2015 (9) TMI 843 - AT - Income Tax

Transfer pricing adjustment - international transaction relating to reimbursement of interest and other finance cost - whether whatever is reimbursed by the assessee to MRK goes to the Deutsche Bank account and the MRK is not the beneficiary of any income in any form? - Held that - As decided in assessee s earlier AY we find merit in the assessee s contention that the MKR is not just a material seller to the assessee. Therefore, in principle, we cannot appreciate the approach of the TPO in accepting (i) the international 15 transactions involving the payment of cost for import of the raw materials and (ii) rejecting the reimbursement of the finance cost, interest cost etc amounting to ₹ 17.81 cr and (iii) not charging of the corporate guarantee commission on the MKR. The TPO must determine ALP of the purchase price of the raw material as a whole after considering all the relevant segments of the price ie purchase cost, administrative cost and the finance cost and interest cost, guarantee commission etc. In the remand proceedings, after considering all these segments of the pricing, if TPO finds that the unit price of the raw material is at ALP, in that case, there is no need for any TP additions. - Decided in favour of assessee for statistical purposes. Adhoc disallowance of 20% of total expenditure incurred on repairs and maintenance and treating the same as capital expenditure - Held that - While deciding the appeal for AY 06-07 the Tribunal had decided the identical issue stating that CIT (A) surprisingly on the basis of some test check of vouchers affirmed the order of AO by differing from the findings in earlier two years. We are not fully convinced with the test conducted by the CIT (A) as he himself recorded that assessee out of the expenditure claim with reference to M/ s Sunny Constructions/ S.R. Containers treated part of the expenditure as capital and part has been claimed as revenue expenditure. It indicates that assessee has consciously segregated the capital expenditure and revenue expenditure for which no fault can be found. Moreover, AO also recorded that all the necessary details and vouchers have been placed before the authorities. Therefore, we are convinced that AO very mechanically and perfunctorily disallowed 20% on adhoc basis without establishing any expenditure as capital expenditure. There cannot be any adhoc disallowance out of the revenue expenditure as was done by AO. Therefore, we reverse the order of the CIT (A) and direct AO to allow the claim as such. In case any depreciation was allowed on the disallowed amount, AO is directed to withdraw the same. - Decided in favour of assessee.

Summary

Issues Involved:
1. Reimbursement of interest and other finance costs.
2. Guarantee commission.
3. Ad-hoc disallowance of 20% of total expenditure incurred on repairs and maintenance as capital expenditure.
4. Initiation of penalty proceedings under section 271(1)(c) of the Income Tax Act.

Detailed Analysis:

1. Reimbursement of Interest and Other Finance Costs:
The Assessee challenged the CIT(A)'s decision confirming the adjustment made by the AO/TPO in determining the arm's length price (ALP) of the international transaction related to the reimbursement of interest and finance costs. The CIT(A) observed that the reimbursement was unjustified as it was the AE's liability, not the Assessee's. The CIT(A) also noted that the transaction was primarily for the purchase of goods, not a financing arrangement, and that the reimbursement reduced the Assessee's profits in India, shifting them to a tax haven. The Assessee argued that the AE was set up to import raw materials by procuring finance from overseas banks at lower costs, as the Assessee had exhausted domestic credit facilities. The AE incurred interest and finance costs on behalf of the Assessee, recovering them at actual cost without any markup. The Tribunal found merit in the Assessee's contention that the AE was not just a material seller but also a financier and facilitator. The Tribunal directed the AO/TPO to re-examine the ALP considering all relevant cost segments, including purchase cost, administrative cost, and finance cost.

2. Guarantee Commission:
The Assessee contended that the CIT(A) erred in treating the corporate guarantee given to Deutsche Bank as an international transaction under section 92B(1) of the Income Tax Act. The CIT(A) also erred in considering that the Assessee incurred no cost to provide the corporate guarantee. The Assessee argued that the beneficiary of the guarantee was the Assessee itself, and any additional charge in the form of guarantee commission would have increased the cost of imports, making the transaction revenue neutral. The Tribunal directed the AO/TPO to consider the Assessee's argument and pass a speaking order on this issue as well.

3. Ad-hoc Disallowance of 20% of Total Expenditure on Repairs and Maintenance:
The AO disallowed 20% of the total expenditure on repairs and maintenance, treating it as capital expenditure. The Assessee argued that the expenditure was for preserving and maintaining existing assets and that no new assets were created. The Tribunal noted that the Assessee had provided all necessary details and vouchers and that the AO had not identified any specific expenditure as capital in nature. The Tribunal found the disallowance to be unwarranted and directed the AO to allow the claim as revenue expenditure, reversing the CIT(A)'s decision.

4. Initiation of Penalty Proceedings under Section 271(1)(c):
The Assessee challenged the initiation of penalty proceedings under section 271(1)(c) by the AO. However, this issue was not adjudicated separately as it was dependent on the outcome of the main grounds of appeal.

Conclusion:
The Tribunal set aside the CIT(A)'s order and remanded the matter to the AO/TPO for fresh assessment, considering the directions provided. The grounds raised by the Assessee pertaining to transfer pricing adjustments were allowed in part for statistical purposes. The Tribunal also decided in favor of the Assessee regarding the ad-hoc disallowance of repairs and maintenance expenditure, directing the AO to allow the claim as revenue expenditure. The appeal was partly allowed, and the order was pronounced in the open court on 31st August 2015.