9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (8) TMI 1651 - AT - Income TaxTP Adjustment made on payment of royalty - HELD THAT - Since there is no material change in the facts of the present case we respectfully following the decision of the coordinate Bench 2017 (4) TMI 231 - ITAT MUMBAI rendered in the assessee s appeals said that the payment of royalty by the assessee to its associated enterprises Dow Netherlands at five per cent. on domestic sales and eight per cent. on export sales is liable to be considered as at an arm s length rate in view of Circular No. 5 dated July 21 2003 . Therefore the addition made by the Assessing Officer on this count is unsustainable. We allow this ground of appeal and set aside the findings of the AO confirmed by the Ld. DRP. Accordingly we direct the AO to delete the addition made on account of transfer pricing adjustment. - Decided in favour of assessee.
Issues Involved:
1. Disallowance of lease rental paid to IBM. 2. Transfer pricing adjustment on payment of royalty. 3. Charging of excess interest under section 234C of the Act. 4. Initiation of penalty proceedings under section 271(1)(c) of the Act. Issue-wise Detailed Analysis: 1. Disallowance of Lease Rental Paid to IBM: The first issue concerns the disallowance of lease rental paid to IBM for taking computers on lease amounting to ?2,95,243/-. The assessee claimed the entire lease rental as revenue expenditure, treating it as an operating lease. However, the Assessing Officer (AO) treated the lease as a financial lease and disallowed the principal portion of the lease rental. The Dispute Resolution Panel (DRP) confirmed the AO's findings. The Tribunal noted that in the assessee's own appeals for previous years (AYs 2005-06, 2006-07, and 2008-09), the issue was remanded to the AO to examine the lease agreement and determine the nature of the lease. Following the precedent, the Tribunal restored the issue to the AO for fresh adjudication, directing the AO to examine the lease agreement and decide in accordance with the law. 2. Transfer Pricing Adjustment on Payment of Royalty: The second issue involves the transfer pricing adjustment made on the payment of royalty. The assessee paid royalty to its Associated Enterprise (AE), Dow Netherlands, at 5% on domestic sales and 8% on export sales. The Transfer Pricing Officer (TPO) made an adjustment by comparing the royalty rates with those paid by another AE, Dow UK, which paid royalty at 3% on domestic sales and 5% on export sales. The DRP confirmed the TPO's adjustment. The Tribunal, however, noted that in the assessee's own appeals for previous years (AYs 2005-06, 2006-07, and 2008-09), the transfer pricing adjustment was deleted. The Tribunal observed that the royalty rates paid by the assessee were approved by the Secretariat of Industrial Approval (SIA) and the Reserve Bank of India, constituting a valid Comparable Uncontrolled Price (CUP) data. The Tribunal followed the decision of the coordinate Bench and directed the AO to delete the transfer pricing adjustment, holding that the royalty payments were at arm's length. 3. Charging of Excess Interest under Section 234C of the Act: The third issue pertains to the charging of excess interest under section 234C of the Act. The assessee contended that the AO erred in charging excess interest. The Tribunal noted that this issue is consequential and restored it to the AO for consideration, directing the AO to take into account the assessee's contentions. 4. Initiation of Penalty Proceedings under Section 271(1)(c) of the Act: The fourth issue relates to the initiation of penalty proceedings under section 271(1)(c) of the Act. The assessee argued that it neither concealed its income nor furnished inaccurate particulars. The Tribunal deemed this ground premature and did not adjudicate it at this stage. Conclusion: The appeal filed by the assessee for the assessment year 2009-10 was partly allowed. The Tribunal restored the issue of lease rental disallowance to the AO for fresh adjudication, directed the AO to delete the transfer pricing adjustment, and restored the issue of charging excess interest to the AO. The initiation of penalty proceedings was not adjudicated as it was considered premature.
|
