2019 (1) TMI 591 - AT - Income Tax

Levy of interest under sections 234B/C/D - admissibility of GBU service charges in all these three years - Held that - Faced with the above situation, and keeping in view the application filed for adducing additional evidence in other two years, we deem it appropriate to set aside orders of the CIT(A) in all these three years and remit this issue to the file of the AO for adjudication afresh. AO is required to examine organizational structure of the holding company vis- -vis the assessee-company. The assessee has to demonstrate a nexus between consultancy and any other nature of services provided by the holding company at the global head with some demonstrative evidence. It is to be demonstrated that certain services have been provided by the HO to the subsidiary for which expenditure have been worked at global HO level. If it is established that nexus is available, showing services rendered by the HO to the assessee-company, then ld.AO would look into ALP of the value of such services vis- -vis the expenditure claimed by the assessee. The assessee will be at liberty to submit necessary details in order to establish its case. Observation made by us will not impair or injure the case of the AO nor any prejudice will cause be to defence/explanation of the assessee. AO shall decide this issue afresh in accordance with law. With the above observation, we allow all these appeals for statistical purpose.

Summary

Issues Involved:
1. Disallowance of GBU service charges for the Assessment Years 2009-10, 2011-12, and 2012-13.
2. Charging of interest under section 234/B/C/D of the Income Tax Act, 1961.

Issue-wise Detailed Analysis:

1. Disallowance of GBU Service Charges:

The assessee, a subsidiary of Morgan Crucible Company PLC, U.K., contested the disallowance of GBU service charges amounting to ?35,44,887/-, ?23,29,676/-, and ?90,04,579/- for the Assessment Years 2009-10, 2011-12, and 2012-13 respectively. The Assessing Officer (AO) scrutinized the accounts and allowed management charges but disallowed GBU charges, reasoning that both charges were for similar services under different agreements, thus inflating expenses. The AO's analysis included a comparison of the services listed under both agreements, concluding that the agreements were essentially identical except for three additional general services under GBU charges.

The assessee argued that the AO failed to appreciate the nature of GBU expenses, which were previously accepted in other years. The assessee maintained that the charges were reasonable and necessary for hierarchical monitoring at the global head office level. However, the AO found no demonstrative evidence of services provided by the holding company to the subsidiary.

The Tribunal observed that for claiming expenditure under section 37(1) of the Act, the assessee must demonstrate that the expenditure was incurred wholly and exclusively for business purposes. The Tribunal noted that the assessee failed to provide a clear organizational structure and evidence of services rendered by the holding company. Consequently, the Tribunal set aside the orders of the CIT(A) and remitted the issue back to the AO for fresh adjudication, requiring the assessee to demonstrate the nexus between services provided by the holding company and the subsidiary with demonstrative evidence.

2. Charging of Interest Under Section 234/B/C/D:

The assessee's counsel acknowledged that the issue of charging interest under sections 234B/C/D of the Income Tax Act, 1961, is consequential and dependent on the outcome of the primary issue regarding the disallowance of GBU service charges. Therefore, this issue was not separately adjudicated but was acknowledged as a consequence of the primary issue's resolution.

Conclusion:

The Tribunal allowed all three appeals for statistical purposes, remitting the issue of disallowance of GBU service charges back to the AO for fresh adjudication. The AO was directed to examine the organizational structure and the nexus between the services provided by the holding company and the subsidiary, and to decide the issue afresh in accordance with the law. The charging of interest under sections 234B/C/D was acknowledged as consequential to the primary issue's determination.