2015 (12) TMI 1552 - AT - Income Tax

Tribunal rules in favor of assessee in transfer pricing dispute, rejecting income additions and ALP adjustments.

The tribunal ruled in favor of the assessee in a transfer pricing dispute involving notional interest on advance share application money paid to an ... Addition on account of notional interest for Share Application Money paid to AE - TPA - Held that:- TPO has considered this transaction as a loan transaction by brushing aside the submissions of the learned AR of the assessee that this money was given as share application money and that too without giving any finding or indication any basis to say that this is a loan transaction. TPO has not brought on record anything to show that any unrelated share applicant was to be paid any interest for the period between making the share application money payment and allotment of shares. Therefore even for this delay in allotment of shares also, the very foundation of impugned ALP adjustment is devoid of legally sustainable merits. Hence we hold that the impugned ALP adjustment is devoid of merit and therefore deleted in both years because it was agreed by both sides that facts on this aspect are identical in both years. Also as we have held that no ALP adjustment is to be made in the present case, the dispute raised by the revenue that such adjustment should be as per domestic PLR as against LIBOR rate approved by CIT (A) does not survive and therefore, the appeal of the revenue is liable to be rejected - Decided in favour of assessee. Issues involved:1. Addition of notional interest for Share Application Money paid to AE in A.Y. 2007-08 and A.Y. 2008-09.2. Treatment of advance for Share Application Money as interest-free loan.3. Application of LIBOR rate as CUP/ALP of international transactions.4. Deletion of ALP adjustment based on judicial pronouncements.5. Dispute over ALP adjustment based on domestic PLR or LIBOR rate.Analysis:1. Addition of Notional Interest for Share Application Money:The assessee contested the addition of notional interest on advance share application money paid to the associated enterprise (AE) in both A.Y. 2007-08 and A.Y. 2008-09. The CIT (A) upheld the addition, citing transfer pricing provisions. However, the tribunal found the reasons given by the CIT (A) to be contrary to facts and provisions of law. The tribunal held that the addition was misplaced and beyond legal provisions, leading to the deletion of the adjustment.2. Treatment of Advance for Share Application Money:The CIT (A) confirmed the treatment of advance for Share Application Money (ASAM) as an interest-free loan, which the assessee disputed. The tribunal found the treatment incorrect, as the ASAM was not proven as a loan but as share application money. The tribunal deemed the adjustment/addition to income as misplaced, wrong, and beyond legal provisions, necessitating its deletion.3. Application of LIBOR Rate for International Transactions:The assessee raised a ground in A.Y. 2008-09 regarding the non-application of the LIBOR rate as Comparable Uncontrolled Price (CUP)/Arms Length Price (ALP) for international transactions. The tribunal found the reasons given by the CIT (A) for not applying the LIBOR rate to be contrary to facts and legal provisions. However, the tribunal did not make a specific ruling on this issue in the final decision.4. Deletion of ALP Adjustment based on Judicial Pronouncements:The assessee relied on various judicial pronouncements to support their case, citing similar facts and outcomes in favor of the assessee. The tribunal considered these precedents and found that the impugned ALP adjustment lacked merit, leading to its deletion in both years under consideration.5. Dispute over ALP Adjustment based on Domestic PLR or LIBOR Rate:The revenue contended that the ALP adjustment should be based on the domestic Prime Lending Rate (PLR) rather than the LIBOR rate. However, the tribunal, after considering the arguments and decisions related to similar cases, concluded that no ALP adjustment was warranted in the present case. Therefore, the dispute over the choice between domestic PLR and LIBOR rate became irrelevant and the appeal of the revenue was dismissed.In conclusion, the tribunal allowed both appeals of the assessee and dismissed the appeal of the revenue, emphasizing the deletion of the ALP adjustment and the lack of merit in the impugned adjustments based on the facts and legal provisions presented during the proceedings.