2017 (7) TMI 358 - AT - Income Tax

ITAT decision on transfer pricing, stock provision, warranty expenses, section 35D claim, depreciation, tax withholding, and refund credit.

M/s. Ford India Pvt. Ltd. Versus The Dy. Commissioner of Income Tax, Chennai

The Income Tax Appellate Tribunal (ITAT) partly allowed the appeal, remitting transfer pricing issues back to the Dispute Resolution Panel (DRP) for fresh ... TPA - ALP determination - power of DRP to remit case - Held that:- In the instant case, the DRP has remitted the matter back to the file of TPO to take fresh look of the issues as discussed above. As discussed earlier, the DRP has no power to remit the matter back to the file of the TPO and the DRP alone has to determine the quantum of addition or relief and issue direction to the Assessing Officer. Therefore, we are of the considered opinion that the issue should be remitted back to the file of DRP to consider the submissions made by the eligible assessee and to decide the issue afresh on transpricing adjustments. Accordingly, we set aside the transfer pricing issues and remit the matter back to the file of DRP to decide all the transfer pricing issues afresh on merits. The assessee is free to take up all the transfer pricing issues before the DRP Addition on account of provisions made by the assessee for obsolete stocks - Held that:- In the instant case the assessee has not established such fool proof method of identification of slow moving and dead stock and ascertained the liability as per the consistent reliable system. Therefore, the facts of the case relied upon by the assessee are not applicable and the addition made by the AO is confirmed and this ground of appeal of assessee is dismissed. Eligibility for deduction u/s.35D - Held that:- The assessee is entitled for amortization of expenses incurred before the commencement of business and after commencement of business for extension or in connection with the setting up of new unit. In this case, the assessee has incurred the expenditure before setting up of the unit as evidenced from the details and nature of expenditure referred above and as stated by the assessee the expenditure was incurred in 1996-97 relevant to the AY 1997-98. The assessee has made the claim from AY 1997-98 onwards and no disallowance was made during any of the previous years. The AO has not brought on record any evidence controvert the submissions made by the assessee. No new fact has been brought on record to disallow the expenditure in the year under consideration to make the disallowance, having allowed in the earlier Assessment years. Therefore, we hold that the assessee is eligible for deduction u/s.35D. Carry forward and set off of unabsorbed depreciation - Held that:- We direct the AO to allow the unabsorbed depreciation of AY 1997-98, 1998-99, 1999-2000 to the extent not set off against the income of the AY 2005-06 for future years. The appeals of the assessee on this issue for the AY 2005-06 & 2008-09 are allowed. Depreciation on UPS - Held that:- UPS is an integral part of computer and eligible for Depreciation @60%. See Sundaram Asset Management Co. Ltd. Versus DCIT [2014 (2) TMI 224 - ITAT CHENNAI ]. Refund due to the company on withholding tax - Held that:- The AO allowed the interest on refund due to the Company as per the credit available according to NSDL records but not on the actual TDS receivables claimed by the company. The AO is directed to verify the receivables and allow interest as permitted by the law. This ground of appeal is allowed for statistical purposes. Issues Involved:1. Transfer Pricing Adjustments2. Provision for Obsolete Stock3. Provision for Warranty Expenses4. Disallowance under Section 35D5. Carry Forward and Set Off of Unabsorbed Depreciation6. Depreciation on UPS7. Reversal of Provision for Non-Deduction of Tax at Source8. Credit for Tax Withheld at Source9. Refund Due to the Company on Withholding TaxIssue-wise Detailed Analysis:1. Transfer Pricing Adjustments:The appeals were filed against the orders passed by the Deputy Commissioner of Income Tax, Large Taxpayer Unit, Chennai, under sections 143(3) read with 144C/147 for AY 2005-06 and AY 2008-09. The assessee, Ford India Pvt. Ltd. (FIPL), engaged in international transactions with its Associated Enterprises (AEs). The Transfer Pricing Officer (TPO) did not accept the Transfer Pricing (TP) study conducted by the assessee, which used the Transactional Net Margin Method (TNMM) and considered foreign comparables. The TPO conducted an independent search and identified four Indian companies as comparables, resulting in an Arm’s Length Price (ALP) adjustment of Rs. 122.62 crores. Additional adjustments were proposed for brand building, advertisement, and product development expenses. The Dispute Resolution Panel (DRP) confirmed these adjustments but directed the TPO to exclude the entity-level adjustment. The ITAT observed that the DRP had no power to remit the matter back to the TPO and set aside the transfer pricing issues, remitting them back to the DRP for fresh consideration.2. Provision for Obsolete Stock:The AO proposed an addition of Rs. 2,21,08,585/- for provisions made for obsolete stocks, treating it as a contingent liability. The assessee argued that the provision was made based on stringent norms prescribed by the Ford Group and was accepted by statutory and tax auditors. However, the ITAT confirmed the AO's addition, stating that the assessee had not established a foolproof method of identifying slow-moving or dead stock and ascertaining the liability.3. Provision for Warranty Expenses:The AO disallowed Rs. 16,58,15,554/- towards the provision for warranty expenses, considering it contingent. The assessee argued that the provision was created based on a scientific and systematic basis, backed by historical trends. The ITAT allowed the appeal, following its earlier decision in the assessee's own case and the Supreme Court ruling in CIT v. Rotork Controls India Limited (2009) 314 ITR 62.4. Disallowance under Section 35D:The AO disallowed Rs. 10,01,086/- claimed under section 35D for amortization of preliminary expenses. The assessee argued that the expenditure was incurred before the commencement of business and had been consistently claimed since AY 1997-98. The ITAT allowed the appeal, stating that the AO had not disallowed the expenditure in previous years and no new facts were brought on record to justify the disallowance.5. Carry Forward and Set Off of Unabsorbed Depreciation:The AO did not allow the carry forward and set off of unabsorbed depreciation for AY 1997-98, 1998-99, and 1999-2000, citing the eight-year limitation under section 32(2). The assessee argued that the unabsorbed depreciation should be carried forward indefinitely as per the amended section 32(2) by the Finance Act, 2001. The ITAT allowed the appeal, following the jurisdictional Tribunal's decision and other judicial precedents, directing the AO to allow the carry forward and set off of unabsorbed depreciation for future years.6. Depreciation on UPS:The AO disallowed depreciation on UPS amounting to Rs. 6,47,180/-, treating it as general plant and machinery. The assessee claimed depreciation at 60%, treating UPS as part of the computer. The ITAT allowed the appeal, following its decision in Sundaram Asset Management Co. Ltd vs. DCIT, holding that UPS is an integral part of the computer and eligible for 60% depreciation.7. Reversal of Provision for Non-Deduction of Tax at Source:The AO disallowed Rs. 44,11,27,098/- related to the reversal of the provision for non-deduction of tax at source. The assessee submitted that the AO had passed a rectification order on 16.10.2014, addressing this issue. The ITAT dismissed this ground as infructuous.8. Credit for Tax Withheld at Source:The AO was directed to allow the credit for tax withheld at source amounting to Rs. 74,674/- after due verification. The ITAT allowed this ground for statistical purposes.9. Refund Due to the Company on Withholding Tax:The AO allowed interest on refund due to the company based on NSDL records but not on the actual TDS receivables claimed by the company. The ITAT directed the AO to verify the receivables and allow interest as per the law, allowing this ground for statistical purposes.Conclusion:The ITAT partly allowed the appeal, setting aside the transfer pricing issues for fresh consideration by the DRP, confirming the disallowance of the provision for obsolete stock, allowing the provision for warranty expenses, allowing the claim under section 35D, directing the AO to allow the carry forward and set off of unabsorbed depreciation, allowing depreciation on UPS, dismissing the ground related to the reversal of the provision for non-deduction of tax at source as infructuous, and directing the AO to allow credit for tax withheld and interest on refund after verification.