Income Tax Appellate Tribunal - Bangalore
M/S. Infosys Bpo Ltd, Bangalore vs Assessee on 17 January, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL
"B" BENCH : BANGALORE
BEFORE SHRI N.K. SAINI, ACCOUNTANT MEMBER
AND SMT. P. MADHAVI DEVI, JUDICIAL MEMBER
ITA No.110/Bang/2011
Assessment year : 2004-05
M/s. Infosys BPO Ltd., Vs. The Assistant Commissioner of
Plot No.26/3, 26/4 & 26/6, Income Tax,
Electronic City, Circle 11(4),
Hosur Road, Bangalore.
Bangalore - 560 100.
PAN : AACCP 4478N
APPELLANT RESPONDENT
Appellant by : Shri Padamchand Khincha, C.A.
Respondent by : Smt. Archana Chowdhry, CIT-II(DR)
Date of hearing : 17.01.2012
Date of Pronouncement : 30.01.2012
ORDER
Per N.K. Saini, Accountant Member
This appeal is by the assessee against the order dated 15.11.2010 of the CIT(Appeals)-I, Bangalore.
2. Following grounds have been raised in this appeal:
1.1 The learned Assessing Officer had erred in disallowing the cost of application software holding that the amount spent on ITA No.110/Bang/2011 Page 2 of 9 application software is capital in nature and the learned Commissioner of Income tax (Appeals) has erred in confirming the same subject to allowing 60% Depreciation on the same.
1.2 The learned assessing officer had erred in holding that the appellant has acquired intangible asset giving enduring benefit and disallowed the entire sum of Rs.1,96,03,928/- as capital expenditure and the learned CIT (A) has also erred in holding the expenditure to be of capital in nature. On proper appreciation of facts and law applicable, no capital asset having enduring benefit came into existence.
1.3 On the facts and circumstances of the case and law applicable, the amount spent being licence fee and that too for a small period is revenue in nature and hence the same is to be allowed as revenue deduction as claimed by the appellant.
2. The Assessing Officer has also not properly appreciated the account and has erroneously added a sum of Rs.18,98,870/-
holding it to be a claim of excess expenditure and the learned Commissioner of Income-tax (Appeals) has erred in confirming the same. The reversal having gone through profit and loss account, it was rightly deducted from net profit figure and the addition of such figure to income being wrong on facts of case and law applicable is to be deleted.
3. The appellant also denies the liability to pay interest. The interest having been levied erroneously is to be deleted.
4. In view of the above and on other grounds to be adduced at the time of hearing, it is requested that the amount spent on application software (Rs.1,96,03,928/-) be allowed as revenue expenses, the addition of Rs.18,98,870/- being reversal of sales incentive be deleted and interest levied be also deleted."
3. The first issue vide grounds 1.1 to 1.3 relates to the disallowance on account of cost of application software. The facts related to this issue in brief are that the assessee company is in the business of process outsourcing covering software infrastructures commonly known as call centres. For the assessment year under consideration, it filed return of income on 30.10.2004 declaring loss of Rs.1,27,28,664. Later on, the ITA No.110/Bang/2011 Page 3 of 9 case was selected for scrutiny. During the course of assessment proceedings, the AO noticed that the assessee had claimed purchase on computer application software for own use, as revenue expenditure. The AO pointed out that the similar issue was involved in the earlier year and there was no change of facts on this issue as compared to the last year, he therefore by following his earlier order for the preceding year, disallowed the total expenses towards purchase of computer software amounting to Rs.1,96,03,928 and considered the same as capital in nature.
4. The assessee carried the matter to the ld. CIT(Appeals) and submitted that the expenditure incurred for purchase on computer application software was revenue in nature and hence allowable in toto. It was stated that such expenditure had not brought into existence any capital asset or any enduring benefit because the life span of such software was only two years and that the expenditure was incurred solely for furtherance of the business of the assessee. Reliance was placed on the following case laws:
(i) CIT Vs. Ashok Leyland Ltd., (1972) 86 ITR 549 (SC)
(ii) Assam Bengal Cement Co. Ltd., Vs. CIT 27 ITR 34
(iii) Kirloskar Oil Engines Ltd., Vs. CIT (1994) 206 ITR 13 (Bom)
(iv) IBM India Limited Vs. CIT (A) (2007) 290 ITR (AT) 183 (Bangalore) (AY. 1998-99) .
5. After considering the submissions of the assessee, the ld. CIT(Appeals) observed that in the A.Y. 2003-04, Appendix-I was amended to insert (5) in part III of Part-A (Tangible Assets) in it. He further observed ITA No.110/Bang/2011 Page 4 of 9 that as per the amendment, computer including computer software were included in the block of assets on which 60% depreciation was made allowable, in other words, expenditure incurred for acquisition of computer software has to be capitalized statutorily on which depreciation was allowable @ 60%. The ld. CIT(A) also observed that even if on principle, if it was to be agreed that the application software having lifespan of only two years suffers from obsolescence and cannot be held to be a capital asset providing any enduring benefit since the statute since A.Y. 2003-04 has been amended to treat such items/goods as capital asset, so it was binding on the AO to hold that the expenditure on purchase of computer software has to be considered as capital expenditure. The ld. CIT(A) accordingly directed the AO to allow depreciation @ 60% amounting to Rs.1,17,62,359 on the said computer software and balance of the addition amounting to RS.78,41,569 was confirmed.
6. Now the assessee is in appeal. The ld. counsel for the assessee at the very outset stated that a similar issue having identical facts was involved in the earlier year in ITA No. 1385/B/10 wherein the issue has been sent back to the AO for fresh adjudication. He furnished a copy of the order dated 26.08.2011 passed by the ITAT, Bangalore Bench 'B'. He therefore requested that since the facts are similar for the year under consideration vis-à-vis A.Y. 2003-04, therefore the same course be adopted for this year also.
7. In her rival submissions, the ld. DR although supported the orders of authorities below, but could not controvert the aforesaid contention of the ld. counsel for the assessee.
ITA No.110/Bang/2011Page 5 of 9
8. After considering the submissions of both the parties and material on record, it is noticed that a similar issue having identical facts was involved in the preceding year in ITA No.1385/Bang/2010 wherein vide order dated 26.08.2011, the issue had been restored back to the file of the Assessing Officer to be decided by considering the decision of the ITAT Special Bench Delhi in the case of Amway India Enterprises v. DCIT 114 TTJ 478. The relevant findings are given in para 6 of the order which read as under:
"6. We have heard rival submissions and considered the facts of the case on record. It is true that the Hon'ble High Court of Karnataka has held that if the period of license for which the software is acquired is for a short period, the same is to be treated as revenue expenditure. The Special Bench (Delhi) of this Tribunal, in the case of Amway India Enterprises (supra), has observed as under:
"For ascertaining as to whether expenditure on computer software gives an enduring benefit to an assessee, the duration of time for which the assessee acquires right to use the software becomes relevant. Having regard to the fact that software becomes obsolete with technological innovation and advancement within a short span of time, it can be said that where the life of the computer software is shorter (say less than 2 years), it may be treated as revenue expenditure."
Though we are bound by the decision of the Hon'ble jurisdictional High Court and that of the Special Bench, as rightly pointed out by the learned Departmental Representative, neither the assessment order nor the appellate order consists of any discussion regarding the length of the period for which software was acquired against the payment of license fee. In such facts and circumstances, we deem it fit and proper to restore this matter back to the file of the AO with a direction to look into the length of periods of each software acquired during the assessment year under question and then to apply the principles laid down by the Hon'ble High Court and the Special Bench cited supra. In other words, in principle, the AO has to follow the decision of the Hon'ble High Court and Special Bench cited supra but after verification of the length of the period of each software acquired by the assessee.
ITA No.110/Bang/2011Page 6 of 9
9. Since the facts for the year under consideration are similar to the facts involved in the preceding assessment year 2003-04 in the case of M/s. Progeon Ltd. (now Infosys BPO Ltd., i.e., the assessee) v. A.C.I.T. Circle 12(4), Bangalore, therefore by respectfully following the earlier order dated 26.08.2011 of this Bench of ITAT in ITA No.1385/Bang/2010 in the case of M/s. Progeon Ltd. (now Infosys BPO Ltd.) v. ACIT i.e., the assessee itself, , we restore this issue back to the file of the Assessing Officer to be decided afresh in accordance with the directions given in the aforesaid referred to order dated 26.08.2011 of the ITAT.
10. The another issue agitated by the assessee vide ground No.2 relates to the addition of Rs.18,98,870 on account of excess claim of expenditure.
11. The facts related to this issue in brief are that the AO made this addition by observing that an amount of Rs.18,98,870 was shown as sale incentives reversed and disallowed in the A.Y. 2003-04 and the same was reduced from the total income in the computation. He further observed that the sale incentives were not admissible and though it had been disallowed in A.Y. 2003-04, it had not been reversed through P&L account for the current year, therefore this was an excess expenditure claimed. Accordingly the same was disallowed.
12. The assessee carried the matter to the ld. CIT(A) and submitted that the amount in question was shown as provision in the P&L account for the A.Y. 2003-04 and the same was disallowed and added back as income by the AO in the A.Y. 2003-04, therefore in the A.Y. 2004-05 it had been ITA No.110/Bang/2011 Page 7 of 9 reversed and the net taxable income had been reduced. It was pointed out that such reversal of a provision in a subsequent year was proper accounting treatment. Reliance was placed on the decision of the ITAT Delhi Bench in the case of M/s. Frederic R. Harris (India) Pvt. Ltd. v. DCIT 81 ITD 227 (Del).
13. The ld. CIT(A) after considering the submissions of the assessee observed that the provision reduces the taxable profit, therefore what was due from the assessee did not get collected. The ld. CIT(A) was of the view that in order that such provision be treated as an allowable deduction, it should have either statutory sanction or judicial precedent to support it, but in the assessee's case it had neither of the two because it suffered from the characteristics of contingency and not certainty. According to the ld. CIT(A), no explanation had been provided either before the AO or before him to argue that the provision was an ascertainable one and was meant for the purpose of business wholly and exclusively. He accordingly confirmed the addition made by the Assessing Officer.
14. Now the assessee is in appeal. The ld. counsel for the assessee reiterated the submissions made before the authorities below and further submitted that the assessee suo motu reversed the provision for sales incentive in the A.Y. 2003-04 wherein the amount in question was routed through profit & loss account. It was further submitted that when a provision was made in the earlier year for sales incentive, the same was not claimed as a deduction from the business profit and in the year under consideration, the provision to that expenditure was received through P&L account. As no deduction was claimed when such provision was made on ITA No.110/Bang/2011 Page 8 of 9 a reversal thereof, there would be no income chargeable to tax. He also drew our attention towards page 20 of the assessee's compilation, which is a copy of computation of income for the A.Y. 2003-04 and stated that the assessee itself added a sum of Rs.44,18,818 on account of provision for sales bonus and reduced a sum of Rs.25,19,948 which was the actual amount of sales bonus paid as per the certificate, therefore the difference of Rs.18,98,870 was already reduced while computing the income for the A.Y. 2003-04. So, it was a double addition made by the AO because the addition has already been made in the earlier year i.e., A.Y. 2003-04, therefore, it should not have been added again in the year under consideration.
15. In her rival submissions, the ld. CIT(DR) strongly supported the orders of the authorities below and reiterated the observations made by the ld. CIT(A) in the impugned order.
16. After considering the submissions of both the parties and the material on record, it is noticed from the copy of computation of income for the A.Y. 2003-04 placed at page 20 of the assessee's compilation that the assessee added in the income a sum of Rs.44,18,818 on account of provision for sales bonus and deducted a sum of Rs.25,19,948 on account of sales bonus, as such an amount of Rs.18,98,870 (Rs.44,18,818 - Rs.25,19,848) was already offered for taxation in the A.Y. 2003-04. In the present case, if the addition has been made for the same amount during the year under consideration which was earlier made on account of excess provision of sales bonus made in the earlier year, then it can safely be said that the same amount for the same incentive has been added for the year ITA No.110/Bang/2011 Page 9 of 9 under consideration, which is against the provisions of law because the same income cannot be taxed twice. We, therefore, considering the totality of the facts, set aside the order of the ld. CIT(Appeals) on this issue and remand this matter back to the file of the Assessing Officer for proper verification and if it is found that this amount in question was already offered for taxation in the earlier year, then no addition can be made in the year under consideration. The Assessing Officer is therefore directed to decide this issue after proper verification and by providing due and reasonable opportunity of being heard to the assessee.
17. In the result, the appeal is allowed for statistical purposes.
Pronounced in the open court on this 30th day of January, 2012.
Sd/- Sd/-
( SMT. P. MADHAVI DEVI ) ( N.K. SAINI )
Judicial Member Accountant Member
Bangalore,
Dated, the 30th January, 2012.
Ds/-
Copy to:
1. Appellant
2. Respondent
3. CIT
4. CIT(A)
5. DR, ITAT, Bangalore.
6. Guard file (1+1)
By order
Assistant Registrar
ITAT, Bangalore.