2019 (3) TMI 1999 - AT - Income Tax

TP Adjustment - interest by treating the investment made by the assessee in the share capital of Associated Enterprises - HELD THAT - It is clear from a reading of para e of the Cabinet Press release that computation of ALP will arise income arises from an International transaction between AEs. It does not warrant determination or re-computation of a consideration received / given on capital account. Thus going by the above the transaction of investment in shares being payment on capital account falls outside the purview. The aforesaid decision rendered for A.Y. 2010-11 2017 (11) TMI 1443 - ITAT KOLKATA has subsequently been followed by the Tribunal in A.Y. 2011-12 2012-13 2017 (11) TMI 1901 - ITAT KOLKATA to decide the similar issue in favour of the assesese. Transfer Pricing Adjustment made on account of Guarantee fees - Since the issue involved in the year under consideration as well as all the material facts relevant thereto are similar to that of A.Ys. 2010-11 2017 (11) TMI 1443 - ITAT KOLKATA 2011-12 and 2012-13 2017 (11) TMI 1901 - ITAT KOLKATA we respectfully follow the orders of the Coordinate Bench of this Tribunal and delete the addition relating to the Transfer Pricing Adjustment made on account of Guarantee fees charged to the Associated Enterprises. Ground No. 3 of the assessee s appeal is accordingly allowed. Disallowance u/s 14A - HELD THAT - Disallowance under section 14A is also covered by the order of the Tribunal 2017 (11) TMI 1901 - ITAT KOLKATA wherein the disallowance made under section 14A was deleted by the Tribunal on the ground that there was no exempt income actually earned by the assessee during the relevant previous year. To arrive at this conclusion the Tribunal relied on the decision of Cheminvest Limited 2009 (8) TMI 126 - ITAT DELHI-B As submitted by the ld. Counsel for the assessee no exempt income was earned by the assessee even during the year under consideration and keeping in view this undisputed factual position we delete the disallowance made by the Assessing Officer under section 14A by following the decision of the Tribunal in assessee s own case Ground No. 4 is accordingly dismissed.

Summary

Issues Involved:
1. Validity of the order passed by the Assessing Officer (AO), Transfer Pricing Officer (TPO), and Dispute Resolution Panel (DRP).
2. Transfer Pricing Adjustment on account of investment in shares of the Associated Enterprise (AE).
3. Transfer Pricing Adjustment on account of the guarantee fees charged to the AE.
4. Disallowance under section 14A of the Income Tax Act.
5. Disallowance of amount paid as interest on service tax.
6. Levy of interest under section 234B and 234C of the Income Tax Act.
7. Initiation of penalty proceedings under section 271(1)(C) of the Income Tax Act.

Detailed Analysis:

1. Validity of the Order:
The assessee argued that the orders passed by the AO, TPO, and DRP were bad in law and void ab initio, as the conditions of section 92C(3) of the Income Tax Act were not satisfied. Additionally, it was contended that the authorities failed to demonstrate that the motive of the assessee was to shift profits outside India by manipulating prices in its international transactions. The Tribunal did not specifically adjudicate this ground, considering it general in nature.

2. Transfer Pricing Adjustment on Investment in Shares of AE:
The Tribunal noted that the issue of treating the investment in the share capital of AE as deemed loans and making Transfer Pricing Adjustments on account of interest was covered in favor of the assessee by previous orders for A.Y. 2010-11, 2011-12, and 2012-13. The Tribunal cited the Bombay High Court's decisions in Shell India Markets Ltd. and Vodafone, which held that amounts received on the issue of share capital are on capital account and not income. Consequently, the Tribunal deleted the addition made on account of Transfer Pricing Adjustment in respect of interest by treating the investment in the share capital of AE as deemed loans.

3. Transfer Pricing Adjustment on Guarantee Fees:
The Tribunal observed that the issue of Transfer Pricing Adjustment on guarantee fees was also covered by its previous orders for A.Y. 2010-11, 2011-12, and 2012-13. It referred to various ITAT decisions where guarantee commission rates ranging from 0.25% to 0.60% were considered at Arm's Length. The Tribunal directed the deletion of the adjustment proposed by the TPO/AO, noting that the guarantee fees charged by the assessee were at Arm's Length.

4. Disallowance under Section 14A:
The Tribunal found that the issue of disallowance under section 14A was covered by its previous orders for A.Y. 2011-12 and 2012-13, where disallowance was deleted on the ground that no exempt income was earned by the assessee during the relevant previous year. The Tribunal relied on the Delhi High Court's decision in Cheminvest Limited and deleted the disallowance under section 14A for the year under consideration, as no exempt income was earned by the assessee.

5. Disallowance of Amount Paid as Interest on Service Tax:
The assessee did not press this ground during the hearing. Consequently, it was dismissed as not pressed.

6. Levy of Interest under Section 234B and 234C:
The Tribunal noted that the issues of levy of interest under sections 234B and 234C were consequential in nature. The AO was directed to allow consequential relief to the assessee.

7. Initiation of Penalty Proceedings:
The assessee did not press this ground during the hearing. Consequently, it was dismissed as not pressed.

Conclusion:
The appeal of the assessee was partly allowed, with specific relief granted on the issues of Transfer Pricing Adjustments on investment in shares of AE and guarantee fees, as well as the disallowance under section 14A. Other grounds were either dismissed as not pressed or deemed consequential.