2025 (10) TMI 1048 - AT - Income Tax

AE status under s92A(2) met if satisfied at any time in year; TP adjustments modified, s14A no disallowance

ITAT held that AE status under s92A(2) is determined if the condition is met at any time during the year; the assessee's challenge was dismissed. Interest ... Transfer Pricing Adjustments - Associated Enterprises or not - Addition made on account of interest paid on NCDs - As contended that the lender is a foreign bank in the business of financing, negotiations were conducted on principal-to-principal basis, and at the time of agreement dated 16.08.2016, the condition under section 92A(2)(c) of the Act was not satisfied since the loan advanced did not constitute 51% of the book value of total assets as on the date of agreement, thus the lender and the assessee cannot be treated as AEs as per the provisions of section 92A (2) (c) of the Act, and no benchmarking is permissible - HELD THAT:- We find that identical issue has been decided by this Tribunal in assessee’s own case for AYs 2017–18 and 2018–19 as held Section 92A(2) provides that two enterprises shall be deemed to be associated enterprises if at any time during the previous year any condition mentioned in sub-clause (2) is fulfilled. The legislature had deliberately used 'at any time' during the previous year for the purpose of determining the status of an enterprise as AE, if at any time either prior to or thereafter of entering into transactions, the condition is fulfilled. Thus, the contention of the assessee that the status of the enterprise should be examined before entering into the transaction is contrary to the literal meaning of section 92A(2) of the Act which has not restricted the application of the provision, based on prior or subsequent transaction. We are of the opinion that it makes no difference whether the condition of 51% of the book value of total assets is not fulfilled prior to advancing the loan or subsequent thereto. In view of the above, this objection of the assessee is also without any basis and accordingly dismissed. AR has submitted that the credit rating of the assessee was BB-, and therefore under Rule 10TD, safe harbour rate of SBI lending rate + 475 basis points should be applied - We find that this Tribunal has adopted a consolidated rate of 12.275% for interest and redemption premium of NCDs including grossing up of TDS, considering safe harbour rules and section 194LD of the Act. Therefore, respectfully following the same and applying the principle of consistency, we direct the Ld. TPO to benchmark the impugned transaction at 12.275%. On the third contention, the facts have not been disputed that the redemption premium of Rs. 10,95,99,615/- relates to the entire tenure of NCDs and has been apportioned in earlier years also, wherein corresponding adjustments have already been made by the Ld. TPO. We, therefore, direct the Ld. AO/TPO to exclude such portion of redemption premium which has already been considered in earlier years to avoid double addition. On the fourth contention, we direct the Ld. AO/TPO to give effect to the benchmarking adjustment made in the remand proceedings in accordance with law while computing disallowance, if any, under section 94B of the Act. The issue of addition made on account of interest paid on NCDs is partly allowed for statistical purposes. Addition made on account of interest paid on CCDs - In the present case, there is no dispute about the facts that the CCDs issued by the assessee are not denominated in Indian Currency. Therefore, respectfully following the decision of Hyderabad Infratech Pvt. Ltd. [2025 (4) TMI 83 - ITAT HYDERABAD] we hold that the interest on CCDs in the case of the assessee should be benchmarked with SBI PLR. Further, we find that, in the present case, the SBI PLR for the relevant year was between 12.90% to 13.45%, whereas the assessee had paid interest only at 10%. Since the rate paid is below the applicable PLR, the payment of interest is at arm’s length. Accordingly, we hold that the adjustment made by the Ld. AO/TPO is liable to be deleted. Computation of income - As we find that the assessee has suo motu disallowed the interest on CCDs under section 40(a)(i) of the Act, on account of non-deduction of TDS. It is also not in dispute that in subsequent years, no deduction was claimed as the lender waived the interest. Thus, the assessee has not derived any tax benefit from the impugned payment. Principle laid down in Eaton Technologies Pvt. Ltd. [2013 (10) TMI 766 - ITAT PUNE] squarely applies here. In that case, the Tribunal held that once an assessee has voluntarily disallowed an expenditure and has not derived any benefit, either by claiming deduction or by capitalisation, there is no occasion to benchmark such transaction under transfer pricing provisions. Disallowance u/s 14A - HELD THAT:- It is not in dispute that the assessee has not earned any exempt income during the year under consideration. when no exempted income has been earned by the assessee from the investment made by it, no disallowance under section 14A of the Act can be made by Ld. AO. Non-grant of set- off of unabsorbed depreciation - As per the settled principle, the set-off of unabsorbed depreciation is to be allowed in chronological order, i.e., from the earliest year of availability, and not postponed at the discretion of the assessee or the Revenue. While determining the quantum of unabsorbed depreciation available for set-off in the impugned year, the Ld. AO is duty-bound to give due effect to the orders of this Tribunal in the remand proceedings, as they directly impact the computation of available depreciation. We, therefore, direct the Ld. AO to recompute the balance of unabsorbed depreciation after giving effect to the Tribunal's orders, allow its set- off in the year under consideration, and carry forward the remaining balance, if any, for subsequent years as per law. Assessee has contended that pursuant to the scheme of demerger in AY 2017-18, the unabsorbed depreciation of the demerged companies, stood transferred to the assessee as the resultant company, and therefore, the assessee is entitled to its set-off under section 72A of the Act - This claim requires factual verification. We accordingly direct the AO to verify the demerger scheme and the quantum of unabsorbed depreciation pertaining to the demerged undertakings that are legally transferable, and allow the assessee's claim in accordance with the provisions of section 72A of the Act. Addition of notional interest on interest-free advance to subsidiary company - As held by the Hon'ble Supreme Court in Excel Industries Ltd. [2013 (10) TMI 324 - SUPREME COURT (LB)] only real income can be brought to tax and not hypothetical or notional income. In the present case, neither any income has been accrued in the hands of the assessee, nor any obligation has been created on the part of MN Scinece. Therefore, there is absence of real income in the present case. Further, the principle laid down in Dalmia Bharat Pvt. Ltd. (supra) [2001 (9) TMI 48 - DELHI HIGH COURT] also supports the assessee's case that business prudence cannot be questioned by the Revenue. Therefore, no real income has been accrued in the hands of the assessee during the year under consideration. Accordingly, we direct the Ld. AO to delete the addition made on account of notional interest. ISSUES PRESENTED AND CONSIDERED 1. Whether the question of limitation under section 153 (judicial discipline issue) should be finally adjudicated or kept open pending outcome of a Supreme Court decision. 2. Whether loans/debentures issued to DB International (Asia) Limited constitute international transactions between associated enterprises under section 92A(2)(c) and are therefore exigible to transfer pricing scrutiny. 3. Appropriate methodology and benchmark rate for arm's length pricing of interest payable on rupee-denominated Non-Convertible Debentures (NCDs) - including treatment of grossing up for TDS, credit spread, choice of base rate (SBI MCLR/ base rate/PLR) and relevance of Safe Harbour Rules and section 194LD. 4. Whether redemption premium payable on NCDs must be separately benchmarked or may be treated as NIL/part of interest; and whether amounts already benchmarked in earlier years must be excluded to avoid double addition. 5. Appropriate benchmark for interest on Compulsorily Convertible Debentures (CCDs) denominated in INR - whether LIBOR-based benchmarking is permissible or domestic PLR/MCLR must be used; and whether transfer pricing adjustment is precluded where interest has been disallowed by the assessee under section 40(a)(i). 6. Interaction of transfer pricing adjustments with statutory disallowance provisions (section 94B and section 40(a)(i)) - whether disallowances must be restricted consequent to TP adjustments. 7. Validity of disallowance under section 14A read with Rule 8D in absence of any exempt income in the relevant year. 8. entitlement to carry-forward and set-off of brought forward unabsorbed depreciation including transferred/demerged depreciation under section 72A and chronology of allowance. 9. Legality of making an addition of notional interest on interest-free advances to a subsidiary (taxability of hypothetical income). ISSUE-WISE DETAILED ANALYSIS Issue 1 - Limitation under section 153 Legal framework: Principles of judicial discipline and limitation under section 153 govern validity of assessments; national apex court decision on same point is authoritative. Precedent treatment: Identical issue pending before the Supreme Court in Roca Bathroom Products; parties agreed to defer final adjudication. Interpretation and reasoning: In view of pendency of an identical question before the Supreme Court and no objection from Revenue, the Tribunal set aside the issue to the assessing officer with a direction to follow the Supreme Court outcome while giving effect to the Tribunal's order. Ratio vs. Obiter: Procedural direction - ratio limited to case management; not a substantive pronouncement on limitation. Conclusion: Ground on limitation (section 153) kept open and remitted to the Assessing Officer to act in accordance with the Supreme Court decision when delivered. Issue 2 - Associated enterprise status under section 92A(2)(c) Legal framework: Section 92A(2)(c) deems enterprises associated where 'a loan advanced by one enterprise to the other constitutes not less than fifty-one per cent of the book value of total assets' at any time during the previous year. Precedent treatment: Tribunal earlier decided same assessee's prior years in favour of applying s.92A(2) non-contemporaneously (i.e., 'at any time during the previous year'). Interpretation and reasoning: The Tribunal held the statutory phrase 'at any time during the previous year' allows determination of associated enterprise status based on events either prior to or subsequent to the date of agreement; once the assessee itself disclosed the transaction as exceeding threshold in Form 3CEB, associated enterprise treatment and TP applicability were justified. Ratio vs. Obiter: Ratio - status under s.92A(2) is to be tested at any time during the previous year; disclosure in Form 3CEB supports application of TP provisions. Conclusion: Loan/advance qualifies the lender as associated enterprise; transfer-pricing benchmarking is permissible. Issue 3 - Benchmarking interest on rupee-denominated NCDs (method, base rate, credit spread, grossing up) Legal framework: Transfer pricing provisions (Chapter X), Rule 10TD (Safe Harbour), section 194LD and guidance from RBI/ECB frameworks; methods like CUP/CVUP and principles for choosing base rate and credit spread. Precedent treatment: Tribunal in prior consolidated orders for the assessee's earlier years applied guidance from Safe Harbour Rule and section 194LD to arrive at an ALP; Tribunal applied principle of consistency. Interpretation and reasoning: Where comparables were inconclusive, Tribunal relied on prior-year Tribunal determination using Safe Harbour and section 194LD to adopt a consolidated arm's length rate; factual error in TPO's record (credit rating mis-stated) noted. The Tribunal adopted 12.275% (SBI base + specified spread as per earlier Tribunal reasoning) as appropriate ALP for NCD interest (including grossing up for TDS). The Tribunal directed exclusion of portions of redemption premium already considered in earlier years to prevent double addition. Ratio vs. Obiter: Ratio - where prior identical Tribunal determination has attained finality on an issue not agitated before High Court, principle of consistency applies and that adopted ALP (12.275%) is to be applied; grossing up and safe harbour guidance are relevant where comparables are unavailable or inconclusive. Conclusion: TP adjustment on NCD interest partly allowed - TPO directed to benchmark at 12.275% and to exclude redemption premium portions already dealt with earlier; grossing up to be recognized; remand for giving effect and for considering consequential impact under section 94B. Issue 4 - Redemption premium on NCDs: treatment and double counting Legal framework: Need to benchmark separate components of consideration (interest v. redemption premium) under transfer-pricing rules; principles preventing double taxation/ double adjustments. Precedent treatment: Prior Tribunal practice recognized apportionment of redemption premium over tenure; present record showed portions already adjusted in prior years. Interpretation and reasoning: Redemption premium pertains to entire tenure and had been apportioned earlier; treating the entire premium as chargeable in one year would lead to double addition. Further, premium must be benchmarked separately if treated akin to interest, using appropriate domestic benchmark and spreads (Safe Harbour / s.194LD guidance). Ratio vs. Obiter: Ratio - amounts already considered in earlier years must be excluded; redemption premium should not be mechanically treated as NIL without reasons and requires independent benchmarking if treated as akin to interest. Conclusion: Tribunal directed exclusion of portions already subjected to adjustment and remanded benchmarking of any remaining premium to TPO/AO in accordance with law and Safe Harbour guidance. Issue 5 - Benchmarking interest on INR-denominated CCDs (LIBOR v. domestic PLR/MCLR) and effect of voluntary disallowance Legal framework: ALP must reflect economic reality; for rupee-denominated instruments, domestic lending rates are ordinarily the relevant benchmark; transfer pricing case law and Special Bench precedent require benchmarking against domestic PLR/MCLR where instruments are INR-denominated. Precedent treatment: Special Bench ruling (Hyderabad Infratech) and subsequent Tribunal decisions hold that IN R-denominated CCD/NCD interest should be benchmarked by applying domestic PLR not LIBOR; Coordinate Bench decisions (Eaton) hold that where assessee has voluntarily disallowed expenditure and derived no benefit, TP adjustment is inappropriate. Interpretation and reasoning: The Tribunal followed the Special Bench and subsequent consistent Tribunal decisions: rupee-denominated CCD interest must be benchmarked with domestic PLR (or equivalent). On facts, the assessee paid 10% while SBI PLR ranged 12.90-13.45% - the transaction was at arm's length and TP adjustment was deleted. Alternatively, because the assessee had already suo motu disallowed the interest under section 40(a)(i) (no tax benefit accrued), no TP adjustment was warranted (double disallowance avoided) per Eaton principle. Ratio vs. Obiter: Ratio - for INR-denominated CCDs, domestic PLR/MCLR is the appropriate benchmark; where the assessee has voluntarily added back the expense and obtained no benefit, TP adjustment cannot be levied on such disallowed expenditure. Conclusion: TP adjustment on CCD interest deleted; alternatively, adjustment disallowed because the interest was already disallowed by assessee and no benefit was derived. Issue 6 - Interaction with section 94B and section 40(a)(i) Legal framework: Section 94B restricts interest deduction on certain related-party borrowings; section 40(a)(i) disallows expenditure for non-deduction of TDS; adjustments under TP may affect quantum of statutory disallowances. Precedent treatment and reasoning: Tribunal directed the AO/TPO to give effect to benchmarking adjustments in remand proceedings and compute consequential impact under section 94B and to restrict disallowances under section 40(a)(i) pursuant to TP adjustments, so that double disallowance is avoided; remand required factual computation. Ratio vs. Obiter: Ratio - TP adjustments, once revised, must be reflected while computing statutory disallowances under sections 94B/40(a)(i); AO to restrict disallowance to the adjusted quantum. Conclusion: Direction to AO/TPO to recompute disallowances under s.94B and s.40(a)(i) in light of TP remand adjustments. Issue 7 - Section 14A disallowance in absence of exempt income Legal framework: Section 14A and Rule 8D allow disallowance of expenditure attributable to exempt income; established position that disallowance cannot exceed exempt income and ordinarily requires existence/receipt of exempt income in the relevant year. Precedent treatment: Decisions of Tribunal in assessee's earlier years and High Court jurisprudence (Cheminvest/ Era/ others) hold that where no exempt income is earned/received in the year, section 14A disallowance is not attracted; amendment/Explanation in Finance Act, 2022 not retrospective. Interpretation and reasoning: On facts there was no exempt income in the relevant year; following prior Tribunal orders and High Court authorities, the Tribunal deleted the s.14A disallowance and rejected generalized apportionment of overheads in absence of exempt receipts. Ratio vs. Obiter: Ratio - absence of exempt income precludes s.14A disallowance; Explanation inserted in 2022 cannot be applied retrospectively. Conclusion: Disallowance under section 14A of Rs.37,75,420 deleted. Issue 8 - Brought forward unabsorbed depreciation and section 72A / chronology of set-off Legal framework: Section 72A governs carry-forward and set-off of depreciation on demerger; accounting for unabsorbed depreciation must follow chronological order and give effect to earlier orders of the Tribunal. Precedent treatment: Tribunal emphasised settled principle that set-off of unabsorbed depreciation is to be allowed in chronological order and the AO must give effect to Tribunal orders affecting quantum of carried forward depreciation. Interpretation and reasoning: On facts, the assessee had disclosed unabsorbed depreciation (some inadvertent reporting omissions in revised returns due to utility constraints) and depreciation attributable to demerged entities required verification under s.72A. The AO's refusal to grant set-off on the ground that assessee claimed set-off in subsequent years was contrary to law. Ratio vs. Obiter: Ratio - AO must recompute available unabsorbed depreciation giving effect to Tribunal orders and allow set-off in the year under consideration; verify and allow transferred/demerged depreciation per s.72A. Conclusion: Ground allowed for statistical purposes; AO directed to recompute and allow set-off/carry-forward as per law after factual verification of demerger records. Issue 9 - Notional interest on interest-free advance to subsidiary Legal framework: Taxation principle limits taxable income to real accruals; notional or hypothetical income is not taxable absent real accrual or enforceable entitlement. Precedent treatment: Supreme Court authority (Excel Industries) and other decisions hold only real income can be taxed; commercial expediency of interest-free advances is within assessee's business judgment (Dalmia). Interpretation and reasoning: Advances to subsidiary were strategic, interest-free by arrangement, with no agreement creating an enforceable right to interest or any accrual in assessee's hands. Taxing notional interest would amount to taxing hypothetical income contrary to jurisprudence. Ratio vs. Obiter: Ratio - notional interest on interest-free commercial advance cannot be treated as taxable income absent real accrual or enforceable obligation. Conclusion: Addition of notional interest (Rs.1,01,52,000) deleted.