2016 (5) TMI 279 - AT - Income Tax

Addition on account of upward adjustment by imputing Notional Interest on delayed debts - Held that - It is uncontroverted stand of the assessee that he has not charged interest on delay in realization of debts in non AE situations as well. Once it is not in dispute, as is the case before us, that no interest is charged from the non AEs, i.e. independent transactions, as well, there cannot be any occasion to make an ALP adjustment, for notional interest, on delay in realization of trade debts from the AEs. The very purpose of the arm s length price adjustments is to neutralize the impact of intra AE relationship on commercial transaction, but, given the above facts, there is no impact of intra AE relationship in the above case. As regards, the rechracterization of transaction as an unsecured loan, we find that CIT Vs EKL Appliances Limited 2012 (4) TMI 346 - DELHI HIGH COURT has held that recharacterization of a transaction is possible in only two situations i.e. (i) where the economic substance of a transaction differs from its form and (ii) where the form and substance of the transaction are the same but arrangements made in relation to the transaction, viewed in their totality, differ from those which would have been adopted by independent enterprises behaving in a commercially rational manner. None of these conditions is satisfied in the present case. The form and substance of the transactions are the same. The Transfer Pricing Officer has not brought on record any material to demonstrate and establish that the form and substance of transactions are different. It is not, and it cannot be, the case of the Transfer Pricing Officer that the export transaction was a sham transaction to finance the AE. The assessee has also behaved in a commercially rational manner inasmuch as whatever are the terms of realization of his exports proceeds, the same are the terms of realization of exports from the non AEs. Recharcaterization of this transaction, therefore, is not permissible. The very foundation of the Transfer Pricing Officer is thus wholly unsustainable in law. - Decided in favour of assessee

Issues Involved:
1. Upward adjustment by imputing notional interest on delayed debts.
2. Adherence to directions of the Hon'ble DRP-II.
3. Consideration of the interest rate of 11.96% offered by the appellant.
4. Ignoring case laws from Bombay High Court and Delhi High Court.
5. Consideration of various factual aspects ignored by the CIT(A).

Issue-wise Detailed Analysis:

1. Upward Adjustment by Imputing Notional Interest on Delayed Debts:
The appellant challenged the correctness of the order regarding the upward adjustment of ?1,72,68,053 due to notional interest on delayed debts. The CIT(A) directed the AO to follow the directions of the Hon'ble DRP-II for the assessment year 2008-09. The appellant argued that no interest was charged from non-AEs for delayed debts, and thus, no ALP adjustment should be made for AEs. The Tribunal agreed, stating that the purpose of ALP adjustments is to neutralize the impact of intra-AE relationships on commercial transactions. Since no interest was charged from non-AEs, there was no impact of the intra-AE relationship, and no ALP adjustment was warranted.

2. Adherence to Directions of the Hon'ble DRP-II:
The CIT(A) erred in directing the AO to follow the directions of the Hon'ble DRP-II for the previous year without considering the specific facts of the current year. The Tribunal found that the TPO's adjustment was based on an incorrect understanding of the nature of the transactions and the interest rate applied. The Tribunal emphasized that the CIT(A) should have independently analyzed the facts of the current year.

3. Consideration of the Interest Rate of 11.96% Offered by the Appellant:
The CIT(A) considered the interest rate of 11.96% offered by the appellant as the basis for adjustment. However, the Tribunal found that this rate was not relevant as no interest was charged from non-AEs. The Tribunal held that the CIT(A) erred in using this rate for the adjustment.

4. Ignoring Case Laws from Bombay High Court and Delhi High Court:
The appellant cited case laws from the Bombay High Court (CIT v. Indo American Jewellery Ltd.) and Delhi High Court (CIT v. U.K. Bose) to support their argument that no interest should be imputed on outstanding balances if no interest is charged from non-AEs. The Tribunal agreed with the appellant, stating that the CIT(A) ignored these relevant case laws, which clearly supported the appellant's position.

5. Consideration of Various Factual Aspects Ignored by the CIT(A):
The appellant pointed out several factual aspects that were ignored by the CIT(A), such as the AE not being a holding company, no interest being charged from both AE and non-AE, and the outstanding amounts being secured by payables and stock. The Tribunal found that the CIT(A) failed to consider these vital facts, which were crucial for a fair assessment. The Tribunal emphasized that these facts demonstrated that the appellant's transactions were commercially rational and did not warrant an ALP adjustment.

Conclusion:
The Tribunal concluded that no ALP adjustment should be made for the notional interest on delayed debts as the appellant did not charge interest from non-AEs. The Tribunal directed the AO to delete the impugned ALP adjustment of ?1,72,68,053. The appeal of the assessee was allowed.

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