2016 (5) TMI 869 - AT - Income Tax

Adjustment made by the TPO on account of AMP expenses deleted Disallowance u/s 40(a)(i) - Held that - The export commission was neither royalty nor fees for technical services and as such the assessee was not required to deduct tax at source on payment of export fee and thus, no disallowance under section 40(a)(i) could be sustained. Respectfully following the order of the Coordinate bench in assessee s own case where no change in facts or circumstances has been pointed out, the additions made by applying section 40(a)(i) are directed to be deleted. Disallowance of relocation expenses on transfer of factory of the assessee company from Rudrapur to Greater Noida - Held that - Expenses on relocation and shifting are revenue in nature and would be allowed as business deduction and the disallowance made by the AO on this count is deleted. Disallowance of provision for slow moving inventory - Held that - Where the provision is made on a scientific and reasoned basis year after year and such provision would be reduced completely when the obsolete stock is written off in subsequent years, no disallowance can be made on the assessee company. provision for slow moving inventory would be allowed as revenue deduction and therefore, the disallowance made in the assessment order for A.Y. 2010- 11 on this account has to be deleted.

Issues Involved:
1. Validity of assessment orders.
2. Transfer Pricing Issues related to AMP expenses.
3. Transfer Pricing adjustment on royalty payments.
4. Disallowance of royalty and technical guidance fee as capital expenditure.
5. Disallowance of export commission under section 40(a)(i).
6. Disallowance of relocation expenses.
7. Disallowance of provision for slow-moving inventory.
8. Credit for tax deducted at source.
9. Levy of interest under section 234B.

Detailed Analysis:

1. Validity of Assessment Orders:
The appellant challenged the validity of the assessment orders framed under Section 143(3) read with Section 144C of the Income-tax Act, 1961, claiming they were bad in law, violative of principles of natural justice, and void ab-initio. The Tribunal did not require specific adjudication on these grounds as they were general in nature.

2. Transfer Pricing Issues Related to AMP Expenses:
The appellant contested the addition made on account of AMP expenses, arguing that the expenses were incurred for its own benefit and not at the behest of the associated enterprise (AE). The Tribunal noted that the Delhi High Court in the appellant’s own case for A.Y. 2008-09 held that AMP expenses unilaterally incurred by the appellant could not be construed as an international transaction. Consequently, the Tribunal deleted the adjustment made by the TPO on account of AMP expenses for both assessment years 2009-10 and 2010-11.

3. Transfer Pricing Adjustment on Royalty Payments:
The appellant argued that it was acting as a licensed manufacturer and not a contract manufacturer, and thus, the royalty payments were justified. The Tribunal noted that similar issues were remitted to the AO for reconsideration in light of the findings in the case of Hero MotoCorp. Consequently, the Tribunal set aside the additions on account of Transfer Pricing adjustments related to royalty payments for both years to the file of the TPO for reconsideration.

4. Disallowance of Royalty and Technical Guidance Fee as Capital Expenditure:
The appellant contended that the royalty and technical guidance fee were revenue in nature. The Tribunal observed that this issue was covered by the decisions in the appellant’s own case for earlier years, where such payments were held to be revenue in nature. Following these precedents, the Tribunal allowed the appellant's claim for both assessment years.

5. Disallowance of Export Commission Under Section 40(a)(i):
The appellant argued that the export commission paid to Honda Motor Co. Japan was neither royalty nor fees for technical services and thus not subject to TDS. The Tribunal, following its earlier decisions in the appellant’s own case, held that the export commission was not subject to TDS and deleted the disallowance for A.Y. 2009-10.

6. Disallowance of Relocation Expenses:
The appellant claimed that the expenses incurred on shifting the factory were revenue in nature. The Tribunal agreed, noting that the expenses did not result in the creation of a new capital asset and were incurred for consolidating operations. Consequently, the Tribunal allowed the appellant's claim for A.Y. 2010-11.

7. Disallowance of Provision for Slow-Moving Inventory:
The appellant argued that the provision for slow-moving inventory was made based on a scientific method and was in accordance with accounting standards. The Tribunal, following the jurisdictional High Court’s decisions, held that such provisions were allowable as revenue deductions and deleted the disallowance for A.Y. 2010-11.

8. Credit for Tax Deducted at Source:
The appellant claimed that credit for TDS amounting to ?71,407 was not given. The Tribunal restored this issue to the AO to verify the appellant's claim and give credit as per the law.

9. Levy of Interest Under Section 234B:
The issue of interest under Section 234B was deemed consequential and required no specific adjudication.

Conclusion:
The appeals for both assessment years were partly allowed for statistical purposes, with several issues remitted back to the AO/TPO for reconsideration.

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