2022 (4) TMI 275 - AT - Income Tax

Transfer Pricing Adjustment on account of intra-group services - HELD THAT - As decided in own case 2021 (12) TMI 1324 - ITAT DEHRADUN we direct the Assessing Officer to delete the addition made on account of transfer pricing adjustment on intra-group services provided by the assessee to its AE. Granting interest u/s. 244A - As submitted that necessary directions may be issued to the Assessing Officer to correctly compute the interest u/s. 244A - HELD THAT - DR has no serious objection for such directions we direct the Assessing Officer to look into the plea of the assessee and decide the same in accordance with law. This ground is allowed for statistical purpose. Allowability of Education cess paid - HELD THAT - We noticed that the Tribunal following the decision of the Hon'ble Rajasthan High Court in the case of Chambal Fertilizers and Chemicals Ltd. 2018 (10) TMI 589 - RAJASTHAN HIGH COURT and the decision of Sesa Goa Ltd 2020 (3) TMI 347 - BOMBAY HIGH COURT held that the education cess is an allowable deduction while computing the income from business and profession. However, in the Finance Bill, 2022 introduced in the Parliament an amendment to Section 40 was proposed by insertion of Explanation 3 with retrospective effect from 01.04.2005 clarifying that tax shall include any surcharge or cess by whatever name called . Since the legislature proposed an amendment to Section 40 with retrospective effect clarifying that cess is part of tax we are of the considered view that this issue has to be examined by the Assessing Officer in the light of the proposed amendment and also keeping in view various decisions on the issue. Thus, we restore this ground to the file of the Assessing Officer to decide afresh in accordance with law.

Issues Involved:
1. General Grounds
2. Payment for management service and unit charges (MSU) availed from BG International Limited (BGIL)
3. Payments made on account of general and administrative charges to BGIL
4. Payments made on account of reimbursement of expenses to BGIL
5. Payments made on account of business auxiliary services to BG Gas India Pvt. Ltd. (BGIL)
6. Disregarding the directions issued by the office of Hon'ble DRP and Hon'ble Income Tax Appellate Tribunal (ITAT) in the Appellant's own case for the subsequent years.
7. Short grant of interest under section 244A of the Act
8. Deduction in respect of education cess paid
9. Other grounds including initiation of penalty proceedings under section 271(1)(c) of the Act.

Detailed Analysis:

I. General Grounds:
The appellant contended that the adjustments and disallowances made by the Assessing Officer (AO) were erroneous and should be deleted. However, the appellant's counsel stated that this ground was general in nature and required no adjudication.

II. Payment for Management Service and Unit Charges (MSU) Availed from BG International Limited (BGIL):
The appellant raised multiple grounds against the transfer pricing adjustments made by the Transfer Pricing Officer (TPO), AO, and Dispute Resolution Panel (DRP) concerning payments to BGIL for intra-group services. The appellant argued that these services were closely linked to its main business operations and that the Transactional Net Margin Method (TNMM) was the most appropriate method for benchmarking these transactions. They contended that the TPO/AO/DRP erred in using the Comparable Uncontrolled Price (CUP) method and questioned the commercial rationale behind the payments. The Tribunal noted that this issue had been consistently decided in favor of the appellant in previous assessment years, and following the principle of consistency, directed the AO to delete the transfer pricing adjustment.

III. Payments Made on Account of General and Administrative Charges to BGIL:
The appellant challenged the disallowance of payments made to BGIL for general and administrative charges, arguing that these were intra-group services essential to its operations. The Tribunal, following its earlier decisions, directed the AO to delete the adjustment.

IV. Payments Made on Account of Reimbursement of Expenses to BGIL:
The appellant contested the disallowance of expenses reimbursed to BGIL for specific technical services. They argued that these services were necessary for their business operations and that the TNMM was the appropriate method for benchmarking. The Tribunal, consistent with its earlier rulings, directed the AO to delete the adjustment.

V. Payments Made on Account of Business Auxiliary Services to BG Gas India Pvt. Ltd. (BGIL):
The appellant argued against the disallowance of payments for business auxiliary services, asserting that these services were crucial for its business operations. The Tribunal, adhering to its previous decisions, directed the AO to delete the adjustment.

VI. Disregarding the Directions Issued by the Office of Hon'ble DRP and Hon'ble ITAT in the Appellant's Own Case for the Subsequent Years:
The appellant contended that the TPO/AO/DRP disregarded the directions issued by the DRP and ITAT in its own case for subsequent years. The Tribunal noted that the issue had been decided in favor of the appellant in previous years and directed the AO to follow the earlier orders.

VII. Short Grant of Interest Under Section 244A of the Act:
The appellant argued that the AO erred in not granting interest for the period April 2009 to June 2009. The Tribunal directed the AO to examine the appellant's plea and compute the interest in accordance with the law.

VIII. Deduction in Respect of Education Cess Paid:
The appellant contended that the education cess paid should be allowed as a deduction. The Tribunal noted that this issue had been decided in favor of the appellant in previous years but directed the AO to re-examine the issue in light of the proposed amendment in the Finance Bill, 2022.

IX. Other Grounds:
The appellant argued against the initiation of penalty proceedings under section 271(1)(c) of the Act. The Tribunal deemed this ground premature and dismissed it.

AY 2008-09:
The issues raised for AY 2008-09 were similar to those for AY 2007-08. The Tribunal followed its decisions for AY 2007-08 and directed the AO to delete the transfer pricing adjustments and re-examine the issue of education cess. The Tribunal also directed the AO to issue the refund if it had not been granted.

Conclusion:
The Tribunal allowed the appeals of the appellant for both AY 2007-08 and AY 2008-09, directing the AO to delete the transfer pricing adjustments and re-examine the issue of education cess. The Tribunal also directed the AO to compute the interest under section 244A correctly and issue the refund if not already granted.

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