2022 (10) TMI 498 - HC - Income Tax

No TP Adjustment on Receivables Without Borrowed Funds; No Disallowance Under Section 40(a)(ia) for Salary TDS Deductions

Principal Commissioner Of Income Tax, Delhi-2 Versus M/s. Boeing India Pvt. Ltd.

The HC upheld the ITAT's findings that the assessee, being debt-free, cannot be presumed to have utilized borrowed funds to provide facilities to its AE, ... TP Adjustment on account of receivables - substantial question of law - HELD THAT:- As decided in Bechtel India Pvt. Ltd. [2015 (12) TMI 1560 - ITAT DELHI] assessee is a debt free company. In such circumstances it is not justifiable to presume that, borrowed funds have been utilized to pass on the facility to its AE’s. The revenue has also not brought on record that the assessee has been found paying interest to its creditors or suppliers on delayed payments. Disallowance under Section 40(a)(ia) - This Court finds that there is no dispute that the assessee has deducted tax at source under Section 192 of the Act. This Court is in agreement with the opinion of the ITAT that Section 195 of the Act has no application once the nature of payment is determined as salary and deduction has been made under Section 192 of the Act. This Court is further of the view that the judgment in Centrica India Offshore Pvt. Ltd [2014 (5) TMI 154 - DELHI HIGH COURT] has no application to the present case as the ITAT has returned a finding that the real employer of the seconded employees continues to be the Indian entity and not the overseas entity. Consequently, this Court is of the view that the issues of ‘receivables’ as well as ‘disallowance’ under Section 40(a)(ia) of the Act are essentially questions of fact, which give rise to no substantial questions of law especially when the findings of the ITAT are not perverse. Draft order framed u/s 144(c)(1) of the Act is in the name of a non-existent company - Question No.1 is left open to be agitated in an appropriate matter. Issues Involved:1. Validity of the draft order framed under Section 144C(1) in the name of a non-existent company.2. Deletion of addition on account of receivables.3. Disallowance under Section 40(a)(ia) read with Section 195 of the Income Tax Act, 1961.Issue-Wise Detailed Analysis:1. Validity of the Draft Order Framed Under Section 144C(1) in the Name of a Non-Existent Company:The appellant-revenue challenged the ITAT's decision that the draft order under Section 144C(1) was void ab initio as it was issued in the name of a non-existent company. The appellant argued that the initial jurisdictional notice and the final assessment order were correctly issued to the new entity as per the DRP's directions. However, the court did not address this issue substantively, leaving it open for future litigation due to the dismissal of the appeal based on other grounds.2. Deletion of Addition on Account of Receivables:The ITAT deleted the adjustment of Rs.22,16,059/- on account of receivables, holding that the assessee was a debt-free company and did not pay or receive any interest from unrelated parties. The court referenced the judgment in Principal Commissioner of Income Tax vs. Kusum Health Care Pvt. Ltd., which emphasized that 'receivables' must be analyzed contextually and cannot automatically be characterized as an international transaction. The court found no error in the ITAT's findings and upheld the deletion, noting that the assessee's receivables did not constitute an international transaction intended to benefit associated enterprises.3. Disallowance Under Section 40(a)(ia) Read with Section 195:The ITAT deleted the additions made by the Assessing Officer under Section 40(a)(ia) read with Section 195, as the assessee had deducted tax at source under Section 192. The court agreed with the ITAT's view that Section 195 did not apply once the payment was determined as salary and tax was deducted under Section 192. The court also noted that the judgment in Centrica India Offshore Pvt. Ltd. did not apply, as the ITAT found that the real employer of the seconded employees was the Indian entity, not the overseas entity. The court referenced multiple precedents, including the Supreme Court's decision in Director of Income Tax (IT)-I vs. A.P. Moller Maersk A S, which clarified that reimbursements without profit elements are not taxable.Conclusion:The court dismissed the appeal, holding that the issues of 'receivables' and 'disallowance' under Section 40(a)(ia) were factual matters giving rise to no substantial questions of law. The court left open the question regarding the validity of the draft order under Section 144C(1) for future litigation.