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2017 (2) TMI 1085 - AT - Income TaxTPA - CIT-A applying Arm s Length Price @ LIBOR about 2% (assessee s appeal in AY 2006-07) and reducing the ALP adjustment of LIBOR about 0.75% - Held that - The correspondence in question is with the assessee s banker, i.e. State Bank of India, through which the remittance to M/s. Rubamin FZE, UAE was made alongwith RBI approval. Therefore, the document assumes a regulatory character which is in the files of the schedule bank and RBI. The assessee contends that the other copious evidence did not earlier satisfy the TPO about the business exigencies of advancing the loans; hence the additional evidence. A catena of judgments is available by now wherein the LIBOR and varying degree of incremental value has been adopted, which is evident from the fact that ld. CIT(A) has adopted a rate of LIBOR 2% in AY 2006-07 and 0.75% in AY 2007-08. In the entirety of facts and circumstances, we are inclined to admit the additional evidence and acceding to the alternate request of the ld. DR to remit the issue back to the ld. TPO to decide the same de-novo in view of above observations, for which the assessee has no objection. Allowability of deduction u/s 80IB on the amount of sales tax subsidy - Held that - Once the sales tax subsidy is held to be Revenue in nature, the same amount becomes the income of the assessee s industrial undertaking; consequently, deduction u/s 80IB is to be allowed in favour of the assessee. Respectfully following the Hon ble Supreme Court judgments in the case of M/s. Shree Balaji Alloys 2016 (4) TMI 1161 - SUPREME COURT & M/s. Meghalaya Steel Ltd (2016 (3) TMI 375 - SUPREME COURT ) this ground of the assessee is allowed. Corporate Guarantee given by the assessee being a domestic transaction is outside the purview of TP provisions is claimed to be covered in favour of the assessee and against Revenue in the case of Micro Inks Limited vs. ACIT, reported in 2015 (12) TMI 143 - ITAT AHMEDABAD wherein held he issuance of corporate guarantees were in the nature of shareholder activities- as was the uncontroverted claim of the assessee, and, as such, could not be included in the provision for services under the definition of international transaction under section 92 B of the Act.
Issues:
- Application of Arm's Length Price (ALP) in AY 2006-07 and AY 2007-08. - Charging of interest on interest-free loans to associated enterprises (AE). - Admissibility of additional evidence. - Disallowance of part of the amount by the Assessing Officer. - Claim of sales tax exemption/subsidy as capital in nature. - Allowability of deduction u/s 80IB on the amount of sales tax subsidy. - Treatment of Corporate Guarantee under TP provisions. Analysis: 1. Application of Arm's Length Price (ALP): The primary issue in the appeals was the application of ALP @ LIBOR + about 2% in AY 2006-07 and the subsequent reduction of ALP adjustment to LIBOR + about 0.75% in AY 2007-08. The CIT(A) upheld the ALP adjustment based on the TPO's action, referencing the ITAT judgment in the case of Aithent Technologies Pvt Ltd. The appellant argued that all transactions were interlinked, necessitating the use of the TNMM method. Ultimately, the ALP adjustment was confirmed for AY 2006-07 and reduced for AY 2007-08, following the ITAT judgment. 2. Charging of Interest on Interest-free Loans: The issue of charging interest on interest-free loans given to the AE was a key point of contention. The CIT(A) referred to the ITAT judgment in the Aithent Technologies Pvt Ltd case to determine the interest rate to be charged. The appellant provided additional evidence to demonstrate the business rationale behind advancing the loans, leading to the admission of the evidence and remittal of the issue back to the TPO for fresh consideration. 3. Admissibility of Additional Evidence: The admissibility of additional evidence, a letter related to funds advanced to the appellant's subsidiary, was debated. The Tribunal admitted the additional evidence, considering its regulatory nature and the business exigencies involved. The matter was remitted back to the TPO for further assessment. 4. Disallowance by Assessing Officer: The issue of part disallowance made by the Assessing Officer was raised but not pressed by the assessee, leading to the direction to restrict the disallowance to a specific amount. 5. Sales Tax Exemption/Subsidy: The claim of sales tax exemption/subsidy as capital in nature was dismissed, following a previous ITAT decision that held it to be revenue in nature. 6. Deduction u/s 80IB on Sales Tax Subsidy: The allowability of deduction u/s 80IB on the sales tax subsidy was decided in favor of the assessee, citing relevant Supreme Court judgments and the treatment of the subsidy as revenue in nature. 7. Treatment of Corporate Guarantee under TP Provisions: The issue of Corporate Guarantee being outside the purview of TP provisions was resolved in favor of the assessee, based on a Co-ordinate Bench decision that clarified the nature of such guarantees as not constituting an international transaction. In conclusion, the appeals were partly allowed for statistical purposes, with various issues being decided in favor of both the assessee and the Revenue based on detailed legal analysis and precedent judgments.
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