2018 (1) TMI 662 - AT - Income Tax

Tribunal reduces corporate guarantee fee rate, overturns interest disallowance, directs TDS credit

M/s. Laqshya Media Pvt. Ltd. Versus A.C.I. T-10 (2) (1), Mumbai

The appeal filed by the assessee was partly allowed, with the Tribunal reducing the corporate guarantee fee rate from 1.75% to 0.50%. The disallowance of ... TPA - determination of the % of the CG fee - Held that:- Considering the judgments of Bombay High Court in the cases of Everest Kanto and Glen Pharmaceutical (2015 (5) TMI 395 - BOMBAY HIGH COURT), we hold that CG Fee should be restricted to 0. 50% on CG given by the assessee. First ground of appeal is decided in favour of the assessee, in part. Disallowance of interest u/s. 36(1)(iii) - Held that:- What is to be seen is business purpose and what the sister concern did with the money. The expression ‘commercial expediency’ is an expression of wide import and includes such expenditure as a prudent businessman incurs for the purpose of business. The expenditure may not have been incurred under any legal obligation, but yet it is allowable as a business expenditure if it was incurred on grounds of commercial expediency. Further, the expression ‘for the purpose of business’ is wider in scope than the expression ‘for the purpose of earning profits’. Once it is established that there was nexus between the expenditure and the purpose of the business which need not necessarily be the business of the assessee itself, the revenue cannot justifiably claim to put itself in the armchair of the businessman or in the position of the Board of Directors and assume the role to decide how much s reasonable expenditure having regard to the circumstances of the case. No businessman can be compelled to maximize his profits. The IT authorities must put themselves in the shoes of the assessee and see how a prudent businessman would act. The authorities must not look the matter from their own viewpoint but that of a prudent businessman. Thus as relying on the assessee's own case we are inclined to delete impugned additions - Decided in favour of assessee. No granting TDS credit - Held that:- As per the assessee, the AO had granted credit of ₹ 1. 94 crores only. We direct the AO to make verification about the claim made by the assessee and give credit accordingly. Ground no. 4 is also restored back to the file of the AO for fresh adjudication. Issues Involved:1. Addition under the head corporate guarantee (CG) to associated enterprises (AE).2. Disallowance of interest under Section 36(1)(iii) of the Income-tax Act.3. Addition related to unmatched amounts in Form 26AS.4. Non-granting of TDS credit.5. Levy of interest under Section 234B.6. Initiation of penalty under Section 271(1)(c).Detailed Analysis:1. Addition under the Head Corporate Guarantee (CG) to Associated Enterprises (AE):The primary issue was the addition of Rs. 75.97 lakhs as corporate guarantee fees to its associated enterprises (AE). The assessee had provided corporate guarantees to Laqshya Media International-Mauritius (LMI) for loans availed by its step-down subsidiary, Right Angle Media FZ LLC. The Transfer Pricing Officer (TPO) determined the arms-length price (ALP) using the yield method, benchmarking the guarantee fee at 2.75%, resulting in an upward adjustment of Rs. 1.72 crores. The Dispute Resolution Panel (DRP) later reduced the rate to 1.75%. The assessee argued that similar issues had been decided by the Tribunal in earlier years, suggesting a 0.5% rate. The Tribunal, considering precedents from the Bombay High Court and other cases, concluded that the CG fee should be restricted to 0.50%. Thus, the first ground of appeal was partly allowed in favor of the assessee.2. Disallowance of Interest under Section 36(1)(iii) of the Income-tax Act:The second issue was the disallowance of Rs. 2.36 crores of interest under Section 36(1)(iii). The Tribunal noted that the identical issue had been addressed in the previous assessment year, where the disallowance was based on the assessee advancing interest-free loans to its subsidiaries. The Tribunal found that the assessee had sufficient interest-free funds to cover these loans and that the loans were for commercial expediency. The Tribunal cited various judicial precedents, including S.A. Builders and Hero Cycles, which supported the assessee's claim that the loans were out of commercial expediency. Consequently, the Tribunal decided in favor of the assessee, allowing the interest deduction.3. Addition Related to Unmatched Amounts in Form 26AS:The third issue involved an addition of Rs. 6.12 lakhs due to unmatched amounts in Form 26AS. The Tribunal opined that this matter required further verification and directed the Assessing Officer (AO) to provide a reasonable opportunity for the assessee to present its case and decide the issue afresh. This ground was partly allowed.4. Non-Granting of TDS Credit:The fourth issue was the non-granting of TDS credit amounting to Rs. 1.95 crores. The assessee claimed that the AO had only granted credit for Rs. 1.94 crores. The Tribunal directed the AO to verify the claim and grant the appropriate TDS credit. This ground was also restored to the AO for fresh adjudication.5. Levy of Interest under Section 234B:The fifth ground dealt with the levy of interest under Section 234B. The Tribunal noted that the levy of interest is consequential and did not adjudicate on this matter.6. Initiation of Penalty under Section 271(1)(c):The last ground of appeal concerned the initiation of penalty under Section 271(1)(c). The Tribunal considered the issue premature and dismissed this ground.Appeal by the AO:The solitary ground of appeal by the AO was against reducing the rate of CG from 2.75% to 1.75%. The Tribunal had already addressed this issue in the assessee's appeal and decided it against the AO.Conclusion:The appeal filed by the assessee was partly allowed, and the appeal of the AO was dismissed. The order was pronounced in the open court on 3rd January 2018.