Income Tax Appellate Tribunal - Panji
Autoline Industries Ltd.,, Pune vs Deputy Commissioner Of Income-Tax,, on 24 November, 2017
आयकर अपीलीय अिधकरण,
अिधकरण पुणे यायपीठ "बी
बी"
बी पुणे म
IN THE INCOME TAX APPELLATE TRIBUNAL
PUNE BENCH "B", PUNE
ी डी.
डी क णाकरा राव , लेखा सद य
एवं ी िवकास अव थी,
अव थी याियक सद य के सम
BEFORE SHRI D.KARUNAKARA RAO, AM
AND SHRI VIKAS AWASTHY, JM
आयकर अपील सं . / ITA No.148/PUN/2014
िनधारण वष / Assessment Year : 2009-10
Autoline Industries Ltd.,
S.No.313, 314, 320-323,
Nanekarwadi, Chakan,
Pune 410 501
PAN :AABCA4534D .... अपीलाथ /Appellant
Vs.
DCIT, Circle-1(1), Pune .... थ / Respondent
Assessee by : Shri Sharad Shah
Revenue by : Smt. Nirupama, CIT-DR
सुनवाई क तारीख
/ घोषणा क तारीख /
Date of Hearing : 16.11.2017 Date of Pronouncement: 24.11.2017
आदेश / ORDER
PER D. KARUNAKARA RAO, AM :
This the appeal filed by the assessee against the directions of DRP dt. 30-09-2013, orders of the TPO dated 19-12-2012 and AO dated 28-11-2013 for the Assessment Year 2009-10.
2. Before us, at the outset, Ld. Counsel for the assessee submitted that Ground Nos. 1,2,3 and 4(g) are general in nature and they can be dismissed as general. Referring to other Ground 4 which contains sub-grounds (a) to (f), Ld. Counsel read out the same and the same are extracted as under :
"4. TPO/AO erred in making following specific TP adjustments (few of them have been erroneously upheld by DRP :2 ITA No.148/PUN/2014
Autoline Industries Ltd.,
(a) The Ld. TPO/AO erred in making a TP adjustment for recovery of management expenses to the tune of Rs.12,80,000/- when the expenses are incurred by the assessee for his own investment purpose and not for or on behalf of the AE.
(b) The Ld. TPO/AO erred in making and adjustment for mark up to be recovered from AE to the tune of Rs.1,75498/- being the mark @13.71% on aforesaid Rs.12,80,000/-.
(c) The Ld. AO.TPO has erred in taking benchmarking rate of interest @13.25% as against assessee charging interest @8% for the loan given to Autoline Industries Limited, USA and accordingly making a TP adjustment of Rs.41,16,095/-. The AO/TPO has considered certain components of charges (while calculating ALP) which were not paid or incurred by the assessee during the year under assessment.
(d) The Ld. AO/TPO erred in making a TP adjustment for Foreign Exchange Loss amounting to Rs.20,76,408/- treating that the same should have been recovered from AE, without considering the fact that the said loss relates to transactions which cannot be and should not be recovered from AE. This adjustment has been continued in spite of submission of Ledger Account with Narration detailing the transactions to which the loss relates.
(e) The Ld. AO/TPO erred in making a TP adjustment for recovery of Guarantee Fees amounting to Rs.20,25,000/- when the transaction of money given to AE was on investment account.
(f) AO erred in disallowing and DRP erred in confirming the disallowance of Rs.10,90,405/- relating to alleged expenses for earning exempt income (By applying sec.14A and Rule 8D).
3. Further, referring to each of the above sub grounds, Ld. Counsel for the assessee made the following submissions. Relevant submissions of the portion and our adjudication on each of the sub-ground are given as under :
4. Firstly, referring to Ground No. 4(a) and (b), Ld. Counsel for the assessee submitted that the assessee incurred certain payments of Rs.12,80,000/- on account of professional fee. These payments of Rs.12,80,000/- constitutes an expenditure incurred by the assessee for the purposes of his own investment in a company abroad. These are the Professional Management Fee paid to Mr. J. Sagar Associates (Rs.10,80,000/-) and to S.S. Iyer and Company (Rs.2,00,000/-). The page No. 320 of the paper book is relevant. These parties have rendered professional services to the assessee in connection with the investment of 3 ITA No.148/PUN/2014 Autoline Industries Ltd., share application money in Foreign company named M/s. Koderat Investment Ld. (Italy). In the ledger, it is described as a "being professional fees" and "disbursement for services" rendered from June 2008 to September 2008 including teleconferences with K. Studio and attending meetings vide Bill No.535. In connection with S.S. Iyer and Co., the said amount was paid as described in the ledger "being professional services" rendered in connection with acquisition of stake in SZ design, Italy vide Bill dated 29-09-2008. TDS was deducted in both the cases. There is not dispute about the genuineness of these payments. In the TP assessment proceedings, the TPO held that these payments constitute international transactions with the AEs and the TPO is forced to arrive at such a decision in the absence of sufficient material before the TPO/AO/DRP.
5. Before us, at the outset, Ld. Counsel for the assessee brought our attention on the above facts and submitted that requisite details were furnished before the authorities. In this regard, he brought our attention to the ledger extract. Despite the same, the TPO wrongly treated the said transactions as international transactions and proceeded to benchmark the same as recoverable from the AEs of the assessee. Further, he submitted that the said issue should be remanded to the file of the AO for fresh adjudication and in the light of the facts that the said transactions are required to be treated as outside the scope of international transactions. In our view, without going into the merits of the same, there is requirement of facts relating to the correctness of the TPO decision of treating the same as international transactions when the transactions are not with the Associated Enterprises of the assessee. 4 ITA No.148/PUN/2014
Autoline Industries Ltd.,
6. On hearing both the parties, we find it is clear from the records that these transactions are independently undertaken with the professional bodies which are not connected in any fashion with the assessee. There is no evidence on record to suggest that M/s. J. Sagar Associates and M/s. S.S. Iyer and Company are related AEs of the assessee. In our view, the issue raised in Ground 4(b) is dependent on the Ground No.4(a) and the same is required to be remanded for want of facts, as argued by the Ld. Counsel for the assessee before us. Therefore, we direct the AO/TPO to consider the above and decide the issue afresh after granting reasonable opportunity of being heard to the assessee. Accordingly, Ground No.4(a) and (b) are allowed for statistical purposes.
7. Ground No. 4(c) relates to the benchmarking of the international transactions qua the interest rates. While the assessee charged 8% interest rate on the loans given by the assessee to Autoline Industries Ltd, USA, an AE of the assessee. Income-tax authorities benchmarked the said transaction in favour of applying the interest of 13.25%, which is the lending rate of the banks.
8. On this issue before us, Ld. Counsel for the assessee submitted that, on the similar loan in the A.Y. 2012-13, the DRP passed an order dated 26-12-2016 for that assessment year accepting the LIBOR plus as an approved one for benchmarking the said transaction. DRP did not approve the bank rate good for benchmarking.
9. After hearing both the parties on this issue, in our view the benchmarking of the international transaction applying the flat rate of 13.25% of the bank rate is not proper. There is requirement for maintaining the "principle of consistency" from the Department side. 5 ITA No.148/PUN/2014
Autoline Industries Ltd., Therefore, we remand this issue also to the file of the AO to verify the set principles of consistency and decide the issue afresh after granting reasonable opportunity of being heard to the assessee. Accordingly, Ground No.4(c) raised by the assessee is allowed for statistical purposes.
10. Ground No. 4(d) is against the TP adjustments amounting to Rs.20,76,408/- qua the Foreign Exchange loss. It is the submission of the Ld. Counsel for the assessee that the net Foreign Exchange loss is resultant of set off of all the foreign exchange income earned from the partners. As per Ld. Counsel for the assessee, these amounts have nothing to do with the international transactions. Bringing our attention to various pages of the paper book, Ld. Counsel for the assessee submitted that these losses constitute the result of gains is of the restatement of the existing loans with the banks. The banks are not its AEs and the loan transactions are not the international transactions for benchmarking by the TPO. According to Ld. Counsel, they do not constitute international transactions
11. After hearing both the parties, we perused the ledger extract connection to the foreign rate fluctuations and find the losses are mainly on account of balances linked to the accounts in Kotak Mahendra Bank C/A - Rs.44,76,000/- and Forex Benefit of ECB loan Rs.10,38,287/-. Prima-facie, we find these amounts does not seem to be the ones relating to the international transaction involving the Associated Enterprises of the assessee. Therefore, we find it relevant to remit this issue also to the file of the AO for fresh adjudication. Assessee is directed to file relevant documents in support of the claim of the assessee. Accordingly, Ground No.4(d) is allowed for statistical purposes.
6ITA No.148/PUN/2014
Autoline Industries Ltd.,
12. Ground No.4(e) relates to making of TP adjustments for recovery of Guarantee Fees amounting to Rs.20,25,000/-, Relevant facts include that the assessee gave money to the AEs on investment account. The same was benchmarked by the TPO and proposed addition for recovery of the said Guarantee fee of Rs.20,25,000/-. The same was confirmed by the DRP.
13. Before us, Ld. Counsel for the assessee submitted that the said transaction of investment in the shares of the AEs is outside the scope of international transaction and the same is not required to be benchmarked for the assessment year under consideration. For the proposition, he relied on various decisions and the Mumbai Bench of the Tribunal in the cases of Siro Clinpharm Private Limited Vs. Anr. Vs. DCIT & Anr. 117 TTJ 0609 (Mumbai) order dated 31-03-2016. Further, he also referred to another decision of the Pune Bench of the Tribunal in the case of Bharti Airtel Ltd. Vs. ACIT 43 taxmann.com 150 (Delhi- Tribunal) order dated 11-03-2014 to support his contention.
14. Further, Ld. Counsel for the assessee submitted that the Finance Act, 2012 brought in a retrospective amendment w.e.f. 01-04-2002 and amended the meaning of the "international transaction", whereby the transactions under debate were included within the meaning of the 'international transactions'. But, the judicial interpretations on the said amendment suggest that the said amendment does not have retrospective effect and at best, it will be applicable from A.Y. 2013-14 onwards.
15. On perusal of the above cited decisions of the Tribunal, we find that the referred decisions are relevant for the above proposition that 'amendment to the definition of "international transaction" vide 7 ITA No.148/PUN/2014 Autoline Industries Ltd., Explanation to section 92B of the Act qua the issuance of Corporate Guarantee, apply to A.Y. 2013-14. Therefore, the impugned transactions of this year being outside the scope of international transaction, could not be said to be effected by the retrospective effect of the amendment. The following extracts from the case of Siro Clinpharm Private Limited & Anr. Vs. DCIT & Anr. 177 TTJ 0609 (Mumbai) order dated 31-03-2016 (Para 18 and 22) are also extracted here for the sake of completeness of this order :
"Explanation to Section 92B, though stated to be clarificatory and stated to be effective from Ist April 2002, has to be necessarily treated as effective from at best the assessment year 2013-14. Delhi High Court's guidance in the case of New Skies Satellite BV (supra) also, the amendment in the definition of international transaction under section 92B, to the extent it pertains to the issuance of corporate guarantee being outside the scope of 'international transaction' cannot be said to be retrospective in effect. (para 18) Amendment in section 92B, at least to the extent it dealt with the question of issuance of corporate guarantees, is effective from Ist April 2012. The assessment year before us being an assessment year prior to that date, the amended provisions of section 92B have no application in the matter and impugned ALP adjustment must stand deleted. (para 22)"
16. From the above, it is evident that the amendment to the Explanation to section 92B of the Act, though stated to be clarificatory has to be necessarily treated as effective from at best the A.Y. 2013-14 onwards and not to the A.Y. 2009-10 under consideration. In the current year, such guarantees does not constitute "international transactions". Same is the ratio as held by the Delhi Bench of the Tribunal in the case of Bharti Airtel Ltd. (supra). While deciding the above, both the Benches have kept their reliance on the Delhi High Court judgment in the case of New Skies Satellite BV (supra).
17. In our opinion, the DRP/TPO/AO erred in not considering the above in TPO's order dated 19-12-2012, DRP's order dated 30-09-2013, and also in the final assessment order dated 28-11-2013. All these 8 ITA No.148/PUN/2014 Autoline Industries Ltd., orders were decided prior to the said decisions of the Tribunal/Hon'ble Delhi High Court (supra). Therefore, we are of the opinion that the assessee is entitled to relief on this account. Accordingly, this part of ground is allowed.
18. Finally, the Ground No.4(f) raised by the assessee relates to confirming of disallowance of Rs.10,90,405/- u/s.14A r.w. Rule 8D of the I.T. Rules, 1962. Ld. Counsel submitted that the assessee got adequate excess funds in the year under consideration. At the outset, Ld. Counsel for the assessee brought our attention to the orders of the revenue authorities and submitted that the binding jurisdictional High Court judgement in the case of CIT Vs. Reliance Utilities and Power Ltd. reported in 313 ITR 340, CIT Vs. HDFC Ltd. judgment dated 23-07-2014, etc., relating to the principle of presumption of use of assessee's funds for investment activity or giving loans/advances to related concerns were not brought to the notice of the lower authorities. Therefore, it is the prayer of the Ld. Counsel for the assessee that this issue may be remanded to the file of the AO for fresh adjudication considering the said binding judgments free of presumption outlined in the said judgments. It was demonstrated before us that the assessee's investments appeared in the balance sheet under the heading 'investments' made by the assessee by the end of the order is much less than the assessee's own funds.
19. After hearing both the sides and considering the binding judgments on the issue, we find the issue needs to be remanded to the file of AO for fresh adjudication. AO is directed to examine the figures and apply the ratios laid down by the binding judgments of the jurisdictional High Court. With these observations, we remit Ground 9 ITA No.148/PUN/2014 Autoline Industries Ltd., No.4(f) to the file of the AO for fresh adjudication after granting reasonable opportunity of being heard to the assessee.
20. In the result, appeal of the assessee is partly allowed for statistical purposes.
Order pronounced in the open court on this 24th day of November, 2017.
Sd/- Sd/-
(VIKAS AWASTHY) (D. KARUNAKARA RAO)
याियक सद य /JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER
पुणे Pune; दनांक Dated : 24th November, 2017.
सतीश
आदेश क ितिलिप अ ेिषत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. The Respondent
यथ /
3. The CIT(A)-IT/TP, Pune
4. CIT(A)-13, Pune
5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, "B Bench"
Pune;
6. गाड फाईल / Guard file.
आदेशानुसार
/ BY ORDER,स
स यािपत ित //True Copy//
//True Copy// Senior Private Secretary
आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune