2020 (7) TMI 719 - AT - Income Tax

Tribunal Decision: Transfer Pricing Adjustment, Section 10A Deduction, TDS Credit, Interest

M/s Akamai Technologies India Pvt. Ltd. Versus The Deputy Commissioner of Income Tax, Circle-1 (1) (1), Bangalore

M/s Akamai Technologies India Pvt. Ltd. Versus The Deputy Commissioner of Income Tax, Circle-1 (1) (1), Bangalore - [2020] 83 ITR (Trib) 393 (ITAT [Bang]) Issues Involved:1. Transfer pricing adjustment.2. Re-computation of deduction under Section 10A.3. Non-grant of credit of entire TDS and consequent levy of interest under Sections 234B and 234C.4. Non-grant of interest under Section 244A.Detailed Analysis:1. Transfer Pricing Adjustment:The primary issue revolves around the transfer pricing adjustment of Rs. 5,62,77,751/- made by the Transfer Pricing Officer (TPO) towards the international transaction of providing Information Technology Enabled Services (ITES) to the Assessee’s Associated Enterprise (AE), which was subsequently enhanced to Rs. 6,07,73,624/- in the final assessment order.The Assessee, a wholly-owned subsidiary of Akamai US, provided ITES and software development services to its AE. The TPO used the Transaction Net Margin Method (TNMM) as the Most Appropriate Method (MAM) for determining the Arm's Length Price (ALP), adopting Operating Profit/Operating Cost (OP/OC) as the profit level indicator. The TPO accepted 4 out of 9 comparable companies suggested by the Assessee and added 6 others, resulting in an arithmetic mean of 26.64% after adjustments.The Dispute Resolution Panel (DRP) directed the exclusion of several companies (Acropetal Technologies Ltd., E-Clerx Services Ltd., ICRA Online Ltd., Infosys BPO Ltd., and Sundaram Business Services Ltd.) from the TPO's list of comparables and instructed the AO to treat foreign exchange gains/losses as operating in nature and grant working capital adjustments on an actual basis.The Tribunal upheld the DRP’s directions, noting that the DRP did not set aside issues to the AO/TPO but made specific exclusions based on functional dissimilarity and other criteria. The Tribunal also confirmed the exclusion of foreign exchange gains/losses as operating in nature and directed the AO/TPO to follow the DRP’s directions accurately.2. Re-computation of Deduction under Section 10A:The second issue pertains to the computation of the deduction under Section 10A. The AO excluded telecommunication charges and travel expenses in foreign currency from the export turnover without reducing them from the total turnover, resulting in a lower deduction.The DRP accepted the Assessee’s alternate plea to exclude these expenses from both export turnover and total turnover, following the Karnataka High Court’s decision in CIT v. Tata Elxsi Ltd. The Tribunal upheld this direction, noting that the law declared by the jurisdictional High Court is binding and supported by the Supreme Court's decision in CIT v. HCL Technologies Ltd.3. Non-grant of Credit of Entire TDS and Consequent Levy of Interest under Sections 234B and 234C:The Assessee challenged the non-grant of full TDS credit and the consequent levy of interest under Sections 234B and 234C. The Tribunal directed the AO to verify and rectify the issue in accordance with the law, considering it a factual matter.4. Non-grant of Interest under Section 244A:The Assessee also contested the non-grant of interest under Section 244A. The Tribunal directed the AO to verify and grant the interest as per the law, treating the issue as factual.Conclusion:The Tribunal dismissed the Revenue’s appeal, allowed the Assessee’s appeal for statistical purposes, and dismissed the Assessee’s Cross Objection as supportive and requiring no separate adjudication. The Tribunal emphasized the need for the AO/TPO to adhere strictly to the DRP’s directions and the relevant legal precedents.