2013 (8) TMI 332 - AT - Income Tax

Arm Length Price adjustment Revenue has made upward adjustment on the basis of Arm s Length Price Held that - Adjustment must be deleted for the short reason that it was part of the arrangement that specified credit period was allowed and thus the cost of funds blocked in the credit period was inbuilt in the sale price. There is no dispute that similar products are not sold to any other concern, at same price or even any other price, and interest is levied on the similar credit period allowed to those independent parties but not to Micro USA - The very foundation of impugned addition in arm s length price on account of excess credit period is thus devoid of any legally sustainable merits or factual basis Directed the Assessing Officer to delete ALP adjustment Decided in favor of Assessee. Cost of fund in an International transaction between associated enterprise -Relationship between the assessee and its step down subsidiary Micro USA was simply that of a lender and a borrower - Not only the Micro USA was a significant part of the marketing apparatus of the assessee, and the assessee and the Micro USA had significant commercial relationship on that count, the assessee was a de facto and de jure promoter of the Micro USA Held that - Relying upon the decision in the case of VVF Ltd. Versus DCIT 2010 (1) TMI 781 - ITAT, Mumbai costs of funds have no relevance and it is only the rate applicable for comparable uncontrolled transaction that is to be taken into account Decided in favor of Assessee.

Issues Involved:
1. Determination of Arm's Length Price (ALP) and application of transfer pricing provisions.
2. Exclusion of income from windmill and miscellaneous income for deduction under section 80HHC.
3. Disallowance of business development expenses, office expenses, and other operational expenses.
4. Exclusion of certain incomes while granting deduction under sections 80HHC and 80IB.
5. Set-off of losses from 100% Export Oriented Units against normal business income.
6. Deletion of additions made on account of inter-division transfers and other expenses.
7. Deletion of penalty imposed under section 271(1)(c).

Detailed Analysis:

1. Determination of Arm's Length Price (ALP) and Application of Transfer Pricing Provisions:
The core issue revolved around the upward adjustment of income due to notional interest on loans given to the subsidiary and excess credit period allowed to customers. The assessee argued that these loans were quasi-capital contributions, and the interest-free nature was justified by economic circumstances and business expediency. The Tribunal found the transactions to be strategically significant for the assessee's business, and thus, the LIBOR or American bank rates were deemed inappropriate for these transactions. The Tribunal concluded that the comparable uncontrolled price for such advances would be nil, thereby deleting the ALP adjustment.

2. Exclusion of Income from Windmill and Miscellaneous Income for Deduction under Section 80HHC:
The Tribunal upheld the exclusion of income from windmill from the profits of the business for the purpose of section 80HHC, as it was not related to export activities. However, it remitted the issue of miscellaneous income back to the CIT(A) for detailed examination and proper adjudication.

3. Disallowance of Business Development Expenses, Office Expenses, and Other Operational Expenses:
The Tribunal dismissed the assessee's appeal regarding the disallowance of business development and office expenses, as these issues were covered against the assessee in previous Tribunal orders. The Tribunal also upheld the deletion of adhoc disallowances made by the Assessing Officer on foreign travel, oil and petrol, and telephone expenses, following precedents in the assessee's own cases.

4. Exclusion of Certain Incomes While Granting Deduction under Sections 80HHC and 80IB:
The Tribunal restored the issue of sale of export benefits to the Assessing Officer for fresh adjudication in light of the Supreme Court's judgment in Topman Exports. It upheld the exclusion of income from windmill but allowed the inclusion of insurance claim receipts in business profits for section 80HHC. The Tribunal also remitted the issue of certain other incomes (e.g., commission, sales of DEPB and DFRC) to the Assessing Officer for fresh decision.

5. Set-off of Losses from 100% Export Oriented Units Against Normal Business Income:
The Tribunal upheld the assessee's claim for setting off losses from 100% Export Oriented Units against normal business income, following the coordinate bench's decision in the assessee's own case for the previous year.

6. Deletion of Additions Made on Account of Inter-Division Transfers and Other Expenses:
The Tribunal remitted the issue of inter-division transfers to the Assessing Officer for fresh adjudication, consistent with prior years' decisions. It also upheld the deletion of additions made on account of staff welfare and foreign travel expenses, as there was no material evidence to support the Assessing Officer's stand.

7. Deletion of Penalty Imposed under Section 271(1)(c):
The Tribunal deleted the penalties imposed under section 271(1)(c) for all the assessment years in question, as the related quantum additions were deleted. The penalties were found to lack a legal foundation due to the deletion of the underlying additions.

Conclusion:
The Tribunal provided a detailed and reasoned judgment addressing each issue comprehensively. It upheld the assessee's contentions on several grounds, especially concerning the determination of ALP and the set-off of losses, while remanding certain issues for fresh adjudication to ensure a fair and thorough examination.

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