2020 (4) TMI 526 - AT - Income Tax

Interest on borrowed fund were given as advance to sister companies - assessee reiterates that advances made to sister companies were for business purposes and not necessarily out of any specific borrowings - charging notional interest as indirect interest debited by on the assessee on these business advances - HELD THAT - Advances to Gokaldas Images Infrastructure P. Ltd., (GIIPL) Loans are given out of borrowed funds and not own funds, which could not be controvert by Ld. AR even in the present year. Accordingly, we are not inclined to interfere with the findings of CIT(A)on the issue. Advances to Hinduja Realtors Pvt. Ltd. issue requires a fresh consideration by the Assessing Officer and therefore the Order of the CIT (A) is set aside. The assessee is directed to file the required documents to substantiate its case before the Assessing Officer. The Assessing Officer is directed to consider the same and decide the issue in accordance with law after affording the assessee an opportunity of being heard. Deduction under Section 10B of the Act without setting off of the loss, depreciation / Business pertaining to non-10B Units - HELD THAT - We found that the CIT (Appeals) has relied on the jurisdictional High Court decision in YOKOGAWA INDIA LTD. 2011 (8) TMI 845 - KARNATAKA HIGH COURT which was confirmed by the Hon'ble Supreme Court 2016 (12) TMI 881 - SUPREME COURT . The learned Departmental Representative could not controvert the observations of the CIT (Appeals) with cogent evidence. Accordingly, we are not inclined to interfere with the order of CIT (A) on this disputed issue No TP adjustment is called for in this case.

Issues Involved:

1. Disallowance of interest on advances to sister companies.
2. Reimbursement of expenses and commercial expediency of advances.
3. Non-adjudication of certain grounds by CIT(A).
4. Set-off of brought forward losses and allowances.
5. Allocation of common expenses between EOU and non-EOU units.
6. Deduction under Section 10B without setting off losses from non-10B units.
7. Transfer Pricing adjustments.
8. Penalty proceedings under Section 271(1)(c).

Issue-wise Detailed Analysis:

1. Disallowance of Interest on Advances to Sister Companies:
The assessee contended that advances to sister companies were for business purposes and made from surplus funds, not borrowed funds. The CIT(A) directed the AO to recalculate interest on incremental advances. The Tribunal upheld the CIT(A)'s decision, referencing the assessee's own case for AY 2008-09, where it was found that loans were given out of borrowed funds, not surplus funds.

2. Reimbursement of Expenses and Commercial Expediency of Advances:
The assessee claimed that advances to Gokaldas Images Infrastructure Pvt. Ltd. and Hinduja Realtors Pvt. Ltd. were for reimbursement of expenses and commercial expediency. The Tribunal found insufficient evidence to support these claims and directed the AO to re-examine the issue, requiring the assessee to provide necessary documentation.

3. Non-adjudication of Certain Grounds by CIT(A):
The Tribunal noted that CIT(A) did not adjudicate on grounds 4 to 8 raised by the assessee. These grounds pertained to the set-off of losses, quantification of carry-forward losses, allowable and inadmissible expenses, TDS credit, and penalty proceedings. The Tribunal restored these grounds to CIT(A) for appropriate findings and a speaking order.

4. Set-off of Brought Forward Losses and Allowances:
The assessee argued that the AO failed to set off brought forward losses and allowances against the determined income. The Tribunal directed the CIT(A) to address this issue and provide appropriate findings.

5. Allocation of Common Expenses Between EOU and Non-EOU Units:
The CIT(A) directed the AO to rework the disallowance based on consistency. The Tribunal upheld this direction, emphasizing the need for consistent application of rules.

6. Deduction Under Section 10B Without Setting Off Losses from Non-10B Units:
The CIT(A) relied on the jurisdictional High Court decision in CIT vs. Yokogawa India Ltd., which was confirmed by the Supreme Court. The Tribunal upheld the CIT(A)'s direction to compute deduction under Section 10B without setting off losses from non-10B units.

7. Transfer Pricing Adjustments:
The DRP directed the AO to adopt the Cost Plus Method for determining the ALP and accept the assessee's TP documentation as in earlier years. The Tribunal found no reason to deviate from the DRP's stand, noting that the TPO had not provided factual differences or justification for adopting a different method. The Tribunal confirmed the DRP's directions and dismissed the Revenue's grounds on this issue.

8. Penalty Proceedings Under Section 271(1)(c):
The assessee contested the initiation of penalty proceedings. The Tribunal restored this issue to the CIT(A) for appropriate findings and a speaking order.

Separate Judgments:
The Tribunal delivered a consolidated order for all issues, with no separate judgments by individual judges.

Conclusion:
The Tribunal partly allowed the assessee's appeal for statistical purposes, restored certain issues to the CIT(A) and AO for fresh consideration, and dismissed the Revenue's appeals on specific grounds. The decisions emphasized the need for consistent application of rules, adequate documentation, and adherence to judicial precedents.

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