2016 (3) TMI 1486 - AT - Income Tax

TP Adjustment - loan given by the assessee to its subsidiary - AO addition on notional basis in respect of the loan advanced to the Associate Enterprise - TPO found that notional interest should be charged on the loan advanced by the assessee to its subsidiary company by applying LIBOR rate - HELD THAT - Factual situation needs to be verified. It has to be verified whether the assessee had sufficient surplus funds for advancing the corporate loan to the Associate Enterprise in UK. It has to be verified whether there was any nexus between borrowed funds and advance made by the assessee to the Associate Enterprise in UK. Since such an exercise was not done by the lower authorities this Tribunal is of the considered opinion that the matter needs to be reconsidered. Accordingly the orders of the lower authorities are set aside. AO is directed to verify the actual surplus funds available with the assessee. It also needs to be verified whether the assessee had borrowed loan and whether there was any nexus between the borrowed loan and advance said to be made by the assessee to the Associate Enterprise in UK. It is open to the AO to refer the matter once again to Dispute Resolution Panel in accordance with provisions of the Act. Accordingly the orders of the lower authorities are set aside and the AO is directed to re- examine the matter. Disallowance u/s 14A r.w.r.8D - As argued expenditure incurred by the assessee for earning of income which does not form part of total income cannot be allowed as deduction while computing the total income - HELD THAT - Though the assessee claims that the borrowed funds were not used for making investment the fact remains that the assessee borrowed the funds and the interest-free funds and borrowed funds were put in a common pool. Therefore it is very difficult to identify which part of the funds was used for making investment for earning dividend income. Moreover the assessee-company is not in the business of investment. Therefore it has to necessarily incur certain expenditure on the managerial level for taking decision for investing the funds in a right company. Therefore the assessee has to necessarily incur expenditure with regard to managerial decision that was taken for making investment. Tribunal is of the considered opinion that Rule 8D is applicable to the facts of the case. Therefore the Dispute Resolution Panel has rightly found that Rule 8D has to be followed. Therefore this Tribunal do not find any reason to interfere. Nature of expenditure - expenditure incurred by the assessee on software - HELD THAT - Dispute Resolution Panel has rightly found that the permanent license is in the capital field. As far as application of software is concerned again we have to see whether it was temporary one or for long period. If the application software is only for a short period then it has to be treated as revenue expenditure and it has to be allowed in the year in which it was incurred. If the application software is for a longer period then it will have an enduring benefit. Therefore as rightly found by the Dispute Resolution Panel the expenditure has to be capitalized. The Dispute Resolution Panel directed the Assessing Officer to verify the nature of expenditure and thereafter to decide the issue. Therefore this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed. Additional depreciation in respect of machinery installed - HELD THAT - Cochin Bench of this Tribunal in Apollo Tyres Ltd. 2014 (1) TMI 33 - ITAT COCHIN found that the assessee is eligible for additional depreciation in the subsequent year since the machinery was put to use for 180 days in the earlier assessment year. Assessee is entitled for the balance 10% during the year under consideration. Accordingly the orders of the lower authorities are set aside and the Assessing Officer is directed to allow the balance 10% additional depreciation during the year under consideration. Mistake in recording the total income - HELD THAT - If there is any mistake in the total income this Tribunal is of the considered opinion that the mistake needs to be rectified. Accordingly this issue is remitted back to the file of the Assessing Officer for reconsideration. The Assessing Officer shall re-examine the matter. Credit for TDS and TCS - HELD THAT - Dispute Resolution Panel directed the Assessing Officer to verify the claim of the assessee with regard to TDS and TCS to allow necessary credit on the basis of the material furnished in support of the claim of the assessee. In view of the right direction given by DRP to the AO this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed. Appeal of the assessee is partly allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The legal judgment presents several core issues for consideration:

• Transfer pricing adjustment concerning the loan given by the assessee to its subsidiary.
• Disallowance made under Section 14A of the Income-tax Act.
• Classification of expenditure incurred on software as revenue or capital expenditure.
• Entitlement to additional depreciation on machinery installed.
• Recording of the correct total income by the Assessing Officer.
• Credit for Tax Deducted at Source (TDS) and Tax Collected at Source (TCS).

2. ISSUE-WISE DETAILED ANALYSIS

Transfer Pricing Adjustment

• Relevant Legal Framework and Precedents: The issue revolves around the transfer pricing provisions under the Income-tax Act, intended to prevent profit shifting to foreign jurisdictions. The precedent cited is the decision in Siva Industries Holding Ltd. v. DCIT.
• Court's Interpretation and Reasoning: The court emphasized the necessity to verify if the assessee had surplus interest-free funds to advance the loan to its subsidiary without interest.
• Key Evidence and Findings: The assessee advanced a loan of Rs. 13.17 Crores to a UK subsidiary without charging interest, claiming it was from surplus funds.
• Application of Law to Facts: The court found that the factual situation needed verification regarding the availability of surplus funds and any nexus with borrowed funds.
• Treatment of Competing Arguments: The assessee argued the loan was for business purposes, while the Department claimed it was an attempt to shift profits abroad.
• Conclusions: The court remanded the matter for reconsideration and verification of the factual situation by the Assessing Officer.

Disallowance under Section 14A

• Relevant Legal Framework and Precedents: Section 14A and Rule 8D of the Income-tax Rules, 1962, which mandate disallowance of expenditure incurred for earning exempt income.
• Court's Interpretation and Reasoning: The court upheld the application of Rule 8D due to the common pool of funds and the lack of separate accounts for investments.
• Key Evidence and Findings: The assessee earned dividend income of Rs. 11,35,049/- from investments but did not claim any expenditure for earning it.
• Application of Law to Facts: The court found that managerial decisions for investments necessitated expenditure, justifying the disallowance under Rule 8D.
• Treatment of Competing Arguments: The assessee argued that investments were made from surplus funds, but the court noted the difficulty in segregating funds.
• Conclusions: The court confirmed the lower authority's order of disallowance under Rule 8D.

Expenditure on Software

• Relevant Legal Framework and Precedents: Differentiation between revenue and capital expenditure based on the nature of software licenses and maintenance costs.
• Court's Interpretation and Reasoning: The court distinguished between annual licenses (revenue expenditure) and permanent licenses (capital expenditure).
• Key Evidence and Findings: The expenditure included various software-related costs, some of which were deemed capital in nature.
• Application of Law to Facts: The court directed the Assessing Officer to segregate expenses based on their nature and allow depreciation for capital expenditures.
• Treatment of Competing Arguments: The assessee claimed all expenses as revenue, while the Department categorized them based on the benefit period.
• Conclusions: The court upheld the classification of expenses by the Dispute Resolution Panel and directed verification by the Assessing Officer.

Additional Depreciation on Machinery

• Relevant Legal Framework and Precedents: Provisions for additional depreciation under the Income-tax Act and the decision in Apollo Tyres Ltd. v. ACIT.
• Court's Interpretation and Reasoning: The court followed the precedent allowing additional depreciation in the subsequent year if machinery was used for less than 180 days initially.
• Key Evidence and Findings: The machinery was used for less than 180 days in the previous year, and the assessee claimed additional depreciation.
• Application of Law to Facts: The court directed the allowance of the balance 10% additional depreciation during the current year.
• Treatment of Competing Arguments: The Department argued against carry-forward of depreciation, but the court relied on the precedent.
• Conclusions: The court set aside the lower authorities' orders and directed the allowance of additional depreciation.

Recording of Total Income

• Relevant Legal Framework and Precedents: Accurate computation of total income based on revised returns.
• Court's Interpretation and Reasoning: The court acknowledged the potential error in recording total income and remanded the issue for verification.
• Key Evidence and Findings: Discrepancy between the total income recorded by the Assessing Officer and the revised return filed by the assessee.
• Application of Law to Facts: The court directed the Assessing Officer to verify and rectify any errors in the total income computation.
• Treatment of Competing Arguments: The assessee claimed an error, and the court found it necessary to verify the claim.
• Conclusions: The issue was remanded to the Assessing Officer for reconsideration and rectification if necessary.

Credit for TDS and TCS

• Relevant Legal Framework and Precedents: Verification of TDS and TCS credits based on Form 16A and Form 27D.
• Court's Interpretation and Reasoning: The court upheld the direction to verify the claim for TDS and TCS credits.
• Key Evidence and Findings: Discrepancy between the claimed and allowed TDS and TCS credits.
• Application of Law to Facts: The court confirmed the need for verification of the credits claimed by the assessee.
• Treatment of Competing Arguments: The assessee claimed an error in credits, and the court found it necessary to verify the claim.
• Conclusions: The court confirmed the lower authority's order for verification of TDS and TCS credits.

3. SIGNIFICANT HOLDINGS

• Transfer Pricing: "The factual situation needs to be verified... whether the assessee had sufficient surplus funds for advancing the corporate loan to the Associate Enterprise in UK."
• Section 14A Disallowance: "The expenditure incurred by the assessee for earning of income which does not form part of total income cannot be allowed as deduction... Rule 8D is applicable to the facts of the case."
• Software Expenditure: "The Dispute Resolution Panel has rightly found that the permanent license is in the capital field."
• Additional Depreciation: "The assessee is entitled for the balance 10% during the year under consideration."
• Total Income Recording: "If there is any mistake in the total income, this Tribunal is of the considered opinion that the mistake needs to be rectified."
• TDS and TCS Credits: "The Dispute Resolution Panel directed the Assessing Officer to verify the claim of the assessee... this Tribunal do not find any reason to interfere."

The judgment emphasizes the need for thorough verification and application of the legal framework to ensure accurate tax assessments, particularly concerning transfer pricing, capital versus revenue expenditure, and the proper recording of income and tax credits.