2021 (10) TMI 1053 - AT - Income Tax

Denial of deduction claimed u/s 10A in respect of income derived from training activity - HELD THAT - As the Tribunal in the preceding assessment year has allowed assessee s claim of deduction under section 10A of the Act in respect of the income derived from training activity. It is relevant to observe, aforesaid decision of the provision has been upheld by the Hon ble jurisdictional High Court 2014 (3) TMI 1162 - BOMBAY HIGH COURT while dismissing revenue s appeal. 2014 (3) TMI 1162 - BOMBAY HIGH COURT Facts being identical, respectfully following the decision of the co-ordinate Bench and the Hon ble jurisdictional High Court in assessee s own case, as referred to above, we direct the AO to allow assessee s claim of deduction under section 10A of the Act by including it both in the total turnover as well as export turnover. This ground is allowed. Facts being identical, respectfully following the decision of the co-ordinate Bench and the Hon ble jurisdictional High Court in assessee s own case, as referred to above, we direct the AO to allow assessee s claim of deduction under section 10A of the Act by including it both in the total turnover as well as export turnover. This ground is allowed. Deduction claimed under section 10A of the Act in respect of interest income - assessee had earned interest income on bank deposits, bonds, loans to employees, loans to subsidiary etc - HELD THAT - Undisputedly, out of the total interest income earned, the assessee has apportioned an amount of ₹ 12,37,49,444/- to the 10A units. It is the stand of the assessee that the interest income on which deduction under section 10A of the Act was claimed was because of temporary parking of surplus funds available to the 10A units out of the export proceeds. Thus, it is closely related to the activity of the 10A units. A reading of section 10A of the Act would show that profits and gains derived by an undertaking from export of articles or things or computer software would be eligible for deduction. Whereas, in the decisions relied upon by the Departmental Authorities, the dispute related to claim of deduction under chapter VI-A of the Act - in principle we accept assessee s contention that interest earned from temporary parking of surplus funds in bank deposits, bonds as well as loans to employees and subsidiary would qualify for deduction under section 10A of the Act. However, the quantification and attribution of such interest to the 10A units has to be examined by the AO. The assessee is directed to furnish necessary evidence in this regard to establish its claim of deduction under section 10A of the Act on the amount of ₹ 12,37,49,444/-. This ground is allowed subject to factual verification. Transfer pricing adjustment made because of interest charged on delayed receivables - delay in remittance by overseas subsidiaries, the assessee has submitted that such delay was because of delay in remittance by the end customers to the overseas subsidiaries - HELD THAT - As assessee had furnished reconciliation statement, bank statement of subsidiaries and some other evidences. Notably, learned Commissioner (Appeals), in fact has appreciated assessee s contention that there could be delay/considerable time gap in remittance of receivables by the overseas subsidiaries and the third party distributors, as the AEs are not the end customers, whereas, the third party distributors are themselves the customers. He has also appreciated the fact that some of the subsidiaries in USA and Netherland are incurring losses. Thus, when the AEs themselves are not the end customers and their remittance to the assessee, in turn, depends upon the remittances by the end customers, it cannot be said that the AEs have benefitted because of delay in remitting the receivables. As before the TPO the assessee had furnished certain evidences including the bank statements of subsidiaries and reconciliation statement reconciling the time gap in amounts receivable from subsidiaries and from third parties. These evidences furnished by the assessee, certainly, support assessee s claim that the delay in receivables was purely because of the delay in receipt from end customers. In fact, learned Commissioner (Appeals) has also appreciated this fact. Thus, after taking into consideration the entire factual we are of the view that the adjustment made on account of delayed receivables has to be deleted. Transfer pricing adjustment on account of customization fee - CIT-A deleted the addition - HELD THAT - As relying on assessee's own case 2010 (8) TMI 750 - ITAT MUMBAI though the subsidiaries are not directly involved in the customization work of the software but at the same time they are only authorized to collect the customization work in the market and other independent distributors are not doing said work. It is also seen that some of the independent distributors are paid higher commission then the subsidiaries without doing any job for collection of customization work. Moreover, the Learned D.R. could not controvert the findings of the Learned CIT (A) before us. TP adjustment made towards granting fee on loan extended by the assessee to the AE - HELD THAT - As rightly observed by learned Commissioner (Appeals), question of providing a corporate guarantee will arise in a situation where the borrower has obtained debt from third party lender. In the facts of the present case, the assessee itself has advanced the loans to the AEs and has charged interest at the appropriate rate of LIBOR certain basis points. No material has been brought on record by the TPO to demonstrate that the rate of interest charged by the assessee on the loans advanced is not at the appropriate rate prevailing in the countries, where the AEs are located. Therefore, in the aforesaid factual position, when the assessee has charged interest on the loans advance, there is no question of additionally charging guarantee commission for provision of corporate guarantee. - Decided in favour of assessee.

Summary

Issues Involved:
1. Denial of deduction under section 10A of the Income Tax Act, 1961 for income derived from training activity.
2. Disallowance of deduction under section 10A for interest income.
3. Transfer pricing adjustment due to interest charged on delayed receivables.
4. Inclusion of income from training activity in total turnover for computing deduction under section 10A.
5. Transfer pricing adjustment on account of customization fee.
6. Deletion of interest charged under section 234D.
7. Adjustment towards granting fee on loan extended to AE.

Issue-wise Detailed Analysis:

1. Denial of Deduction under Section 10A for Training Activity Income:
The assessee challenged the denial of deduction under section 10A for income derived from training activity. The AO and the Commissioner (Appeals) disallowed the deduction, stating that the training activity was not related to software development. However, the Tribunal noted that in the previous assessment year, the Tribunal and the jurisdictional High Court had allowed the deduction, considering the training activity as intricately connected to software export. Therefore, the Tribunal directed the AO to allow the deduction under section 10A for the training activity income.

2. Disallowance of Deduction under Section 10A for Interest Income:
The AO disallowed the deduction under section 10A for interest income, treating it as income from other sources. The assessee argued that the interest income was from temporary parking of surplus funds and should be included in the profits of the undertaking. The Tribunal referred to the Karnataka High Court's decision in CIT vs. Hewlett Packard Global Ltd., which held that interest income from temporary parking of surplus funds is integral to the business activity and qualifies for deduction under section 10A. The Tribunal allowed the assessee's claim, subject to factual verification by the AO.

3. Transfer Pricing Adjustment Due to Interest Charged on Delayed Receivables:
The TPO made an adjustment for interest on delayed receivables from AEs, applying a rate of 8%. The assessee argued that the delay was due to end customers' delayed payments to subsidiaries. The Tribunal found that the delay in receivables was due to the end customers' delayed payments and not because of any benefit passed on to the AEs. The Tribunal deleted the adjustment, agreeing with the assessee's explanation and evidence provided.

4. Inclusion of Income from Training Activity in Total Turnover for Section 10A Deduction:
The revenue challenged the inclusion of training activity income in the total turnover for computing deduction under section 10A. The Tribunal upheld its earlier decision that training activity income should be included in both total turnover and export turnover for section 10A computation. Therefore, the revenue's ground was dismissed.

5. Transfer Pricing Adjustment on Account of Customization Fee:
The TPO adjusted the customization fee paid to subsidiaries, arguing that third-party distributors were not given a share in the customization fee. The Tribunal referred to its previous decision, upheld by the High Court, which stated that subsidiaries' role in collecting customization work justified the fee paid. The Tribunal upheld the Commissioner (Appeals)'s decision to delete the adjustment.

6. Deletion of Interest Charged under Section 234D:
The revenue challenged the deletion of interest charged under section 234D. The assessee's counsel agreed that the ground should be allowed based on the current legal position. The Tribunal reversed the Commissioner (Appeals)'s decision and allowed the revenue's ground.

7. Adjustment towards Granting Fee on Loan Extended to AE:
The TPO proposed an adjustment for guarantee commission on loans advanced to AEs, arguing that a corporate guarantee would entail a cost. The Tribunal found that the assessee had charged interest at the appropriate rate and there was no need for an additional guarantee commission. The Tribunal upheld the Commissioner (Appeals)'s decision to delete the adjustment.

Summary of Appeals:
1. ITA No. 5023/Mum/2007: Allowed
2. ITA No. 4888/Mum/2007: Partly Allowed
3. ITA No. 4488/Mum/2010: Allowed
4. ITA No. 5078/Mum/2010: Dismissed

Order Pronounced in the Open Court on 12th October, 2021.