2023 (6) TMI 210 - AT - Income Tax

TP adjustment - quantum of adjustments made in respect of corporate guarantee - HELD THAT - Respectfully following the decision of the Tribunal in assessees s own case 2021 (3) TMI 1162 - ITAT PUNE we set-aside the order of the lower authorities and direct the AO/TPO for computing the ALP transactions of corporate guarantee by adopting 0.5% of the corporate guarantee as guarantee fees plus actual expenditure incurred in furnishing such guarantee. Considering Performance Guarantee and Corporate Guarantee separately - HELD THAT - This issue is covered by the decision of this Tribunal in assessee s own case for assessment year 2015-16 2023 (2) TMI 568 - ITAT PUNE as well as earlier years also, wherein, this Tribunal following the earlier order of this Tribunal in assessee s own case for the assessment years 2013-14 2021 (11) TMI 140 - ITAT PUNE and 2014-15 2021 (3) TMI 1162 - ITAT PUNE had reversed the decision of the ld. CIT(A) that the performance guarantee should be excluded and further proceeded to hold that the performance guarantee should be benchmarked on par with financial guarantee. Thus this issue is set-aside to the TPO on the similar lines indicated in the order of the Tribunal supra. Selection of MAM - CIT(A) directing AO/TPO to adopt the internal TNMM as the most appropriate method for the purpose of benchmarking the international transactions of purchase and sale of pharma products from its AEs - HELD THAT - Respectfully following the decision of this Tribunal in assessee s own case for earlier assessment year 2015-16 2023 (2) TMI 568 - ITAT PUNE we remand the matter to the file of the AO/TPO to adopt external TNMM as the most appropriate method for the purpose of benchmarking the international transactions of purchase and sale of pharma products from its AEs. Thus, the ground of appeal partly allowed for statistical purposes. Determination and carry forward of loss arising on sale of shares sold to its another wholly owned subsidiary foreign company holding the same to be non-genuine - HELD THAT - We find that the reasons assigned for disallowing the claim for determination and carry forward of long term capital loss on the sale of shares of Bilcare Singapore PTE Ltd. held by the assessee sold to its another wholly owned foreign subsidiary company Bilcare Packaging Ltd. (Mauritius Entity) cannot be sustained in the eyes of law. Though the order of the CIT(A) is bereft of detailed discussion on facts and law, we are in agreement with the conclusion reached by the CIT(A) that loss arising on sale of BSPL shares is allowable as Long term capital loss - Decided against revenue. Depreciation on the assets which are ceased to exist in the Block of assets - decision of CIT(A) in directing AO not to deduct sum from the value of opening Written Down Value (WDV) from the Block of Assets under which the assets leased to Bilcare Singapore PTE Ltd. falls - appellant had not received any sale consideration on cessation of the asset is not in dispute - HELD THAT - Admittedly, in the present case, under wrong notion, the assessee company had reduced the WDV of the assets leased to BSPL from the opening value of the block of assets under which it falls. However, during the course of assessment proceedings, it sought to rectify this mistake by claiming the higher depreciation without such reduction. The CBDT vide Circular No.14/1995 had clarified that while computing the taxable income of an assessee should be computed in accordance with the provisions of law, even a fresh claim made during the course of assessment proceedings in the absence of any statutory bar should be considered by the AO. CIT(A) is correct in allowing the claim of assessee. We do not find any perversity or illegality in the findings of CIT(A). We do not find any merits in grounds of appeal filed by the Revenue, hence dismissed.

Summary

Issues Involved:

1. Transfer Pricing Adjustments for International Transactions.
2. Allowance of Long Term Capital Loss on Sale of Shares.
3. Depreciation on Leased Machine.

Summary:

1. Transfer Pricing Adjustments for International Transactions:

The Tribunal addressed the issue of transfer pricing adjustments for international transactions, specifically concerning the corporate guarantee provided by the assessee to its subsidiaries. The TPO had initially benchmarked the corporate guarantee at 1.75% of the value of the transactions. However, the Tribunal, following its own decision in the assessee's case for earlier years, directed the Assessing Officer/TPO to compute the ALP of the corporate guarantee transactions by adopting a 0.5% guarantee fee plus any actual expenditure incurred by the assessee in furnishing such guarantees.

2. Allowance of Long Term Capital Loss on Sale of Shares:

The Tribunal examined the assessee's claim for a long-term capital loss arising from the sale of shares of its subsidiary, BSPL, to another wholly-owned subsidiary. The Assessing Officer had disallowed the claim, citing that the revised return of income was not valid and the transaction was not at arm's length. The Tribunal held that the revised return of income was valid under Section 139(5) as it was filed within the prescribed time limit and was due to a bona fide omission in the original return. The Tribunal also found that the transaction was genuine and not a colorable device to evade taxes. Consequently, the Tribunal allowed the long-term capital loss to be carried forward for set-off against future profits.

3. Depreciation on Leased Machine:

The Tribunal addressed the issue of depreciation on a machine leased to BSPL, which went into liquidation. The Assessing Officer had disallowed the depreciation claim, arguing that the asset ceased to exist in the block of assets. The Tribunal, relying on judicial precedents, held that depreciation should be allowed on the block of assets, even if the specific asset was not used during the relevant assessment year. The Tribunal directed that the sum of Rs.27,20,59,980/- should not be reduced from the opening WDV of the block of assets.

Conclusion:

Both the appeals filed by the Revenue and the assessee were partly allowed for statistical purposes, and the cross-objection filed by the assessee was dismissed. The Tribunal's decision emphasized the importance of adhering to established judicial precedents and the principles of genuine transactions and valid claims under the Income Tax Act.