2017 (2) TMI 1305 - HC - Income Tax

Addition on account of guarantee commission chargeable to its associated enterprises - tribunal deleted addition - Held that - We note that the impugned order of the Tribunal while allowing the assessee s appeal holding that the arm s length price of corporate guarantee cannot be determined on the basis of comparison with the bank guarantee and relied upon the decision of Everest Kento Cylinders Ltd. 2015 (5) TMI 395 - BOMBAY HIGH COURT . No substantial question of law. Interest charged under section 234B - MAT computation - tribunal deleted addition - Held that - As decided in CIT v. JSW Energy Ltd. 2015 (5) TMI 823 - BOMBAY HIGH COURT there would be no liability to pay interest under section 234B of the Act in view of a retrospective amendment made to section 115JB of the Act. This on the ground that at the time of making the payment of advance tax the respondent was under no obligation to pay advance tax and the same arose only on account of retrospective amendment to the law which came post the conclusion of the previous year relevant to the subject assessment year.The liability to interest under section 234B of the Act would only arise as a con sequence of failure to pay advance tax. No substantial question of law. Addition outstanding creditors under section 41(1) - liabilities had been outstanding for more than three years and had ceased to exist - Tribunal deleted the addition - Held that - Revenue accepted the order of the Tribunal adverse to it on this issue for the assessment year 2005-06. However for the assessment year 2006-07 2015 (2) TMI 1262 - BOMBAY HIGH COURT in respect of the same respondent the Tribunal on this very issue followed its order for the assessment year 2005-06 and held in favour of the respondent by order dated July 27 2012. However the Revenue preferred an appeal from the order of the Tribunal dated July 27 2012 relating to the assessment year 2006-07. By an order dated February 4 2015 this court did not entertain the appeal on an identical question as raised herein. No distinction in facts and/or in law in this assessment year to that existing in the assessment years 2005-06 and 2006-07 has been shown to us which would require taking a different view. - Revenue appeal dismissed.

Summary

Issues:
1. Challenge to the order of the Income-tax Appellate Tribunal for the assessment year 2008-09.
2. Questions of law raised:
(i) Deletion of addition to the income of the assessee-company on account of guarantee commission.
(ii) Deletion of interest charged under section 234B of the Act.
(iii) Deletion of addition made on account of outstanding creditors under section 41(1) of the Income-tax Act.

Analysis:

Question No. (i):
The Tribunal allowed the appeal, stating that the arm's length price of corporate guarantee cannot be determined based on comparison with a bank guarantee. The court followed its decision in a similar case, Everest Kento Cylinders Ltd., as no distinction in facts or law was presented. As a result, the question did not raise any substantial legal issue and was not entertained.

Question No. (ii):
The court referred to a previous decision in CIT v. JSW Energy Ltd., where it was held that there would be no liability to pay interest under section 234B of the Act due to a retrospective amendment. The court emphasized that the liability to interest arises only from a failure to pay advance tax. As the issue was already settled by a previous judgment, no substantial question of law was raised, and the question was not entertained.

Question No. (iii):
The Tribunal's order in favor of the respondent-assessee was based on a previous decision for the assessment year 2005-06. The Revenue accepted the order for that year but challenged it for the assessment year 2006-07. However, the court did not entertain the appeal on the same question, as no distinction in facts or law was presented. Therefore, the question did not give rise to any substantial legal issue and was not entertained.

In conclusion, the appeal was dismissed without any order as to costs, as the court found no substantial legal issues raised by the questions presented in the appeal.