9911796707
TMI Blog2020 (12) TMI 678X X X X Extracts X X X X X X X X Extracts X X X X ..... self for the assessment year 2004-05 which has not reached finality and even when the assessee is not entitled for such set-off of losses in terms of the provisions of the IT Act? (2) Whether on the facts and in the circumstances of the case, the Tribunal is right in law in allowing the depreciation on software of Rs. 72,76,90,525/- by placing reliance on the orders passed in the case of the assessee for earlier periods which has not reached finality and even when the ingredients of section 32 are not satisfied to claim depreciation relating to software? (3) Whether on the facts and in the circumstances of the case, the Tribunal is right in law in setting aside the exclusion of interest income, rental income and other income for the purpose of deduction under section 10A of the Act by placing reliance on the orders passed in the case of the assessee for earlier periods which has not reached finality and even when the ingredients of section 10A are not satisfied to include the said income as part of section 10A? (4) Whether on the facts and in the circumstances of the case, the Tribunal is right in law in setting aside the recomputation of deduction under section 10A made b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en when the assessing authority had rightly denied the said claim amounting to Rs. 45,89,776/- considering the materials on record and conduct of the assessee? (10) Whether on the facts and in the circumstances of the case, the Tribunal is right in law in setting aside the allocation of corporate expenses to SEZ developers undertaking, Kolkatta while computing the deduction under section 80IA of the Act by placing reliance on the orders passed in the case of the assessee for earlier periods which has not reached finality and even when the assessing authority rightly allocated corporate expenditure to the SEZ while considering the claim for deduction under section 80IAB of the Act? (11) Whether on the facts and in the circumstances of the case, the Tribunal is right in law in allowing the claim for foreign tax credit made by the assessee by following the decision of this Hon'ble High court in assessee's own case (reported in 382 ITR page 179) for assessment year 2003-04 even when the assessee is not at all entitled for such foreign tax credit in respect of units eligible for deduction under section 10A has no such credit facility is stipulated in section 10A nor under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. M.N.DASTUR CO. PVT. LTD. in I.T.A. No.94/bang/2014. The tribunal also allowed the set off of losses of STP / SEZ units against other income of the assessee by following its previous order in the case of assessee itself for Assessment Year 2007-08. The claim for depreciation on software was also allowed by following its previous order in the case of the assessee for Assessment Year 2004-05. The claim of the assessee for corporate expenses for the purposes of deduction between 10A units and non 10A units was also held in favour of the assessee in view of the order passed by the tribunal in the case of the assessee for the Assessment Year 2007-08. 4. In respect of claim of the assessee for computation of profit of overseas software development center, the matter was remitted to the Assessing Officer to decide the issue in the light of the order passed in the assessee's own case for the Assessment Year 2004-05 and Assessment Year 2007-08. In respect of exclusion of interest income, rental income and other income for the purpose of deduction under Section 10A of the Act, the tribunal by following the order passed in the case of the assessee in respect of Assessment Year 2004-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the order passed in the case of the assessee itself in respect of Assessment Years 2004 05 and 2007-08. However, the claim of the assessee with regard to deduction under Section 80IB of the Act in respect of other income of the undertaking was decided against the assessee. The issue with regard to foreign tax credit was allowed in favour of the assessee by placing reliance on decision of this court in 382 ITR 179. In the result, the appeal preferred by the assessee was partly allowed. Being aggrieved, the revenue is in appeal before us. 6. Learned counsel for the revenue submitted that the tribunal relied on the assessee's case for the Assessment Years 2004-05 and 2007-08 pertaining to depreciation claimed on software, which was treated as royalty. However, it is pointed out that the decision of this court in 383 ITR 179 does not cover the issue as the assessee had made payment towards purchase of software and claimed depreciation under Section 32 of the Act. It is argued that this court in 'COMMISSIONER OF INCOME-TAX VS. SAMSUNG ELECTRONICS LTD.', 345 ITR 49 and 'COMMISSIONER Of INCOME TAX VS. SYNOPSYS INETRNAL LTD.', 212 TAXMAN 454 (KAR) has held that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .No.507/2002, MYSORE MINERALS LTD. VS. COMMISSIONER OF INCOME-TAX, (1999) 106 TAXMAN 166 (SC) and 'SHRI. CHAUDHARY TRANSPORT COMPANY VS ITO, (2020) 81 TAXMANN.COM 47 (SC). 8. Learned Senior counsel for the assessee submitted that in fact, all the substantial questions of law involved in the appeal are no longer res integra and have been answered in favour of the assessee. It is submitted that reliance placed by learned counsel for the revenue in the case of the assessee rendered in I.T.A.No.507/2002 on the ground that the issue of royalty was not considered is misconceived as in the aforesaid decision though the substantial question of law is worded slightly different but in para 38 of the judgment, the division bench of this court has considered the issue of royalty. Therefore, the claim on depreciation relating to software has rightly been allowed in favour of the assessee. It is further submitted that the issue with regard to set off of losses of units claiming deduction under Section 10A/10AA of the Act is squarely covered by decision of the Supreme Court in 'COMMISSIONER OF INCOME-TAX VS. YOKOGAWA INDIA LTD.', 391 ITR 274 (SC) and the remaining questions are answered in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the Supreme Court has interpreted Section 40(a)(ia) of the Act in the context of Section 194C of the Act. Thus, the second question of law has to be answered in favour of the assessee and against the revenue. 12. The Supreme Court in Yokogawa India Ltd. supra was dealing with the issue whether losses under Section 10A units or non Section 10A units can be set off against the profits of Section 10A units before deductions under Section 10A are effected held that it is only logical and natural that the stage of deduction of the profits and gains of the business of an eligible undertaking has to be made independently and, therefore, immediately after the stage of determination of its profits and gains. At that stage the aggregate of the incomes under other heads and the provisions for set off and carry forward contained in Sections 70, 72 and 74 of the Act would be premature for application. The deductions under Section 10A therefore would be prior to the commencement of the exercise to be undertaken under Chapter VI of the Act for arriving at the total income of the assessee from the gross total income. It is further held that the somewhat discordant use of the expression 'to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
