2017 (6) TMI 179 - AT - Income Tax

Tribunal decision: Assessee's appeal partly allowed, revenue's appeal dismissed. Adjustments on interest, guarantee fee, Section 14A disallowance deleted.

Vivimed Labs Ltd. Versus Dy. Commissioner of Incometax, Circle – 17 (2), Hyderabad

The Tribunal partly allowed the assessee's appeal and dismissed the revenue's appeal. Adjustments were directed based on LIBOR plus 200 points for ... ALP addition in respect of transaction relating to interest on advance for investment - assessee has given advances to its AE’s - Held that:- Since the assessee has not carried/submitted any comparative study before finalizing the LIBOR rate, we find it appropriate to direct the AO to follow the direction of DRP to compute the interest rate at LIBOR + 200 points. Accordingly, ground raised by the assessee and revenue are dismissed. ALP addition in respect of transaction relating to corporate guarantee - Held that:- As decided in case of Four soft Ltd. [2011 (9) TMI 634 - ITAT HYDERABAD ] the corporate guarantee is very much incidental to the business of the assessee and hence, the same cannot be compared to a bank guarantee transaction of the Bank or financial institution. In view of this matter, we hold that no TP adjustment is required in respect of corporate guarantee transaction done by the assessee company. The amendment to section 92B by the Finance Act, 2012, this amendment can only be prospective and not retrospective as held in the case of Siro Clinpharm Pvt. Ltd. [2016 (5) TMI 633 - ITAT MUMBAI ]. This provision is applicable from AY 2013-14 onwards. Hence, addition of corporate guarantee in this AY is deleted. Accordingly, the ground raised by the assessee is allowed Disallowance u/s 14A - Held that:- Since the assessee has not received any exempt income during the year, we direct the AO/TPO to delete the addition made on this count. - Decided in favour of assessee. Issues Involved:1. Adjustment under Section 92CA for international transactions relating to interest received on advances given.2. Adjustment under Section 92CA for international transactions relating to corporate guarantee fee receivable.3. Adjustment under Section 92CA for investment in subsidiary companies.4. Disallowance of bad debts written off.5. Disallowance under Section 14A of the Income Tax Act.Detailed Analysis:1. Adjustment under Section 92CA for International Transactions Relating to Interest Received on Advances Given:The assessee had given advances to its AE, Vivimed Holding Ltd., Hong Kong, and received interest at 6% on the outstanding balance. The TPO adjusted the interest rate, and the DRP directed the TPO to adopt LIBOR plus 200 basis points for computing the interest on loans/advances given to its AE. The assessee argued that capital advances towards investment in subsidiary companies are not international transactions as they do not generate income. However, the Tribunal upheld the DRP's direction to compute the interest rate at LIBOR plus 200 points, dismissing both the assessee's and revenue's grounds.2. Adjustment under Section 92CA for International Transactions Relating to Corporate Guarantee Fee Receivable:The DRP held that the corporate guarantee extended by the assessee to its AE falls under the definition of international transaction. The TPO computed the corporate guarantee fee at 2% and 2.70% for different loans, but the DRP directed the TPO to recompute the fee at 0.5%, following the decision in the case of Nimbus Communications Ltd. The Tribunal noted that the amendment to Section 92B by the Finance Act, 2012, is prospective and not retrospective, thus applicable from AY 2013-14 onwards. Consequently, the Tribunal deleted the addition of corporate guarantee for the relevant assessment year, allowing the assessee's ground and dismissing the revenue's ground.3. Adjustment under Section 92CA for Investment in Subsidiary Companies:The assessee made an equity investment in its wholly-owned subsidiary, Vivimed Labs USA Inc., and argued that Section 92B(1) applies only when income is chargeable, not for capital investment. The DRP followed the decision of Vodafone India Services Pvt. Ltd., directing the AO and TPO to follow the High Court's decision. The Tribunal did not provide a separate ruling on this issue.4. Disallowance of Bad Debts Written Off:The AO disallowed the bad debts written off amounting to Rs. 7,34,963/-. The Tribunal did not specifically address this issue in the detailed analysis, implying that the disallowance stood as per the AO's order.5. Disallowance under Section 14A of the Income Tax Act:The assessee argued that no disallowance under Section 14A should be made as the investment was made out of internal accruals and no exempt income was received or receivable during the relevant AY. The DRP rejected this ground, but the Tribunal, following the decision in Prathista Industries Ltd. and Cheminvest Ltd., held that Section 14A will not apply where no exempt income is received or receivable during the relevant assessment year. Consequently, the Tribunal directed the AO/TPO to delete the addition made under Section 14A.Conclusion:The Tribunal partly allowed the assessee's appeal and dismissed the revenue's appeal, directing adjustments based on LIBOR plus 200 points for interest on advances and deleting the corporate guarantee fee adjustment for the relevant assessment year. The disallowance under Section 14A was also deleted as no exempt income was received. The Tribunal upheld the DRP's directions and decisions in other aspects.