2014 (2) TMI 1288 - AT - Income Tax

Appellant wins deduction appeal under Section 80HHC; Revenue's Transfer Pricing Adjustment appeal dismissed. 'sLengthPrice

The Tribunal allowed the appellant's appeals regarding the deduction under Section 80HHC, following the Supreme Court's decision on the treatment of ... Deduction under section 80 HHC computation - reduction of 90% of the gross interest from the profit of the business - Held that:- The issue is now covered in favour of the assessee by the decision of Hon’ble Supreme Court in the case of ACG Associated Capsules Pvt. Ltd. vs. CIT (2012 (2) TMI 101 - SUPREME COURT OF INDIA), wherein it has been held that 90% of not the gross rent or gross interest but only net interest or net rent, which had been included in the profits of the business of the assessee as computed under the head “profit and gain of business or profession” was to be deducted under clause (1) of Explanation (baa) to section 80 HHC of the Income Tax Act,1961 (the Act) for determining the profits of the business. In the said decision the decision of Hon’ble Bombay High Court in the case of CIT vs. Asian Star Company Ltd. [2010 (3) TMI 455 - BOMBAY HIGH COURT ] was impliedly overruled. Accordingly, we restore this matter to the file of AO with a direction to re-compute the deduction under section 80 HHC of the Act on the issue of interest as per aforementioned decision of Hon’ble Supreme Court. TP adjustment - expenses of advertisement reimbursed by the assessee to its AE - Held that:- The expenses of advertisement reimbursed by the assessee to its AE belongs to the export activity of the assessee. To all the three AEs to whom the assessee has reimbursed advertisement expenditure huge export sales are made. It is the case of the assessee that its operating margin on its export activity is 47.17% as against similar margin of comparables of 8.08%. If the case of the assessee is examine in the light of these facts, then we are of the opinion that Ld. CIT(A) was right in deleting the adjustment as though the transaction of sharing the advertisement expenditure may be an independent transaction but it relates to the activity of export. Even if the total expenditure made by the assessee on sharing of advertisement expenses is reduced from operating margin of exports then also the operating margin of the assessee will be much more than the operating margin of the comparables and operating margin of assessee on export activity has been held to be at arms length by the TPO. It is not the case of TPO that the comparables selected by the assessee were not appropriate or some other comparables were also required to be included. In the light of these facts, we do not find any infirmity in the relief granted by Ld. CIT(A) and we decline to interfere in the deletion of addition. Issues Involved:1. Deduction under Section 80HHC concerning gross vs. net interest.2. Transfer Pricing Adjustment related to advertisement expenses paid to Associate Enterprises (AEs).Detailed Analysis:1. Deduction under Section 80HHC concerning gross vs. net interest:The appellant challenged the CIT(A)'s decision to reduce 90% of the gross interest from the profit of the business for the purpose of deduction under Section 80HHC. The appellant argued that only 90% of the net interest (interest income net of interest cost) should be reduced. This issue was raised for both the assessment years 2003-04 and 2004-05.The Tribunal referenced the Supreme Court's decision in ACG Associated Capsules Pvt. Ltd. vs. CIT, which clarified that only 90% of the net interest or net rent, which had been included in the profits of the business as computed under the head 'profit and gain of business or profession,' should be deducted under clause (1) of Explanation (baa) to Section 80HHC. This decision impliedly overruled the Bombay High Court's decision in CIT vs. Asian Star Company Ltd. Consequently, the Tribunal restored the matter to the Assessing Officer (AO) to re-compute the deduction under Section 80HHC in line with the Supreme Court's decision. Thus, the appellant's grounds were allowed in this manner.2. Transfer Pricing Adjustment related to advertisement expenses paid to Associate Enterprises (AEs):The Revenue appealed against the CIT(A)'s deletion of adjustments related to advertisement expenses paid to AEs under Section 92CA(3). The issue was common for assessment years 2003-04, 2004-05, and 2005-06.The Tribunal noted that the assessee had entered into several international transactions, including advertising expenses paid to AEs. The Transfer Pricing Officer (TPO) accepted the arm's length nature of other transactions but disputed the advertising expenses, adding the entire amount as a Transfer Pricing (T.P.) Adjustment. The TPO argued that the assessee's reimbursement of advertisement expenses to its AEs was not at arm's length and took the arm's length price (ALP) of such transactions at nil.The CIT(A) found that the TPO made the adjustment in an ad-hoc manner without adopting any prescribed method to determine the ALP. The CIT(A) emphasized that the reimbursement of advertisement expenses was integral to the export transactions and aimed at maximizing overall profit and sustaining future exports. The CIT(A) ruled that the TPO was obliged to determine the ALP using the prescribed methods and deleted the adjustment.The Tribunal upheld the CIT(A)'s decision, agreeing that the advertisement expenses were related to the export activity, which had an operating margin significantly higher than comparable companies. The Tribunal noted that even if the advertisement expenses were deducted from the operating margin, the margin would still be higher than that of the comparables. The Tribunal also referenced the Delhi High Court's decision in CIT vs. EKL Appliances Ltd., which stated that legitimate business expenditures need not be incurred out of necessity or result in immediate profit.Therefore, the Tribunal dismissed the Revenue's appeals, affirming the CIT(A)'s deletion of the T.P. Adjustment for the advertisement expenses for all relevant assessment years.Conclusion:The Tribunal allowed the assessee's appeals regarding the deduction under Section 80HHC and dismissed the Revenue's appeals concerning the T.P. Adjustment for advertisement expenses. The decisions were based on established legal precedents and the factual context of the transactions.