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Assistant Commissioner of Vs. Amadeus India (P.) Ltd. - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Delhi
Decided On
Judge
AppellantAssistant Commissioner of
RespondentAmadeus India (P.) Ltd.
Excerpt:
1. the appeal has been directed by the revenue against the order of the commissioner (appeals) dated 13-7-1998 pertaining to assessment year 1996-97. the only ground of appeal raised by the revenue relates to the deduction under section 80hhe of the act.2. briefly the facts of the case are that the main business activity of the company is to make customers (mainly travel agents) online with amadeus crs system. for connectivity to amadeus system agents are supplied with free of cost computers systems which are being provided by gts. the agents are also provided with training and system usage free of charge by amadeus india (p.) ltd. 3. the agents receive latest information regarding schedules and availabilities of worldwide participants in the amadeus system, and create reservation data.....
Judgment:
1. The appeal has been directed by the revenue against the order of the Commissioner (Appeals) dated 13-7-1998 pertaining to assessment year 1996-97. The only ground of appeal raised by the revenue relates to the deduction under section 80HHE of the Act.

2. Briefly the facts of the case are that the main business activity of the company is to make customers (mainly travel agents) online with AMADEUS CRS System. For connectivity to AMADEUS System agents are supplied with free of cost computers Systems which are being provided by GTS. The Agents are also provided with training and system usage free of charge by Amadeus India (P.) Ltd. 3. The agents receive latest information regarding schedules and availabilities of worldwide participants in the AMADEUS System, and create reservation data and records which are proceeded and exported immediately into the system, while data created is simultaneously processed in the AMADEUS Data Processing Centre abroad in Erding, Germany & confirmed through creation of a record locator.

4. Every time an agent makes an air, hotel, car or other travel related booking through AMADEUS System it is measured in terms of segments. For example a ticket booking done for Delhi-Bombay-Frankfurt-Delhi for one passenger would amount to three segments - One segment for Delhi-Bombay, second for Bombay-Frankfurt and third segment for Frankfurt-Delhi. After agent creates these segments this data is received and exported to Host System Amadeus abroad through Amadeus Computers where segments/messages are immediately processed.

5. Amadeus India (P.) Ltd. raises invoices every month to Amadeus Madrid on the basis of total No. of segments generated/exported as explained above which is remitted in hard currency by Amadeus Madrid.

6. The Assessing Officer examined the allowability of deduction under section 80HHE of the Act claimed by the assessee. He observed that such deduction was allowable when the assessee was engaged in the business of "export out of India of computer software or its transmission from India to a place outside India by any means". While relying on Explanation (b) to section 80HHE the Assessing Officer observed that it is clear that such deduction was allowable only in the case of export of computer software and such computer software means any computer programme. He felt that the activities of the assessee clearly revealed that the assessee was exporting processed data and not software. The Assessing Officer, therefore, asked the assessee to justify the claim of deduction under section 80HHE videorder-sheet entry dated 2-12-1997.

In reply the assessee stated as under :-- "(a) Justification for claim of deduction under section 80HHE of Rs. 2,01,31,460: The note enclosed on the "Nature of activities" of the assessee company (Viz Annexure I) clearly establishes that it is engaged in the "Export of Data processing/Software segments" on computerised reservation system. Export of Processed data/ computer software is one of the qualifying activities specified in section 80HHE(1)(i).

Your goodself has asked the assessee-company to establish that the information sent outside is "Software". In this connection, your attention invited to the certificate dated 5th November, 1996 of the Software Technology Parks of India (STPI) as also the Softex Form filed at pages 18 to 22 with the return of income. In annexure 'V' enclosed it has been explained that the description of the software exported viz., "S/W.B" means "Data processing software" and this has been duly certified by the STPI, an autonomous society of the Government of India, Department of Electronics -which is the technical body authorised to certify the software exports. The said certificate of the STPI dated 5th November, 1996 read with the explanatory note in para 6 above duly establishes the software exports on the part of the assessee-company." 7. In view of the reply of the assessee the Assessing Officer referred the issue to Software Technology Park, Noida (STP for abbreviation) vide letter dated 23-2-1998 to clarify, inter alia, whether the information being sent abroad by the assessee was a "programme" or "data" and "data entry transaction". The Assistant Director (Tech) of STP vide his letter dated 26-2-1998 replied as under :-- "M/s. Amadeus (India) (P.) Ltd. is involved in Data Procession activity/ Data Entry Jobs. They have a main computer in Delhi which is connected to various travel agents in India via Satellite Links.

Whenever a reservation has to be made the travel agents get connected to the Central Reservation System (CRS) at Amadeus which processes the data for its correct format. If the format is correcte the datea is sent to Germany for the availability of the tickets on a particular flight on a given date and time. Amadeus (I) (Pvt.) Ltd. is connected to their German counterpart via leased lines. The data is further processed in. Germany for the correct status of booking. The data are sent in segments. M/s Amadeus (I) (Pvt.) Ltd. bills their counterpart on basis of per segment basis. A sample copy is enclosed, also enclosed is a sample invoice. The nature of activity of M/s. Amadeus (I) (Pvt,) Ltd. is as data entry/data processing job. Data entry/Data processing is a software development as defined by Customs Notification No. 10/96 dated 17-2-1997 issued by Ministry of Finance, Deptt. of Revenue." 8. In view of the reply of STP the Assessing Officer also examined the Customs Notification No. 10/96 issued by Ministry of Finance. Para 1 (d)(i) of the said notification lays down the following :-- "In clause (a) for the words "Development of software" the words "development of software, data entry and conversion, data processing, data analysis and control" shall be substituted." 9. The Assessing Officer also referred the issue for opinion to Deputy Director General, National Informatics Centre, Planning Commission (NIC). The Dy. Director General, in his letter dated 9-12-1998 stated as under :-- "According to the details given by you, the assessee M/s. Amadeus (India) (P.) Ltd. is merely collecting information (data) from Customers and doing a bit of processing (collating) and forwarding the collated information (not any software programme) to its German Counterpart." 10. The Assessing Officer perused the observations made by the STP and NIC. He felt that as per opinion of both the authorities the assessee was only sending abroad datas and not software programmes. The Assessing Officer, therefore, asked the assessee as to why deduction claimed under section 80HHE of the Act may not be disallowed. In the meantime the assessee had also referred the issue to Electronics and Computer Software Export Promotion Council (ESC), The assessee filed a copy of the opinion received from ESC which, inter alia, stated as under :-- "It is to confirm and clarify that data processing job is Well covered within the scope of the definition of Computer Software. To substantiate this we enclose herewith a copy of Customs Notification No. 7/98 and Customs Notification dated 11-2-1998. Further customs Notification No. 10/96 dated 17-2-1997 also clarifies that data entry are well covered within the scope of computer software. Since Ministry of Finance has given detailed definition of Computer Software (for Customs Act) it would be appropriate that benefit under section 80HHE be extended to M/s. Amadeus. In case of any doubt the matter be referred to Department of Electronics before any decision is taken." 11. The Assessing Officer also examined the above observations of the ESC on the subject. He observed that ESC authorities nowhere pointed out that the assessee was developing software as per commonly accepted computer technology. He also observed that ESC has referred to some Customs notification to substantiate its views. The ESC has rather feebly and weakly argued that since as per Customs notification data processing activities were also entitled to certain exemptions the same should be applicable to deduction under section 80HHE of the Act. The Assessing Officer also referred to the reference made by the assessee to NIC vide letter dated 11-3-1998 for further clarification in which the assessee itself had mentioned that the nature of their activities was data processing/ data entry. After considering the submissions of the assessee in response to show cause by the Assessing Officer as to why deduction under section 80HHE may not be disallowed the Assessing Officer, inter alia, held that:-- (1) As admitted by the assessee vide its letter dated 8-12-1997 the activities of the assessee were that of data processing and not software development.

(2) As admitted by the assessee in the said letter it was engaged in the export of data processing/software segments on Computerised Reservation System.

(3) Various technical authorities have confirmed that the assessee was undertaking data processing activity and not computer software development.

(4) The assessee has failed to file any evidence to support that it was developing software and exporting it.

(5) It has not been able to rebut the opinion given by the STP and NIC. (6) Even the opinion of the ESC on which the assessee has placed reliance has referred to Customs notification which was relevant for grant of exemption under the Customs Act.

12. The Assessing Officer accordingly disallowed the claim of deduction under section 80HHE.13. Aggrieved by the order of the Assessing Officer the assessee filed an appeal before the Commissioner (Appeals). The Commissioner (Appeals) considered the submissions of the assessee in greater detail and after considering the same he held that the assessee was engaged in the export of software programme. It was, therefore, entitled to deduction under section 80HHE. He accordingly directed the Assessing Officer to allow deduction under section 80HHE as claimed.

14. The revenue is in appeal before us against the finding of the Commissioner (Appeals). While relying on the order of the Assessing Officer the Id. DR argued that deduction under section 80HHE was allowable to an assessee who is engaged in the business of export out of India of computer software or its transmission from India to a place outside India by any means. The word "computer software" mentioned in the section has been defined in Explanation (b) to the section. As per this Explanation the computer software means any computer programme recorded on any disc etc., which is transmitted from India to a place outside India. Thus what was necessary for claiming such deduction was of making a "computer programme" which is transmitted abroad. The perusal of the activities carried on by the assessee makes it clear that what was being exported by the assessee was only a data and not a "computer programme". He argued that data is required to run a programme. But data itself was not a programme. He stated that data is not part of the programme. Without data there can be a programme e.g.

Computerised Reservation System was a programme but it does not have any data. In the absence of data the Computerised Reservation System is a programme. While referring to Annexure I depicting the nature of activities of the assessee the Id. DR argued that from India only data/information is transmitted and entire processing is done in Germany. Thus even the segments are created in Germany. While relying on clause 10.6 of the Distribution Agreement between Amadeus Marketing S.A. Spain and the assessee which has prescribed the obligation of the assessee-company the Id. DR stated that Software Development, if any, made by the assessee was for the reasonable needs of the subscribers and was not to be exported out of India. Regarding Customs Notification issued by the Ministry of Finance, Deptt. of Revenue (on which ESC has placed reliance in its opinion the Id. DR stated that the Customs Act and Income-tax Act, were two different Acts. For the purpose of Customs Act certain activities might have been treated as Computer Software Programme. But under the Income-tax Act, the word "Computer Software" has been defined in Explanation (b) to section 80HHE and, therefore, the contents of Customs notification cannot be imported to the Income-tax Act. He, therefore, pleaded that the order of the Commissioner (Appeals) deserves to be reversed and the Assessing Officers order deserves to be restored.

15. On the other hand, the Id. counsel of the assessee while relying on the order of the Commissioner (Appeals) argued that the Assessing Officer was not justified in stating that two authorities from whom the Assessing Officer has asked for opinion directly have gone against the assessee. The fact was that both the authorities ie. NIC and STP have confirmed the stand of the assessee. Even on a reference made by the assessee the ESC has also confirmed the same. All the three Institutions/Authorities were Government of India/Government of India controlled Authorities and also experts on the subjects. The comments of these Institutions were before the Assessing Officer but he misinterpreted the same. The Id. counsel stated that section 45 of the Evidence Act provides that in technical methods the experts opinion could be obtained. The Assessing Officer himself had thought these authorities as experts. This was the reason that the Assessing Officer himself has asked for their opinions. Once the experts on the subject have expressed certain opinion due respect has to be given to such opinions. He also argued that acceptability of the opinion does not depend on its suitability. The Commissioner (Appeals), has rightly appreciated the contents of the experts opinion and allowed relief to the assessee. The Id. counsel also stated that perhaps the Assessing Officer has not understood the Computer Programme developed by the assessee. There are various programmes in one disc. Each programme is for a new agent. One agent cannot get the computer programme which is meant for another agent. Thus only one programme was available to one agent unless he asked for more programmes. The Id. counsel further argued that there are certain words used in the Income-tax Act and Customs Act. Unless the meaning of the words in both the Acts were contrary to each other these should be considered together. He stated that as per doctrine of pari materia this has to be considered so. For this purpose reliance was placed on the decisions in State of Assam v.Deva Prasad Barua [1970] 75 ITR 18 (SC) and H.H. Maharaja Rana Hemant Singhji v. CIT [1976] 103 ITR 61 (SC). It was also argued that the meaning of a particular word should be adopted which was more compatible to the entire word unless the contrary meaning was given to a particular Act. He stated that at page 2 of his order the Assessing Officer has admitted that the assessee was engaged in the export. His objection was that what was being exported by the assessee was only "processed data" and not "Computer programme". The Id. counsel wounded of his arguments by stating that the assessee was preparing a Computer Software Programme and was exporting the same through computers. The Commissioner (Appeals) has rightly appreciated these facts and allowed relief to the assessee under section 80HHE of the Act.

16. We have considered the rival submissions. The main business activity of the company is to make customers mainly travel agents/online with AMADEUS CRS System. For connectivity to Amadeus System agents are supplied with free of cost Computers Systems which are being provided by GTS. The agents are also provided with training and system usage free of charge by Amadeus India (P.) Ltd. 17. The agents receive latest information regarding schedules and availabilities of worldwide participants in the Amadeus system and create reservation data and records which are processed and exported immediately into the system, while data created is simultaneously processed in the Amadeus Data Processing Centre abroad in Erding, Germany and confirmed through creation of record locator.

18. Every time an agent makes an air, hotel, car or other travel related booking through Amadeus System. It is measured in terms of segments. For example a ticket booking done for Delhi-Bombay-Frankfurt-Delhi for one passenger would amount to three segments - One segment for Delhi-Bombay, second for Bombay-Frankfurt and third segment for Frankfurt-Delhi. After agent creates these segments this data is received and exported to Host System Amadeus abroad through Amadeus Computers where segments/messages are immediately processed.

19. Amadeus India (P.) Ltd. raises invoices every month to Amadeus Madrid on the basis of total No. of segments generated/exported as explained above which is remitted in hard currency by Amadeus Madrid.

It has claimed deduction under section 80HHE of the Act in respect of profits from export of Computer Software out of India. Section 80HHE of the Act reads as under :-- "80HHE. (1) Where an assessee, being an Indian company or a person (other than a company) resident in India, is engaged in the business of- (i) export out of Jndia of computer software or its transmission from India to a place outside India by any means; (ii) providing technical services outside India in connection with the development or production of computer software.

there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee [a deduction of the profits] derived by the assessee from such business :" 20. The word "computer software" has also been defined by way of Explanation (b) to section 80HHE of the Act. The definition reads as under:-- "(b) "Computer software" means any computer programme recorded on any disc, tape, perforated media or other information storage device and includes any such programme which is transmitted from India to a place outside India by any means: 21. The Explanation has been amended by Finance (No. 2) Act, 1998 w.e.f. 1-4-1999 by which after the words "any such programme" and before the words "which is transmitted from India" the following words have been inserted: 22. The above Explanation as amended by Finance (No. 2) Act, 1998 has further been substituted by the following w.e.f. 1-4-2001 by Finance Act, 2000 :-- (i) any computer programme recorded on any disc, tape, perforated media or other information storage device; or (ii) any customised electronic data or any product or service of similar nature as may be notified by the Board, which is transmitted or exported from India to a place outside India by any means:" 23. The revenue's case is that whatever the assessee records on disc, tape, perforated media or other information storage device is not a "computer programme". Similarly what is transmitted from India to a place outside India by any means was not a "computer programme" but only data which could make a programme. But the claim of the assessee is contrary to what is stated by the revenue. We find that the word "computer programme" has not been defined in the Income-tax Act.

However, the same has been defined in Copyright Act, 1957 as amended in 1994.

As per this definition a computer programme means "a set of instructions expressed in words, codes, scheme or any other forms including a machine readable medium capable of causing a computer to perform a particular task or achieve a particular result." If we look at this definition it will be clear that the instructions which were capable of causing a computer to perform a particular task or achieve a particular result will be a computer programme." 24. Keeping in view the definition of the words "computer software" as given in Income-tax Act and the definition of the word "computer programme" as given in Copyright Act, 1957 as amended in 1994 we have examined the activities carried on by the assessee. It is admitted position that the assessee was operating from a Software Technology Park. When the assessee was specifically asked as to what was its precise activity in the STP the assessee vide its letter dated 8-12-1997 had stated as under :-- The main businesslactivity of the company is to make customers (mainly travel agents) on line with AMADEUS CRS System. The agents receive latest, information regarding schedules and availability of worldwide participants in the Amadeus System and create reservation data and records which are processed and exported immediately into the system, while data created is simultaneously processed in the AMADEUS DATA Processing Centre abroad in Erding, Germany and confirmed through creation of a record locator. Every time an agent makes an air, hotel, car or other travel related booking through AMADEUS System it is measured in terms of segments. For example a ticket booking done for Delhi-Bombay-Frankfurt-Delhi for one passenger would amount to three segments - one segment for Delhi-Bombay, second for Bombay-Frankfurt and third segment for Frankfurt-Delhi. After agent creates these segments this data is received and exported to Host System Amadeus abroad through Amadeus computers where segments/messages are immediately processed." 25. The Assessing Officer examined the activities carried on by the assessee and felt that the assessee was not exporting any computer software. While doing so he clearly omitted to consider the fact that as per Explanation (b) to section 80HHE "computer software" means a "computer programme recorded on any disc, etc. and includes in such programme which is transmitted from India to a place outside India by any means". What the Assessing Officer should have examined was whether the assessee was exporting any computer programme or not. If an analysis of the activities carried on by the assessee is made it transpires that the assessee was exporting the instructions through computer which was capable of causing a computer to perform a particular task or achieve a particular result. As the word computer programme has not been defined under the Income-tax Act but has been defined under the Copyright Act, 1957 the activities carried on by the assessee clearly fulfils the conditions mentioned in Copyright Act.

Thus the activities carried on by the assessee clearly fulfils the conditions for claim of deduction under section 80HHE of the Act.

26. We also find that when the Assessing Officer was not satisfied with the explanation of the assessee he had made a reference to STP. The Assistant Director, STP vide his letter dated 26-2-1998 had replied to the Assessing Officer which is reproduced in the body of this order earlier. They had confirmed that the nature of activity of the assessee is as data entry/data processing job which was a software development programme as defined by the Customs Notification No. 10/96 dated 17-2-1997 issued by the Ministry of Finance, Department of Revenue. The Assessing Officer took note of the letter received from the STP but he was of the view that as the finding of the STP was based on Customs Notification and not any Notification under the Income-tax Act the same was not applicable in the Income-tax proceedings. We differ with the Assessing Officer in this regard. As per Explanation (b) of section 80HHE "Computer Software" means any "computer programme". But once the scope of the words "computer programme" was not explained in section 80HHE we have to go by the global meaning of the word. The doctrine of pari materia is very relevant for this purpose. As per this doctrine the Explanation/meaning of a particular word could be imported if the same was not contrary to the provisions of the importer Act. Department of Electronics, Government of India, the Customs Department, Department of Revenue, National Informatics Centre, Planning Commission and the ESC were authorised Government/Government Controlled Organizations from where the meaning of a particular word could be imported. This will be in consonance with the doctrine of pan materia. We, therefore, feel that the meaning of the words "Software Development", computer programme could be imported from the above named Acts/Institutions. In the year 1991-92 there was substantial demand for a new software related activity "consultancy exports" i.e., development of software 'on-site' abroad at clients location by software personnel deployed by Indian software exporters. Then CBEC, on the recommendation of ESC issued a clarificatory Notification No. 154/98 dated 13-8-1993 that export benefits will be available to software exporting units for providing consultancy services for development of software 'on-site' abroad and that consultancy fees received by software units in convertible foreign currencies shall be deemed to be export earning.

27. The CBDT was approached thereafter who very kindly in para 5 & 6 of their Circular No. 694 dated 22-11-1994 issued a similar clarification and extended the benefit of section 80HHE to software prepared 'on-site' abroad. The clarifications issued by the CBDT through the aforesaid circular provided the much desired uniformity of Government-policy among the Department of Electronics, CBEC and CBDT.28. In early 1996 further new areas of software related activities like data entry and conversion, data processing, data analysis and control and data management emerged in International trade in which India could grab a significant share in exports. These activities are covered by the definition of "computer programme" as given in Copyright Act.

Accordingly, CBEC on the recommendations of Department of Electronics issued further clarifications that Export benefits will be available to EOU/STP units who export out of India all software developed, data entry and conversion done, data processed, data analysis and controlled or data management done. The CBEC substituted the words "development of software" with the words "development of software, data entry and conversion, data analysis and control or data management" vide Notification No. 89/96 customs dated 19-11-1996. The said broad banding of scope of software activities provided desired momentum in software exports. The CBEC has further clarified "Computer Software - Scope of exemption" vide its Notification F. No. 341/20/97-TRU dated 10th February, 1998 (Circular No. 7/98-Cus.)- Even RBI has also clarified that such exports or services in non-physical form could be done on SOFTEX Form and that the designated officer of the Department of Electronics could process and certify such SOFTEX Form as in the case of other software exports through Data Links.

29. The Assessing Officer also made reference to National Informatics Centre, Planning Commission who vide their letter dated 9-2-1998 intimated the Assessing Officer as under :-- "According to the details given by you, M/s. Amadeus India Pvt. Ltd. is merely collating information (data) from customers and doing bit of processing (collating) and forwarding the collated information (not any software programme) to its German counterpart." 30. This information was communicated to the assessee-company. In response to which the assessee had stated that NIC has given their opinion on the basis of information about the assessee given to them by the Assessing Officer. If the Assessing Officer himself has not put the correct facts before the NIC the opinion is bound to be incorrect. In this connection the assessee had stated that following points mentioned in the letter of NIC were not correct.

1. The appellant company (Amadeus India) is not a subsidiary of Amadeus Germany. It is an independent company doing work for Amadeus Global Travel Distribution.

2. NIC has erred in stating that Amadeus India does message switching. This message switching i.e., connecting to host centres, is done by SITA Telecommunication. They, in turn, are using VSNL.

3. Amadeus India docs not merely collect information from its customers and do a bit of processing and forwarding of information, but in fact, uses a cryptic computer language to programme and define the host computer.

4. The response from the computer is purely based on the definition of the programme being created and modified by Amadeus India.

31. From the objections raised by the assessee as mentioned above it appears that the Assessing Officer has not supplied the complete information about the activities of the assessee to NIC. The opinion based on incomplete information cannot be relied upon. Moreover, when opinion from NIC was received by the Assessing Officer the assessee was asked as to why the claim of the assessee for deduction under section 80HHE may not be disallowed, the assessee made a reference to ESC also.

ESC vide their letter dated 10-3-1998 addressed to Assessing Officer opined as under:-- "If you go by the definition of section 80HHE of Income-tax Act, that also clearly says that section 80HHE is applicable to a person who is engaged in the business of export out of India of Computer Software.... Since, Ministry of Finance at various occasions have given elaborate definition of computer software after detailed consultations with the technical authority like Department of Electronics, it would be appropriate that benefit under section 80HHE are extended to M/s Amadeus India Pvt. Ltd. against their export of Computer Software to which they are entitled. In case of any doubt it is requested that matter may kindly be referred to the Department of Electronics before any decision is taken in this regard." 32. The facts discussed above show that the GOI has identified computer software as an area of extreme focus. In order to give impetus to the software export industry in a concrete manner and for providing conducive environment to the industry to conduct business at a pace commensurate with international practices, Government has conceived the STP Scheme, one of the significant features of which is to provide single point contact services. In this context, 'computer software' (used in contrast with 'computer hardware") will include all services where 'computer hardware' viz,, computers are used as professional tools for processing intellectual inputs to be used in automatic data processing machines. The setting up of STPs and their monitoring by the DOE, the stipulation of an export obligation, the grant of customs concessions and exemptions for imports (if any), sales tax concessions, grant of the exchange clearances for the export of the products after verification and certification by the DOE, restriction on external commercial borrowings, the amendment of the Copyright Act as well as the grant of exemption for Income-tax purposes under section 10A, 10B and 80HHE all form part of an integrated policy for development and export of software. The expression 'software' should, therefore, be understood in the same sense in relation to each of the legislations pertaining to this industry. If the assessee is registered as a unit for manufacture and export of software and is such a one for all the other aspects referred to above, it would be not only anomalous but unjust to say that it is not an exporter of software for purposes only of Income-tax merely because the various departments of Government have not kept abreast of each other in the issue of their clarificatory notifications and instructions.

33. In the absence of a specific definition of the word "programme" in the Act, the expression "computer programme" should be understood as defined in the Copyright Act and should be interpreted broadly, liberally and consistently with other relevant legislations of Government to include export to "data processing software" as well.

Only this way can one give effect to a comprehensive policy of Government in regard to this sensitive, strategic and dominant industry which fetches crores of foreign exchange for the country. There is judicial authority for the propositions that in fiscal statutes, unless the context otherwise warrants, the same expression occurring in different enactments where the colour, content and context of such statutes is the same or similar should be assigned the same meaning and that different statutes in part materia, though made at different times or even expired and not referring to each other shall be taken and construed together as one system and explanatory to each other. There is no conceivable reason why the Government or legislature could or should have intended different amplitudes of expressions common to a whole batch of legislations forming part of an integrated policy in relation to the same sets of activities in an industry.

34. Even if undue importance is to be attached to the use of the word "programme" under the Act and to the need for the presence of a "computer programme" stricto sensu, (in contrast to the wider compass of the language used in the Customs notifications) as essential for claiming an exemption, under the Act. We are of the opinion that the assessee qualifies for exemption under the quoted sections. In the computer industry, a distinction no doubt exists among three different processes : (i) preparing a programme (ii) compiling a data base on the basis of the programme and (iii) processing for purpose of adding to, or altering, the documents on the data base. In the present case, at one end, we have the Amadeus group of companies with a mega computer at Erding into which they have fed various programmes and built up a huge data base of various kinds of information relating to several airlines and service providers. At the other end we have the travel agent with a computer who merely accesses or utilises relevant information which appears on the data base of the computer. In a sense, he also adds to and alters the data base available on the computer when he books a ticket for a client by typing in the data regarding his customer such as airline, fare, ticket, nature of services etc. for such entries will be added to the data base and become available for other operators on computers working on the system all over the world. A view may perhaps be taken that what the travel agent does is not "programming" as he merely makes use of adds to or alters the information on the data base but does not touch the process by which such information is brought on to the host computer.

35. The assessee which occupies a position mid-way between the two fulfils, it will be clear from the facts stated above, the functions of a programme exporter, it does not add mere entries to the data base as done by the travel agent. In fact it has no direct interest in adding to, or drawing extracts from the data base built into the computer like the several operators all the world over. What it does actually is to supplement the functions of the Amadeus Group by preparing and transmitting programmes to the latter for incorporation into portions or "partitions" in its mega-computer at Erding in Germany, so as to enable the travel agents in its marketing region draw on the available information for their benefit. Its activities are to issue instructions to the master-computer to recognise the operators, identify them and provide them access to specific portions of the data base. There can be no doubt whatever, for the reasons discussed above, that the assessee manufactures, produces and exports software within the meaning of the three specified sections of the Act. It is open to it to claim exemption under any one of these sections and as is well established by pertaining to interpretation of taxing statutes is entitled to choose that one which is most favourable to it in any particular assessment year.

36. Apart from the above facts we also find that the assessee-company submits their monthly return for exports to the Competent Authority which has accepted the same in discharge of export obligation. We have also noted that the export of software as per the statutory requirements are also declared on exporters declaration form SOFTEX (specimen of SOFTEX form has been filed). The competent authority ie., Department of Electronics authorised official also certifies that the software described in the SOFTEX form was actually transmitted and the export value declared by the exporter has been found to be in order and accepted by the authorised officer.

37. We also find that the assessee has furnished a report of the Chartered Accountant in the prescribed format along with the return of income certifying that the deduction has been correctly claimed in accordance with the provisions of the section.

38. Keeping in view the above facts we hold that the assessee was entitled to deduction under section 80HHE of the Act as all the necessary conditions for such claim have been satisfied with. As the order passed by the Commissioner (Appeals) is in accordance with law and facts no interference in the same is called for. We, therefore, uphold the same.

39. We also find that before the CIT(A) the assessee had made an alternate claim for deduction under section 10-A/ 10-B and section 80HHC of the Act. The Commissioner (Appeals) held that the assessee-company having been set up as a ,100% export oriented unit under STP Scheme, its claim under section 10-A/10-B of the Act was prima facie admissible. This finding of the Commissioner (Appeals) has not been challenged by the revenue by way of appeal. In other words, the revenue has accepted that the assessee company satisfied the conditions of the claim of exemption under section 10-A/10-B of the Act. It may be mentioned in this connection that deduction under sections 10-A and 10-B of the Act was available only if the assessee was an industrial undertaking and produces an article or thing. By accepting that the assessee was entitled to deduction under section 10-A/ 10-B of the Act there is no force in the revenue's submission that the assessee was not engaged in making or producing of a computer programme. Considering the facts as a whole we uphold the order 6f the Commissioner (Appeals) and dismiss the ground of appeal raised by the revenue.


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