2016 (10) TMI 1224 - AT - Income Tax

Applicability of provisions of section 92A - relationship of AE between the Assessee Company and GLATIPL - Held that - As per the explanation, amendment carried out in sub section (2) of section 92A by Finance Act, 2002 w.e.f. 01.04.2002, as reproduced by the tribunal in Para 11 reproduced above, mere participation of one or more persons in the management or control or capital of both the enterprises shall not make them AE unless the criteria specified in sub section (2) are fulfilled. We have seen that even as per the learned DR of the revenue, clause (j) of sub section (2) of section 92A is attracted but this claim is also devoid of merit because he could only point out that one director of the assessee company and of GLATIPL is common but this fact alone does not establish that the said common director is controlling GLATIPL when the said company is a subsidiary of ILSGL and the assessee company or its directors are not having any relationship with ILSGL or director of ILSGL. Hence, by respectfully following this tribunal order, we hold that since the parameters laid down in sub section (1) and (2) of section 92A are not fulfilled, there is no relationship of AE between the Assessee Company and GLATIPL and therefore, the provisions of Chapter X of I. T. Act have no application. Disallowance of Transportation charges - Disallowance of Expenses under Explanation to section 37 (1) and Addition made on account of sale of Land - Held that - Hence in line with the tribunal order in A.Y. 2010 - 11 in assessee s own case, we delete first two disallowances i.e. (1) Disallowance of Transportation charges, and (2) Disallowance of Expenses under Explanation to section 37 (1) and in respect of third issue i.e. Addition made on account of sale of Land, we set aside the order of CIT (A) on that issue and restore the matter to A.O. for a fresh decision with same directions as were given by the tribunal in A. Y. 2010 - 11. Ground No. 6 is allowed in this manner.

Issues Involved:
1. Validity of the assessment order under section 144C.
2. Application of Transfer Pricing (TP) provisions.
3. Determination of Arm's Length Price (ALP).
4. Disallowance of transportation charges.
5. Disallowance of expenditure under Explanation to section 37(1).
6. Addition made on account of sale of land.

Detailed Analysis:

1. Validity of the Assessment Order under Section 144C:
The assessee contended that the assessment order under section 143(3) read with section 144C(13) was opposed to law and facts, and thus liable to be cancelled. The assessee argued that the reference under section 144C was invalid as it did not meet the arguments/objections raised, and that the appellant was not an 'Eligible Assessee' under section 144C(15)(b) as it was not a foreign company but an Indian company. The tribunal did not explicitly address these procedural issues in detail, focusing instead on substantive issues related to TP and corporate tax.

2. Application of Transfer Pricing (TP) Provisions:
The assessee argued that M/s GLA International Trading Pte Ltd. (GLAITPL) was not an Associated Enterprise (AE) as defined under section 92A of the Income Tax Act, and hence TP provisions were not applicable. The A.O. held that GLAITPL was an AE due to common directorship and shareholding links through GJR Holdings International Ltd. However, the tribunal found that during the relevant period, the shareholding and directorship structure did not satisfy the conditions under section 92A(2). The tribunal cited the case of Page Industries Ltd. v. Dy. CIT, emphasizing that both subsections (1) and (2) of section 92A must be fulfilled to constitute an AE relationship. Since the conditions were not met, the tribunal concluded that TP provisions were not applicable.

3. Determination of Arm's Length Price (ALP):
The tribunal did not delve into the detailed determination of ALP due to its conclusion that TP provisions were not applicable. The assessee had raised various grounds challenging the determination of ALP, including the use of comparable uncontrolled transactions and the application of the 5% standard deduction. However, these issues became moot following the tribunal's decision on the non-applicability of TP provisions.

4. Disallowance of Transportation Charges:
The assessee challenged the disallowance of transportation charges, arguing that no statements were given, and no opportunity for cross-examination was provided. The tribunal referenced its own decision in the assessee's case for A.Y. 2010-11, where it had deleted a similar disallowance due to the revenue's failure to produce witnesses for cross-examination. Following this precedent, the tribunal deleted the disallowance of transportation charges for the current year as well.

5. Disallowance of Expenditure under Explanation to Section 37(1):
The assessee argued that the Explanation to section 37(1) did not apply to the disallowed expenditure. The tribunal, referencing its decision in the assessee's case for A.Y. 2010-11, agreed that the disallowance was not justified as the expenses were not incurred for any unlawful purposes. Consequently, the tribunal deleted the disallowance of these expenses.

6. Addition Made on Account of Sale of Land:
The assessee contended that no income had accrued from the sale of land, and hence no addition could be made. The tribunal, citing its previous decision, held that the gross amount of sale proceeds could not be taxed without allowing a deduction for the cost of acquisition. The tribunal restored the matter to the A.O. for a fresh decision, directing that deductions for the cost of acquisition should be allowed.

Conclusion:
The tribunal allowed the appeal of the assessee, holding that TP provisions were not applicable due to the lack of an AE relationship. It deleted the disallowances of transportation charges and expenditure under section 37(1), and remanded the issue of addition from the sale of land back to the A.O. for reconsideration with appropriate deductions. Other procedural grounds raised by the assessee were not separately adjudicated.

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