DCIT, Bangalore V. M/s Ocwen Financial Solutions Pvt. Ltd., Bangalore

ITA 863/BANG/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 5372 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 27-04-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: G KAMALDHAR
• Keywords: Business income; Question of law; Benefit of exemption
• Section: 10B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCH B BEFORE S HRI VIJAY PAL RAO, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO , ACCOUNTANT MEMBER I.T . A. NO. 863 /BANG/20 16 (ASSESSMENT YEAR : 20 10 - 11 ) DY. COMMISSIONER OF INCOME TAX, CIRCLE 5(1)(2), BA NGALORE. . APPELLANT. VS. M/S. OCWEN FINANCIAL SOLUTIONS PVT. LTD., PRITECH PARK, BLOCK NO.12, 5 TH FLOOR, B WING, BELLANDUR VILL., SARJAPUR MARATHAHALLI RING ROAD, BANGALOR E - 560 103 . .. RESPONDENT. PAN AAACO 3764E APPELLANT BY : SHRI G. KAMALDHAR, STANDING COUNSEL. R E SPONDENT BY : SHRI T ANMAYEE RAJKUMAR, ADVOCATE. DATE OF H EARING : 04.04.2017. DATE OF P RONOUNCEMENT : 19. 05. 201 7 . O R D E R PER SHRI VIJAY P AL RAO, J .M . : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORD ER DT.12.2.2016 OF COMMISSIONER OF INCOME TAX (APPEALS) - 12, BENGALURU FOR THE ASSESSMENT YEAR 2010 - 11. 2 IT A NO. 863 /BANG/201 6 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS : 3. THE ONLY ISSUE RAISED IN THIS APPEAL OF THE REVENUE IS REGARDING ALLOWABILITY OF DEDUCT ION UNDER SECTION 10A OF THE INCOME TAX ACT, 1961 (IN SHORT 'THE ACT') IN RESPECT OF THE INTEREST INCOME ON FIXED DEPOSIT. THE ASSESSING OFFICER HAS DISALLOWED THE CLAIM OF DEDUCTION UNDER SECTION 10A IN RESPECT OF THE INTEREST INCOME OF RS.6,01,773 ON F IXED DEPOSIT BY HOLDING THAT THE INTEREST INCOME HAS NO NEXUS WITH THE 3 IT A NO. 863 /BANG/201 6 BUSINESS ACTIVITY OF THE ASSESSEE AND THEREFORE THE SAME CANNOT BE TREATED AS BUSINESS INCOME OF THE UNDERTAKING. 4. ON APPEAL, THE ASSESSEE RELIED UPON THE DECISION OF THE HON'BL E JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. MOTOROLA INDIA ELECTRONICS PVT. LTD. 225 TAXMAN 11 AND THE CIT (APPEALS) ALLOWED THE CLAIM OF THE ASSESSEE. 5. BEFORE US, THE LEARNED DEPARTMENTAL REPRESENTATIVE HAS SUBMITTED THAT IN THE CASE OF CIT V S. MOTOROLA INDIA ELECTRONICS PVT. LTD. (SUPRA), THE INTEREST INCOME WAS EARNED BY THE ASSESSEE ON THE DEPOSITS LYING IN THE EEFC ACCOUNT WHEREAS IN THE CASE OF THE ASSESSEE THE CIT (APPEALS) HAS ALLOWED THE CLAIM OF THE ASSESSEE WITHOUT GIVING A FINDING T HAT THE INTEREST INCOME ON DEPOSITS HAS ANY DIRECT OR INDIRECT NEXUS WITH THE BUSINESS OF THE INDUSTRIAL UNDERTAKING OF THE ASSESSEE. HE HAS RELIED UPON THE ORDER OF THE ASSESSING OFFICER. 6. ON THE OTHER HAND, THE LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAS SUBMITTED THAT THE INTEREST EARNED BY THE ASSESSEE ON THE FIXED DEPOSITS MADE FOR OBTAINING BANK GUARANTEE THEREFORE THIS INCOME HAS DIRECT NEXUS WITH THE BUSINESS OF THE INDUSTRIAL UNDERTAKING AND 4 IT A NO. 863 /BANG/201 6 ELIGIBLE FOR DEDUCTION UNDER SECTION 10A OF THE ACT. THE LEARNED AUTHORISED REPRESENTATIVE HAS ALSO FILED A LETTER DT.28.2.2014 WHICH WAS BEFORE THE ASSESSING OFFICER AND SUBMITTED THAT THE ASSESSEE HAS EXPLAINED THIS FACT BEFORE THE ASSESSING OFFICER. HE HAS RELIED UPON THE DECISION OF THE HO N'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. MOTOROLA INDIA ELECTRONICS PVT. LTD. (SUPRA). 7. HAVING CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD, WE NOTE THAT THE HON'BLE HIGH COURT IN THE CASE OF CIT VS. MOT OROLA INDIA ELECTRONICS PVT. LTD. (SUPRA) WHILE DEALING WITH AN ISSUE OF INTEREST INCOME EARNED ON THE DEPOSITS MADE IN THE EEFC ACCOUNT HAS HELD IN PARA 8 AS UNDER : 8. IN THE INSTANT CASE, THE ASSESSEE IS A 100% EOU, WHICH HAS EXPORTED SOFTWARE AND EARNED THE INCOME. A PORTION OF THAT INCOME IS INCLUDED IN EEFC ACCOUNT. YET ANOTHER PORTION OF THE AMOUNT IS INVESTED WITHIN THE COUNTRY BY WAY OF FIXED DEPOSITS, ANOTHER PORTION OF THE AMOUNT IS INVESTED BY WAY OF LOAN TO THE SISTER CONCERN WHICH IS DERI VING INTEREST OR THE CONSIDERATION RECEIVED FROM SALE OF THE IMPORT ENTITLEMENT, WHICH IS PERMISSIBLE IN LAW. NOW THE QUESTION IS WHETHER THE INTEREST RECEIVED AND THE CONSIDERATION RECEIVED BY SALE OF IMPORT ENTITLEMENT IS TO BE CONSTRUED AS INCOME OF THE BUSINESS OF THE UNDERTAKING. THERE IS A DIRECT NEXUS BETWEEN THIS INCOME AND THE INCOME OF THE BUSINESS OF THE UNDERTAKING. THOUGH IT DOES NOT PAR TAKE THE CHARACTER OF A PROFIT AND GAINS FROM THE SALE OF AN ARTICLE, IT IS THE INCOME WHICH IS DERIVED FROM THE CONSIDERATION REALIZED BY EXPORT OF ARTICLES. IN VIEW OF THE DEFINITION OF 5 IT A NO. 863 /BANG/201 6 INCOME FROM PROFITS AND GAINS' INCORPORATED IN SUB - SECTION (4), THE ASSESSEE IS ENTITLED TO THE BENEFIT OF EXEMPTION OF THE SAID AMOUNT AS CONTEMPLATED UNDER SECTION 10B OF THE ACT. THEREFORE, THE TRIBUNAL WAS JUSTIFIED IN EXTENDING THE BENEFIT TO THE AFORESAID AMOUNTS ALSO. WE DO NOT FIND ANY MERIT IN THESE APPEALS. THEREFORE, THE FIRST SUBSTANTIAL QUESTION OF LAW RAISED IN ITA NO.428/2007 IS ANSWERED IN FAVOUR OF THE REVENUE A ND AGAINST THE ASSESSEE AND THE FIRST SUBSTANTIAL QUESTION OF LAW IN ITA NO.447/2007 IS ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. THUS IN CASE IF THE INTEREST INCOME IS EARNED FROM THE DEPOSITS MADE IN CONNECTION WITH THE BUSINESS ACTI VITY OF THE UNDERTAKING THEN THE SAME IS ELIGIBLE FOR DEDUCTION UNDER SECTION 10A/10B OF THE ACT. IN THE CASE OF THE ASSESSEE NEITHER THE ASSESSING OFFICER NOR THE CIT (APPEALS) HAS VERIFIED THIS FACT THOUGH THE ASSESSEE IN ITS REPLY BEFORE THE ASSESSING OFFICER HAS MENTIONED THAT THE INTEREST INCOME IS EARNED ON THE DEPOSITS MADE FOR SECURING THE BANK GUARANTEE. ACCORDINGLY, IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, THE ASSESSING OFFICER IS DIRECTED TO VERIFY THE FACT THAT THE INTEREST INCOME IN QUESTION HAS BEEN EARNED FROM THE DEPOSITS MADE FOR SECURING THE BANK GUARANTEE AND THEN DECIDE THE ISSUE IN THE LIGHT OF THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. MOTOROLA INDIA ELECTRONICS PVT. LTD. (SUPRA) . 6 IT A NO. 863 /BANG/201 6 8. IN THE RESULT, THE APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON THE 19TH DAY OF MAY, 201 7 . SD/ - ( INTURI RAMA RAO ) ACCOUNTANT MEMBER SD/ - ( VIJAY PAL RAO ) JUDICIAL MEMBER BANGALORE, DT. 19 .05.2017. *REDDY GP COPY TO : 1 . APPELLANT 2 . RESPONDENT 3 . C.I.T. 4 . CIT(A) 5 . DR, ITAT, BANGALORE. 6 . GUARD FILE. ASSISTANT REGISTRA R INCOME TAX APPELLATE TRIBUNAL BANGALORE.