2021 (3) TMI 1406 - AT - Income Tax

TP Adjustment - arm s length price towards payment of royalty - HELD THAT - We find that while deciding identical issue in assessee s own case in A.Y. 2010-11 2019 (5) TMI 1719 - ITAT MUMBAI the co-ordinate bench has restored the issue back to the assessing officer for fresh adjudication with certain directions. Following the aforesaid order the Tribunal while deciding identical issue in assessee s own case in assessment years 2011-12 and 2013-14 2020 (1) TMI 722 - ITAT MUMBAI has restored the issue to the assessing officer for fresh adjudication. Nature of receipt - Industrial promotion subsidy received under the Government of Maharahstra Tech Scheme of Incentives 2007 as a capital receipt - HELD THAT - As relying on 2020 (1) TMI 722 - ITAT MUMBAI DRP has made a categorical observation that various evidences were not furnished by the assessee to support its claim we are of the view that the entire issue relating to assessee s claim of Sales Tax refund / subsidy being a capital receipt requires fresh consideration in the light of various documentary evidences including the MoU between the Government of Maharashtra and M M - assessee is also required to meet the allegation of learned DRP that various documentary evidences were not furnished to support its claim. The assessee is also required to properly explain the impact of the observations made in Annexure-C to the eligibility certificate regarding eligibility of the assessee for payment of IPS. Since all these aspects have not been considered properly for whatever may be the reason we are inclined to restore this issue to the file of the Assessing Officer for de novo adjudication after providing reasonable opportunity of being heard to the assessee. The assessee is at liberty to furnish further evidences if required to prove its claim. The Assessing Officer must consider not only the evidences filed but also the submissions made by the assessee while deciding the issue. Thus we restore the issue back to the file of the assessing officer for fresh adjudication keeping in view the directions of the Tribunal in the order referred to above and only after due opportunity of being heard to the assessee. This ground is allowed for statistical purpose.

Summary

Issues Involved:
1. Adjustment to the arm's length price towards payment of royalty.
2. Treatment of industrial promotion subsidy as a capital receipt.
3. Initiation of penalty proceedings under Section 271(1)(c).

Detailed Analysis:

1. Adjustment to the Arm's Length Price Towards Payment of Royalty:
The assessee, a joint venture company, engaged in the manufacture of diesel engines, entered into an intellectual property agreement with an associated enterprise (AE) for technical know-how and paid royalty. The Transfer Pricing Officer (TPO) rejected the assessee's benchmarking using the CUP method and determined the arm's length price of the royalty payment at Nil. This adjustment was upheld by the Dispute Resolution Panel (DRP).

The Tribunal noted that this issue was previously addressed in the assessee's own cases for AYs 2010-11, 2011-12, and 2013-14, where the matter was restored to the Assessing Officer (AO) for fresh adjudication. The Tribunal followed the same approach for the current assessment year, restoring the issue to the AO with similar directions for fresh adjudication. The Tribunal emphasized that the TPO should consider the benchmarking report submitted by the assessee and any other relevant grounds the assessee may present.

2. Treatment of Industrial Promotion Subsidy as a Capital Receipt:
The assessee challenged the departmental authorities' decision not to treat the industrial promotion subsidy received under the Government of Maharashtra Tech Scheme of Incentives 2007 as a capital receipt. The Tribunal observed that this issue was also previously addressed in the assessee's cases for AYs 2011-12 and 2013-14, where it was restored to the AO for fresh adjudication.

The Tribunal highlighted that the AO had rejected the assessee's claim primarily due to the absence of an eligibility certificate in the assessee's name and the fact that the subsidy was received from MVML, not directly from the Government. The Tribunal noted that the MoU between the Government of Maharashtra and M&M indicated that the benefits under the IPS would be available to the consortium, including the assessee. However, the Tribunal found that the documentary evidence supporting the assessee's claim was either not available before the departmental authorities or not considered by them.

The Tribunal restored the issue to the AO for de novo adjudication, directing the AO to consider all relevant documentary evidence, including the MoU and the eligibility certificate, and to provide the assessee a reasonable opportunity to present further evidence if required.

3. Initiation of Penalty Proceedings under Section 271(1)(c):
The assessee's ground challenging the initiation of penalty proceedings under Section 271(1)(c) was dismissed as premature.

Conclusion:
The appeal was partly allowed for statistical purposes, with the issues of the arm's length price adjustment for royalty payments and the treatment of industrial promotion subsidy restored to the AO for fresh adjudication. The initiation of penalty proceedings under Section 271(1)(c) was dismissed. The order was pronounced on 11/03/2021.