2016 (5) TMI 39 - AT - Income Tax

Court rules in favor of assessee on international transaction issue, emphasizing adherence to legal provisions and judicial precedents.

M/s. Petrochem Middle East India Pvt. Ltd., Dy. CIT-8 (2), Mumbai Versus Dy. CIT-8 (2), Mumbai, M/s. Petrochem Middle East India Pvt. Ltd.

The Court held in favor of the assessee on all grounds. It ruled that issuing shares at a premium to a non-resident holding company does not constitute an ... Addition on account of undervaluation of equity shares considered as deemed loan and interest computed thereon - Held that:- The issue stands covered in favour of the assessee by the judgment of the Hon’ble Jurisdictional High Court, delivered in the case of Vodafone India Services Pvt. Ltd. (2014 (11) TMI 881 - BOMBAY HIGH COURT ) held that the issue of shares at a premium by the petitioners to its non -resident holding company does not give rise to any international transaction, that in such a case application of the provisions of Chapter X of the Act would not arise - Decided in favour of assessee Addition made on account of rejection of Comparable Uncontrolled Price(CUP)in respect of the international transactions - Held that:- We find that the assessee had imported MEL on 27. 1. 2009 @ ₹ 25. 87 per Kg, that the CUP rate as on 30. 1. 2009 was ₹ 26. 71 per Kg, that the rate adopted by the assessee fits within the ± 5% of the CUP range. In our opinion the date chosen by the assessee was more appropriate than the date adopted by the TPO. The DRP itself had held that nearest CUP data should be considered. In the case under consideration the assessee had adopted the data of 30th January which was the nearest date for the transaction in question. Therefore, in our opinion adjustment made by the TPO was not proper.- Decided in favour of assessee Issues:1. Undervaluation of equity shares considered as deemed loan and interest computed thereon.2. Rejection of Comparable Uncontrolled Price (CUP) in international transactions.Issue 1: Undervaluation of equity shares:The assessee challenged the addition made on account of undervaluation of equity shares, citing the judgment in the case of Vodafone India Services Pvt. Ltd. The Hon'ble Court held that issuing shares at a premium to a non-resident holding company does not constitute an international transaction. Therefore, the addition was not justified, and the ground was decided in favor of the assessee.Issue 2: Rejection of CUP in international transactions:The Transfer Pricing Officer (TPO) rejected the Comparable Uncontrolled Price (CUP) method for certain international transactions of the assessee. The TPO made adjustments for seven out of 245 transactions, which were upheld by the Dispute Resolution Panel (DRP) for six transactions. The Tribunal found discrepancies in the TPO's approach, where the TPO had not considered the volume impact on prices properly. The Tribunal held that the data based on the nearest date was justifiable and reasonable in determining the Arm's Length Price (ALP) of the transactions. The Tribunal also noted inconsistencies in the TPO's selection of comparables and emphasized the need to follow the provisions of the Act. Consequently, all additions made by the TPO for the six transactions were directed to be deleted, and the ground was decided in favor of the assessee.Effective Ground of Appeal - Deletion of notional interest:The issue of deletion of notional interest amounting to Rs. 60.20 lakhs on the shortfall in premium on the issue of shares was raised. The Tribunal relied on the judgments of Vodafone India Pvt. Ltd. and Shell India Markets (P) Ltd. by the Hon'ble Bombay High Court, which held that the ALP of issuing equity shares at a premium should not be deemed as an international transaction. Following these judgments, the Tribunal decided the effective ground of appeal against the Assessing Officer, resulting in the appeal filed by the assessee being allowed, and the appeal of the AO being dismissed.In conclusion, the Tribunal's judgment favored the assessee on all grounds, highlighting the importance of adhering to legal provisions and relevant judicial precedents in determining tax liabilities in complex financial transactions.