2015 (2) TMI 316 - AT - Income Tax

Transfer pricing adjustment - addition of ₹ 42,02,000/ - made on account of arm's length price - Held that - The reasons given by the revenue authorities for arriving at such conclusion was that a comparison of a risk profile of a facultative reinsurance business could not be established on the basis of documents in comparison to the treaty reinsurance. On this issue, we also note that assessee was not provided an opportunity to furnish the requisite evidence in the form of copy of contracts before the TPO. In view of these facts, we hold that the documents submitted along with this application under Rule 29 of the ITAT Rules, 1963 which are copies of illustrative contract/cover notes pertaining to the facultative reinsurance shall be necessary in comparative analysis of the risk factor in the reinsurance under treaty reinsurance and facultative reinsurance. In view of these facts, we admit these additional evidences furnished by assessee and find it appropriate to remit this issue to the file of the Assessing Officer for deciding de novo. - Decided in favor of assessee for statistical purposes. Disallowance of deduction claimed u/s 37 - Held that - We considered it necessary in the light of the arguments advanced before the Bench that the AO shall examine the position of double taxation vis- -vis the amounts which already stood offered to tax u/s Fringe Benefit Tax. The past position can be considered but simply because it was not challenged in the earlier year is not a good enough reason to resort to ad hocism the AO is directed to ascertain the correct facts and then decided the issue in accordance with law by way of speaking order after giving the assessee a reasonable opportunity of being heard. We restore back this issue to the file of the Assessing Officer. - Decided in favour of assesssee for statistical purposes. Addition made under Section 14A - profits and gains of any business of insurance - Held that - In view of provisions of Section 44, read with Rule 5 of the First Schedule, the provisions of Section 14A are not applicable in the appellant's case - Decided in favour of assesssee.

Issues:
1. Computation of income for a general insurance company under Section 44 of the Income Tax Act.
2. Arm's length pricing for international reinsurance transactions.
3. Disallowance of expenses under Section 37 of the Act.
4. Disallowance under Section 14A of the Act.
5. Initiation of penalty proceedings under Section 271(1)(c) of the Act.
6. Nature of orders passed by the Assessing Officer and Dispute Resolution Panel.

Issue 1: Computation of income for a general insurance company under Section 44 of the Income Tax Act:
The appeal raised concerns about the computation of income for a general insurance company under Section 44 of the Income Tax Act. The appellant argued that the Assessing Officer erred in not considering Section 44, which mandates the computation of profits and gains of any insurance business in accordance with Rule 5 of the First Schedule to the Act. The appellant contended that the income should have been computed under the provisions specific to general insurance. The Tribunal acknowledged the appellant's engagement in general insurance and the need for a proper comparative analysis of risk factors in reinsurance. The Tribunal admitted additional evidence submitted by the appellant and remitted the issue back to the Assessing Officer for a fresh decision based on the new evidence.

Issue 2: Arm's length pricing for international reinsurance transactions:
The appeal challenged the addition made on account of arm's length pricing for international reinsurance transactions. The Tribunal noted that the Assessing Officer/TPO had made adjustments based on the observation that the commission earned by the appellant from its Associated Enterprises (AEs) on facultative reinsurance was not at arm's length. The Tribunal found that the appellant was not provided with an opportunity to furnish necessary evidence before the TPO. Considering the lack of comparative risk profile analysis for facultative reinsurance, the Tribunal admitted additional evidence submitted by the appellant. The Tribunal remitted the issue back to the Assessing Officer for a fresh decision after considering the additional evidence.

Issue 3: Disallowance of expenses under Section 37 of the Act:
Ground No. 3 of the appeal contested the disallowance of expenses claimed by the appellant under Section 37 of the Income Tax Act. The Tribunal, following a previous decision, restored this issue back to the Assessing Officer for a fresh examination in light of relevant facts and circumstances. The Tribunal directed the Assessing Officer to ascertain the correct facts and decide the issue in accordance with the law after providing the appellant with a reasonable opportunity to be heard.

Issue 4: Disallowance under Section 14A of the Act:
The appellant raised concerns regarding the disallowance made under Section 14A of the Act. The Tribunal, after considering a previous decision by ITAT, Delhi Bench, allowed ground no. 4 of the appellant's appeal. The Tribunal found no infirmity in the impugned order and dismissed the department's appeal on this issue.

Issue 5: Initiation of penalty proceedings under Section 271(1)(c) of the Act:
Ground No. 5 of the appeal challenged the initiation of penalty proceedings under Section 271(1)(c) of the Act. The Tribunal deemed this ground premature and dismissed it accordingly.

Issue 6: Nature of orders passed by the Assessing Officer and Dispute Resolution Panel:
Grounds 6 and 7 of the appeal were deemed general in nature and did not require adjudication. The Tribunal concluded that the appeal of the appellant was partly allowed for statistical purposes.

This detailed analysis covers the various issues raised in the legal judgment, addressing the arguments presented by the appellant and the Tribunal's decisions on each issue.

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