2019 (8) TMI 722 - AT - Income Tax

TP Adjustment - international transaction of provision of corporate guarantee for loans taken by AEs - HELD THAT - Tribunal has accepted in assessee s own case for AYs 2009-10 and 2010-11 2016 (1) TMI 853 - ITAT MUMBAI wherein it has followed the decision of the Hon ble Bombay High Court in the case of CIT v. Everest Kanto Cylinder Ltd. 2015 (5) TMI 395 - BOMBAY HIGH COURT as direct the AO to restrict the adjustments to 0.5% - Facts being identical, we follow the above order of the Co-ordinate Bench in assessee s own case and direct the AO to restrict the adjustment at 0.5% of the loan amount advanced by the bank to its AEs. Disallowance in respect of Annual Information Report (AIR) reconciliation - HELD THAT - We admit the supporting evidence filed by the Ld. counsel in the instant case for the reason that these are merely in connection with reconciliation of tour sales as reflected in the AIR statement vis-a-vis the books of accounts. We are of the considered view that the reconciliation in respect of AIR is a purely factual issue which needs verification at the level of the AO. Therefore, we set aside the order of the Ld. CIT(A) on the above matter and restore the matter to the file of the AO to make an order afresh following the above Instruction of CBDT, after giving reasonable opportunity of being heard to the assessee. We direct the assessee to file the relevant documents/evidence before the AO Disallowance of travel booking engine and SAP software expenses considered as Capital Work-in-Progress ( CWIP ) in the books of account and claimed as revenue in the return of income - HELD THAT - On identical issue, the ITAT, Mumbai in assessee s own case for AY 2012-13 has held that the salary and professional fees incurred for the development of the travel booking engine is to be allowed as a revenue expense as the same has not been incurred to acquire a new asset to be used in a new line of business Non-entitlement of Foreign Tax Credit (FTC) - Interest on loans and advances to one of its subsidiaries, CNK Australia - the AO did not grant foreign tax credit by holding that no details are available on record to show that the interest income had been offered to tax in India and that such interest income was not reflected as a part of interest income - HELD THAT - We find that the rectification application filed by the assessee on the above matter u/s 154 of the Act on 30.11.2017 regarding non-grant of foreign tax credit is pending before the AO. Along with it, the assessee has filed the details of foreign tax credit along with the certificate issued by the Australian Taxation Office evidencing the deduction of tax by CKL Australia. Also, the assessee has filed before the AO the details of corresponding interest income offered to tax by the assessee - we direct the AO to decide the above issue as per the provisions of the Act and dispose off the rectification application dated 30.11.2017 without further delay. Thus the ground of appeal No. 21 to 23 are allowed for statistical purposes. Non-grant of TDS and non-grant of dividend distribution tax ( DDT ) - HELD THAT - As evident from the record, the assessee has filed a rectification application dated 30.11.2017 before the AO. We direct the AO to pass an order after verifying the facts and dispose off the said rectification application.

Issues Involved:
1. Adjustment of corporate guarantee commission for loans to AEs.
2. Disallowance due to Annual Information Report (AIR) reconciliation.
3. Disallowance of travel booking engine and SAP software expenses.
4. Non-entitlement of Foreign Tax Credit (FTC).
5. Non-grant of TDS credit.
6. Non-grant of Dividend Distribution Tax (DDT) credit.
7. Levy of interest under sections 234B and 234C.

Issue-wise Detailed Analysis:

1. Adjustment of Corporate Guarantee Commission for Loans to AEs:
The assessee, engaged in travel and tour business, provided corporate guarantees for loans taken by its subsidiaries (AEs) and initially claimed no commission was chargeable. However, it made a voluntary adjustment of 0.5% in its return of income. The Transfer Pricing Officer (TPO) disagreed, using State Bank of India rates for notional adjustment, which the Dispute Resolution Panel (DRP) upheld. The Tribunal referenced its own decisions in prior years and the Bombay High Court’s ruling in CIT v. Everest Kanto Cylinder Ltd., directing the AO to restrict adjustments to 0.5% of the loan amount. This issue was allowed for statistical purposes.

2. Disallowance Due to Annual Information Report (AIR) Reconciliation:
The AO added un-reconciled tour sales of ?44,96,114 to the total income due to mismatches between AIR statement and books of accounts. The assessee attempted reconciliation post-assessment and provided supporting evidence. The Tribunal admitted the evidence and noted the need for verification at the AO level, referencing CBDT Instruction No. 05/2013 and the Delhi High Court’s judgment in ‘Court On its Own Motion vs. UOI and Ors.’ The matter was remanded to the AO for fresh verification, allowing these grounds for statistical purposes.

3. Disallowance of Travel Booking Engine and SAP Software Expenses:
The AO disallowed ?3,23,26,441 in salary expenses, treating them as capital work-in-progress (CWIP). The Tribunal noted a similar issue in the prior year where such expenses were allowed as revenue expenses under section 37(1) of the Act, as they were for technology upgrades and not for creating new assets or business lines. Following this precedent, the Tribunal allowed these grounds.

4. Non-Entitlement of Foreign Tax Credit (FTC):
The assessee claimed FTC for taxes withheld by CNK Australia on interest income. The AO denied it, citing lack of evidence in financial statements. The Tribunal noted the pending rectification application and directed the AO to resolve it per the Act’s provisions, allowing these grounds for statistical purposes.

5. Non-Grant of TDS Credit:
The assessee claimed a TDS credit discrepancy of ?56,08,310. The Tribunal directed the AO to verify and address the rectification application filed by the assessee, allowing this ground.

6. Non-Grant of Dividend Distribution Tax (DDT) Credit:
The assessee claimed DDT credit for ?2,28,12,582 paid on dividends. The Tribunal noted the pending rectification application and directed the AO to verify and grant the credit as per the Act, allowing this ground.

7. Levy of Interest Under Sections 234B and 234C:
The levy of interest under sections 234B and 234C was deemed consequential to the above issues.

Conclusion:
The appeal was partly allowed, with several issues remanded for fresh verification and resolution by the AO. The Tribunal emphasized adherence to precedents and proper verification processes, ensuring fair treatment of the assessee’s claims.

← Previous Next →