2018 (2) TMI 174 - AT - Income Tax

Disallowance of foreign exchange loss - Held that - Since we have already restored the issue to the file of the Assessing Officer/TPO to decide the issue in the light of the MAP resolution which was made after the final order was passed, therefore, following the same reasonings, we restore this issue to the file of the Assessing Officer/TPO for deciding the issue afresh in the light of the MAP resolution. Disallowance u/s 14A - Held that - Hon ble Delhi High Court in the case of Cheminvest Limited vs. CIT 2015 (9) TMI 238 - DELHI HIGH COURT has held that section 14A will not apply if no exempt income has been received or receivable during the relevant previous year. Since in the instant case, it is an admitted fact that no exempt income has been received by the assessee during the impugned assessment year, therefore in the absence of any contrary material brought to our notice by the ld. DR, we hold that no disallowance u/s 14A is called for. The ground raised by the assessee is accordingly allowed. Disallowance of claim of brought forward losses and MAT credit - Held that - At the time of hearing both the sides agreed that this ground is consequential in nature and no speaking order has been passed. Therefore, we restore this issue to the file of the Assessing Officer with a direction to pass a speaking order as per fact and law after giving due opportunity of being heard to the assessee.

Summary

Issues Involved:
1. Transfer Pricing Matters (Grounds 1-8)
2. Disallowance of Foreign Exchange Loss (Ground 9)
3. Disallowance of R&D Cess (Ground 10)
4. Disallowance under Section 14A of the Act (Ground 11)
5. Disallowance of Claim of Brought Forward Losses and MAT Credit (Ground 12)

Detailed Analysis:

Transfer Pricing Matters (Grounds 1-8):
The assessee raised several grounds related to transfer pricing adjustments made by the Assessing Officer (AO) and Dispute Resolution Panel (DRP), including:
- Disregarding higher appellate authorities' orders.
- Misunderstanding the business model and agreements.
- Erroneously adding advertising costs to the cost base.
- Rejecting the economic analysis undertaken by the assessee.
- Improper selection/rejection of comparables.
- Incorrectly assessing the risk profile.
- Using single-year data instead of multiple-year data.
- Incorrect application of the proviso to Section 92C(2).

However, during the hearing, the assessee accepted the transfer pricing additions as decided in the MAP resolution and did not press these grounds. Consequently, grounds 1 to 8 were dismissed as withdrawn.

Disallowance of Foreign Exchange Loss (Ground 9):
The AO disallowed a foreign exchange fluctuation loss of ?1,75,31,988, considering it part of the royalty payments whose Arm's Length Price (ALP) was computed as NIL by the Transfer Pricing Officer (TPO). The assessee argued that since the MAP resolution was accepted, no further addition should be made. The Tribunal found merit in the argument that the issue requires a revisit to the AO/TPO for a decision in light of the MAP resolution. Thus, this ground was allowed for statistical purposes.

Disallowance of R&D Cess (Ground 10):
The AO disallowed ?1,41,95,363 on account of R&D Cess on royalty payments, treating it as part of the payments whose ALP was determined as NIL by the TPO. The Tribunal restored this issue to the AO/TPO for a fresh decision in light of the MAP resolution, similar to the foreign exchange loss issue. The AO is directed to give due opportunity to the assessee while adjudicating this ground.

Disallowance under Section 14A of the Act (Ground 11):
The AO disallowed ?1,59,60,691 under Section 14A read with Rule 8D, despite the assessee not receiving any dividend income during the year. The Tribunal found merit in the assessee's argument, citing the Delhi High Court's decision in Cheminvest Limited vs. CIT, which held that Section 14A does not apply if no exempt income is received. Therefore, the Tribunal held that no disallowance under Section 14A is warranted, and this ground was allowed.

Disallowance of Claim of Brought Forward Losses and MAT Credit (Ground 12):
The AO disallowed the claim of brought forward losses and MAT credit, amounting to ?85,94,435 and ?9,99,691, respectively. Both parties agreed that this ground is consequential and no speaking order was passed. The Tribunal restored this issue to the AO to pass a speaking order as per fact and law after giving due opportunity to the assessee. This ground was allowed for statistical purposes.

Conclusion:
The appeal filed by the assessee was partly allowed for statistical purposes, with specific grounds being dismissed as withdrawn and others being restored to the AO/TPO for fresh adjudication. The Tribunal emphasized the need for due opportunity to be given to the assessee in the adjudication process. The order was pronounced in open court on January 30, 2018.