2012 (10) TMI 434 - AT - Income Tax

Addition on account of transfer pricing Whether AO issue notice u/s 133(6) to comparable companies to gather information in relation to transfer pricing If yes information that was obtained u/s 133(6) whether the same was put across to the assessee Held that - AO can collect information about comparable by issuing notices u/s 133(6). Any information obtained in the course of assessment proceedings has to be supplied to the assessee for its objections if any. The absence of doing so leads to violation of fundamental principle of natural justice. Therefore case remand back to AO. Addition on account of foreign exchange fluctuation gain on export u/s 10A Whether forex gain from export is a part off profit used to calculate deduction u/s 10A - Held that - Profit derived means profit of the business of the undertaking the same proportion as the export turnover bears to the total turn over of the business carried on by the undertaking. Profit has to be computed as normally understood without insisting on proximate connection between the business of undertaking and the profit. Therefore there is no dispute that foreign exchange fluctuation gain is in respect of export proceeds so amount represents income as it is in the revenue field. Allow in favour of assessee. Excess provision written back & miscellaneous income also constitute profit from business while claiming deduction u/s10A Disallowance of debonding charges Debonding charges treated as revenue expenditure by assessee Held that - As the capital goods placed in the bonded area are subject to restrictions that they cannot be sold and they cannot be removed outside the area for use of self. This encumbrance is removed once the goods are cleared from the bonded area on payment of duty. The result is that the assessee can deal with the goods in any manner it desires including sale thereof. Therefore debonding charges should be treated as capital expenditure & added to cost/wdv of asset. Decision in favour of revenue.

Issues Involved:
1. General nature of grounds.
2. Transfer pricing adjustment.
3. Deduction under section 10A on foreign exchange fluctuation gain and other income.
4. Disallowance of office maintenance expenditure.
5. Disallowance of debonding charges.
6. Charging of interest under sections 234B, 234D, and 244A.
7. Initiating penalty under section 271(1)(c).

Detailed Analysis:

1. General Nature of Grounds:
Ground Nos. 1 & 2 were general in nature, challenging the legality of the orders passed by the TPO, AO, and DRP. These grounds were not argued by the counsel for the assessee and were dismissed as not pressed.

2. Transfer Pricing Adjustment:
Ground Nos. 3 to 7 addressed the enhancement of income by Rs. 13,54,69,266 due to transfer pricing adjustments related to international transactions with associated enterprises (AEs).

- Use of Section 133(6): The assessee argued that using notices under section 133(6) to gather information about comparable companies was inappropriate. However, this argument was rejected as the AO is authorized to use all instruments available under the Act to gather relevant information.

- Violation of Natural Justice: The assessee contended that information from 20 companies obtained under section 133(6) was not shared, violating the principle of natural justice. The Tribunal agreed, citing previous cases, and restored the matter to the AO to follow proper procedures, including sharing information with the assessee and allowing objections.

- Other Objections: The assessee raised additional objections regarding super-normal profits, differences in employee skills, R&D expenditure, and business models. These objections were deemed to be detailed matters for the AO to consider upon remand.

3. Deduction Under Section 10A:
Ground No. 8 dealt with the disallowance of deduction under section 10A on foreign exchange fluctuation gain and other income of Rs. 71,68,081.

- Foreign Exchange Fluctuation Gain: The Tribunal found that the gain related to export proceeds and should be included in the profits of the business for deduction purposes.

- Excess Provision and Miscellaneous Income: The Tribunal held that excess provisions written back and miscellaneous income should also be included in the business profits. The AO was directed to recompute the deduction after verifying the figures.

4. Disallowance of Office Maintenance Expenditure:
Ground No. 9 addressed the disallowance of Rs. 24,08,018 as capital expenditure.

- Nature of Expenditure: The Tribunal reviewed various expenditures, determining some to be capital in nature (e.g., door access controller, purchase of carpets) and others to be revenue in nature (e.g., certain civil works). The AO was directed to allow the revenue expenditures while treating the rest as capital expenditures.

5. Disallowance of Debonding Charges:
Ground No. 10 involved the disallowance of debonding charges of Rs. 13,59,057.

- Nature of Charges: The Tribunal concluded that debonding charges increased the value of the capital assets and should be added to the cost or written-down value of the assets. This ground was dismissed.

6. Charging of Interest Under Sections 234B, 234D, and 244A:
Ground Nos. 12 and 13 concerned the charging of interest under sections 234B, 234D, and 244A.

- Fresh Assessment Required: Given that the assessment was set aside on one ground and relief was granted on others, the Tribunal directed a fresh look at the interest charges during the denovo assessment.

7. Initiating Penalty Under Section 271(1)(c):
Ground No. 14 pertained to the initiation of penalty under section 271(1)(c).

- No Appeal Provision: The Tribunal noted that no appeal was provided for initiating penalties under this section, and this ground was dismissed.

Conclusion:
The appeal was partly allowed, with specific directions for the AO to follow proper procedures in transfer pricing adjustments, recompute deductions under section 10A, and reassess certain expenditures and interest charges.

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