2019 (8) TMI 612 - AT - Income Tax

Tribunal affirms CIT(A)'s decision, rejects Department's appeal. Incorrect application of Section 44BBB noted.

The Income Tax Officer, Ward-6 (4), New Delhi Versus M/s. Metals Russia India Pvt. Ltd.

The Income Tax Officer, Ward-6 (4), New Delhi Versus M/s. Metals Russia India Pvt. Ltd. - TMI Issues Involved:1. Presumption of equal remuneration in subsequent years.2. Deletion of addition by estimating net profit.3. Application of Section 44BBB.4. Association with M/s Mont Blanc Trading Company.5. Transfer Pricing Study.6. Applicability of Section 92E and Section 92D.7. Consideration of the statement recorded under oath.Issue-wise Detailed Analysis:1. Presumption of Equal Remuneration in Subsequent Years:The AO presumed that the assessee might be receiving equal remuneration in the subsequent year due to the provision of similar services. The CIT(A) rejected this presumption, stating that the AO's inference was not acceptable. The AO's assumption lacked substantial evidence to support the claim that the remuneration should be equal across different years.2. Deletion of Addition by Estimating Net Profit:The AO made an addition of Rs. 67,71,145 by estimating the net profit at 11.11% of the cost incurred. The CIT(A) deleted this addition, emphasizing that the AO ignored the detailed reasons provided by the assessee, including the long tendering process and price rise, which led to the loss. The CIT(A) found that the AO's estimation was based on conjecture rather than concrete evidence.3. Application of Section 44BBB:The AO applied Section 44BBB, treating the assessee similar to a civil contractor of a turnkey steel plant. The CIT(A) held that Section 44BBB, which pertains to foreign companies engaged in civil construction, does not apply to the assessee, a domestic company. The CIT(A) noted that the AO incorrectly applied a profit rate of 11% instead of the prescribed 10% and based it on cost rather than gross receipts.4. Association with M/s Mont Blanc Trading Company:The AO treated the assessee and M/s Mont Blanc Trading Company as Associated Enterprises under Sections 92A and 92F(iii). The CIT(A) rejected this, stating that the appellant had only one associated enterprise, ISTIL, which held 99.99% of the shares. The CIT(A) determined that M/s Mont Blanc Trading Company and other entities involved were not associated enterprises of ISTIL.5. Transfer Pricing Study:The AO did not conduct a Transfer Pricing Study, alleging that the assessee failed to provide details regarding international transactions. The CIT(A) found that the transactions were not international and thus not subject to transfer pricing laws. The AO's inference lacked the necessary documentation and opinion from Transfer Pricing Authorities.6. Applicability of Section 92E and Section 92D:The AO attempted to apply Sections 92E and 92D, which pertain to international transactions and transfer pricing. The CIT(A) held that these sections were not applicable as the transactions were not international. The AO's attempt to bring the transaction under transfer pricing was based on incorrect assumptions and lacked factual basis.7. Consideration of the Statement Recorded Under Oath:The AO did not adequately consider the statement recorded under oath from the Managing Director of the assessee company. The CIT(A) noted that the AO's findings were based on incoherent logic and imaginary facts, without substantial evidence to support the claims.Conclusion:The Tribunal upheld the CIT(A)'s decision, dismissing the appeal of the Department. The Tribunal found no justification to interfere with the CIT(A)'s order, which was based on a detailed examination of the facts and applicable laws. The AO's application of Section 44BBB, transfer pricing provisions, and assumptions about associated enterprises and international transactions were found to be incorrect and unsupported by evidence. The Tribunal affirmed that the assessee's explanations for the incurred losses were reasonable and that the provisions of international taxation laws did not apply to the case.