2016 (4) TMI 817 - HC - Income Tax

Court affirms Assessee's wins on expatriate salaries, interest, bank commission, remands ECB interest, dismisses under Section 115JB.

The Court upheld decisions in favor of the Assessee regarding salaries paid to expatriates, interest transactions, and bank guarantee commission based on ... Interest paid to the HO and interest received from Indian branches - Held that:- This issue appears to be covered against the Revenue by the decision of the Calcutta High Court dated 23rd December 2010 in ABN Amro Bank(2010 (12) TMI 340 - CALCUTTA HIGH COURT ). This Court declines to frame any question on this issue of interest paid to the HO as well as the interest received from the Indian branches. Deferred bank guarantee commission - Held that:- This issue appears to be covered in favour of the Assessee by the decision of the Calcutta High Court in CIT v. Bank of Tokyo Ltd. (1993 (5) TMI 172 - CALCUTTA HIGH COURT ). Accordingly, this Court declines to frame any question on this issue. Interest on ECB - Held that:- As regards the interest received on interest on ECB and deduction under Section 44C of the Act, the question related to this issue appears to have not been decided by the ITAT in favour of the Assessee, but remanded to the AO for a fresh decision since it held that the loan agreements filed as additional evidence has to be considered for arriving at the correct taxability of interest.In that view of the matter, no substantial question of law arises for consideration of this Court. Applicability of Section 115JB - Held that:- The ITAT has after an elaborate discussion had come to the conclusion that the Assessee's claim for lower tax will have to be accepted because Section 115JB is subject to Section 90(2) of the Act and the taxable income of the Assessee would have to be computed in terms of Article 7(3) of the DTAA. What is significant is that the profit and loss account of the Assessee has not been prepared in terms of Part II of Schedule VI of the Companies Act, 1956 and in fact could not have been prepared in terms thereof. Consequently, the question of applicability of Section 115JB did not arise. As rightly pointed out till the insertion of Section 115JB, banking companies were required to prepare their accounts in terms of special acts that they were governed by, and therefore there were no computation provisions as regards such banking companies. The change brought out by Section 115JB was therefore not retrospective.The reasoning and the conclusion of the ITAT on this issue appears to suffer from no legal infirmity. Consequently, the Court declines to frame any question on this issue as well. Issues:1. Salaries paid to expatriates2. Interest paid to the HO and interest received from Indian branches3. Deferred bank guarantee commission4. Interest on ECB5. Applicability of Section 115JBSalaries paid to expatriates:The issue revolved around the payment of salaries to expatriates by the Assessee. The ITAT referred to the decision in ABN Amro Bank v. JCIT and the Bombay High Court's decision in CIT v. Emirates Commercial Bank Ltd. The Court upheld the ITAT's decision in favor of the Assessee, citing precedents and affirmations by the Supreme Court. Consequently, no question was framed on this issue.Interest paid to the HO and interest received from Indian branches:The ITAT decided this issue in favor of the Assessee, following the decision of the Calcutta High Court. The Court noted that the Calcutta High Court had previously ruled in favor of the Assessee in a similar case. As the Supreme Court dismissed the Revenue's Special Leave Petition, no question was framed on this issue.Deferred bank guarantee commission:The issue was found to be in favor of the Assessee based on the decision of the Calcutta High Court in CIT v. Bank of Tokyo Ltd. Consequently, no question was framed on this issue.Interest on ECB:The ITAT remanded this issue to the AO for further consideration based on additional evidence. As no substantial question of law arose, the Court did not frame any question on this issue.Applicability of Section 115JB:The ITAT concluded that Section 115JB did not apply to the Assessee as its profit and loss account was not prepared in accordance with the Companies Act, 1956. The Court found no legal infirmity in the ITAT's reasoning and declined to frame a question on this issue. The appeals were dismissed accordingly.