2021 (5) TMI 949 - AT - Income Tax

Adjustment on account of export commission and royalty paid to associated enterprises - HELD THAT - We find that the both the issues of transfer pricing adjustment with respect to determination of ALP of Rs. Nil on export commission and payment of royalty are decided in favour of the assessee. The ld. DR could not show as well as the ld. AR vehemently submitted that there is no change in the facts and circumstances of the case. In view of this Ground Nos. 2 to seven of the appeal are allowed. Expenses of signage - revenue expenditure OR capital expenditure - HELD THAT - The expenditure was incurred on signage for display of the name of the assessee at the dealer's premises. However, once the same is fixed at dealers site then the Courts have held that it does not satisfy the test of ownership with the assessee and the expenditure is to be allowed as revenue expenditure, We find support from the ratio laid down by the Hon'ble Delhi High Court in CIT vs Honda Siel Power Products Ltd. 2017 (6) TMI 524 - SUPREME COURT .Thus, we are of the view that the expenditure to the extent claimed by the assessee is to be allowed in the hands of the assessee and not/the entire expenditure. Addition of sales tools expenses u/s 37 - HELD THAT - We find that though the tribunal has considered the material facts for allowance of sales tool expenses however as we could understand referred to the signage expenses. However, in respect of the above apparent error, we find that the logic given by the coordinate bench equally applies to the sales tool expenses also. The above decision was also followed by the coordinate bench in subsequent year. The learned departmental representative also could not show that why the above logic does not apply to the sales tool expenses incurred by the assessee. Therefore, respectfully following the order of the coordinate bench in assessee's own case we hold that since tool expenses incurred by the assessee is a revenue expenditure allowable to the assessee as deduction. Capitalization of the royalty being 25% being treated as a capital in nature as it resulted in an enduring benefit to the assessee - HELD THAT - On careful perusal of the order, we find that the coordinate bench on identical facts and circumstances has held that the royalty paid by the assessee to the associated enterprises concern is fully revenue in nature and not the capital expenditure. Thus, the coordinate bench deleted the disallowances erred by the ld. AO that 25% of the royalty paid by the assessee is capital in nature. The coordinate bench in 2021 2020 (9) TMI 62 - ITAT DELHI in assessee's own case considered the decision of the honourable Supreme Court in relying on the decision of the honourable Delhi High Court allowed the claim of the assessee. Disallowance of deduction of technical know-how claimed - HELD THAT - As decided in own case 2020 (9) TMI 1180 - ITAT DELHI held there is no merit in the said exercise carried out by the Assessing Officer and accordingly we direct the Assessing Officer to allow the running Royalty as business expenditure in entirety.

Issues Involved:
1. Transfer Pricing Adjustments
2. Payment of Export Commission
3. Payment of Royalty on Exports
4. Treatment of Expenditure on Signage
5. Disallowance of Sales Tools Expenses
6. Capitalization of Royalty
7. Deduction of Expenses in respect of Technical Know-how
8. Initiation of Penalty Proceedings and Charging of Interest

Issue-wise Detailed Analysis:

1. Transfer Pricing Adjustments:
The assessee challenged the adjustments made by the Transfer Pricing Officer (TPO) and Dispute Resolution Panel (DRP) regarding the payment of export commission and royalty on exports to Associate Enterprises (AEs). The TPO/DRP rejected the transfer pricing methodology adopted by the assessee, applied the principles of "commercial expediency," and determined the arm's length price (ALP) of these transactions at NIL.

2. Payment of Export Commission:
The TPO/DRP determined the ALP of the export commission at NIL, rejecting the 'combined transaction approach' and not appreciating the functional profile of the assessee. The assessee argued that the export commission was intrinsically linked to its main activity of manufacturing and sale of products. The Tribunal found that the issue was covered in favor of the assessee by earlier decisions, noting that the average price of exports to AEs was higher than domestic sales and the profitability from exports was significantly higher. The Tribunal directed the deletion of the adjustment on account of export commission.

3. Payment of Royalty on Exports:
The TPO/DRP also determined the ALP of the royalty paid to Honda Motors Japan at NIL, applying the CUP method and the "benefit test." The assessee contended that the payment of royalty was for the utilization of know-how for manufacturing goods, irrelevant of whether the goods were sold to AEs or non-AEs. The Tribunal, following earlier decisions, held that the royalty payment was revenue in nature and directed the deletion of the adjustment.

4. Treatment of Expenditure on Signage:
The AO/DRP treated the expenditure on signage as capital in nature, while the assessee claimed it as revenue expenditure. The Tribunal, following earlier decisions, held that the expenditure on signage, which was fixed at dealers' premises, did not satisfy the test of ownership with the assessee and was allowable as revenue expenditure.

5. Disallowance of Sales Tools Expenses:
The AO/DRP disallowed the sales tools expenses under section 37 of the Act. The Tribunal, following earlier decisions, held that the expenditure incurred on sales tools/fixtures at dealers' outlets was for maintaining uniformity in advertising and was wholly and exclusively for the purpose of business. The Tribunal allowed the deduction of sales tools expenses as revenue expenditure.

6. Capitalization of Royalty:
The AO/DRP treated 25% of the running royalty as capital in nature, resulting in an enduring benefit to the assessee. The Tribunal, following earlier decisions and considering the decision of the Supreme Court in the case of Honda Siel Cars Ltd., held that the royalty payment was revenue in nature and directed the deletion of the capitalization of royalty.

7. Deduction of Expenses in respect of Technical Know-how:
The AO/DRP did not allow the deduction of expenses in respect of technical know-how. The Tribunal, following earlier decisions, held that the assessee was entitled to claim the expenses as revenue expenditure based on the settled position by the Jurisdictional High Court in the case of Hero Honda Motors Ltd. The Tribunal allowed the deduction of technical know-how expenses.

8. Initiation of Penalty Proceedings and Charging of Interest:
The AO initiated penalty proceedings under section 271(1)(c) and levied interest under sections 234A, 234B, 234C, and 234D of the Act. The Tribunal found these grounds to be consequential and did not argue them further. Therefore, these grounds were dismissed.

Conclusion:
The Tribunal partly allowed the appeal of the assessee, directing the deletion of adjustments related to export commission and royalty payments, allowing the expenditure on signage and sales tools as revenue expenditure, and permitting the deduction of technical know-how expenses. The issues of penalty proceedings and interest were dismissed as consequential.

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