2019 (6) TMI 40 - AT - Income Tax

Tribunal upholds CIT(A)'s decisions on ALP adjustment, Section 14A disallowance, and ESI late payment addition.

ACIT Circle-9 (2), New Delhi Versus Fresenius Kabi Oncology Ltd.

The Tribunal partly allowed the Revenue's appeal for statistical purposes regarding the adjustment for computation of Arm's Length Price (ALP) but ... Adjustment on account of computation of ALP - HELD THAT:- The issue is squarely covered in assessee’s favour by the decision of the Tribunal for Assessment Year 2008-09 & 2009- 10 [2018 (12) TMI 1647 - ITAT DELHI] the facts remains the same and there is no distinguishing factors pointed out by the Ld. DR. Thus, Ground No. 1 is partly allowed for statistical purpose. Disallowance u/s 14A of the Act read with Rule 8D of the Rules to the Administrative Cost - HELD THAT:- As the investment is running into 2.14 lakhs and the funds available with the assessee was running into 100s of crores. Therefore, Ground No. 2 of Revenue’s appeal is dismissed. Addition u/s 43B - late payment of ESI - HELD THAT:- As the payment was made within the approved due date of filing of the return u/s 139. Ground Revenues’ appeal is dismissed. Issues Involved:1. Deletion of adjustment for computation of Arm's Length Price (ALP).2. Restriction of disallowance under Section 14A of the Income Tax Act read with Rule 8D of the Income Tax Rules to administrative costs.3. Deletion of addition for late payment of Employee State Insurance (ESI).Issue-wise Detailed Analysis:1. Deletion of Adjustment for Computation of ALP:The primary issue was the deletion of an adjustment amounting to Rs. 5,63,84,899/- made by the Assessing Officer (AO) on account of the computation of ALP. The assessee, a manufacturer of oncology formulations and bulk drugs, had entered into various international transactions, including the receipt of interest from its Associated Enterprises (AEs). The Transfer Pricing Officer (TPO) had rejected the benchmarking of the interest rate based on Resident Foreign Currency (RFC) deposits and instead proposed an adjustment using the Prime Lending Rate (PLR) of State Bank of India (SBI) plus a markup, resulting in an effective interest rate of 14.88%. The CIT(A) had deleted this adjustment, and the Tribunal found that the issue was covered in favor of the assessee by previous Tribunal orders for the assessment years 2008-09 and 2009-10. The Tribunal directed that the ground be partly allowed for statistical purposes, following the precedent set in earlier years.2. Restriction of Disallowance under Section 14A:The second issue involved the CIT(A)'s decision to restrict the disallowance under Section 14A of the Income Tax Act, read with Rule 8D of the Income Tax Rules, to administrative costs. The AO had made a broader disallowance, but the CIT(A) limited it, considering the assessee’s investment in domestic banks was only Rs. 2.5 lakhs, while the total funds available were approximately Rs. 2 crores. The Tribunal upheld the CIT(A)'s decision, noting that the investment was minimal compared to the available funds. Thus, the ground raised by the Revenue was dismissed.3. Deletion of Addition for Late Payment of ESI:The third issue concerned the addition of Rs. 15,475/- made by the AO for the late payment of ESI contributions. The CIT(A) had deleted this addition, noting that the payments were made before the due date for filing the return under Section 139. The Tribunal agreed with the CIT(A) and dismissed the Revenue's ground, affirming that the payment was made within the approved due date.Conclusion:The Tribunal partly allowed the appeal of the Revenue for statistical purposes concerning the adjustment for computation of ALP. However, it dismissed the grounds related to the disallowance under Section 14A and the addition for late payment of ESI, thereby upholding the CIT(A)'s decisions on these issues. The order was pronounced in the open court on 25th May 2019.