9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2017 (1) TMI 115 - AT - Income TaxAddition made u/s 153A/144C - transfer pricing adjustment addition - Held that - When undisputedly complete details of income along with books of account and audited balance sheet have been filed by the assessee company during the assessment proceedings completed u/s 143 (3), no addition can be made in the absence of incriminating material, if any, unearthed during the search only. The contention of the ld. DR that non-furnishing of Form 3CEB by the assessee company during normal assessment proceedings is enough for reassessment of the case is not tenable because when all the transactions entered into by the assessee company with its AE supported with books of account and audited balance sheets have been brought on record during assessment proceedings completed u/s 143(3) it was for AO/TPO to apply their mind to make assessment accordingly. More so, it is not case of the revenue that the assessee has suppressed the international transaction with its AE during the assessment proceedings concluded u/s 143(3) of the Act. Even otherwise, the issue in controversy has already been decided in favour of the assessee for AYs 2006-07 and 2007-08 wherein reassessment was made u/s 153A consequent upon the search and seizure operation conducted on 21.01.2011. Vide order dated 14.12.2016 (supra), Hon ble jurisdictional High Court held, in assessee s own case for AYs 2006-07 and 2007-08 by following the law laid down in Kabul Chawla (2015 (9) TMI 80 - DELHI HIGH COURT), that completed assessment u/s 143(3) of the Act interfered with by AO/TPO u/s 153A is not tenable in the eyes of law. In view of what has been discussed above, we are of the considered view that without entering into the merits of this case, the addition made in this case u/s 153A/144C of the Act is not sustainable in the eyes of law, hence deleted. - Decided in favour of assessee.
Issues Involved:
1. Validity of the assessment order under Section 143(3) read with Section 144C of the Income-tax Act, 1961. 2. Validity of the directions issued by the Dispute Resolution Panel (DRP) beyond the period of limitation. 3. Barred by limitation of the assessment order. 4. Issuance and service of statutory notice under Section 143(2). 5. Validity of the search and seizure operation under Section 153A. 6. Violation of statutory conditions and procedures under Section 153A/143(3). 7. Absence of incriminating material during the search. 8. Reference to the Transfer Pricing Officer (TPO) without incriminating material. 9. Reviewing the order passed under Section 143(3). 10. Incorrect assessment of income. 11. Addition of ?2,11,06,468/- due to difference in arm's length price determined by TPO. 12. Adjustment of ?2,11,06,468/- on account of interest on loan to the subsidiary. 13. Classification of the transaction as 'international transaction'. 14. Imputation of interest at 10.25% p.a. on interest-free loan. 15. Nature of the loan as quasi-equity. 16. Loans from surplus funds in the EEFC account. 17. Loans not impacting the cost or profits of the assessee. 18. Loans from the EEFC account not entitled to interest income. 19. Benchmarking the loan based on LIBOR. 20. Application of Prime Lending Rate (PLR) of SBI. 21. Application of Safe Harbour Rule. Detailed Analysis: 1. Validity of the Assessment Order: The assessee challenged the assessment order passed by the AO under Section 143(3) read with Section 144C of the Act, arguing that it was bad both in law and on facts. The Tribunal found that the assessment order was not sustainable as no incriminating material was found during the search and seizure operation conducted on 21.01.2011. 2. Directions Issued by DRP Beyond Limitation: The assessee contended that the directions issued by the DRP were beyond the statutory period of limitation. The Tribunal did not specifically address this issue but focused on the lack of incriminating material found during the search. 3. Barred by Limitation of the Assessment Order: The assessee argued that the assessment order was barred by limitation. The Tribunal did not directly address this issue but emphasized the absence of incriminating material. 4. Issuance and Service of Statutory Notice: The assessee claimed that the assessment order was passed without the issuance and service of the statutory notice under Section 143(2). The Tribunal did not specifically address this issue. 5. Validity of Search and Seizure Operation: The assessee argued that the search operation, which led to the reopening of the assessment, was invalid. The Tribunal found that no incriminating material was discovered during the search, rendering the subsequent assessment unsustainable. 6. Violation of Statutory Conditions and Procedures: The assessee contended that the assessment under Section 153A violated statutory conditions and procedures. The Tribunal agreed, noting the absence of incriminating material. 7. Absence of Incriminating Material: The Tribunal emphasized that no incriminating material was found during the search, which was a key factor in its decision to set aside the assessment order. This was supported by the precedent set in CIT vs. Kabul Chawla - 380 ITR 173 (Del.). 8. Reference to TPO Without Incriminating Material: The assessee argued that the reference to the TPO was unjustified due to the lack of incriminating material. The Tribunal agreed, reiterating that no incriminating material was found during the search. 9. Reviewing the Order Passed Under Section 143(3): The assessee contended that the AO erred in reviewing the order passed under Section 143(3). The Tribunal found that the original assessment was completed with all relevant details, and no new incriminating material was found to justify a reassessment. 10. Incorrect Assessment of Income: The assessee argued that the AO incorrectly assessed the income at ?1,47,01,367/- instead of the declared loss of ?64,05,101/-. The Tribunal did not specifically address this issue but focused on the lack of incriminating material. 11. Addition Due to Difference in Arm's Length Price: The assessee challenged the addition of ?2,11,06,468/- due to the difference in the arm's length price determined by the TPO. The Tribunal found this addition unsustainable due to the absence of incriminating material. 12. Adjustment on Account of Interest on Loan: The assessee argued against the adjustment of ?2,11,06,468/- on account of interest on the loan to the subsidiary. The Tribunal agreed, noting the lack of incriminating material. 13. Classification as 'International Transaction': The assessee contended that the transaction did not qualify as an 'international transaction.' The Tribunal did not specifically address this issue but focused on the absence of incriminating material. 14. Imputation of Interest at 10.25% p.a.: The assessee argued against the imputation of interest at 10.25% p.a. on the interest-free loan. The Tribunal found this imputation unsustainable due to the lack of incriminating material. 15. Nature of the Loan as Quasi-Equity: The assessee contended that the loan should be considered quasi-equity. The Tribunal did not specifically address this issue but focused on the absence of incriminating material. 16. Loans from Surplus Funds in EEFC Account: The assessee argued that the loans were from surplus funds in the EEFC account. The Tribunal did not specifically address this issue but focused on the absence of incriminating material. 17. Loans Not Impacting Cost or Profits: The assessee contended that the loans did not impact the cost or profits and should not be considered international transactions. The Tribunal did not specifically address this issue but focused on the absence of incriminating material. 18. Loans from EEFC Account Not Entitled to Interest Income: The assessee argued that the loans from the EEFC account were not entitled to interest income. The Tribunal did not specifically address this issue but focused on the absence of incriminating material. 19. Benchmarking the Loan Based on LIBOR: The assessee contended that the loan should be benchmarked based on LIBOR. The Tribunal did not specifically address this issue but focused on the absence of incriminating material. 20. Application of PLR of SBI: The assessee argued against the application of the PLR of SBI. The Tribunal did not specifically address this issue but focused on the absence of incriminating material. 21. Application of Safe Harbour Rule: The assessee contended that the Safe Harbour Rule was incorrectly applied. The Tribunal did not specifically address this issue but focused on the absence of incriminating material. Conclusion: The Tribunal concluded that the addition made under Section 153A/144C was not sustainable in the absence of incriminating material found during the search. Consequently, the appeal filed by the assessee was allowed, and the addition was deleted. The order was pronounced in open court on December 28, 2016.
|
