2018 (9) TMI 1832 - AT - Income Tax

TP Adjustment - rate of guarantee commission to be charged to the AE for provision of corporate guarantee - direction of the learned Commissioner (Appeals) to apply the commission rate of 0.5% to the corporate guarantee provided to the Associated Enterprise (AE) - HELD THAT - As could be seen, the Transfer Pricing Officer has charged guarantee commission @ 2.25%. Whereas, the learned Commissioner (Appeals) relying upon the decision of Everest Kento Cylinders Ltd. 2015 (5) TMI 395 - BOMBAY HIGH COURT has held that guarantee commission should be charged @ 0.5%. Since, the aforesaid decision of the learned Commissioner (Appeals) is in consonance with the view expressed by the Hon'ble Jurisdictional High Court (supra) and by different Benches of the Tribunal including Mumbai Benches, we uphold the decision of the learned Commissioner (Appeals) on the issue by dismissing the grounds raised.

Summary

Issues:
1. Challenge to the order of the Commissioner (Appeals) regarding the application of commission rate on corporate guarantee provided to the Associated Enterprise (AE).

Analysis:

Issue 1: Application of Commission Rate on Corporate Guarantee
The appeal was filed by the Revenue against the order of the Commissioner (Appeals) for the assessment year 2012-13. The main issue in the appeal was the direction given by the Commissioner (Appeals) to apply a commission rate of 0.5% on the corporate guarantee provided to the Associated Enterprise (AE). The assessee, an Indian Company engaged in software development and other services, had filed its return of income declaring total income. The Assessing Officer referred the case to the Transfer Pricing Officer due to international transactions with overseas AEs involving guarantees. The Transfer Pricing Officer determined that providing corporate guarantees constituted an international transaction under section 92B of the Act and imposed a guarantee commission of 2.25%. The Commissioner (Appeals), while agreeing that corporate guarantees fall under international transactions, relied on a High Court decision and directed a reduced commission rate of 0.5%.

Issue 1 Analysis Continued:
During the proceedings, the Transfer Pricing Officer and the Commissioner (Appeals) had differing views on the appropriate commission rate for corporate guarantees. The Transfer Pricing Officer imposed a higher rate of 2.25%, while the Commissioner (Appeals) favored a lower rate of 0.5% based on the High Court decision and previous Tribunal rulings. The Tribunal upheld the decision of the Commissioner (Appeals) citing consistency with the High Court decision and other Tribunal benches. It was noted that the provision of corporate guarantees as international transactions was not disputed by the assessee, leaving the only point of contention as the rate of commission to be charged. Given the alignment of the Commissioner (Appeals) decision with the High Court ruling and past Tribunal decisions, the Tribunal dismissed the Revenue's appeal, affirming the 0.5% commission rate for the corporate guarantee provided to the Associated Enterprise.

Conclusion:
The Tribunal, consisting of members Shri Saktijit Dey and Shri Manoj Kumar Aggarwal, dismissed the Revenue's appeal against the order of the Commissioner (Appeals) regarding the application of a 0.5% commission rate on the corporate guarantee provided to the Associated Enterprise. The decision was based on the consistency with the High Court ruling and previous Tribunal decisions, upholding the lower commission rate despite the Transfer Pricing Officer's initial imposition of a higher rate.