2023 (12) TMI 1162 - AT - Income Tax

Tribunal upholds 13% interest rate on unsecured NCDs as arm's length after TPO used incorrect secured debenture comparables

The ITAT Visakhapatnam held that the assessee's 13% interest rate on unsecured NCDs was at arm's length. The TPO incorrectly selected comparables with ... TP Adjustment - Comparable selection - ALP for calculating the interest payable on NCDs - assessee’s contention was that the Ld. TPO has selected the comparable companies having secured debentures and / or not in the Solar Power Sector - HELD THAT:- As not disputed by the Revenue that the assessee has issued NCDs as unsecured and had agreed the rate of interest of 13%. The key criteria for determining the interest rate is the risk involved. When the loan given is unsecured, the risk is higher and there would be a higher rate of interest. In our considered view, the relationship of a holding / subsidiary is not the criteria for determining the interest with respect to secured / unsecured debt instruments. We find from the submissions of the AR that when the filters of secured or guaranteed are applied in the list of comparables, the rate of interest and the 65th percentile worked out to 14.25% which is over above the interest rate paid by the assessee. Further, when the companies in the Wind / Thermal Power Sectors are excluded, the 65th percentile worked to 14.25% which is over and above the interest rate paid by the assessee company. As relying on V R Surat (P.) Ltd [2023 (8) TMI 631 - ITAT SURAT] and Vena Energy KN Wind Power (P.) Ltd [2022 (12) TMI 712 - ITAT BANGALORE] Revenue has not brought any material / case / any contrary decision before us. Therefore, respectfully following the above decisions, we are of the considered view that the rate of interest charged by the assessee company is at Arm’s Length basis and therefore the ground No. 1 & 2 raised by the assessee are allowed. Issues Involved:1. Benchmarking of the interest rate on Non-Convertible Debentures (NCDs)2. Mistake in computing total income and tax thereon3. Computation of interest under sections 234B and 234D4. Initiation of penalty under section 270ASummary:Benchmarking of the Interest Rate on NCDs:The primary issue revolves around the appropriate benchmarking of the interest rate on NCDs issued by the assessee. The assessee argued that the NCDs were unsecured, justifying a higher interest rate of 13%. The Transfer Pricing Officer (TPO) initially accepted the Comparable Uncontrolled Price (CUP) method but disputed the comparables selected by the assessee, ultimately determining an Arm's Length Price (ALP) interest rate of 8.95%. The assessee challenged this, arguing that the TPO failed to apply filters distinguishing between secured and unsecured debt instruments and did not consider industry-specific factors. The Tribunal agreed with the assessee, noting that higher risk associated with unsecured loans justifies a higher interest rate. Citing precedents, the Tribunal concluded that the interest rate charged by the assessee was at arm's length, allowing grounds 1 and 2 of the appeal.Mistake in Computing Total Income and Tax Thereon:The assessee contended that the Assessing Officer (AO) erred in computing the total taxable income and tax. This issue was deemed consequential and did not require separate adjudication as it depended on the resolution of the primary issue regarding the interest rate on NCDs.Computation of Interest Under Sections 234B and 234D:The assessee argued that the AO incorrectly computed interest under sections 234B and 234D. This issue was also considered consequential and did not require separate adjudication.Initiation of Penalty Under Section 270A:The assessee challenged the AO's initiation of penalty proceedings under section 270A. Like the previous issues, this was deemed consequential and did not require separate adjudication.Conclusion:The Tribunal allowed the appeal of the assessee, concluding that the interest rate on NCDs was at arm's length. The other issues raised were deemed consequential and did not require separate adjudication. The appeal was pronounced in open court on 22nd December, 2023.