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2016 (11) TMI 245 - AT - Income TaxDisallowance u/ 14A - Held that - As per section 14A no deduction shall be allowed in respect of expenditure incurred by the assessee in relation to income which is exempt from tax. The relevance is the expenditure in relation to income. The quantification has to be undertaken in relation to the exempt income. The investment which has not generated exempt income should be excluded from the calculation of ratio to determine the disallowance. Similarly for the administrative expenses 0.5% of average investments from which the exempt income is received should be considered instead of average of the total investments.Considering the above discussion we direct the AO to recalculate the disallowance as per rule 8D as per the above guidance. Accordingly ground raised by assessee is allowed. Disallowance of commission payment - genuity of expenditure - AR submitted that the commission was paid through banking channels and properly credited in the account of Shri C.P. Sharma and since Mr. Sharma does not have any PAN at the rate of 20% was deducted and credited in the central govt. account - Held that - The genuineness of the transaction should be provided beyond doubt. There has to be live link with the business of the assessee and the expenditure incurred the assessee should also be in a position to prove the expenditure with proper records beyond doubt. The assessee has submitted before us the details of commission payment (Refer page 37 of the paper book). From the above statement we have noticed that assessee had paid 15% of freight as commission payment and deducted 20% as TDS out of the commission. Considering the high value transaction and such person does not have PAN it does raise eye brows. The assessee has to prove that such persons exists and why he does not have PAN even though having high value transaction. Unless assessee proves the genuineness of existence of such person it cannot be held as genuine merely because it paid relevant TDS. Accordingly we are bound to accept the findings of the DRP and hence ground raised by the assessee is rejected. Disallowance of share expenses - claim maid u/s 35D - Held that - The term public issue has wider meaning. It cannot be restricted to issue of shares/debentures to retail investors it also applied to institutional investors. Even to issue shares to institutional investors it involves expenditure. It has to be treated similar to the expenses incurred on issue of shares to retail investors. See DCIT vs. Deccan Chronicle Holdings Ltd. 2015 (8) TMI 914 - ITAT HYDERABAD - Decided in favour of assessee Disallowance of expenses relating to the shipping division - said expenses should be considered as expenses pertaining to the shipping division as computed under the provisions of section 115VG - Held that - From the record it is clear that the direct expenditures relating to shipping divisions are recorded in their books properly but the management of the company has not allocated any share of head office expenditure to this division. The allocation of expenditure to the various divisions is subjective matter it involves various factors like the involvement of management time personnel etc. These informations are not available on the record. We have noticed from the financial statement of the shipping division that no management personnel expenditures or management related expenses were debited to P 60, 48, 569/- towards ESOP expenses because of the revised return not being filed by the assessee. However the assessee filed a letter dated 18/03/2015 before the AO claiming the said expenses. According to the ld. AR the ESOP expenses are allowed from the AY 2012-13 on wards without any dispute as claimed by the assessee but for AY 2011-12 the above was not allowed by the AO on the plea that such claim can only be made through a revised return and not by way of a letter. Following the said decision of the Hon ble Delhi High Court in the case of Principal CIT Vs. Western India Shipyard Ltd. 2015 (10) TMI 539 - DELHI HIGH COURT we remit the issue to the file of the AO to accept the letter filed by the assessee for claiming the ESOP expenses and decide the issue in accordance with law after providing reasonable opportunity of hearing to the assessee. Accordingly this ground is allowed for statistical purposes.
Issues Involved:
1. ALP adjustment under Section 92C(3) 2. Disallowance under Section 14A read with Rule 8D 3. Disallowance of commission payment 4. Disallowance of share issue expenses under Section 35D 5. Apportionment of administrative expenses to the shipping division 6. Disallowance of Employee Stock Option Plan (ESOP) expenses Issue-wise Detailed Analysis: 1. ALP Adjustment under Section 92C(3): The assessee contended that the interest on advances to subsidiaries and joint ventures should be calculated at the LIBOR rate rather than the Indian rate. The Tribunal agreed, stating that since the transactions were international, the LIBOR rate was applicable. The Tribunal directed the Transfer Pricing Officer (TPO) to apply the LIBOR rate plus 200 points for calculating the Arm's Length Price (ALP) of the transactions. 2. Disallowance under Section 14A read with Rule 8D: The AO disallowed ?29,66,259 under Section 14A, which included indirect interest expenditure and 0.5% of the average value of exempt investments. The assessee argued that no part of the borrowings was used for acquiring investments and cited various judicial decisions. The Tribunal directed the AO to recalculate the disallowance by considering only those investments that generated exempt income, rather than the total investments. 3. Disallowance of Commission Payment: The AO disallowed ?36,25,927 paid as commission to Mr. CP Sharma, questioning the genuineness of the payment due to the non-production of Mr. Sharma and lack of a PAN. The Tribunal upheld the disallowance, emphasizing that the genuineness of the transaction must be proved beyond doubt, and the assessee failed to produce Mr. Sharma for verification. 4. Disallowance of Share Issue Expenses under Section 35D: The AO disallowed the claim of ?17,76,884 for amortization of share issue expenses, stating that the issue was not for public subscription but a private placement. The Tribunal, relying on its decision in the case of Deccan Chronicle Holdings Ltd., held that the term "public issue" has a wider meaning that includes institutional investors and allowed the deduction under Section 35D. 5. Apportionment of Administrative Expenses to the Shipping Division: The AO apportioned ?59,95,071 of corporate office expenses to the shipping division, which the assessee contested. The Tribunal remitted the issue back to the AO to determine the appropriate share of head office expenditure for the shipping division, noting that the assessee did not provide sufficient information to prove the independent functioning of the division. 6. Disallowance of Employee Stock Option Plan (ESOP) Expenses: The AO disallowed ?60,48,569 claimed as ESOP expenses because the claim was made through a letter rather than a revised return. The Tribunal, citing the Delhi High Court's decision in Principal CIT vs. Western India Shipyard Ltd., remitted the issue back to the AO to consider the claim made by the assessee through the letter and decide the issue in accordance with the law. Conclusion: The appeal was partly allowed for statistical purposes, with several issues remitted back to the AO for reconsideration and recalculation based on the Tribunal's directions. The Tribunal emphasized the need for proper documentation and adherence to judicial precedents in determining the allowability of various claims and expenses.
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