2019 (9) TMI 473 - HC - Income Tax

Tribunal Error in Transfer Pricing & Corporate Guarantee Fee Decision

The Tribunal erred in deleting the transfer pricing adjustment for Advertising, Marketing, and Promotion Expenses (AMP Expenses) and in determining the ... TP Adjustment - determining 0.5% p.a. as arm's length corporate guarantee fee - HELD THAT:- We find that the impugned order has allowed the Respondent-Assessee’s appeal while holding that the rate of 3% taken as ALP for the fee to grant corporate guarantee to its Associated Enterprises, is not appropriate. This as on identical facts, this Court in the case of CIT v/s. Everest Kento Cylinders Ltd. [2015 (5) TMI 395 - BOMBAY HIGH COURT] held that corporate guarantee, cannot be compared with the guarantee provided by the commercial banks. In the above view, this Court held that the adoption of 0.50% as ALP for the fee for grant of corporate guarantee, would be the appropriate ALP. Appeal admitted on the substantial question of law at (a) - Whether on the facts and in the circumstance of the case and in law, the Tribunal erred in law in deleting, in principle, transfer pricing adjustment made by the Assessing Officer (AO)/ Transfer Pricing Officer (TPO) in respect of expenditure incurred on Advertising, Marketing and Promotion Expenses ('AMP Expenses') ? Issues:1. Whether the Tribunal erred in deleting transfer pricing adjustment for Advertising, Marketing, and Promotion Expenses (AMP Expenses)Rs.2. Whether the Tribunal erred in determining 0.5% per annum as the arm's length corporate guarantee feeRs.Analysis:1. Transfer Pricing Adjustment for AMP Expenses:The Tribunal's order allowed the Respondent-Assessee's appeal by holding that 0.5% would be the Arms Length Price (ALP) of the fees for granting corporate guarantees. The Tribunal based its decision on a previous order dated 29th April, 2016, related to the same Respondent-Assessee. The Tribunal noted that the Revenue did not challenge the earlier order before the Court. Additionally, the Tribunal found that the rate of 3% taken as ALP for the fee to grant corporate guarantees to Associated Enterprises was not appropriate. Citing the case of CIT v/s. Everest Kento Cylinders Ltd., the Tribunal held that corporate guarantees cannot be equated with those provided by commercial banks. Therefore, the adoption of 0.50% as ALP for the fee for granting corporate guarantees was deemed appropriate. As the impugned order followed the decision of the Court in Everest Kento Cylinders Ltd., no substantial question of law arose for consideration.2. Arm's Length Corporate Guarantee Fee:The Tribunal's decision on this issue was based on the earlier order dated 29th April, 2016, and the Court's ruling in the case of CIT v/s. Everest Kento Cylinders Ltd. The Tribunal determined that 0.5% per annum would be the arm's length corporate guarantee fee, considering the nature of corporate guarantees vis-a-vis those provided by commercial banks. The Tribunal found that the 3% rate taken as ALP was not suitable in this context. As the impugned order aligned with the Court's decision in Everest Kento Cylinders Ltd., the appeal on this issue was admitted for consideration of the substantial question of law.The judgment highlighted the importance of aligning transfer pricing adjustments with the arm's length principle and referenced relevant legal precedents to support the decisions made. The Court directed the Registry to communicate the order to the Tribunal for further proceedings and indicated that the appeal would be heard in conjunction with other related matters.