2020 (1) TMI 154 - AT - Income Tax

Addition on account of Employees Provident Fund and Employee State Insurance Corporation - Claim was rejected by the Ld. AO on the ground that that the same was not paid on or before prescribed due date - HELD THAT - AO, added the same as it is not allowable under section 43B of the Income Tax Act, 1961. The same was further confirmed by the Ld. CIT(a) the issue is already been decided against the assessee in terms of the ratio laid down passed by the Hon ble Jurisdictional High Court in the case of Gujarat State Road Transport Corporation (GSRTC) 2014 (1) TMI 502 - GUJARAT HIGH COURT . Hence, we find no merit in this ground of appeal preferred by the assessee. The same, thus, dismissed. Disallowance of depreciation of building given on lease - HELD THAT - As decided in UNIVERSAL PLAST LTD. AND GUNTUR MERCHANTS COTTON PRESS CO. LTD. VERSUS COMMISSIONER OF INCOME-TAX 1999 (3) TMI 15 - SUPREME COURT no irregularities in the order passed by the authorities below in not allowing such income of rent received by the appellant as income from business or profession and in not allowing the depreciation claimed by the assessee upon the categorizing the said income as income from house property. So as to, warrant interference hence we confirm the same. Assesse s appeal is thus found to be devoid of any merit and hence dismissed. Upward adjustment u/s 92CA(3) in respect of the international transactions of the appellant pertaining to payment of managements fees - HELD THAT - Under the mutual agreement procedure the 70% actual expenses incurred under the management fees was allowed for Assessment Years 2007-08, 2008-09, and 2009-10 in respect of the case of the assessee itself. Advanced pricing agreement has been recognized as the highest body under the income tax authority being the CBDT and in view of the allowability of expenses made by the APA as mentioned hereinabove we are of the view that the management expenses cannot, at all be said to be nearly as the case sought to be made out by the revenue before us. In that view of the matter taking into consideration the advanced pricing agreement which was applied in respect of Assessment Years 2015-16, 2016- 17, 2017-18 and 2018-19, we are of the considered opinion to allow 1.5% of the operating revenue of on the identical facts and circumstances available before us taking into consideration the increasing ratio of the allowability of the expenses incurred by the assessee. It is on record that for Assessment Years 2015-16 to 2017-18 the disallowance was of 2% only wearers, in 2018-19 it has increased to 3%. Since the assessment proceeding before us is for the year 2011-12 March before the consideration of the year under APA in our considered view 1.5% disallowance will be appropriate for the case of the assessee before us .Further that the learned and departmental representative failed to bring any country document which shows that the fact is otherwise than that has been dealt with by the advanced pricing agreement while determining the allowability of expenses of the appellant company. Since the assessee has claimed the expenses to the tune of ₹ 2,31,35,833/- and after applying 2% of the operating revenue of manufacturing segment which is worked out at ₹ 2,20,88,379/-, hence we disallow ₹ 10,47,454/- lakh against the assessee in respect of the operating revenue of manufacturing segment. In the result assesses appeal is partly allowed.

Summary

Issues Involved:
1. Addition on account of employee contribution to provident fund and Employees' State Insurance Corporation.
2. Disallowance of depreciation on building given on lease.
3. Upward adjustment under section 92CA(3) of the Income Tax Act in respect of international transactions pertaining to payment of management fees.
4. Determination of arm's length price of international transactions pertaining to payment of management fees as 'Nil' by applying Comparable Uncontrolled Price (CUP) method.
5. Failure to appreciate distinct facts and documents submitted by the appellant for the year under consideration.
6. Questioning the commercial expediency of services received by the appellant from the AEs.
7. Disregarding detailed management recharge analysis and various documentary evidence submitted by the appellant.
8. Disregarding aggregation of payment of management fees with the manufacturing segment under Transactional Net Margin Method (TNMM).
9. Disregarding directions given by the Honorable Dispute Resolution Panel (DRP) in appellant's own case of AY 2010-11.
10. Application of the ratio of Advance Pricing Agreement (APA) concluded by the Appellant with the Central Board of Direct Taxes (CBDT).

Detailed Analysis:

1. Addition on account of employee contribution to provident fund and Employees' State Insurance Corporation:
The assessee's claim for deduction of ?1,63,872 on account of employee contribution to provident fund and Employees' State Insurance Corporation was rejected because it was not paid on or before the prescribed due date. The AO and CIT(A) disallowed the claim under section 43B of the Income Tax Act, 1961, referencing the Gujarat High Court's decision in the case of Gujarat State Road Transport Corporation (GSRTC). The Tribunal found no merit in the appeal and dismissed this ground.

2. Disallowance of depreciation on building given on lease:
The assessee received rent from leasing land and a factory building, which it offered under 'business income'. The AO and CIT(A) treated the income as 'income from house property', disallowing the depreciation claim of ?60,91,110. The Tribunal referenced the Supreme Court's decision in Universal Plast Ltd., which ruled that lease rent from factory premises should be assessed as 'income from house property' if the assessee is not conducting any business with the property. The Tribunal upheld the lower authorities' decision, dismissing the appeal.

3. Upward adjustment under section 92CA(3) of the Income Tax Act:
The CIT(A) upheld an upward adjustment of ?2,31,35,833 under section 92CA(3) concerning international transactions for management fees. The Transfer Pricing Officer (TPO) found no substantial difference in the functions of the alleged management services and benchmarked the fees using the CUP method, determining the arm's length price as 'Nil'. The Tribunal reviewed the details provided and noted that under the Mutual Agreement Procedure, 70% of actual expenses were allowed for previous years. The Tribunal allowed 1.5% of the operating revenue of the manufacturing segment as management fees, disallowing ?10,47,454, and partly allowed the appeal.

4. Determination of arm's length price of international transactions as 'Nil':
The TPO used the CUP method to determine the arm's length price of management fees as 'Nil', which was upheld by the CIT(A). The Tribunal, considering the APA and previous allowances, found the fees justified and allowed 1.5% of the operating revenue as management fees.

5. Failure to appreciate distinct facts and documents:
The Tribunal acknowledged the appellant's submission of various documents and changes in agreements but did not find sufficient grounds to overturn the CIT(A)'s decision entirely. The Tribunal partly allowed the appeal based on the APA and previous allowances.

6. Questioning the commercial expediency of services received:
The AO and CIT(A) questioned the commercial expediency of the services received by the appellant from its AEs. The Tribunal, however, considered the APA and previous allowances, finding the management fees justified to some extent.

7. Disregarding detailed management recharge analysis:
The Tribunal noted the appellant's detailed management recharge analysis and various documentary evidence but upheld the disallowance partly, aligning with the APA's allowance of 1.5% of the operating revenue.

8. Disregarding aggregation under TNMM:
The Tribunal reviewed the appellant's use of TNMM for benchmarking but upheld the TPO's use of the CUP method, partly allowing the appeal based on the APA.

9. Disregarding DRP's directions:
The Tribunal did not find sufficient grounds to overturn the CIT(A)'s decision based on the DRP's directions for AY 2010-11, partly allowing the appeal based on the APA.

10. Application of the APA ratio:
The Tribunal applied the APA ratio, allowing 1.5% of the operating revenue as management fees and disallowing ?10,47,454, partly allowing the appeal.

Conclusion:
The Tribunal dismissed the appeals related to provident fund and depreciation on leased buildings but partly allowed the appeal on management fees, applying the APA ratio and disallowing ?10,47,454.