2017 (6) TMI 1345 - AT - Income Tax

Disallowance of interest u/s.36(1)(iii) - disallowing entire interest on term loans/working capital loans paid to banks/others treating them to be capital in nature on the assumption that all these loans were utilized for investment in its wholly owned foreign subsidiary i.e. Aban Holdings Pte Limited - HELD THAT - As decided in own case 2016 (10) TMI 807 - ITAT CHENNAI we are inclined to remit the issue to the file of AO on similar direction. Further, we direct the AO to verify whether the investment is made in subsidiary to have a controlling interest, or to avoid the dilution of controlling interest, or to keep the controlling interest intact as per object clause of Memorandum of Association of the assessee company and to decide thereupon. Hence, this ground is partly allowed for statistical purposes. Disallowance u/s.14 A - assessee accounted an amount as dividend income from mutual funds / shares during the year and claimed the same as exempt u/s.10(34) - HELD THAT - As decided in own case 2016 (10) TMI 807 - ITAT CHENNAI AO has to consider the assessee s own fund i.e. capital and reserves as available on the date of investment which yields exempted income and thereafter he shall apply the Formula in Rule 8D and also exclude investments in subsidiaries. With this observation, we remit the issue relating to disallowance u/s.14A r.w.r.8D to the file of AO for fresh consideration. Hence, this ground is allowed for statistical purposes. TDS u/s 195 - expenditure incurred on account of management fees and consultancy charges paid outside India -Disallowance u/s.40(a)(i) - HELD THAT - The Explanation incorporated in section 9 declares that where the income is deemed to accrue or arise in India under clause (v),(vi) and (vii) of sub-sec.(1), such income shall be included in the total income of the non-resident, whether or not be resident as a residence or place of business or business connection in India . The plain reading of the said provisions suggests that criterion of residence, place of business or business connection of a non-resident in India has been done away with for fastening the tax liability. However, the criteria of rendering service in India and the utilization of the service in India to attract tax liability u/s.9 (i)(vii) remained untouched and unaffected by the Explanation to Sec.9 of the Act and outside India. Therefore, the twin criterion of rendering of services in India and utilization of services in India become evidently necessary condition to deduct tax However, in respect of said payments, the rendering of services being purely off shore and outside India, the whatever paid towards said services does not attract tax liability. We inclined to remit the issue to the file of Assessing Officer to examine the issue afresh in the light of above order along with concerned DTAA and decide thereupon. The issue is partly allowed for statistical purposes. Disallowance of depreciation u/s.32 for non deduction of TDS - assessee has claimed depreciation @ 20% towards Dry Docking Expenses, which was capitalized for which the assessee should have deducted TDS u/s.195 - HELD THAT - We are of the opinion that the depreciation cannot be disallowed which is to be granted on the cost of capital assets on which there is no question of TDS. See M/S. CRESCENT CHEMSOL PVT. LTD. VERSUS THE ACIT 10 (1) , MUMBAI. 2011 (3) TMI 1808 - ITAT MUMBAI Admission of additional ground - Disallowance of FCCB expenditure - claim of premium on FCCB in the return or revised return - assessee has taken a plea before the DRP to consider this issue, but refused to entertain it on the reason that it was not before the TPO/AO - HELD THAT - As all the facts are available on record and assessee made a claim, it is appropriate to remit the issue to the file of AO for his consideration. In view of the judgement of Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT 1996 (12) TMI 7 - SUPREME COURT , wherein it was held that a legal ground can be raised at any stage of appeal. Thus this issue is remitted back to the file of AO, if require, the AO should call for remand report from the TPO and decide the issue in accordance with law and on merit, we refrain from commenting on merits as the lower authorities to decide it. Hence, this ground is remitted to the file of AO for fresh consideration. Claim of withholding tax u/s.90 - HELD THAT - As decided in own case 2016 (10) TMI 807 - ITAT CHENNAI we are inclined to hold that once the interest income subject to tax in any manner in the hands of the assessee, the corresponding tax credit to be given. Accordingly, this ground is remitted to the AO to examine the issue in the light of our above findings.

Summary

Issues Involved:

1. Disallowance of interest under Section 36(1)(iii) of the Income Tax Act.
2. Disallowance under Section 14A of the Income Tax Act.
3. Disallowance under Section 40(a)(i) of the Income Tax Act.
4. Disallowance of depreciation under Section 32 of the Income Tax Act.
5. Disallowance of FCCB expenditure.
6. Claim of withholding tax credit under Section 90 of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Disallowance of Interest under Section 36(1)(iii):

The first issue pertains to the disallowance of interest amounting to ?366,25,30,000 under Section 36(1)(iii). The Assessing Officer (AO) disallowed the interest on the grounds that the loans were utilized for investment in a wholly-owned foreign subsidiary, treating the expenditure as capital in nature. The Tribunal referred to its earlier decision in the assessee's case for assessment years 2010-11 and 2011-12, where it was held that interest incurred on borrowings for investment in a subsidiary, once the shares are acquired, should be treated as revenue expenditure. The Tribunal directed the AO to verify whether the investment was made to maintain a controlling interest and to decide accordingly. The issue was remitted to the AO for fresh consideration.

2. Disallowance under Section 14A:

The second issue concerns the disallowance under Section 14A, where the assessee accounted for ?11,53,320 as dividend income and claimed it as exempt. The AO disallowed ?71,26,655 under Section 14A read with Rule 8D, which was later restricted to ?4,91,750. The Tribunal referred to its earlier decision, emphasizing that the AO should consider the availability of share capital, reserves, and surplus while invoking Section 14A. The Tribunal also noted that interest on borrowings used for specific business purposes should not be considered for disallowance under Rule 8D. The issue was remitted to the AO for fresh consideration.

3. Disallowance under Section 40(a)(i):

The third issue involves the disallowance of ?13,32,01,184 under Section 40(a)(i) for non-deduction of TDS on management fees and consultancy charges paid outside India. The Tribunal referred to the decision in the case of Ford India Ltd., where it was held that consultancy fees paid to a non-resident without a permanent establishment in India are not taxable in India under the applicable tax treaty. The Tribunal remitted the issue to the AO to examine it afresh in light of the relevant DTAA provisions.

4. Disallowance of Depreciation under Section 32:

The fourth issue pertains to the disallowance of depreciation of ?7,33,13,900 under Section 32 for non-deduction of TDS on dry docking expenses. The Tribunal held that depreciation cannot be disallowed as it is granted on the cost of capital assets, and there is no question of TDS on such expenses. The Tribunal relied on the decision in the case of M/s. Crescent Chemsol Pvt. Ltd., where it was held that Section 40(a)(i) does not apply to depreciation claims. The ground was allowed.

5. Disallowance of FCCB Expenditure:

The fifth issue involves the disallowance of premium on FCCB of ?69,14,60,000, which was not claimed in the return or revised return. The Dispute Resolution Panel (DRP) did not adjudicate the objection, stating it was beyond its scope. The Tribunal, referring to the decision in the case of Mahindra & Mahindra Limited, held that the issue goes to the root of the matter and should be remitted to the AO for consideration. The Tribunal emphasized that legal grounds can be raised at any stage of appeal.

6. Claim of Withholding Tax Credit under Section 90:

The sixth issue concerns the claim of withholding tax credit of ?3,05,66,352 under Section 90. The AO did not allow the credit while assessing the positive income. The Tribunal referred to its earlier decision in the assessee's case, where it was held that once the interest income is subject to tax in any manner, the corresponding tax credit should be given. The issue was remitted to the AO to examine it in light of the Tribunal's findings.

Conclusion:

The appeal was partly allowed for statistical purposes, with multiple issues being remitted to the AO for fresh consideration based on the Tribunal's directions and previous decisions. The Tribunal emphasized the need for proper verification and application of relevant legal provisions and precedents.