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2021 (9) TMI 69 - AT - Income TaxALP adjustment relating to assessee's interest payments benchmarked at SIBOR rates - sum pertaining to the assessee's debentures had been received in foreign currency only - Whether orrowings are in foreign currency and should be benchmarked with reference to Singapore Inter Bank Offer Rate (SIBOR)? - HELD THAT - Assessee had adopted the very SIBOR benchmark all along in all preceding assessment years which stands accepted upto this tribunal. We thus find no merit in its stand seeking to adopt a different approach in the impugned assessment year just because the corresponding interest rate on the FCDs has seen an increase as compared to the earlier period. Hon'ble apex court's landmark decision in Radhasoami Satsang Vs. CIT 1991 (11) TMI 2 - SUPREME COURT settled the law that judicial consistency can very well be adopted in income tax proceedings wherein the principles of res judicata are not applicable. We accordingly uphold learned lower authorities' action under challenge making the impugned ALP adjustment(s) relating to assessee's interest payments benchmarked at SIBOR rates.
Issues Involved:
1. Determination of Arm's Length Price (ALP) adjustments for interest paid to overseas Associated Enterprises (AEs) on Fully Convertible Debentures (FCDs). 2. Whether the amount borrowed by the appellant by issuing FCDs is in Indian currency. 3. Whether the arm's length rate of interest on such borrowing should be based on the rate prevailing in India. 4. Whether the Tribunal should uphold the arm's length rate of interest based on the rate prevailing in India despite its order for AY 2011-12. Issue-wise Detailed Analysis: Issue 1: Determination of ALP Adjustments The appellant's appeals for AYs 2012-13 and 2013-14 challenge the lower authorities' ALP adjustments of ?1,03,57,890 and ?1,09,31,000 respectively, regarding interest paid to overseas AEs on FCDs. The lower authorities, including the Transfer Pricing Officer (TPO) and the Dispute Resolution Panel (DRP), benchmarked the interest payments using the Singapore Inter Bank Offer Rate (SIBOR) rates, consistent with the decision for AY 2011-12. Issue 2: Currency of Borrowed Amount The appellant contends that the FCDs were issued in Indian currency, supported by the terms and conditions of the FCDs, annual accounts, and the transfer pricing study report. The appellant argues that the interest on FCDs should be benchmarked against internal Comparable Uncontrolled Prices (CUP) such as the interest rate paid to HDFC Bank (11.70%). Issue 3: Arm's Length Rate of Interest The appellant cites various cases to argue that the arm's length rate of interest should be determined based on the currency in which the amount is borrowed and consumed. The appellant relies on precedents like CIT v. Cotton Naturals (I) (P.) Ltd. and Pr. CIT v. India Debt Management (P.) Ltd. to support the argument that the interest rate prevailing in India should be used for benchmarking. Issue 4: Tribunal's Consistency with Previous Orders The appellant highlights that the Tribunal's decision for AY 2011-12 did not distinguish between ECB borrowings in foreign currency and FCDs in Indian currency. The appellant argues that the Tribunal should consider the correct factual position and apply the appropriate legal principles, even if it means deviating from the previous order. The appellant suggests that the matter could be remanded to the AO/TPO for reconsideration. Tribunal's Decision: The Tribunal found no merit in the appellant's arguments, noting that the appellant had consistently adopted the SIBOR+ benchmark in previous years, which had been accepted up to the Tribunal level. The Tribunal upheld the lower authorities' action, emphasizing judicial consistency as established in Radhasoami Satsang Vs. CIT (1992) 193 ITR 321 (SC), where principles of res judicata do not apply in income tax proceedings. Consequently, the Tribunal dismissed the appellant's appeals and upheld the ALP adjustments based on SIBOR rates. Conclusion: The Tribunal dismissed the appellant's appeals, upholding the ALP adjustments for interest payments on FCDs benchmarked at SIBOR rates, emphasizing judicial consistency and the appellant's historical acceptance of the SIBOR+ benchmark.
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