2020 (8) TMI 38 - AT - Income Tax

Tribunal allows appeal, directs AO to verify claims, deletes notional guarantee fees adjustment.

The Tribunal allowed the appeal for statistical purposes, directing the AO to verify the appellant's claims regarding the convertible foreign exchange and ... TP Adjustment - upward adjustment of notional guarantee fees made u/s 92CA of the Act - HELD THAT:- This issue is entirely covered in assessee’s own case by the judgment and order passed by the Co-ordinate Bench in favour of the assessee [2016 (11) TMI 1671 - ITAT AHMEDABAD] Upward adjustment of notional guarantee fees made by AO u/s 92CA - HELD THAT:- As relying upon the judgment passed by the Mumbai Tribunal in the case of Siro Clinpharm Pvt. Ltd. vs. DCIT [2016 (5) TMI 633 - ITAT MUMBAI] the upward adjustment made on notional guarantee fees has been deleted. Hence, taking into consideration the judgment passed by the Co-ordinate Bench in assessee’s own case on the identical issue [2016 (11) TMI 1671 - ITAT AHMEDABAD] we find no reason to deviate from the decision and observation in its support made therein and thus, accordingly we direct the AO to delete the upward adjustment for notional guarantee fees. Addition u/s 10B for not bringing back convertible foreign exchange of export sale within the extended time - HELD THAT:- Upon perusal of the provision as envisaged 155(11A) of the Act we find that the veracity of the claims needs to be examined on the basis of the evidence in regard to amount of convertible foreign exchange and the time period specified in order to determine the disallowance, if any, and thus, we find it fit to set aside the issue to the file of the AO to amend the order of the assessment so as to allow deduction under Section 10B of the Act in respect of such income or part thereof which is brought into India and to pass order in the light of the provision laid down under Section 155(11A) of the Act. While doing so the Ld. AO shall give an opportunity of being heard to the assessee and the assessee will be at liberty to adduce evidence in support of its claim under Section 10B of the Act - Assessee’s appeal is allowed for statistical purpose. Issues Involved:1. Upward adjustment of Rs. 27,11,550 in respect of the transaction of sale of pesticides and pigments.2. Use of CUP as the most appropriate method to benchmark the international transaction of sale of pesticides and pigments.3. Upward adjustment of Rs. 27,11,550 based on the difference in the monthly average price of chemicals sold to AE and Non-AE.4. Upward adjustment of Rs. 10,77,945 for notional guarantee fees under Section 92CA.5. Addition of Rs. 23,52,547 under Section 10B for not bringing back convertible foreign exchange of export sales within the extended time.6. Levy of interest under Sections 234A, 234B, 234C, and 234D.7. Initiation of penalty under Section 271(1)(c).Issue-wise Detailed Analysis:1. Upward Adjustment of Rs. 27,11,550 in Respect of Sale of Pesticides and Pigments:- The appellant did not press this ground during the hearing. Therefore, no detailed analysis was provided, and the issue was not adjudicated.2. Use of CUP as the Most Appropriate Method:- Similar to the first issue, this ground was also not pressed by the appellant during the hearing, and no detailed analysis was provided.3. Upward Adjustment Based on Monthly Average Price Difference:- This ground was not pressed during the hearing, leading to no detailed analysis.4. Upward Adjustment of Rs. 10,77,945 for Notional Guarantee Fees:- The appellant argued that the issue was covered in their favor by a previous judgment in ITA No. 592/Ahd/2013 for A.Y. 2008-09.- The Tribunal agreed, citing the decision in the case of Siro Clinpharm Pvt Ltd vs. DCIT, where it was held that no arm’s length price adjustment can be made for corporate guarantees issued without incurring any costs.- The Tribunal concluded that the issuance of corporate guarantees was in the nature of shareholder activities and not a provision for services. Therefore, the upward adjustment was deleted.5. Addition of Rs. 23,52,547 Under Section 10B:- The appellant argued that the issue required verification regarding the amount not brought into India in convertible foreign exchange.- The Tribunal directed the Assessing Officer (AO) to verify the claims based on Section 155(11A) and amend the assessment order to allow the deduction under Section 10B for the income brought into India.- The AO was instructed to provide an opportunity for the appellant to present evidence supporting their claim.6. Levy of Interest Under Sections 234A, 234B, 234C, and 234D:- This issue was not specifically addressed in the detailed analysis provided in the judgment.7. Initiation of Penalty Under Section 271(1)(c):- Similar to the levy of interest, this issue was not specifically addressed in the detailed analysis provided in the judgment.Conclusion:The Tribunal allowed the appeal for statistical purposes, directing the AO to verify the appellant's claims regarding the convertible foreign exchange and amend the assessment order accordingly. The upward adjustment for the notional guarantee fees was deleted based on the precedent set by the previous judgment in the appellant's own case and the decision in Siro Clinpharm Pvt Ltd vs. DCIT. The issues related to the upward adjustment of Rs. 27,11,550 and the use of CUP were not pressed by the appellant and therefore were not adjudicated.