IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH ‘C’: NEW DELHI
BEFORE SMT. DIVA SINGH, JUDICIAL MEMBER AND
SHRI T.S. KAPOOR, ACCOUNTANT MEMBER
I.T.A.No.5155/Del/2012
Assessment Year: 2006-07.
Dy. Commissioner of Income-tax,
12(1), New Delhi.
(Appellant)
Vs.
M/s. Honeywell International India Circle
(P) Ltd., PlotNo.2A, 1st Floor,
Malviya Nagar Corner Market, New
Delhi-17.
PAN: AABCA7954K.
(Respondent)
Appellant by: Shri Satpal Singh, Sr. DR
Respondent by: Shri Deepak Chopra, Advocate.
O R D E R
PER DIVA SINGH, JUDICIAL MEMBER
This is appeal filed by the Revenue against the order dated 2nd July, 2012 of the Commissioner of Income-tax (Appeals)-XV, New Delhi pertaining to the Assessment Year 2006-07 on the following grounds:-
“1. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) is correct in directing the AO to compute the deduction u/s 10A by excluding these communication expenses from the total turnover as well?
2. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) is correct in holding that computer peripherals an accessories are eligible for depreciation @ 60% ignoring the fact that the Apex Court in the case of CITI CORP Maruti Finance Ltd. observed
that there is a question of law involved therein?
3. Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) is correct in holding the training expenses as revenue expenses?”
2. The relevant facts of the case are that in the year under consideration the assessee who is wholly owned subsidiary of Honeywell International Inc. Returned ncome of Rs.15,63,19,080/- by way of filing return on 30th November, 2006. The assessee company is primarily engaged in the business of assembling and manufacturing system sensors. The return was processed under sec.143(1) and thereafter the case was selected for scrutiny by way of issuance of notice under sec. 143(2) on 07.09.2007 followed by another notice under sec. 143(2) sent along with questionnaire under sec. 143(1) on 29.04.2008/08.09.2009. The Assessing Officer observed that in the year under consideration the assessee had undertaken international transactions with its associated enterprises and as the value of international transaction was more than Rs.15 crores after following the procedure laid down in sec. 92CA of the Act the international transaction entered into by the assessee with the associated enterprises was referred to the Transfer Pricing Officer for determining the arm’s length price. The TPO’s report was received wherein no adverse inference was drawn in regard to the transactions with the associated enterprises.
3. The facts pertaining to the issue arising in ground No.1 in the departmental appeal in the above factual matrix is that considering the claim of the assessee that it is operating a STPI unit whose profit are eligible for deduction under sec. 10A of the Act, the Assessing Officer required the assessee to explain why the Telecommunication expenses amounting to Rs.13,78,384/- attributable to the delivery of goods may not be excluded from the total export turnover for deduction under sec. 10A. Considering the definition of “export turnover” as defined in Explanation 2(iii) of sec.10A the assessee was required to give the details of any freight, telecommunication charges and insurance attributable to the delivery of the goods and details of expenses incurred in foreign exchange in providing the technical services outside India.
3.1 In response thereto the assessee submitted that telecommunication expenses relatable to the Call Centre Division, which is eligible for claim of deduction under sec. 10A of the Act amounting to Rs.43,02,551/- was incurred on account of voice mail and data linking charges, payments of which were made to BSNL and Airtel in Indian currency. Out of Rs.43,02,551/-, Rs.8,40,059/- related to the Call Centre Division and that no freight and insurance expenses have been incurred by the Call Centre Division of HIIPL, which is attributable to delivery of articles or things or computer software outside India.
3.2 Considering the submissions and the provisions of sec. 10A the Assessing Officer was of the view that the claim of deduction under sec. 10A is permissible on the profits and gains “derived from” export. The income from “derived from export” can be said only if it is directly related to such exports. Considering the legal position that the scope of the expression “derived from” being narrower to the expression “attributable to”, he was of the view that it is not sufficient if a commercial connection is established between the profits earned and the export of goods or merchandise. The AO being of the view that the law requires that such profits must be derived from export of goods or merchandise, the export of goods itself must yield that profit and it must be the direct source of profit and not means to earn any other profit. Reliance was placed upon the judgment of Apex Court in the case of Cambay Electric Supply Industrial Co. Ltd. vs. CIT (1978) 113 ITR 84 (SC). Similar observation it was observed in regard to the “derived from” had been made by the Apex Court in the case of CIT vs. Sterling Foods (1999) 237 ITR 579 (SC) and Hindustan Lever Ltd. vs CIT (1999) 239 ITR 297 (SC). Reference was made to the observations made by the Apex Court in the context of the word “derived” wherein it had been held that it is not a term of art and its use in the definition indeed demands an enquiry into the genealogy of the product, but the enquiry should stop as soon as the effective source is discovered, as had been held by the Privy Council in the case of Kamakhaya Narayan Singh (1948) 16 ITR 325. Strength was also drawn from CIT vs. Madras Motors Ltd./M.M. Forgings, 257 ITR 60 (Mad.) which position was also considered by the Apex Court in the case of Pandian Chemicals Ltd. Vs. CIT (2003) 129 Taxman 539 (SC). In view of this position the AO was of
the view that it is clear that the telecommunication charges amounting to Rs.13,78,384/- is to be excluded from the export turnover. The computation of deduction under sec. 10A of the Income-tax Act, 1961, as such was made as per Annexure `A’ to the assessment order.
4. Aggrieved by this the assessee came in appeal before the first appellate authority. Before the CIT(A) as per the impugned order, the assessee made oral submissions and written submissions. 4.1 As per Para 4 of the impugned order the contention on behalf of the assessee
was that if the telecommunication expenses are excluded from the export turnover, then the said expenses should also be correspondingly excluded from the total turnover of the undertaking while computing deduction under sec. 10A. Despite this the AO went ahead and excluded the telecommunication expenses from the export turnover and recalculated the deduction under sec. 10A of the Act.
4.2 Apart from that as per the gist of the written submissions reproduced in the impugned order the assessee also submitted that the telecommunication expenses of Rs.13,78,384/- are not included in the export turnover of the Call Centre Unit of Rs.9,47,93,425/-. The telecommunication expenses it was stated have not been separately charged by the assessee in the invoices raised on the clients. The assessee charged fee for the services rendered at a fixed rate which was as per Full Time Employee (FTE) rate. It was stated that there was no separate recovery for telecommunication expenses, as such telecommunication expenses ought not to be excluded from the export turnover while computing deduction under sec. 10A of the Act. Reliance was placed upon the orders of the Tribunal in the case of Patni Telecom (P) Ltd. and Cymbal Information Services (P) Ltd. vs. ITO, (2008) 308 ITR 414 (Hyd.). The relevant extract from the impugned order is reproduced hereunder:-
“In view of the aforesaid circular, it can be said that only those freight, telecommunication charges or insurance charges which are attributable to delivery of goods out of India are to be considered while reducing expenditures from consideration received in convertible foreign exchange. Thus, if such expenses are not attributable to delivery of goods outside India, these expenses are not required to be deducted from the consideration. One more aspect which is required to be considered here is that the consideration received in convertible foreign exchange includes such expenses. If such expenses are not included in the consideration received in convertible foreign exchange, deduction of such expenditure from the consideration received does not arise. Normally in a transaction of purchase and sale there are two types of conditions between the parties. One condition' is where price quoted of goods is inclusive of all expenses or in other words, price quoted is only in respect of goods. Another condition is where price of goods and charges of expenses are separately stated. In a case where such expenses are to be separately charged, invoices are prepared showing value of the goods and such expenses. if. the quoted price is inclusive of such expenses, then consolidated value of the goods is only mentioned in the invoice. In a case where only value of goods is quoted, expenses are borne by the supplier. In cases where expenses have not been separately charged, the convertible foreign exchange received is consideration of the goods only. Where such expenses are separately charged in the invoices, the consideration received in convertible foreign exchange includes the value of the goods and such expenses. If the consideration received is only against the goods, then there is no need to deduct such expenses from the consideration received in convertible foreign exchange. In cases where such expenses are separately charged, the expenses are required to be reduced from the consideration' received for the purpose of arriving at the export turnover …………”
“………..The appellant also submitted that in the event, telecommunication expenses are reduced from the export turnover, the same ought to be reduced from the total turnover also for computing the profits eligible for deduction under Section 1OA of the Act. The underlying principle in this regard, is based on the fact that there should be parity in the items included in the export turnover and the total turnover whilst applying the formula prescribed for computing the deduction under Section 1OA of the Act. Thus, if a particular item of expenditure/ income is sought to be excluded from the export turnover of the undertaking, applying the principle of parity then such expenditure/ income should also be excluded from the total turnover of the undertaking………”
To buttress the above arguments the appellant also relied on the following judicial precedents:
• "……..The Hon'ble Supreme Court's decision in the case of Lakshmi Machine Works. [290 ITR 667} wherein it has been observed in the context of computing deduction under Section 80HHC that for working out the ratio or proportion both the export turnover and the total turnover should consist of the same components or ingredients.
• The Hon'ble Karnataka High Court by its common order in the case of CIT, ACIT, ITO and DClT vs TATA Elxsi Ltd., Honeywell Technologies Solutions Lab (P) Ltd., Quality Engg. and Software Technologies (P) Ltd., Dell International Services India (P) Ltd., AOL Online India (P) Ltd. and Ors. 247 CTR 334 [2011]. In the said judgment one of the parties, Honeywell Technologies Solutions Lab (P) Ltd., was a group entity of the appellant. The Hon'ble High Court observed as under:
The appellant has also submitted that in its facts, as there is no domestic turnover, the formula for computation of deduction under section 1OA effectively gets reduced to:
Profits of the business of the undertaking x Export turn over
Export turn over
Hence, if some item of expenditure is excluded from the numerator then the same effect will have to given to the denominator also as the numerator and the denominator in its case is the same i.e. export turnover……….”
4.3 Considering these submissions the CIT(A) came to the following conclusion:-
“5. I have gone through the submissions of the appellant and have also considered the facts and evidences on record and have perused the AO's order. In the appellant’s group company ease, the Karnataka HC in the case of CIT Vs. TATA Elxsi Ltd. Honeywell Technologies Solutions Lab (P) Ltd., Quality Engg. and Software Technologies (P) Ltd., Dell International Services India (P) Ltd., AOL Online India (P) Ltd. and Ors. 247 CTR 334 [2011] have held that when the 'total turnover' includes “export turnover”, the very same meaning given to the “export turnover” by the legislature is to be adopted while understanding the meaning of the “total turnover”. Further, it is also noted that the “total turnover” is sum total of “domestic turnover” in the appellant’s case, the “export turnover” will be equal to “total turnover”. Hence, if an item of expenditure is excluded from “export turnover" the same has to be excluded from “total turnover” as well. Hence, following the decision of H'ble Supreme Court in the case of Lakshmi Machine Works (Supra) and decision of Karnataka HC referred to above and in light of facts of the case, the ground of appeal is allowed.”
5. Aggrieved by this the Revenue is in appeal before the Tribunal.
6. The learned Sr. DR Shri Satpal Singh invited our attention to Page 2 of the assessment order contended that the AO has given sufficient and cogent reasons in his order for recalculating the claim of deduction allowable to the assessee under sec. 10A as the words used by which we have to be guided are “derived from export” and the issue has been settled judicially by way of various legal pronouncements which are referred to in the assessment order and heavily relied upon by the Revenue is that the term “derived from” is narrower in meaning while compared to the term “attributable to” and in the facts of the present case telecommunication charges are not directly related to the export turnover, as such it has to be excluded.
6.1 The learned AR reiterated at length the submissions made before the CIT(A) and the AO. It was his submission that the said issue has been considered by the jurisdictional High Court in the judgment rendered on 16th November, 2011 in the case of CIT vs. Genpact India (2011) 203 Taxman 632 (Del), a copy of which was filed at the time of hearing. Referring to the same it was submitted that their Lordships have held that in computing the total turnover for the purpose of deduction under sec. 10A, the communication expenses have to be excluded. It was also submitted that the jurisdictional High Court has followed the Hon’ble Bombay High Court’s judgement in the case of CIT vs. Gem Plus Jewellery India Ltd. (2010)
330 ITR 175 (Bom.). Attention was also invited to Page 13 of the Paper Book wherein the assessee before the CIT(A) had pressed to show by way of a chart, how the assessee had calculated the deduction. It was urged that if the same has to modified as per the AO then parity demands that it be modified accordingly.
6.2 The learned DR in reply in view of the reliance placed upon the judgment of the jurisdictional High Court fairly stated that he has no contrary view of either jurisdictional High Court or of the Apex Court on the issue. However, reliance was placed upon the assessment order.
7. We have heard the rival submissions and perused material available on record. On a careful consideration of the same, we are of the view that in the peculiar facts and circumstances of the case, the impugned order deserves to be upheld as the view taken by the CIT(A) relied upon the coordinate orders of Hyderabad Bench in the case of Patni Telecom (P) Ltd. And Cymbal Information Services (P) Ltd. also finds support from the judgement of the Jurisdictional High Court in the case of CIT vs Genpact India (cited supra). The judgement relied upon by the AO in the context of “expression attributable to” and “derive from” addresses, the settled legal position however in the facts and circumstances of the present case, the nature of expenses in the context of deduction u/s 10A in the peculiar facts and circumstances of the case has been considered. No contrary view of the Jurisdictional High Court or of the Hon’ble Apex Court has been brought to our notice in order to canvass that the impugned order deserves to be upset. Being satisfied with the reasoning and finding, ground no-1 of the department is dismissed.
8. The facts pertaining to the next issue addressed by the Revenue as found discussed in the assessment order are that the assessee company made addition of Rs. 15,06,815/- to the block of computers and claimed depreciation @ 60%. The depreciation @ 60% was claimed on computer peripherals, printers, UPS etc. On query by the Assessing Officer it was submitted on behalf of the assessee that HIIPL had received a corporate subsidy from its associated enterprise (Honeywell International Inc. US (HII) for purchase of capital items for the Call Centre Division. The corporate subsidiary was entirely utilized to purchase capital assets required for providing IT-enabled services by the assessee to its associate enterprises. Addition of Rs.87,88,043/- made to the Call Centre Division has been adjusted against the corporate subsidy. As such no depreciation has been claimed by the assessee in its return of income. The depreciation has in fact been calculated on the balance addition of Rs.15,06,816/. It was submitted that the computers include call quality monitoring hardware/software, routers for network connectivity, EPABX, tape drive, data networking cables, printers, inverters, modems, etc. and these items form part of computer system. These items, it was urged are integral part of the computer system as they can be used only with computers and not otherwise. Hence depreciation @ 60%, it was submitted was to be allowed. The AO also observed that the assessee has referred to certain transactions in regard to the computer system as defined in sec. 36(1)(x) of the Act . However not convinced with the explanation offered Rs.6,78,067/- was disallowed, calculating excess depreciation @ 45% (60 – 15%). The AO added the same to the income of the assessee.
9. In appeal against said action of the AO the assessee placed reliance upon the decisions of Hon’ble Delhi High Court in the cases of (i) CIT vs. BSES Yamuna Powers Ltd. (ITA No.1267/2010); (ii) CIT vs. BSES Rajdhani Powers Ltd. (ITA No.1266/2010); & (iii) CIT vs. Orient Ceramics & Inds. Ltd. (ITA No.65 and 66 of 2011).
9.1 Considering the submissions of the assessee as well as the decisions relied upon by the assessee, the CIT(A) came to the following conclusion:-
“6. I have gone through the submissions of the appellant as well as the details submitted and the judgments of the Hon'ble Delhi HC where depreciation @ 60% has been allowed on computer peripherals. In view of the decision of the jurisdictional High Court in the cases mentioned above the AO is directed to allow depreciation on computer as well as computer peripherals @ 60%. Hence, these grounds of appeal are allowed.”
10. Aggrieved by which the Revenue is in appeal before the Tribunal. The learned DR placed reliance upon the assessment order. However, in the face of judgments of the jurisdictional High Court on the issue, he had nothing more to say.
11. The learned AR on the other hand, relied upon the judgments taken into consideration by the CIT(A) of the jurisdictional High Court. It is also his submission that there is no contrary view on the issue as such the impugned order may be affirmed.
12. We have heard the rival submissions and perused the material available on record. On a careful consideration of the same, we are of the view that the impugned order cannot be faulted with on this ground. The issue whether the computer peripherals i.e. printers, inverters, modems, routers for network connectivity, EPABX, tape drive etc. are integral parts of the computer is no longer in question as the issue has consistently been decided in favour of the assessee by various orders of the Tribunal following the judgments of the jurisdictional High Court of Delhi. Accordingly, considering the facts, circumstances of the case and the legal position on the issue, ground No.2 of the Revenue is dismissed.
13. Next issue agitated by the Revenue is found discussed in Para 7 of the assessment order. A perusal of the same shows that the AO in the course of proceedings asked the assessee to submit the details of training expenses in view of the fact that the claim of expenditure amounting to Rs.4,58,775/- was made. In response thereto it was stated on behalf of the assessee that Honeywell (Singapore) PTE Ltd. (HSPL), one of the Honeywell Group Companies incurred certain expenses on behalf of the assessee amounting to Rs.4,58,775/- which was reimbursed to the said HSPL. It was also claimed that the expenditure incurred and reimbursed by HIIPL i.e the assessee has been laid out/expended wholly and exclusively for the business purposes of the assessee and is allowable as a revenue deduction. It was submitted that Rs.46,845/- has been withheld and deposited with the Government Treasury on the said reimbursement to HSPL for the F.Y. 2005-06 and that the above payment does not qualify as “fee for included services” under the India-Singapore Treaty and hence no withholding is required.
14. Considering the submissions the AO was not convinced as the assessee had itself withheld the amount of Rs.46,845/- and deposited in the Government Treasury which according to him led to the conclusion that the expenditure is not a revenue expenditure and in fact it is a capital expenditure. Accordingly, disallowance of Rs.4,58,775/- was made.
15. Aggrieved by this the assessee went in appeal before the CIT(A). Before the CIT(A) it was submitted that it had incurred the expenditure in the normal course of its business, neither any new asset had come into existence nor any benefit of enduring nature had been derived by the reason of incurrence of such expenditure. It was urged that the training programmes are conducted in the organization at regular intervals and are recurring in nature as the employees need to be updated on a continuous basis of the changes in any industry to better adapt them to the changing environment and training is imperative to be imparted to the employees considering the business of the assessee which requires training to the employee before they can carry out their work/functions. The disallowance it was stated had been made by the AO without providing cogent reasons and is based on assumptions, surmises and conjectures. Reliance was placed upon the judgment of the Apex Court in the case of Empire Jute Co. Ltd. vs. CIT (1980) 124 ITR 1 for the following proposition:-
"if the outgoing expenditure is so related to the carrying on or conduct of the business that it may be regarded as an integral part of the profitearning and not for acquisition of an asset or€ a right of a permanent character, the possession of which is a condition of the carrying on of the business, the expenditure may be regarded as revenue expenditure.”
Reliance was also placed upon another judgment of the Hon’ble Apex Court in the case of Dalmia Jain & Co. Ltd. vs. CIT (1971) 81 ITR 754 for the following proposition:-
“The principle which has to be deduced from decided cases is that, where expenditure laid out for the acquisition or improvement of a fixed capital asset is attributable to capital, it is capital expenditure but if it is incurred to protect the trade or business of the assessee then it is revenue expenditure. In deciding whether, a particular expenditure is capital or revenue in nature, what the courts have to see is whether the $expenditure in question was incurred to create any new asset or was incurred for maintaining the business of the company. If it is former it is capital expenditure; if it is the latter, it is the revenue expenditure.”
15.1 Considering the same the CIT(A) came to the following conclusion:-
“9. I have gone through the above submissions of the appellant and case laws relied upon by the appellant and have also considered the facts and evidences on record and have perused the AO's order. I am of the considered view that the trainings are held at regular intervals and are recurring in nature as the employees need to be updated on a continuous basis of the changes in any industry.
Hence, in the facts of the case in the hand I hold that the expenditure incurred on training is revenue in nature and not capital as no new assets have brought into existence. Further by training the employees/ the profit earning capacity is being maintained, accordingly by no stretch of imagination it is an expenditure on capital account. Further, in the scenario, when the AO is accepting that TDS has been deducted and deposited; I fail to understand the logic behind the disallowance. In view of the above discussion the disallowance made by the AO, is
deleted.”
16. The learned DR placed heavy reliance upon the assessment order on the basis of which it was his contention that the expenditure incurred for training its employees is a capital expenditure as it has enduring quality and the benefits of the said training can be reaped by the assessee over the years, as such the claim of the assessee has wrongly been allowed by the CIT(A) and in fact the benefit remains with the employees permanently which is available to the assessee as such the impugned order be set aside and the assessment order be upheld.
16.1 The learned AR on the other hand placed heavy reliance upon the submissions made before the CIT(A) some of which are reproduced in the impugned order and the judgements taken into consideration by the CIT(A) which were relied upon by the assessee. It was also his submissions that when new employees join the assessee company, then initially they have to be trained and these expenses are for different branches and in the nature of assessee’s business training has to be imparted. The issue it was submitted has been considered by the coordinate Delhi Bench of the Tribunal in the case of Schneider Electric India (P) Ltd. vs. Addl. CIT (2008) 16 DTR (Del)(Trib)275, a copy of which has also been filed before the Bench. Inviting attention to the head note therein culled out from Para 23 of the said order, it was submitted that the Coordinate Bench had held that the expenditure on recruitment and training was required to be incurred by the assessee company on regular basis having regard to the nature of his business and the refresher courses were being conducted regularly by it to update its employees with fast changing techniques of production, marketing etc. In these facts the Coordinate Bench had held that it cannot be said to have resulted in accrual of any enduring benefit to the assessee company and if at all there was such benefit accrued to it, the same was certainly not in the capital field and was held to be revenue expenditure. The facts it was submitted are identical as such the claim deserves to be allowed and has rightly been allowed by the CIT(A).
16.2 The learned Sr. DR on the other hand, submitted that it cannot be ignored that the training imparted to its employees benefits the assessee over the years and as such it is a permanent asset with the assessee. Accordingly, the training and experience which is gathered by the assessee is not a revenue expenditure and is a capital expenditure.
17. We have heard the rival submissions and perused material available on record. A careful consideration of the facts and circumstances which are not in dispute namely that expenses have been incurred for training programmes on regular basis provided to the employees of the assessee in order to update them on a continuous basis of the changes in the industry so as to better adapt them to the changing environment. In these afore-mentioned peculiar facts and circumstances, there can be no two opinions that training is an imperative exercise which when imparted to its employees necessarily impacts the better functioning of the employer. In the facts of the present case where the business needs of the assessee demand the training and
upgradation of the skills of the staff of the employer and the assessee has incurred such an expenditure the same as per the settled legal position as considered by coordinate orders of various Benches of the Tribunal has to be allowed as a revenue expenditure. In the course of the arguments, the Ld. AR has relied upon the order of the Tribunal in the case of Schneider Electric India (P) Ltd (cited supra). Reference may also be made to the order of the Coordinate Bench in the case of ACIT vs Hero Management Services Ltd. ITA No-5180/Del/2011 vide its order dated 29.02.2012 wherein the expenditure incurred for training the staff for voice in UK & USA accents in the business of the assessee which was operating call centre and BPO services. It has been held that the said expenditure has to be allowed as a business expenditure. Accordingly being satisfied with the reasoning and finding of the CIT(A), the grounds raised by the department are dismissed.
In the result, the appeal of the department is dismissed.
The order is pronounced in the open court on 22nd of March 2013.
Sd/- Sd/-
(T.S.KAPOOR) (DIVA SINGH)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 22/03/2013
*Manju Gaur/Amit Kumar*
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT (Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI
