2017 (5) TMI 1351 - AT - Income Tax

Tribunal Partially Allows Appeal, Remands AMP Adjustment for Fresh Determination

The Tribunal partly allowed the appeal for statistical purposes and remanded the issues of AMP adjustment, deduction under Section 80IC, and depreciation ... Claim of deduction u/s 80IC - rejection of Books of Account and Non-submission of required documents/information - Held that:- The claim of deduction u/s 80IC is not eligible for deduction as the assessee has not submitted separate profit and loss account and balance sheet as per the provision of Rule 18BBB of the IT Rules. DR submitted that the AO has clearly held at para 4.9 that details were not submitted by the assessee and unit-wise books of account were not produced by the assessee. Deduction under section 80-IB - Held that:- Interest income on FDRs cannot be regarded as income flowing from business activity of industrial undertaking and, thus, it cannot be computed for deduction under section 80-IB. interest income on FDRs cannot be regarded as income flowing from business activity of industrial undertaking and, thus, it cannot be computed for deduction under section 80-IB. TPA - AMP adjustment - Held that:- In Sony Ericsson Mobile Communications (India) Pvt. Ltd. Vs. CIT (2015 (3) TMI 580 - DELHI HIGH COURT) in which the AMP expenses as an international transaction has been accepted. In another judgment in Sony Ericson Mobile Communications (India) Pvt. Ltd. (for A.Y. 2010-11 - 2016 (1) TMI 1234 - DELHI HIGH COURT), the question as to whether AMP expenses is an international transaction, has been restored for a fresh determination. We are of the considered opinion that it would be in the fitness of things if the impugned order is set aside and the matter is restored to file of TPO/AO for fresh determination of the question as to whether there exists an international transaction of AMP expenses. If the existence of such an international transaction is not proved, the matter would end there and then, calling for no transfer pricing addition. If on the other hand, the international transaction is found to be existing, then the TPO will determine the ALP of such an international transaction in the light of the relevant judgments of the Hon’ble High Court, after allowing a reasonable opportunity of being heard to the assessee. Benefit of deduction under Section 80IC the same was claimed only for the unit situated in Rudrapur (Uttrakhand). There is net loss in the units of Manessar (Haryana) & Chennai (Tamilnadu) and there is a net profit in Rudrapur Unit. The TPO has only disallowed this claim as the assessee was not involved in manufacture of any item covered by Schedule XIV, where as the assessee has referred Schedule XIII and submitted that it is not considered by the TPO. After verifying Schedule XIII & XIV it is pertinent to note that the assessee’s location at Rudrapur is coming under the scope of 80IC but the address was not properly verified by the TPO. Therefore, this needs to be verified. We therefore, remit this issue back to the file of the TPO to examine the same as relates to the applicability of the Schedule XIII. Needless to say, the assessee will be allowed a reasonable opportunity of being heard in such fresh proceedings Depreciation on capital subsidy - Held that:- The amount of capital subsidy was not received during the subject year as per the Ld. AR’s contention but the same needs to be verified. Therefore, we remit this issue back to the file of the TPO to examine the same. Issues Involved:1. AMP adjustment of Rs. 146.19 crores.2. Denial of deduction u/s 80IC of Rs. 102.31 crores.3. Disallowance of depreciation to the extent of capital subsidy Rs. 13.12 lakhs.Detailed Analysis:Issue 1: AMP Adjustment of Rs. 146.19 Crores- The Transfer Pricing Officer (TPO) made an adjustment of Rs. 146.19 crores based on the Arm's Length Price (ALP) of Advertisement, Marketing, and Sales Promotion (AMP) expenses. The TPO adopted the Bright Line Test (BLT) and presumed the existence of an international transaction of AMP, alleging that the Associated Enterprise (AE) benefited from increased business.- The Dispute Resolution Panel (DRP) upheld the TPO's decision, relying on the Sony Ericsson decision, ignoring the Maruti Suzuki decision.- The Tribunal observed that the TPO did not consider the Maruti Suzuki decision and other relevant judicial precedents. The Tribunal decided to set aside the impugned order and remanded the matter back to the TPO/AO for fresh determination of whether an international transaction of AMP expenses exists and, if so, to determine the ALP in light of relevant judgments.Issue 2: Denial of Deduction u/s 80IC of Rs. 102.31 Crores- The assessee claimed a deduction under Section 80IC for the Rudrapur unit, which showed a net profit, while the other units in Manesar and Chennai showed net losses.- The TPO disallowed the claim, arguing that the assessee was not involved in manufacturing items covered by Schedule XIV and that the turnover of the Rudrapur unit was overstated.- The DRP upheld the TPO's decision, noting that the assessee failed to maintain separate books of accounts for each unit.- The Tribunal noted that the assessee's location at Rudrapur falls under the scope of Section 80IC but the address was not properly verified by the TPO. The Tribunal remanded the issue back to the TPO to verify the applicability of Schedule XIII and to allow a reasonable opportunity for the assessee to be heard.Issue 3: Disallowance of Depreciation to the Extent of Capital Subsidy Rs. 13.12 Lakhs- The TPO disallowed depreciation on the grounds that the capital subsidy received by the assessee was not reduced from the cost of the plant and machinery, leading to an excess claim of depreciation.- The Tribunal noted the contention that the capital subsidy was not received during the subject year and decided to remit the issue back to the TPO for verification. The Tribunal directed the TPO to allow a reasonable opportunity for the assessee to be heard.Conclusion:The appeal was partly allowed for statistical purposes. The Tribunal remanded the issues related to AMP adjustment, deduction under Section 80IC, and depreciation on capital subsidy back to the TPO/AO for fresh determination, ensuring that the assessee is given a reasonable opportunity to present their case.