2020 (1) TMI 1200 - AT - Income Tax

Disallowances of payments made to Piramal Corporate Services Limited (PCSL) - HELD THAT - We find that an identical issue has been considered by the co-ordinate bench of ITAT Mumbai in assessee s own case for AY 2008-09 2018 (7) TMI 1887 - ITAT MUMBAI and after considering relevant facts including agreement between the parties dated 29/04/1995 held that the Ld. AO is under a misconception of fact has disallowed payment made to PCSL towards reimbursement of expenses as well as payment of royalty on the ground that PCSL has charged more to the assessee then what is contemplated in the agreement. we direct the Ld. AO to delete additions made towards disallowances of payment made to PCSL. Disallowances of software expense - Allowable revenue expenses - HELD THAT - In assessee s own case for AY 2009-10 2019 (5) TMI 689 - ITAT MUMBAI where under identical set of facts the Tribunal by following the decision of Hon ble Bombay High Court in the case of CIT vs Raychem RPG Ltd. 2011 (7) TMI 953 - BOMBAY HIGH COURT held that expenditure incurred on purchase of a software and licenses are in the nature of revenue expenditure deductible u/s. 37(1) . Disallowances of deduction claimed u/s. 35(2AB) in respect of Ennore Unit Goregaon Unit - Deduction denied on the ground that the assessee had failed to placed on record Form 3CM issued by the DSIR for approval and quantification of expenditure incurred for research and development activities - HELD THAT - We find that for AY 2008-09 2018 (7) TMI 1887 - ITAT MUMBAI and 2009-10 2019 (5) TMI 689 - ITAT MUMBAI the issue has been restored back to the file of the Ld. AO to provide an opportunity to the assessee to furnish required approval in form 3CM from the competent authority - consistent with view taken by the co-ordinate bench for earlier years we restored this issue to the file of the Ld. AO and direct him to follow the directions given by the Tribunal for AY 2008-09 and 209-10 while adjudicating the issue. Disallowances of claim of depreciation on additions to computer software - Assessee claimed depreciation @ 60% as applicable to computer software- HELD THAT - While deciding identical claim made by the assessee in Assessment Year 2009-10 2019 (5) TMI 689 - ITAT MUMBAI as relying on M/S. SARASWAT INFOTECH LTD. 2013 (1) TMI 861 - BOMBAY HIGH COURT has held that the computer software purchased by the assessee is eligible for depreciation at the rate of 60%. The same view was reiterated while deciding assessee s appeal in Assessment Year 20099-10. Respectfully following the consistent view of the Tribunal in assessee s own case we direct the Assessing Officer to allow depreciation on addition made to computer software at the rate of 60%. This ground is allowed. Claim of the depreciation pertaining to BMIL and PHL units allowed. Adjustment of valuation of inventory as per section 145A - grossing up of tax duty cess etc by revaluing the purchases and inventories by inter alia including the effect of CENVAT credit - HELD THAT - We restored the matter to the file of the Ld. AO for re-adjudication in light of the claim of the assessee that impact of grossing up of tax would be nil to profit and loss for the year if taxes are paid before the due date of filing the return of income. Disallowances of expenditure in relation to exempt income u/s. 14A - HELD THAT - Following the decisions of Hon ble Bombay High Court in the case of HDFC Bank Ltd. vs DCIT 2016 (3) TMI 755 - BOMBAY HIGH COURT held that if own funds are more than the amount of investments in shares and securities which yield exempt income then there could not be any disallowances towards interest expenditure. Similarly the Tribunal further held that insofar as disallowances of other expenditure only those investments which yield exempt income could be considered while computing average value of investments - we restored the issue back to the file of the Ld. AO and direct him to follow the directions given by the Tribunal for AY 2008-09 and 2009-10 while computing disallowances of expenditure incurred in relation to exempt income u/s. 14A. Disallowances of advertisement and business promotion expenses - expenditure incurred by the assessee was for providing gifts and travel facility to the doctors - AO has disallowed a part of expenditure on the allegation that it is in violation of the Indian Medical Council (Professional Conduct Etiquette and Ethics) Regulations - HELD THAT - While deciding the issue in assessment year 2009-10 2019 (5) TMI 689 - ITAT MUMBAI the Tribunal has allowed assessee s claim holding that the Indian Medical Council (Professional Conduct Etiquette and Ethics) Regulations does not apply to the assessee and further the CBDT circular also applies prospectively. The same view was reiterated by the Tribunal while deciding the issue in assessment year 2010-11. Respectfully following the consistent view of the Tribunal in assessee s own case as discussed above we allow assessee s claim by deleting the disallowance. Deduction claimed u/s. 80IC - HELD THAT - We find that an identical issue has been considered by the co-ordinate bench of ITAT for AY 2008-09 and 2009-10 where the issue has been restored back to the file of the Ld. AO for re-adjudication. Eligibility criteria for claiming deduction u/s. 80IC - HELD THAT - AO was erred in disallowed deduction claimed u/s. 80IC of the I.T. Act 1961 on examination of eligibility criteria for claiming said deduction without appreciating the fact that eligibility criteria for claiming deduction needs to be examined in the year of formation of the unit. Hence we are in agreement with the claim of the assessee that the eligibility criteria shall be examined only in the year of constitution/formation of the units as envisaged in section 80IC(4). Transfer Pricing Adjustment (TPA) on account of interest on loan - HELD THAT - In assessee own case for AY 2008-09 2018 (7) TMI 1887 - ITAT MUMBAI where under identical set of facts it was held that when loan is advanced in foreign currency the appropriate method for bench marking rate of interest is by applying either LIBOR or EUROBOR rate and therefore the ALP of interest chargeable to the AE cannot be determined by applying Indian PLR. TP adjustment on account of corporate guarantee commission - HELD THAT - In assessee s own case had considered the issue for AY 2008-09 and 2009-10 where under identical set of facts the Tribunal has directed the Ld. AO to restrict guarantee commission to 0.5% of total guarantee issued to AE s. Therefore consistent with view taken by the co-ordinate bench we direct the Ld. AO to restrict TP adjustment on account of guarantee commission to 0.5% of corporate guarantee issued to the AE s. Re-computation of book profit u/s. 115JB in respect of disallowances of expenditure in relation to exempt income u/s. 14A - HELD THAT - ITAT Special Bench Delhi in ACIT vs. Vireet Investment P. Ltd. 2017 (6) TMI 1124 - ITAT DELHI has held that no adjustment/disallowance can be made under section 115JB of the Act with reference to section 14A read with Rule 8D of the Rules. However the Tribunal has directed the Assessing Officer to compute the book profit in consonance with the provisions of section 115JB of the Act read with explanation (1)(f) - we direct the Ld. AO to delete additions made towards book profit computed u/s. 115JB of the Act in respect of disallowances made u/s. 14A Disallowances of amortization of expenses on account of trademarks u/s. 35A deleted - Considering the fact that in the preceding assessment years assessee s claim of deduction under section 35A of the Act has been allowed applying the rule of consistency also assessee s claim of deduction in the impugned assessment year cannot be disallowed.

Issues Involved:
1. Disallowance of payments made to Piramal Corporate Services Ltd (PCSL)
2. Disallowance of software expenses
3. Disallowance of deduction under Section 35(2AB)
4. Disallowance of depreciation on additions to computer software
5. Disallowance of depreciation pertaining to Boehringer Mannheim India Ltd. (BMIL), Piramal Holdings Ltd. (PHL), and Glass and Bulk Drug Division (GBDD)
6. Adjustment of inventory as per Section 145A
7. Disallowance under Section 14A read with Rule 8D
8. Disallowance of advertisement and business promotion expenses
9. Addition to total income and reduction of deduction under Section 80IC
10. Eligibility of deduction under Section 80IC
11. Transfer Pricing Adjustment of notional interest on loan advanced
12. Transfer Pricing Adjustment of guarantee commission
13. Addition of disallowance under Section 14A to computation of book profits under Section 115JB
14. Amortization of expenses on account of trademarks

Detailed Analysis:

1. Disallowance of Payments Made to Piramal Corporate Services Ltd (PCSL)
The Tribunal found that the identical issue had been resolved in favor of the assessee in AY 2008-09, where it was established that the payments made to PCSL were in line with the agreement dated 29/04/1995. The Tribunal directed the AO to delete the additions made towards disallowances of payment made to PCSL.

2. Disallowance of Software Expenses
The Tribunal noted that this issue was covered in favor of the assessee by the decision of ITAT for AY 2009-10, where it was held that software expenses are revenue in nature and deductible under Section 37(1). The AO was directed to allow deductions towards software expenses as revenue in nature.

3. Disallowance of Deduction Under Section 35(2AB)
The Tribunal restored the issue to the file of the AO, directing him to provide an opportunity to the assessee to furnish the required approval in Form 3CM from the competent authority, following the precedent set in AY 2008-09 and 2009-10.

4. Disallowance of Depreciation on Additions to Computer Software
The Tribunal, referencing the decision in AY 2009-10, held that the assessee is entitled to depreciation at 60% on computer software and upgradation of existing software. The AO was directed to allow depreciation as claimed by the assessee.

5. Disallowance of Depreciation Pertaining to BMIL, PHL, and GBDD
The Tribunal found that this issue was covered in favor of the assessee by decisions in AY 2008-09 and 2009-10, and directed the AO to allow depreciation as claimed by the assessee on BMIL and PHL units.

6. Adjustment of Inventory as per Section 145A
The Tribunal restored the matter to the file of the AO for re-adjudication, directing him to verify the claim of the assessee that the impact of grossing up of tax would be nil to profit and loss for the year if taxes are paid before the due date of filing the return of income.

7. Disallowance Under Section 14A Read with Rule 8D
The Tribunal restored the issue back to the file of the AO, directing him to verify the claim of availability of sufficient interest-free funds and to exclude investments that did not yield exempt income while computing disallowances under Rule 8D(2)(iii).

8. Disallowance of Advertisement and Business Promotion Expenses
The Tribunal, following the decision in AY 2009-10, held that the Medical Council Regulations, 2002, do not apply to companies and directed the AO to delete the additions made towards disallowances of advertisement and business promotion expenses.

9. Addition to Total Income and Reduction of Deduction Under Section 80IC
The Tribunal restored the matter to the file of the AO for re-adjudication, directing him to follow the findings given by the Tribunal for AY 2008-09 and 2009-10.

10. Eligibility of Deduction Under Section 80IC
The Tribunal held that the eligibility criteria for claiming deduction under Section 80IC need to be examined in the year of formation, as per the decision in AY 2009-10. The AO was directed to allow the deduction claimed by the assessee.

11. Transfer Pricing Adjustment of Notional Interest on Loan Advanced
The Tribunal, following the decision in AY 2008-09, directed the AO to delete the additions made towards TP adjustment on account of interest on loan given to AEs, applying LIBOR or EUROBOR rates instead of Indian PLR.

12. Transfer Pricing Adjustment of Guarantee Commission
The Tribunal directed the AO to restrict the TP adjustment on account of guarantee commission to 0.5% of the corporate guarantee issued to the AEs, as per the decision in AY 2008-09 and 2009-10.

13. Addition of Disallowance Under Section 14A to Computation of Book Profits Under Section 115JB
The Tribunal, following the decision in AY 2009-10, directed the AO to delete the additions made towards book profit computed under Section 115JB in respect of disallowances made under Section 14A.

14. Amortization of Expenses on Account of Trademarks
The Tribunal upheld the deletion of disallowances made by the AO towards amortization of expenses on account of trademarks under Section 35A, following the consistent view taken in the assessee's own case for earlier years.

Conclusion:
The appeals were resolved largely in favor of the assessee, with several issues being restored to the AO for re-adjudication in line with previous Tribunal decisions. The revenue's appeal was dismissed, while the assessee's appeal was allowed for statistical purposes.

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