2018 (9) TMI 964 - AT - Income Tax

TPA - benchmarking of the interest paid by the assessee to its AEs on the Fully and Compulsory Convertible Debentures (FCCDs) - Held that - In view of the finding of a coordinate bench of this Tribunal in assessee s own case for the immediately preceding years, we are of the considered opinion that the issue is no longer res integra and this bench is required to follow the same in the absence of any change of circumstances. No change of circumstances is pleaded before us. We, therefore, while respectfully following the above decision, reach a conclusion that it is reasonable on facts and also permissible under law to include 300 points basis while calculating the interest rate. In view of the fact that the variance does not exceed 5% for the FCCDs issued during the FYs 2008-09 and 3% for the FCCDs issued subsequently interference by the Ld. TPO with the value of the international transaction. The addition, therefore, cannot be sustained and shall be directed to be deleted. We accordingly direct the learned AO/TPO to delete the same.

Summary

Issues:
1. Benchmarking of interest paid by the assessee to its AEs on FCCDs.

Analysis:

1. The only issue in this case pertains to the benchmarking of interest paid by the assessee to its Associated Enterprises (AEs) on the Fully and Compulsory Convertible Debentures (FCCDs) issued during specific financial years. The assessee, a part of a group of companies engaged in real estate projects, paid interest at specified rates to its AEs as per share subscription agreements. The dispute arose when the Transfer Pricing Officer (TPO) restricted the interest rates, disallowing the 300 basis points, leading to a proposed adjustment. The assessee contended that the interest rates were arm's length, considering prevailing rates and regulatory requirements.

2. The assessee argued that the interest rates were justified based on the Security Holders Agreement and economic analysis, emphasizing the hybrid nature of FCCDs and the higher risk involved compared to standard debt instruments. The assessee also highlighted compliance with FEMA regulations and the specific provisions of the Act regarding transfer pricing adjustments based on variations exceeding 5%. The authorities below upheld the TPO's decision, prompting the assessee to appeal, asserting that the interest paid was in line with the agreement and economic rationale.

3. The Tribunal analyzed the factual aspects of the case, noting discrepancies in the TPO's application of interest rates for different FCCD issuances. The Tribunal acknowledged the assessee's arguments regarding the permissible variance under the law for determining arm's length prices and referenced a previous decision in the assessee's favor for similar issues. Ultimately, the Tribunal concluded that the inclusion of 300 basis points in calculating interest rates was reasonable and permissible under the law, especially considering the variances falling within the acceptable limits. The Tribunal directed the deletion of the proposed adjustment by the TPO, thereby allowing the assessee's appeal.

4. The judgment emphasized the importance of factual accuracy in applying interest rates for FCCDs and highlighted the legal provisions governing transfer pricing adjustments based on acceptable variances. By referencing a prior decision in the assessee's favor and considering the consistent application of 300 basis points, the Tribunal ruled in favor of the assessee, emphasizing the reasonableness and legality of the interest rates applied. The decision underscored the need for adherence to regulatory requirements and economic justifications in determining arm's length prices for international transactions, ultimately leading to the allowance of the appeal and the deletion of the proposed adjustment.