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2018 (8) TMI 1708 - AT - Income TaxAddition on account of transfer pricing adjustment made on the basis of Share Purchase Agreement ( SPA / Agreement ) - Held that - We have already rebutted the Ld. DR s reliance on Instrumentarium s case above in detail, therefore the same are not applicable to the facts of the present case and we are of the view that since chapter 10 pre-supposes the existence of income and lays down machinery provison to compute ALP of such income, if it arises from an International transaction . Section 92 is not an independent charging section to bring in a new head of income or to charge tax on income which is otherwise not chargeable under the Act. Accordingly, since no income had accrued to or received by the assessee u/s 5, no notional income can be brought to tax u/s 92 of the Act. We direct the AO to deleted the additions.
Issues Involved:
1. Transfer pricing adjustment based on Share Purchase Agreement (SPA). 2. Determination of Associated Enterprises (AE) relationship. 3. Consideration of an international transaction under Section 92C of the Income Tax Act. 4. Computation of Arm's Length Price (ALP) using the Comparable Uncontrolled Price (CUP) method. 5. Jurisdictional authority of the Commissioner of Income Tax (Appeals) (CIT(A)). Detailed Analysis: Issue 1: Transfer Pricing Adjustment Based on SPA The Commissioner of Income Tax (Appeals) [CIT(A)] confirmed the addition of ?3,42,85,714/- made by the Assistant Commissioner of Income Tax (ACIT) based on the SPA. The assessee argued that the alleged international transaction was not between Associated Enterprises (AEs) and thus the addition should be considered as bad in law and deleted. The ITAT found that the CIT(A) erred in considering the SPA as a basis for transfer pricing adjustment without proper jurisdiction. Issue 2: Determination of Associated Enterprises (AE) Relationship The CIT(A) held that M/s. Kuki Investments (Kuki) was an AE of the assessee under Section 92A of the Income Tax Act. The CIT(A) also held that Mr. Raj Kundra (RK) was a relative of the assessee under Section 92A(2)(j). The ITAT found that the CIT(A) incorrectly substituted its satisfaction for that of the ACIT, which is not permissible under law. The ITAT concluded that the assessee and Kuki were not AEs as per the requirements of Sections 92A(1) and 92A(2)(j). Issue 3: Consideration of an International Transaction under Section 92C The CIT(A) considered the association with the Rajasthan Royals (RR) franchise as an international transaction under Section 92C. The ITAT found that the CIT(A) erred in holding that the obligation to be associated with RR was an integral component of the consideration paid for the purchase of shares of EM Sporting Holding Limited (EMSHL) by Kuki. The ITAT ruled that the transaction did not constitute an international transaction as defined under Section 92B(2), as there was no prior agreement between the non-AE and the AE of the assessee. Issue 4: Computation of Arm's Length Price (ALP) Using CUP Method The CIT(A) confirmed the ACIT's computation of the ALP by comparing the assessee's agreement with Hindustan Unilever Limited (HUL) and applying the CUP method. The ITAT found that the CIT(A) and ACIT erred in taking into consideration the incorrect number of days for which the assessee was available for promotional activities. The ITAT directed the ACIT to recompute the transfer pricing adjustment accordingly. Issue 5: Jurisdictional Authority of CIT(A) The ITAT examined whether the CIT(A) had the jurisdiction to substitute its satisfaction for that of the ACIT regarding the existence of an international transaction. The ITAT concluded that the CIT(A) does not have the authority to cure a jurisdictional defect, which is a requirement for the ACIT to record satisfaction about the existence of an international transaction. The ITAT relied on the judgment in Vodafone India Services Pvt. Ltd. v. Union of India and others [2014] 361 ITR 531 (Bom HC), which held that the CIT(A) cannot substitute its satisfaction for that of the ACIT. Conclusion: The ITAT allowed the appeal filed by the assessee, directing the deletion of the additions made by the ACIT. The ITAT found that the CIT(A) erred in confirming the transfer pricing adjustment, determining the AE relationship, considering the transaction as an international transaction, and computing the ALP using the CUP method. The ITAT emphasized that the CIT(A) does not have the jurisdiction to substitute its satisfaction for that of the ACIT regarding the existence of an international transaction.
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