Madras High Court
… vs Deputy Commissioner Of Income Tax on 11 November, 2022
Author: Anita Sumanth
Bench: Anita Sumanth
W.P.Nos.33943 of 2019 etc. batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 08.07.2022
PRONOUNCED ON : 11.11.2022
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
W.P.Nos.33943, 33946, 33949 and 33952 of 2019
WMP.Nos.34517, 34518, 34520, 34521, 34524, 34525, 34526 and 34529
of 2019
M/s.Pfizer Healthcare India Private Limited
(formerly known as Hospira Healthcare India
Private Limited)
Represented by the authorized signatory,
Mahalakshmi Barath,
Sri Nivas, New No.86, Old No.89,
GN Chetty Road, T.Nagar,
Chennai – 600 017.
…. Petitioner in all W.Ps
Vs.
Deputy Commissioner of Income Tax
Corporate Circle – 5(2)
4th Floor, 121, Mahatma Gandhi Road,
Nungambakkam, Chennai – 600 034.
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https://www.mhc.tn.gov.in/judis
W.P.Nos.33943 of 2019 etc. batch
... Respondent in all W.Ps
Prayer in W.P.No.33943 of 2019: Writ Petition filed under Article 226 of
the Constitution of India, to issue a Writ of certiorari calling for the records
on the file of the respondent and quash the impugned order in
ITBA/COM/F/17/2019-20/1019686722(1) dated 01.11.2019 along with no-
tice in PAN:AABCO2190F dated 02.07.2018 issued under Section 148 of
the Income Tax Act, 1961 for the assessment year 2012-13.
Prayer in W.P.No.33946 of 2019: Writ Petition filed under Article 226 of
the Constitution of India, to issue a Writ of certiorari calling for the records
on the file of the respondent and quash the impugned notice No.
ITBA/AST/S/143(2)_3/2018-19/1013641765(1) in PAN:AABCO2190F
/2012-13 under Section 143(2) of the Income Tax Act, 1961 dated
15.11.2018 for the assessment year 2012-13.
Prayer in W.P.No.33949 of 2019: Writ Petition filed under Article 226 of
the Constitution of India, to issue a Writ of certiorari calling for the records
on the file of the respondent and quash the impugned order in
ITBA/COM/F/17/2019-20/1019686722(1) dated 01.11.2019 along with no-
tice in PAN:AABCO2190F dated 02.07.2018 issued under Section 148 of
the Income Tax Act, 1961 for the assessment year 2013-14.
Prayer in W.P.No.33952 of 2019: Writ Petition filed under Article 226 of
the Constitution of India, to issue a Writ of certiorari calling for the records
on the file of the respondent and quash the impugned notice No.
ITBA/AST/S/143(2)_3/2018-19/1013641765(1) in PAN:AABCO2190F
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W.P.Nos.33943 of 2019 etc. batch
/2013-14 under Section 143(2) of the Income Tax Act, 1961 dated
15.11.2018 for the assessment year 2013-14.
(In all WPs)
For Petitioner : Mr.N.V.Balaji
For Respondent : Mr.Prabhu Mukund Arun Kumar
Junior Standing Counsel
COMMON ORDER
The petitioner is a company engaged in the research, development and manufacture of pharmaceuticals products. The present writ petitions chal- lenge notices issued under Section 148 and 143(2) of the Income Tax Act, 1961 (in short ‘Act’) for assessment years (AY) 2012-13 and 2013-14.
2. In respect of the aforesaid two years, the petitioner had filed returns of income within time, and accompanied by necessary enclosures. Since the petitioner had transactions with entities overseas, references were made to the Transfer Pricing Officer (TPO) for computation of arms length price (ALP) of such transactions.
3. Notices were issued by the TOP calling for various particulars in re- gard to the international transactions and the petitioner duly responded to 3 https://www.mhc.tn.gov.in/judis W.P.Nos.33943 of 2019 etc. batch the same. The petitioner had set up a new injectable manufacturing facility in Vishakhapatnam (in short ‘Vizag unit’) that had commenced production during the financial year 2015-16.
4. Till the commencement of production, the direct expenses incurred on assets under construction had been capitalized by the petitioner. Indirect expenditure was being claimed as revenue expenditure, including for the two years in issue in these writ petitions.
5. In the course of the hearing before the TPO, the petitioner, apart from producing various other material that had been sought, submitted a note on its business activities, making specific reference to the Vizag unit. Segmental financial statements that provided a break up of pre-operative ex- penditure relating to Vizag unit were also provided.
6. Upon receiving the primary information, the TPO had raised a query in respect to the allocation of expenses in response to which the peti- tioner had tendered explanation along with proof of recovery of the pre-oper- ative expenditure subsequent to commencement of operations of the Vizag unit.
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7. A show cause notice had been issued by the officer reiterating the query on the operations of the Vizag unit and the details of expenditure charged to profit and loss account (P & L account). Vide its submissions dated 21.01.2016 and 02.02.2016, the petitioner expanded on the submis- sions already made reiterating the methodology followed for claiming the ex- penditure.
8. The TPO was thus convinced of the claim and made no adjustment towards the expenditure incurred. The order passed by the TPO on 29.01.2016 contains some discussion in this regard. The TPO’s order was forwarded to the Assessing Officer who thereafter proceeded to compute the total income of the petitioner in conformity with the ALP determined by him.
9. While matters were resting so, the impugned notices under Section 148 dated 02.07.2018 came to be issued. The petitioner responded stating that its return filed originally may be taken as filed in respect of the notice under Section 148. In line with the procedure set out under the judgment of the Supreme Court in the Case of GKN Driveshafts (India) Vs. Income Tax 5 https://www.mhc.tn.gov.in/judis W.P.Nos.33943 of 2019 etc. batch Officer [259 ITR 18], the petitioner sought reasons on the basis of which the re-assessment was being initiated.
10. The reasons were supplied by the respondent, which are common for both the assessment years and extracted below:
With reference to the above, the reasons for re- opening the assessment U/s 147 of the Income Tax Act, 1961 for the A.Y.2012-13 is furnished as under:
"As per the information available with this of- fice, the assessee company had commenced the set- ting up of separate manufacturing facility at Vizag in F.Y.2010-11. The new Vizag unit started function- ing only in F.Y.2015-16. But the assessee in its seg- mental results for A.Y.2012-13 had computed net loss after crediting scrap sales against expenses in- curred towards the new Vizag unit. Since the unit had not become operational during the AY 2012-13, the loss should not have been debited to the P & L account of the year.
The assessee had debited such expenses in- curred towards Vizag unit to its P & L account for AY 2012-13. The segmental figures furnished by the assessee for the Asst. years 2012-13 and 2013-14 are as under:
A.Y. Amount
2012-13 Rs.15,84,95,851/-
2013-14 Rs.56,17,33,834/-
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W.P.Nos.33943 of 2019 etc. batch
Further the officer mentioned that the as- sessee in the application filed for APA, included vizag unit from FY 2014-15 and did not include IKKT segment. This proved that the two units were different and that the new vizag unit started func- tioning only in FY 2015-16. Accordingly, the expen- diture which have been incurred by the assessee pri- or to setting up the vizag unit are pre-operative ex- penses and capital in nature and cannot be allowed as revenue expenditure.
The above information is fresh information brought to the notice of the undersigned, and there is reason to believe that income of above Rs. 1 Lakh has escaped assessment and should be brought to fax.
In view of the above, I have reason to believe that income chargeable to tax has escaped assess- ment for the asst. year 2012-13 and the case may be re-opened u/s 147."
You are requested to file objection, if any, to the reopening proceedings latest by 24/10/2018.
11. Since the notices had been issued beyond a period of four years, the petitioner relies on the proviso to Section 147, which sets out a limitation of four year for re-assessment extendable to six years, if the revenue is able to establish that no full and true disclosure was made by the petitioner at the first instance.
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12. The reasons on the basis of which the impugned proceedings have been initiated refers to ‘information available with this office’ and specifically the application filed by the petitioner for Advance Pricing Agreement (APA), wherein it had included the Vizag unit but not the Irungattukottai segment.
13. This was relied upon by the Assessing Officer to conclude that the two units were different and the Vizag Unit had started functioning only in FY 2015-16. All expenditure incurred prior thereto was, according to the Officer, pre-operative and capital in nature, thus liable to be disallowed.
14. Per contra, the petitioner would maintain that the Vizag unit had not just been the subject matter of deliberation before the TPO but that all details specifically in regard to the claim of expenditure had been placed before the Officer. To this effect, a note was placed before the Officer on 27.10.2017, extracted below:
“Hospira India commenced the construction of a manu- facturing facility at Vizag in December 2010. During the FY 2013-14, Hospira India incurred costs to set up its contract manufacturing facility at Vizag. Post commencement, the op- erations at this unit would be as per the instructions of Hospi- ra Group and Hospira India will be remunerated on a cost 8 https://www.mhc.tn.gov.in/judis W.P.Nos.33943 of 2019 etc. batch plus mark-up basis. During the year, Hospira India bore set up costs which were agreed to be recharged by the Group upon commencement of operations.
The Assessee humbly submits that it has recovered all pre-operative costs incurred (i.e., FX 2010-11 to commence- ment date) in relation to Vizag segment upon commencement of operations in FY 2015-16. The pre-operative costs incurred every year along with the invoice for the recovery is attached vide Annexure 1 to this submission.”
15. Revenue, for its part, points out that there is a difference in the presentation of particulars that were furnished before the TPO for the two periods in question. While for one of the years, the details of pre-operative expenditure have been supplied as a break up for the period 2010-11 to May 2015, the presentation of particulars for the subsequent year is not the same.
16. Thus, according to the Assessing Officer, the allocation of costs and the characterization thereafter has been deliberately camouflaged leading to a disclosure which is neither full nor true.
17. The petitioner relies on the following citations for the proposition that there can be no re-assessment in the face of a full and true discloser by an assessee and, touching on the merits of the matter, to the effect that there should be no disallowance of expenditure, in a case, where the expenses 9 https://www.mhc.tn.gov.in/judis W.P.Nos.33943 of 2019 etc. batch incurred have been recovered in the subsequent periods, as in the present case. The decisions are:
(i)Commissioner of Income-tax, Coimbatore v. Elgi Finance Ltd.
[(2006) 286 ITR 674]
(ii)Fenner (India) Ltd. v. Deputy Commissioner of Income-tax [241 ITR 672 (Madras)]
(iii)Commissioner of Income-tax v. Foramer France [(2003) 264 ITR 566 (SC)]
(iv)Foramer v. Commissioner of Income-tax [(2001) 247 ITR 436 (Allahabad)]
(v)Commissioner of Income-tax v. Kelvinator of India Ltd. [(2002) 256 ITR 1 (Delhi)]
(vi)Commissioner of Income-tax, Delhi v. Kelvinator of India Ltd. [320 ITR 561]
(vii)PVP Ventures Ltd. v. Assistant Commissioner of Income-tax, Corporate Circle 5(2), Chennai (W.A.Nos.1171 & 1172 of 2015, dated 27.10.2015)
(viii)Karti P.Chidambaram v. The Assistant Commissioner of Income Tax, Non Corporate Circle-3, Room No.623-A, 6th Floor, Wanaparthy Block, 121, MG Road, Nungambakkam, Chennai-600 034 (WP.Nos.1589 of 2017 and batch, dated 13.11.2017) 10 https://www.mhc.tn.gov.in/judis W.P.Nos.33943 of 2019 etc. batch
(ix)M/s.S.P.Mani and Mohan Diary, S4, Jeevanantham Street, Kol- lampalayam, Erode – 638 002 v. The Assistant Commissioner of In- come tax, Central Circle I, Gandhiji Road, Erode – 638 001 (WP.No.3648 of 2018, dated 26.09.2019)
(x)Commissioner of Income Tax, Corporate Ward 3(4), Chennai v. B.Suresh Kumar (TCA.No.317 of 2020, dated 16.09.2020)
(xi)Income Tax Officer, Ward No.16(2) v. TechSpan India (P) Ltd. [302 CTR 74]
(xii)Marico Ltd. v. The Assistant Commissioner of Income Tax- 12(3)(2) and Others (W.P.No.1917 of 2019, dated 21.08.2019)
(xiii)The Assistant Commissioner of Income Tax 12(3)(2) and Others v. Marico Ltd. (Special Leave Petition (Civil) Diary No.7367 of 2020, dated 21.08.2019)
(xiv)M/s.Indian Bank, 66 Rajaji Salai, Chennai-600 001 v. The Deputy Commissioner of Income Tax, Company Circle II(3), 121 Nungam- bakkam High Road, Chennai-600 034 (TCA.Nos.421 to 423 of 2008 & 260 and 261 of 2015, dated 29.07.2015)
(xv)GKN Driveshafts (India) Ltd. v. Income-tax Officer [259 ITR 19 (SC)] (xvi)Calcutta Discount Co. Ltd. v. Income-tax Officer [(1961) 41 ITR 191 (SC)] 11 https://www.mhc.tn.gov.in/judis W.P.Nos.33943 of 2019 etc. batch (xvii)M/s.Asianet Star Communications Private Limited v. Assistant Commissioner of Income Tax (WP.Nos.25328, 25331 & 25336 of 2018, dated 16.04.2019) (xviii)Commissioner of Income-tax, Chennai v. Schwing Stetter India (P) Ltd. (Tax Case (Appeal) No.217 of 2015, dated 02.06.2015) (xix)Standard Refinery & Distillery Ltd. v. Commissioner of Income- tax (Central) [(1971) 79 ITR 589 (SC)] (xx)Commissioner of Income-tax v. Prithvi Insurance Co. Ltd. [(1967) 63 ITR 632 (SC)] (xxi)B.R. Ltd. v. V.P.Gupta, Commissioner of Income-tax [(1978) 113 ITR 647 (SC)] (xxii)Commissioner of Income-tax v. Rane (Madras) Ltd. [(2007) 293 ITR 459 (Madras)].
18. According to the petitioner, all relevant material has been placed before the Department to establish that the expenses incurred have been fully recouped and invoices have been placed before the officer to establish this position. In such circumstances there is no avenue for any further disallowance.
19. Learned counsels have been heard in full and the pleadings have been studied carefully.
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20. The two issues that arise in this matter are assumption of jurisdiction as well as characterization of the expenses to determine whether there has been a claim of ineligible pre-operative capital expenditures in respect of the years prior to 2015-16, when the Vizag unit of the petitioner commenced commercial production.
21. The documentation placed before this Court makes it very evident that neither the Assessing Officer nor the TPO had lost sight of the issues arising from returns of the income filed by the assessee and specific queries had been raised on the allocation of expenses to the Vizag unit.
22. The financials of the company accompanying the return of income, included inter alia, a note on the Vizag unit at note 1, reading as follows:
A.Background:
"Hospira Healthcare India Private Limited ("the Com- pany" or "HHIPL"), a wholly owned subsidiary of Hospira Inc., USA was incorporated in India on November 17, 2009. HHIPL acquired the generic injectable pharmaceuticals busi- ness (including certain manufacturing and R&D assets and drug pipeline) of Orchid Chemicals & Pharmaceuticals Limit- ed ("Orchid") on March 30, 2010 pursuant to a Business Transfer Agreement dated December 15, 2009 between the parties. The Company is executing plans to expand its manu-13
https://www.mhc.tn.gov.in/judis W.P.Nos.33943 of 2019 etc. batch facturing capacity at Irungattukottai and is also engaged in setting up a new injectables manufacturing facility at Vizag utilizing the site on the long term leases acquired from Orchid in March 2010."
23. The expenditure under construction period has also been specifically referred to in the accompanying financials as ‘capital work-in- progress’, as follows:
"B3.4. Expenditure under construction period:
Direct expenditure on assets under construction or de- velopment is shown under Capital work-in-progress, while in- direct expenditure is expensed."
24. The audit report at column 17A elaborates on the amounts debited to profit and loss account making specific reference to prepaid expenses relating to the work in progress in the Vizag unit. The narration is as follows:
17. Amounts debited to the profit and loss account, be-
ing:-
(a) expenditure of capi- Expenditure of capital nature and tal nature; debited to Statement of Profit and Loss includes:
a) Rs. 38,760,000 being the amortization from Prepaid ex-14
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17. Amounts debited to the profit and loss account, be-
ing:-
penses relating to the sharing of costs and advance paid by the as-
sessee to a supplier to assist in their increased manufacturing capacity.
b) Loss on sale of fixed assets -
Rs. 455,176
c) Interest cost on External Com-
mercial Borrowing (ECB) amounting to Rs.250,286,790.
The management, relying on vari-
ous judicial pronouncements is of the opinion and as represented to us, has capitalized Interest cost on External Commercial Borrow-
ing (ECB) as part of the ongoing capital in progress at Visakhap-
atnam.
25. Segmental financials have been set out in the different units and divisions, such as, manufacturing, in-house research and development, contract research and development and Vizag units.
26. When the matter was referred to the TPO, the petitioner was asked to provide a reconciliation of the segmental profit and loss account 15 https://www.mhc.tn.gov.in/judis W.P.Nos.33943 of 2019 etc. batch with the financials that have also been so provided vide detailed response dated 21.01.2016.
27. In response to a specific query in regard to the profits of Irungattukottai and the Vizag segments, the petitioner has offered an explanation on 21.01.2016 stating that the pre-commencement cost was recovered upon commencement of commercial production as a policy decision and this aspect of the matter has also been placed for the consideration of the TPO in the following terms:
"As mentioned during the course of our hearing, the Vizag segment is being set up as a contract manufacturer of Hospira Group. Under the proposed APA Application, the Assessee has proposed to recover the pre-commencement cost upon commencement of commercial production. We confirm that the above mentioned pre-commencement rev- enue costs and depreciation have been recovered from Hos- pira Group upon commencement of operations in FY 2015-
16. The invoice in relation to the recovery or recoupment of pre-commencement costs is attached in Annexure 3 to the submission dated January 21, 2016. Accordingly, the As- sessee summarizes its contention that the Vizag segment cannot be aggregated with the IKKT manufacturing segment as follows:
* IKKT manufacturing and Vizag segment have different characterizations and should not be looked together. Fur- ther, the drugs proposed to be manufactured from Vizag 16 https://www.mhc.tn.gov.in/judis W.P.Nos.33943 of 2019 etc. batch segment have no linkage to the operations of IKKT manu- facturing and R&D segments.
* Vizag is a third party segment since during FY 2011-12, no international transactions arose from Vizag segment and all costs incurred pertain to pre-commencement costs (third party costs).
* These costs are recovered from Hospira Group up on commercialization of operations in FY 2015-16 and aggre- gating would amount to double charge to the AE causing undue hardship."
28. The details of recoupment of expenses have been set out in paragraphs 5.10 to 5.12 of order dated 29.01.2016 readings as follows:
"VIZAG DIVISION:
5.10 Besides, the assessee has apportioned the expenses grouped under corporate division of Rs.18,16,60,260 to all the segments including Vizag. This office is of the opinion that Vizag unit being a non starter and the expenditure in-
curred for the said unit have been separately captured and taken to the balance sheet as capital work in progress. No further apportionment of the corporate expenses was re- quired to be made.
5.11 Assessee was contending that the expenditure incurred by the VIZAG units is of three types.
• Expenditure incurred specific for construction; • Expenditure incurred during the course of construction; • Expenditure incurred for the day to day operations classi-
fied as pre operating business.
17 https://www.mhc.tn.gov.in/judis W.P.Nos.33943 of 2019 etc. batch Capital work in progress consisted of Cost of construction in progress and expenditure incurred during construction of Rs.245,66,36,000 and Rs.52,96,26,000 respectively as mentioned in the Balance sheet. The expenditure incurred 'during construction' is separated from the respective heads and classified under 'Expenditure during Construction'. Apart from this, day to day expenses have been incurred which constitute the pre operative expenses in relation to the unit at Vizag and therefore such expenditures have been identified separately in the Vizag segment along-with ap- portionment for corporate cost.
5.12 The said explanation has been considered. The as- sessee as part of the proceedings admitted that the Vizag unit is envisaged as a separate contract manufacturing cen- tre and the entire cost incurred has been recouped from the AE for which assessee furnished proof thereon. This recoup- ment of the cost incurred has happened during the previous year relevant to the Asst Year 2016-17. The inter company invoice is dated 29.12.2015 and the amount is mentioned as US $ 8,86,77,715.
5.13 Taking this claim to be correct, the apportionment done by the assessee calls for no interference."
29. The TPO, before whom aforesaid material has, admittedly, been placed has accepted the submissions of the petitioner and the assessment has been completed by the officer in conformity with the view taken by the TPO, in line with the statutory mandate of Section 92CA(4) of the Act. 18 https://www.mhc.tn.gov.in/judis W.P.Nos.33943 of 2019 etc. batch
30. While this is so, the petitioner approached the authorities for determination of pricing by way of APA and such materials came to be attention of the Joint Commissioner of Income Tax Transfer Pricing, who writes in turn to the Assessing Officer, based on which the impugned, re- assessment order has been initiated.
31. The question that begs consideration is as to whether there has been a full disclosure of all relevant issues before the Officer at the original instance and, in view of the materials noticed above, I am of the categoric view that the answer should be in the affirmative.
32. Details in regard to the expenditures incurred in connection with the Vizag segment and the manner of characterization of the same have been provided before the officer and in my view, the assessee has made a full disclosure of primary as well as secondary materials before both the Assessing and the Transfer Pricing Officers.
33. There are instances where re-assessments are initiated based on information obtained from different units/sources with the Income Tax Department including the Criminal Investigation Department or All India 19 https://www.mhc.tn.gov.in/judis W.P.Nos.33943 of 2019 etc. batch Information. Queries may have been raised by those Departments and material may have been placed by assessee for their consideration.
34. In such cases a probable view is that such materials as produced before those Departments have not come into the notice of the Assessing Authority for the determination of full and true disclosure. However, in this case all materials have admittedly been placed before the TPO who is integral to the conduct of assessment proceedings. All materials filed by an assessee before the TPO are well available as part of the assessment records.
35. I am thus of the categoric view that there has been a full and true disclosure by the petitioner as a result that proceedings for re-assessment beyond a period of four years must fail. The impugned order rejecting the objections of the petitioner to assumption of jurisdiction under Section 147, has taken recourse to Explanation 1 to Section 147 of the Act. Reiterating the view in M/s.Asianet Star Communications Private Limited (supra),, I hold that Explanation 1 cannot override the statutory condition under the proviso to Section 147.
36. Explanation 1 would apply only in a situation where the materials filed by an assessee are so voluminous as make a proper verification nugato- 20 https://www.mhc.tn.gov.in/judis W.P.Nos.33943 of 2019 etc. batch ry, and the revenue establishes conscious intent on the part of the assessee to camouflage materials in the hope that such materials escape the attention of the authority. This is not the case of the revenue before me in the present matters.
37. In light of the discussion as above, the impugned orders and no- tices are set aside and these writ petitions are allowed. No costs. Connected miscellaneous petitions are closed.
11.11.2022 Index : Yes Speaking Order To Deputy Commissioner of Income Tax Corporate Circle – 5(2) 4th Floor, 121, Mahatma Gandhi Road, Nungambakkam, Chennai – 600 034.
21 https://www.mhc.tn.gov.in/judis W.P.Nos.33943 of 2019 etc. batch Dr.ANITA SUMANTH, J., ska W.P.Nos.33943, 33946, 33949 and 33952 of 2019 WMP.Nos.34517, 34518, 34520, 34521, 34524, 34525, 34526 and 34529 of 2019 11.11.2022 22 https://www.mhc.tn.gov.in/judis