2016 (5) TMI 926 - AT - Income Tax

Transfer pricing adjustment issue remanded due to administrative issues; advances not deemed dividends under section 2(22)(e)

The Tribunal partly allowed the Revenue's appeal, restoring the transfer pricing adjustment issue to the Transfer Pricing Officer for fresh adjudication ... Transfer pricing adjustment - ALP determination - Held that:- Assessee has determined ALP using the cost plus method but failed to submit the necessary the working for the same at the time of assessment under section 92CA of the Act. Therefore the TPO opined that the auditor of the assessee has not carried out any working in determining the ALP. So the TPO adopted the TNMM method and worked out the ALP in the case of the assessee. However before us the learned AR admitted that the assessee failed to produce the working in support of its claim in the determination of the ALP prepared using the cost plus method as the administrative office was located in Chennai. We further find from the records that in the subsequent assessment years the assessee has determined the ALP on the basis of cost plus method and the same was accepted by the TPO. Now in our considered view and in the interest of natural justice and fair play we are inclined to restore this file to TPO for fresh adjudication as per law after giving opportunity to the assessee. Deemed dividend addition u/s 2(22)(e) - Held that:- AO has treated the advance received by the assessee against a sale of properties as deemed dividend because assessee was holding the equity shares of the company, carrying voting rights more than 10%. However from the facts of the case we find that the money received by the assessee was representing the sale of the flats and therefore we conclude that the advance received by the assessee was not on returnable basis. The advance representing against the consideration for the sale of the flats is out of the purview of the provisions of section 2(22)(e) of the Act. In holding so we are putting our reliance in the decision of Hon'ble Bombay High Court in the case of CIT v. Nagindas M Kapadia ( 1988 (12) TMI 89 - BOMBAY High Court ) wherein Hon'ble court has held that only the payments and advances to the extent of accumulated profits could be treated as loans or advances within the meaning of Sec.2(22)(e) and this was what the Tribunal had done and, therefore, the Tribunal was right in holding that only ₹ 28,500 and ₹ 10,000 could be treated as deemed dividend in the assessment years 1968-69 and 1969-70. Issues Involved:1. Transfer Pricing Adjustment2. Deemed Dividend IncomeIssue-Wise Detailed Analysis:1. Transfer Pricing Adjustment:The Revenue challenged the deletion of an addition made by the Transfer Pricing Officer (TPO) regarding transfer pricing adjustments. The primary contention was that the assessee did not provide sufficient documentation to support the Arm's Length Price (ALP) using the cost-plus method. The TPO, therefore, used the Transaction Net Margin Method (TNMM) and determined an ALP adjustment of Rs. 49,84,543/-.The assessee, a private limited company engaged in garment manufacturing, had international transactions with its Associated Enterprise (AE) in the UK. The TPO's adjustments were based on comparables from the cLine™ database, which the assessee argued were not suitable due to significant differences in turnover and profit margins. The Commissioner of Income Tax (Appeals) [CIT(A)] held that the assessee maintained all prescribed information and documents, computed its income from international transactions having regard to an arm’s length price, and fulfilled all required obligations under the law.The CIT(A) also noted that the TPO failed to consider certain incomes directly connected to exports, like duty drawbacks, and that the AE in the UK faced higher risks compared to the assessee. The CIT(A) concluded that the TPO's determination and the consequential addition were not in conformity with the provisions of section 92C or Rule 10B & 10C of the Act and directed the deletion of the addition.Upon appeal, the Tribunal found that the assessee failed to provide necessary working for the cost-plus method at the time of assessment due to administrative issues. However, in subsequent years, the ALP determined using the cost-plus method was accepted by the TPO. The Tribunal restored the matter to the TPO for fresh adjudication, emphasizing the need for natural justice and fair play.2. Deemed Dividend Income:The Revenue also contested the deletion of an addition of Rs. 33,54,034/- treated as deemed dividend income under section 2(22)(e) of the Act. The assessee held more than 10% voting power in two companies, which had accumulated profits and had advanced money to the assessee. The Assessing Officer (AO) treated these advances as deemed dividends, arguing that the transactions were framed to escape the applicability of section 2(22)(e).The assessee contended that the advances were against the sale of flats and not loans. The CIT(A) accepted this argument, noting that the agreements for the sale of flats were genuine and the advances were not returnable, thus falling outside the purview of deemed dividends.The Tribunal upheld the CIT(A)’s decision, relying on the Bombay High Court's ruling in CIT v. Nagindas M Kapadia, which held that only advances to the extent of accumulated profits could be treated as loans or advances within the meaning of section 2(22)(e). The Tribunal found that the advances were indeed against the sale of properties, not loans, and dismissed the Revenue's appeal on this ground.Conclusion:The Tribunal partly allowed the Revenue's appeal for statistical purposes, restoring the transfer pricing adjustment issue to the TPO for fresh adjudication and dismissing the appeal regarding deemed dividend income.