2013 (11) TMI 1703 - AT - Income Tax

Assessee's Appeal Partly Allowed, Revenue's Appeal Dismissed on TP Adjustments & Deductions

M/s. Clariant Chemicals (India) Ltd., Thane Versus The JCIT (OSD), Range 1 (1) Mumbai And The DCIT 1 (1), Mumbai Versus And M/s. Colour Chem Ltd., Thane

The appeal by the assessee was partly allowed, directing the AO to recalculate deductions under section 80HHC and grant a 20% volume discount for TP ... Restriction of disallowance of interest expenses to the dividend income - Disallowance of Dividend income in business income - Considered attributable to ‘income from other sources’ - Limitation of deduction u/ s.80M - Application of CUP method instead of transaction net margin method (TNMM) - HELD THAT:- Only 90% of the net amount of any receipt of the nature mentioned in clause (i) of Explanation (baa) which is actually included in the profit of the assessee is to be deducted from the profits of the assessee for determining “profit of the business” of the assessee under Explanation (baa) to section 80 HHC of the Act. Deduction under section 80M is to be allowed on net dividend income computed as per provisions of section 57 to 59; shares held by the assessee company being capital investment and not stock-in-trade, dividend could only be assessed under the head “other sources” and only expenditure referred to in section 57 could be deducted to arrive at net dividend and, therefore, proportionate management expenses or interest or other expenses could not be deducted while computing dividend income for the purpose of allowing deduction u/s.80M. Accordingly, Court declined to interfere in the relief granted by Ld. CIT(A) and Revenue’s appeal is dismissed. Decision in this case of ACG Associated Capsules Pvt. Ltd. vs. CIT 343 ITR 89 [2012 (2) TMI 101 - SUPREME COURT] and Parashuram Pottery Works Co. Ltd. v. ITO [1977] 106 1TR 1 (SC) [1976 (11) TMI 1 - SUPREME COURT] In the result, the appeal filed by the assessee is partly allowed and appeal filed by the Department is dismissed. Issues Involved:1. Deduction under section 80HHC of the Income Tax Act, 1961.2. Transfer Pricing (TP) adjustment.3. Deduction under section 80M of the Income Tax Act, 1961.Detailed Analysis:1. Deduction under Section 80HHC of the Income Tax Act, 1961:Netting of Interest Income:The first issue raised by the assessee pertains to the netting of interest income. The assessee argued that only 90% of the net amount of interest income should be deducted from the profits for determining 'profit of the business' under Explanation (baa) to section 80HHC, as per the Supreme Court decision in ACG Associated Capsules Pvt. Ltd. vs. CIT. The Revenue did not object to this contention, and the Tribunal restored the issue to the file of the AO for recalculating the deduction accordingly.Duty Entitlement Pass Book (DEPB) Receipts:The second issue under section 80HHC involved DEPB receipts. The assessee contended that the calculation of deduction should be in line with the Supreme Court decision in Topman Exports vs. CIT. The Tribunal accepted this submission and directed the AO to recalculate the deduction as per the Supreme Court's decision.2. Transfer Pricing (TP) Adjustment:Application of CUP Method:The assessee used the Transactional Net Margin Method (TNMM) for international transactions, but the TPO applied the Comparable Uncontrolled Price (CUP) method for certain transactions. The TPO made adjustments for three products, resulting in a TP adjustment of Rs. 38,36,693/-. The CIT(A) upheld the CUP method but provided a 5% rebate for volume differences and a 5% safe harbour provision, reducing the adjustment to Rs. 12,95,973/- for HOSTAPERM GREEN GN.Volume Discount:The assessee argued for a 20% volume discount based on the previous year's TPO order, which was accepted by the Tribunal. The Tribunal directed the AO to grant a 20% volume discount, emphasizing the rule of consistency.Geographical Differences:The assessee also sought a discount for geographical differences, but the Tribunal rejected this argument due to a lack of evidence showing the impact of geographical differences.Revenue's Contention on CUP Method:The Revenue's appeal argued against the CIT(A)'s application of the CUP method. The Tribunal dismissed this ground, noting that the TPO himself had applied the CUP method.3. Deduction under Section 80M of the Income Tax Act, 1961:The AO had reduced the gross dividend income by Rs. 12,17,900/- for interest and indirect expenses, allowing a deduction of Rs. 81,91,512/- under section 80M. The CIT(A) followed the Special Bench decision in Punjab State Industrial Development Corporation Ltd. vs. DCIT, allowing the deduction on the gross dividend income and restricting the disallowance to Rs. 50,000/-. The Tribunal upheld the CIT(A)'s decision, noting that the deduction under section 80M should be allowed on the net dividend income computed as per sections 57 to 59.Conclusion:- The appeal by the assessee was partly allowed, directing the AO to recalculate deductions under section 80HHC and grant a 20% volume discount for TP adjustments.- The appeal by the Revenue was dismissed, upholding the CIT(A)'s decisions on the application of the CUP method and the deduction under section 80M.