2022 (11) TMI 245 - AT - Income Tax

Tribunal's Appeal Decision Emphasizes Precedents and Fair Opportunity for Assessee

Dana India Pvt. Ltd. Versus The Dy. C.I.T. Cir. 1 (2) Pune.

The Tribunal partly allowed the appeal of the assessee, emphasizing adherence to judicial precedents. Specific directions were given for re-adjudication ... Foreign exchange fluctuation gain - Treatment to Forex gain/loss arising from business transaction - non-operating in nature OR operating revenue/cost - HELD THAT:- Tribunal has held in assessee’s own case order dated 25-02-2021 [2021 (2) TMI 1146 - ITAT PUNE] that foreign exchange gain is a part of operating revenue. The ld. CIT DR could not place on record documents/evidences to suggest any deviation of facts. In view thereof, following the same parity of reasoning in assessee’s own case in earlier years, the grounds on forex gain issue are allowed. Insurance claim receipt in respect of export assignment damage claim - HELD THAT:- As observed by the Tribunal that if any item at the time of creation/payment if it is taken as part of operating cost in the year under consideration, then, it would be operating in nature and would constitute operating income. We notice that at page 5 of the D.R.P’s order there is a table given in which it is stated that “insurance claim receipt in respect of export assignment damage claim”, which therefore, signifies it as operating cost. Once it is operating cost then in the year under consideration it would also draw the same colour viz. it would be operating in nature and would constitute operating income. This ground of the assessee is therefore, allowed. Payment of intra group services - HELD THAT:- Tribunal for A.Y. 2013-14 [2021 (2) TMI 1146 - ITAT PUNE] has observed that since T.P.O determined NIL ALP on the preliminary premises that there was no evidence of receipt of services and that the Tribunal has noticed the fact of receipt of services, therefore, this issue was set aside and the matter was remanded back to the file of the A.O./TPO for determining the ALP of the international transaction of intra group services as per law after allowing reasonable opportunity of hearing to the assessee. Therefore, following the same parity of reasoning for this year also and on the same premises that on one hand the revenue states that no evidence was furnished regarding receipt of intra group services and on the other hand the Tribunal has noticed the fact of receipt of services, as per the aforestated order in assessee’s own case (supra) and also considering the submissions of the ld. D.R on this issue, therefore, for detailed factual verification this issue is remanded back to the file of the A.O/T.P.O to re-adjudicate as per law complying with the principles of natural justice. This ground of appeal is allowed for statistical purposes. T.P adjustment to be restricted only to value of international transactions in the manufacturing segment under TNMM on the basis of principle of proportionality - HELD THAT:- Similar issue has been dealt with by co-ordinate Bench of Pune Tribunal in the case of DCIT Cir. 1(1) Pune Vs. Franke Faber India Pvt. Ltd [2022 (8) TMI 198 - ITAT PUNE] - We set aside the findings of the ld. D.R.P on this issue and direct that the transfer pricing adjustment should be restricted only to the extent of the international transactions. Accordingly, Ground No. 6 stands allowed. Contribution made to gratuity fund and superannuation fund under the provisions of sec. 40A(7) - HELD THAT:- Issue decided in favour of assesee in assessee’s own case for A.Y. 2013-14 [2021 (2) TMI 1146 - ITAT PUNE] - Considering the provisions of section 40A(7) of the Act it is apparent that the deduction can be allowed only if the gratuity and superannuation funds are duly approved by the ld. C.I.T. In the present case before us, the ld. A.R for the assessee submitted that the issue is still pending approval from the ld. C.I.T. It is expected that the ld. C.I.T. will shortly pass orders with regard to assessee’s application. Following the same parity of reasons for this year also as in the preceding year, the matter is sent back to the file of the ld. A.O. who will decide the matter in conformity with such order of the ld. C.I.T. Ground No. 7 is allowed for statistical purposes. Addition of interest amount to the income of the assessee corresponding to the tax deducted treating it as not being recorded in the books of accounts of the assessee even though the same were netted off and reduced from the power expenses incurred in the year under consideration - HELD THAT:- This issue is remitted back to the file of the A.O for re-adjudication after considering the detailed evidences as filed by the assessee. Ground No. 8 is allowed for statistical purposes. Issues Involved:1. Transfer Pricing (TP) adjustments.2. Non-Transfer Pricing (Corporate) issues.Detailed Analysis:I. Transfer Pricing (TP) Adjustments:1. Aggregate Upward Adjustment: The Tribunal addressed the aggregate upward adjustment of Rs. 13.06 crores to the Arm's Length Price (ALP) of the international transactions in the manufacturing segment. The Tribunal noted that the TPO/AO had erred in excluding realized forex gain and insurance claim receipt from the operating income. The Tribunal referred to its earlier decision in the assessee's own case for A.Y. 2013-14, where it was held that forex gain/loss arising from business transactions should be treated as operating revenue/cost.2. Forex Gain Exclusion: The Tribunal found that the DRP had upheld the TPO's action of treating forex gain/loss as non-operating. However, the Tribunal followed its previous decision in the assessee's own case, where it was held that forex gain/loss is part of operating revenue. Consequently, the Tribunal allowed the grounds on the forex gain issue.3. Insurance Claim Exclusion: The Tribunal noted that the DRP had excluded the insurance claim from the current year's operating income as it related to earlier years. The Tribunal, following its earlier decision, held that if an item was considered an operating cost at the time of its creation/payment, its reversal would also be operating in nature. Thus, the insurance claim was considered operating income, and this ground was allowed.4. Intra Group Services: The Tribunal observed that the TPO had determined the ALP of intra-group services at NIL due to the lack of evidence for the actual receipt of services. The Tribunal, referencing its earlier decision, remanded the matter back to the AO/TPO for fresh adjudication, allowing reasonable opportunity for the assessee to provide evidence.5. Tested Party and Comparables: The Tribunal noted that the assessee had not pressed grounds No. 4 and 5, which were dismissed as not pressed.6. Proportionality Principle: The Tribunal addressed the issue of restricting the TP adjustment to the value of international transactions in the manufacturing segment under TNMM. Citing the jurisdictional High Court's decision, the Tribunal directed that the TP adjustment should be restricted only to the extent of international transactions, allowing this ground.II. Non-Transfer Pricing (Corporate) Issues:7. Gratuity and Superannuation Fund Contributions: The Tribunal noted that the issue of contributions to gratuity and superannuation funds was decided in favor of the assessee in the earlier year, pending approval from the CIT. The Tribunal remanded the matter back to the AO to decide in conformity with the CIT's order, allowing this ground for statistical purposes.8. Interest Income Addition: The Tribunal addressed the addition of interest income corresponding to tax deducted by electricity companies. The Tribunal remanded the matter back to the AO for re-adjudication after considering the detailed evidence provided by the assessee, allowing this ground for statistical purposes.Additional Ground:The Tribunal observed that it had already held that foreign exchange gain/loss from exports/imports in the ordinary course of business should be included as operating cost. Therefore, the additional ground filed by the assessee was rendered academic in nature.Conclusion:The appeal of the assessee was partly allowed for statistical purposes, with specific directions for re-adjudication and consideration of evidence on certain issues. The Tribunal emphasized the importance of following judicial precedents and ensuring a fair opportunity for the assessee to present evidence.