s.10A:

The second issue involved the inclusion of forex gain from the profits of the business for computing deduction u/s.10A of the Act. The assessee sought directions from the DRP to include foreign exchange gain in the business profit for deduction u/s.10A. The gain was attributed to devaluation in the currency between invoice and payment dates. The DRP, considering case laws and submissions, directed the AO to include the foreign exchange gain in the profits of the business for computing deduction u/s.10A. The Tribunal, after hearing both parties, upheld the DRP's decision, citing a High Court judgment that gain due to fluctuation in foreign exchange rate related to export sales should be treated as part of profit from export. Consequently, the Tribunal dismissed the Revenue's appeal on this issue.

In conclusion, the Tribunal partly allowed the Revenue's appeal for statistical purposes, remitting one issue back to the AO for reconsideration while confirming the decision on the other issue based on relevant case laws and legal principles.