2018 (7) TMI 2286 - AT - Income Tax

Assessment order on a non existing entity - Deemed dividend u/s 2(22)(e) - Scheme of amalgamation approved - HELD THAT - It is pertinent to note that the Revenue was very well informed by the assessee about the non existence of the entity. Thus, the appeal is not maintainable in respect of the non-existing entity. Therefore, Revenue s appeal is dismissed.

Summary

Issues:
1. Deletion of addition made by AO on account of deemed dividend and interest thereon.
2. Disregarding TP documentation and confirming TP adjustment.
3. Considering payment of administration services to be 'Nil'.
4. Upholding interest under section 234B of the Act.
5. Maintainability of Revenue's appeal due to non-existing entity.
6. Tribunal's direction regarding exclusion of comparables for R&D compensation.
7. Tribunal's direction to consider working capital adjustment for comparables.

Deletion of Addition on Account of Deemed Dividend and Interest:
The appeal involved the deletion of an addition made by the AO on account of deemed dividend and interest thereon. The CIT(A) had erred in deleting the addition, stating that the assessee was not a shareholder of the payer company. The Tribunal considered the arguments and upheld the decision, dismissing the Revenue's appeal.

Transfer Pricing Documentation and Adjustment:
The appeal raised concerns about the TP documentation and adjustment amounting to INR 26,850,486. The CIT(A) disregarded the TP documentation, leading to the adjustment. The Tribunal analyzed the economic analysis conducted by the appellant and the methods used for comparability analysis. It directed the TPO to exclude certain comparables and consider relevant factors for a fresh decision.

Payment of Administration Services:
The issue of considering the payment of administration services to be 'Nil' was also addressed. The CIT(A) applied the Comparable Uncontrolled Price method, disregarding the economic value derived from the services. The Tribunal reviewed the evidence provided and directed a reevaluation, emphasizing the need to consider the tangible and substantial commercial benefits derived from the services.

Interest Under Section 234B and Maintainability of Revenue's Appeal:
The Tribunal upheld the charging of interest under section 234B of the Act and dismissed the Revenue's appeal due to the non-existence of the entity named in the assessment order. The Tribunal found that the Revenue was informed about this non-existence, rendering the appeal not maintainable.

Tribunal's Directions on Exclusion of Comparables and Working Capital Adjustment:
Regarding the R&D compensation and working capital adjustment, the Tribunal directed the TPO to exclude certain comparables and consider working capital levels for a fair assessment. The Tribunal's decisions in previous cases were cited to support the directions issued in the present appeal.

In conclusion, the Tribunal partly allowed the appeal of the assessee, directing the TPO to make decisions in line with the Tribunal's directions. The judgment addressed various issues related to deemed dividend, transfer pricing, administration services, interest under section 234B, maintainability of appeals, exclusion of comparables, and working capital adjustment, providing detailed analysis and directions for each issue.