2019 (7) TMI 2072 - AT - Income Tax

Remand for AO/TPO to verify TDS under 194J/40(a)(ia) and recompute transfer pricing adjustments under Sec. 92B

Satyam Venture Engineering Services Pvt Ltd. Versus ACIT, Central Circle – 3 (2), Hyderabad.

ITAT HYDERABAD - AT remanded multiple issues to the AO/TPO. On TDS u/s 194J/40(a)(ia) the tribunal directed the AO to verify whether the recipient offered ... TDS u/s 194J - allowability of reimbursement of expenses made by the assessee to M/s. Satyam Computer Services Ltd without making any TDS therefrom - assessee explained that the assessee had taken the assistance of the employees of the parent company, Tech Mahindra, who were already working in the respective countries to discharge its obligations outside India and therefore Tech Mahindra which was making payments of salaries to such employees had deducted tax at source from such payments of salaries and were reimbursed by the assessee - HELD THAT:- If the recipient has offered the receipt as its income, then the disallowance u/s 40(a)(ia) of the At cannot be made. The assessee has filed the relevant details before the DRP and the DRP has called for a remand report, wherein the A.O has supported the disallowance on the ground that the proviso to Sec. 40(a)(ia) of the Act is applicable prospectively. He further commented that certain part of the expenditure is not allowable and the DRP confirmed the order of the A.O only on the ground that the proviso is applicable prospectively. Thus, we find that the A.O has already considered evidence filed by the assessee but has not given any finding as to whether the recipient has offered the said income to tax. Therefore, we deem it fit and proper to remand the issue to the file of the A.O with a direction to the assessee to file the relevant evidence before the A.O and the A.O shall then verify if the recipient had paid taxes on such sum and if it is found to be paid then no disallowance u/s 40(a)(ia) of the Act shall be made in the hands of the assessee. TP adjustment - interest on delayed recovery of trade receivables from associated enterprises - assessee submitted that the assessee has not charged interest on trade receivables either from the associate enterprises or from the non-associate enterprises and therefore the said transaction should not be considered as an international transaction and no interest should be levied thereon - HELD THAT:-After the amendment of Sec. 92B of the Act, interest on receivables is an international transaction. Further, except commenting that there is an in ordinate delay in receipt of the amounts from its AE, the TPO has not brought out any of the details such as the agreed period of credit, the period of delay and also the industry average period of credit, before bringing the interest on receivables to tax. Therefore, we deem it fit and proper to remand the issue to the A.O / TPO to conduct proper transfer pricing study and re-compute the transfer pricing adjustment and also the rate of interest to be applied in accordance with the judicial precedents on the issue. In the result, the assessee’s appeal is partly allowed for statistical purposes. Addition towards interest receivable from foreign associates under normal provisions of the IT Act, 1961 - We find that prior to the instruction of 15/2015, the A.O was required to refer the matter to the TPO if the value of the international transaction crossed a quantum. Vide the instruction 15 of 2015, the A.O was directed to complete the assessment by himself without making any reference to the TPO. This notification has been replaced by the instruction No. 03 of 2016, whereby the A.O has to refer the matter to the TPO for determination of the ALP. We find that the notification 3 of 2016 has been issued on 10.03.2016 i.e much prior to the completion of the assessment proceedings and therefore we agree with the contentions of assessee that the AO ought to have referred the matter to the file of the TPO for determination of the arm’s length price. However, this is only a procedural irregularity which can be cured. Therefore, we deem it fit and proper to remand this issue to the file of the A.O with a direction to refer the issue to the file of the TPO for de-novo transfer study as directed by us in the earlier assessment years. ISSUES PRESENTED AND CONSIDERED 1. Whether payments made as reimbursement of salaries and related costs to a resident parent/related company constitute fees for technical services mandating deduction of tax at source under section 194J and consequent disallowance under section 40(a)(ia) where no TDS was deducted. 2. Whether the proviso to section 40(a)(ia) (relief where the recipient has offered the amount to tax) applies retrospectively/curatively to an assessment year prior to the date from which Revenue contends the proviso is prospective, and if recipient has in fact offered the receipt to tax whether disallowance under section 40(a)(ia) remains justified. 3. Whether interest on delayed recovery of trade receivables from associated enterprises is an 'international transaction' attracting transfer pricing scrutiny (including secondary/interest adjustments) and, if so, (a) the proper characterisation of the transaction (trade receivable vs loan), (b) appropriate benchmark/rate for arm's length interest (e.g., LIBOR vs domestic bank rates/short-term deposit rates), and (c) requirement and scope of transfer pricing study to determine ALP and rate. 4. Whether an assessing officer's failure to refer international transactions to the Transfer Pricing Officer (TPO) (on grounds of superseded/updated departmental instructions) renders the assessment void, and what remediation/remand is appropriate where instruction change occurred during assessment proceedings. ISSUE-WISE DETAILED ANALYSIS Issue 1: Liability to deduct TDS under section 194J and disallowance under section 40(a)(ia) Legal framework: Payments for technical services to a resident are subject to TDS under section 194J where the payment constitutes fees for technical services; failure to deduct attracts disallowance under section 40(a)(ia) unless proviso exceptions apply. Precedent treatment: Authorities below treated reimbursements as payments for technical services and sustained disallowance under section 40(a)(ia). The assessee relied on factual distinction (payments were reimbursements of salaries paid by the payer-parent for employees seconded to the assessee) to argue no TDS obligation. Interpretation and reasoning: The Court examined the substance over form - employees of the parent rendered services to the assessee, the parent billed and was reimbursed; that amounts are in essence consideration for technical services rendered by the parent to the assessee. On this factual finding, such payments fall within the scope of fees for technical services and attract TDS liability. The Tribunal therefore concluded the payments required deduction of tax at source. Ratio vs. Obiter: Ratio - where a resident parent provides employee services to an assessee and is reimbursed, the payment is within the scope of fees for technical services attracting TDS under section 194J and consequences under section 40(a)(ia) if not deducted. Obiter - none additional on broader categorizations. Conclusion: Disallowance under section 40(a)(ia) is prima facie sustainable on factual finding that payments were for technical services; however remit for factual determination on whether recipient declared the income (see Issue 2). Issue 2: Applicability of proviso to section 40(a)(ia) retrospectively and effect where recipient has offered amount to tax Legal framework: The proviso to section 40(a)(ia) provides that disallowance shall not apply where the recipient has offered the amount to tax and tax has been paid; question arises whether proviso is curative/retrospective or prospective from a specified year. Precedent treatment: The Tribunal noted a coordinate bench and a Delhi High Court decision that treated the proviso as curative and retrospective (thereby negating disallowance if recipient taxed the receipt). The assessing officer and DRP treated the proviso as prospective and therefore did not apply it for the year in question. Interpretation and reasoning: The Tribunal accepted the view followed by coordinate benches that if the recipient has in fact offered the receipt to tax, then disallowance under section 40(a)(ia) cannot be made; however, it observed the AO and DRP had not examined/found whether the recipient actually offered the income to tax. Because the factual inquiry on taxation by recipient was not adjudicated by the authorities, the Tribunal remanded the issue to the AO to verify evidence and make a finding on whether tax was paid by the recipient. Ratio vs. Obiter: Ratio - where recipient has offered the receipt to tax and tax has been paid, disallowance under section 40(a)(ia) should not be made; however, implementation requires concrete verification by the AO. Obiter - commentary on retrospective/curative character of proviso aligns with certain High Court/Tribunal views but the Tribunal framed relief on factual verification rather than resolving retrospective/prospective legal controversy conclusively. Conclusion: Ground challenging disallowance on the proviso basis is remitted for factual verification; if recipient taxed the amount, no disallowance to be made. Interim disposition: appeal ground dismissed on merits but ground asserting proviso granted for statistical purposes (remand ordered). Issue 3: Transfer pricing - interest on receivables as international transaction, characterisation, benchmark rate and need for transfer pricing study Legal framework: Post-amendment, interest on receivables arising from international transactions falls within definition of 'international transaction' under section 92B and is amenable to transfer pricing adjustment; TPO/AO must determine ALP applying comparables and transfer pricing methodology. Precedent treatment: Parties relied on conflicting precedents. The Revenue relied on an earlier Delhi High Court decision (McKinsey Knowledge Centre) that had upheld adjustments for not charging interest; however, that decision was subsequently recalled for review by the Delhi High Court and thus could not be applied automatically. Appellant pointed to other orders using LIBOR + spread for foreign-related receivables. Interpretation and reasoning: The Tribunal observed that after statutory amendment interest on receivables is an international transaction. It found deficiencies in the TPO/AO treatment: lack of details on agreed credit period, extent and period of delay, industry average credit terms, and absence of a proper comparability/transfer pricing study to fix arm's length interest. It also rejected summary application of domestic bank deposit or lending rates without proper benchmarking where the counterparty is outside India and comparable data should be considered (e.g., LIBOR-based benchmarks where appropriate). The Tribunal noted that reliance on McKinsey was misplaced given its subsequent recall and thus declined to adopt it as binding for the facts before it. Ratio vs. Obiter: Ratio - interest on receivables can constitute an international transaction attractable to transfer pricing adjustment, but determination of ALP requires a detailed, evidence-based transfer pricing study covering agreed credit terms, delays, industry norms and appropriate external benchmarks; summary adjustments without such study are unsustainable. Obiter - guidance that LIBOR-based benchmarks may be more appropriate for cross-border receivables depending on facts. Conclusion: Transfer pricing adjustments for interest were remitted to AO/TPO for de novo transfer pricing study and recomputation of adjustment and rate, with directions to consider judicial precedents and to examine agreed credit period, delay particulars and industry norms. Appeals on TP issues allowed/partly allowed for statistical purposes pending recomputation. Issue 4: Requirement to refer international transactions to TPO - effect of departmental instructions and remedial approach Legal framework: Statutory scheme requires reference to TPO under section 92CA when conditions are met; departmental instructions (CBDT) may affect AO practice temporarily but do not override statutory requirements - where instruction changed during proceedings the question arises whether assessment without TPO reference is void. Precedent treatment: Revenue relied on CBDT instruction No.15/2015 (no mandatory reference) while appellant relied on subsequent instruction No.03/2016 reinstating mandatory reference; assessment was completed after instruction No.03/2016. Interpretation and reasoning: The Tribunal accepted that instruction No.03/2016 (requiring reference to TPO) was issued before completion of assessment, so AO should have referred the matter. However, the Tribunal treated the failure to refer as a procedural irregularity capable of cure rather than rendering the assessment void. Remedy: remand to AO to refer to TPO and for de novo transfer pricing study as directed in Issue 3. Ratio vs. Obiter: Ratio - procedural failure to refer to TPO where applicable is curable by remand and redetermination rather than invalidating the assessment; substantive transfer pricing determination must be made by competent authority in accordance with statutory scheme. Obiter - none beyond remedial observation. Conclusion: Defect in not referring to TPO cured by remand; assessment to be reopened by AO/TPO for de novo transfer pricing determination consistent with directions above.