2015 (3) TMI 1133 - AT - Income Tax

Transfer Pricing adjustment on account of difference in the issue price of equity shares to the holding company and ALP computed by the TPO treated as loan advanced to the AE - Held that - This issue regarding computation of fair market value of shares issued by the Indian subsidiary to its holding company and shortfall in premium was treated by the TPO as income as well as loan advance given to the holding company and consequent addition has been considered by the Hon ble Jurisdictional High Court in the case of Vodafone India Services Pvt. Ltd (2014 (10) TMI 278 - BOMBAY HIGH COURT ). Thus we delete the addition made by the authorities below on account of shortfall in premium for issuance of equity shares by the assessee to its holding company has been treated as deemed loan - Decided in favour of assessee Credit of TDS denied - Held that - Since the assessee has already filed a petition u/s 154 for grant of credit for tax deducted at source. Accordingly, we direct AO to verify the claim of assessee and then pass the appropriate order.

Summary

Issues Involved:
1. Transfer Pricing adjustment on equity shares issuance.
2. Non-granting of credit for tax deducted at source.
3. Levy of interest under sections 234B and 234D of the Income Tax Act.

Issue 1: Transfer Pricing Adjustment on Equity Shares Issuance:
The appeal challenged the assessment order applying section 92(1) of the Income Tax Act to equity shares issued by the appellant to its holding company. The Taxation Officer (TPO) treated the difference between the arm's length price (ALP) and actual issue price as a deemed loan. The Dispute Resolution Panel (DRP) modified the notional interest rate. The argument relied on judgments in the Vodafone and Shell cases, emphasizing the need for income to fall under charging provisions. The High Court's observations highlighted the distinction between charging and computation provisions, emphasizing the absence of a charging provision for taxing shares issued at a premium to a non-resident. The Tribunal, following the High Court's decisions, deleted the addition made by the authorities on the shortfall in premium for equity shares issuance.

Issue 2: Non-Granting of Credit for Tax Deducted at Source:
The appellant contested the non-granting of credit for tax deducted at source despite filing a petition under section 154. The Tribunal directed the Assessing Officer (AO) to verify the claim and pass an appropriate order, considering the petition and the need for verification of the tax deducted at source amount.

Issue 3: Levy of Interest under Sections 234B and 234D:
The issue of interest levied under sections 234B and 234D was deemed consequential and did not require specific findings. The Tribunal did not delve into this issue further, as it was considered to be of a consequential nature.

In conclusion, the Tribunal allowed the appeal of the assessee, emphasizing the importance of following relevant legal precedents and ensuring proper credit for tax deductions. The judgment provided detailed analysis and considerations for each issue raised, ultimately resulting in the deletion of the addition made by the authorities and directing the AO to verify the TDS credit claim.