TaxTMI 
TaxTMI 
2022 (7) TMI 888
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.... together for hearing and are being disposed off by this common and consolidated order. We shall be first take up the cross appeals for A.Y. 2012-13. 3. Taking up first the Assessee's appeal in ITA No. 2471/Ahd/2017 for A.Y. 2012-13. 4. Ground No. 1 and 1.1 relate to the same issue of transfer pricing adjustment made on account of short term advances made by the assessee to its associated enterprises, levying notional interest of Rs. 2,52,319/- thereon. The said grounds read as under: 1. The learned CIT(A) has erred in confirming the addition made by the learned Assessing Officer and the learned Transfer Pricing Officer to the total income of the appellant u/s. 92C to the extent of Rs. 2,52,319. 1.1 The learned CIT(A) has erred in confirming the order of the AO and TPO levying notional interest of Rs. 2,52,319 on short term advance made to its overseas subsidiaries being Kalpataru Power Transmission (Mauritius) Ltd. and Kalpataru Power Transmission (Nigeria) Ltd. It is submitted that the learned CIT(A), AO and TPO failed to appreciate the reasons for making advance as well as the benefits received by the appellant from the same. It be so held now. 5. ....
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....The relevant portion of the findings of the Hon'ble ITAT in para 11 of the order is reproduced hereunder:- "11. We are unable to see any merits in his line of reasoning. As the learned counsel himself accepts, on a conceptual note, several types of debts, particularly long term unsecured debts, and revenue participation investments could be termed as 'quasi capital'. So far as arm's length price of such transactions are concerned, this cannot be 'nil' because, under the comparable uncontrolled price method, such other transactions between the independent enterprises cannot be at 'nil' consideration either. Nobody would advance loan, in arm's length situation, at a nil rate of interest. The comparable uncontrolled price of quasi capital loan, unless it is only for a transitory period and the de facto reward for this value of money is the opportunity for capital investment or such other benefit, cannot be nil. As for the intent of the assessee to treat this loan as investment, nothing turns on it either. Whether assessee wanted to treat this loan as an investment or not does not matter so far as determination of arm's length price of t....
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....ra 14 & 15 of the said decision, it was pointed out that in the case of Perot System TSI (India) Ltd. vs. Dy. CIT (2010) 37 SOT 358 (Delhi) identical issue was discussed and it was pointed out that the argument of loan being quasi capital in nature was rejected on facts since there was no material on record to establish so. From Para 15 of the order, it was pointed out that the Bench noted that in the facts of the case before it, (Micro Inks), it had been demonstrated that the loan was given in place of capital contribution which required the RBI permission. When the RBI permission was ultimately obtained the loan was converted into shares effective from the date when the loan was given. It was also noted by the Bench that the entity which received the interest free advance was not only wholly owned subsidiary of the assessee but also played a significant role in its sales and distribution chain. That in this backdrop the Bench noted that lending of money could not be considered in isolation with these business considerations, and the relationship between the assessee and its AE was not simply that of a lender or borrower. Going forward the Bench thereafter dealt with the applicabi....
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....(3), then such ALP determined is bad in law * Reliance placed on CLSA India (P.) Ltd. vs. DCIT [2019] 101 taxmann.com 388 wherein it is held that ALP would be on ad hoc basis and void if appropriate adjustments not made for removing the differences. * Reliance is placed also on Gulbrandsen Chemicals (P.) Ltd. vs. DCIT [2019] 104 taxmann.com 253 (Ahmedabad) 10. At this juncture, Ld. Counsel for the assessee was asked at bar to demonstrate with evidence as to how the loan given in the present case would qualify as quasi capital and or given for commercial expediency of the assessee as were the facts in the case of Micro Inks Ltd. (supra) referred to by the Ld. Counsel for the assessee before us. Ld. Counsel was unable to convincingly demonstrate the same except for reiterating his contention before the A.O., that the advances were given to its wholly owned subsidiary newly formed for the purpose of procuring work/business of the assessee in the respective countries where they were set up i.e. Mauritius and Nigeria respectively. 11. In view of the above, the main argument of the assessee against the transfer pricing adjustment made on account of the short term ....
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....d confirming the order passed by the learned AO invoking provisions of Rule 8D without satisfying conditions of Section 14A for invocation thereof. It is submitted that it be so held now. 2.4 Without prejudice to above, the learned CIT(A) has erred in holding that the investments from which no exempt dividend income is received during the year are also includible while computing disallowance u/s. 14A on the ground that other investments have yielded exempt income. It is submitted that section 14A has to be applied separately for each investment. It be so held now. 2.5 Without prejudice to above, the learned CIT(A) has erred in not directing the learned AO in excluding all investments which generates income chargeable to tax from value of average investments, in calculating amount to be disallowed as per clause (iii) of Rule 8D(2) of the Income Tax Rules, 1962. 15. Drawing our attention to the facts of the case, it was pointed out that the assessee had earned dividend income of Rs. 8,18,54,250/- during the year, mainly from its subsidiary namely JMC Projects India Ltd., which was claimed as exempt u/s. 10 of the Act. The assessee had made suo moto disallowance o....
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....diture, a part of which is also attributable to the tax exempt income, and finds that the small disallowance of Rs. 30,000 made by the assessee is not on any rational, logical or actual basis, and, it is for this reason that the Assessing Officer has invoked disallowance under rule 8D. We see no infirmity in the stand so taken by the Assessing Officer. The conditions of Section 14A(2) are clearly fulfilled. The CIT(A) has granted the impugned relief on the basis that the AO has not given any finding about incorrectness of the disallowance offered by the assessee, but this is, as we can see from the extracts from the assessment order, factually incorrect. As regards learned counsel's reliance on Priya Exhibitors Pvt. Ltd. vs. DCIT [(2012) 54 SOT 356 (Del)], we find that the coordinate bench had specifically stated that "..... Their I.T.A. No.: 538/Ahd/2013 Assessment year: 2009-10 Lordships has held that the Assessing Officer must in the first instance determine whether the claim of the assessee is correct and determination must be made having regard to the accounts of the assessee. The legislature directs him to follow rule 8D only where the Assessing Officer is not satisfied w....
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....also contended that investments made by it are strategic investments being investments in subsidiary, associate, joint investments hence such investments are beyond the scope of Section 14A of the Act. This contention of Appellant cannot be accepted in view of decision of Hon'ble Mumbai ITAT in the case of DOT Vs. Saraswat Co-operative Bank Limited in UA No. 8622/Mumbai/2010 dated 31st October, 2016, decision of Chennai ITAT in the case of Voltech Engineers Pvt. Limited Vs. DOT (HA No. 1801/Mds/2016), dated 20th February, 2017 and decision of Hon'ble Punjab & Haryana High Court in the case of Punjab Tractors Limited Vs. CIT 246 taxman 31(17). (iii) The appellant has also taken one more argument that investments from which exempt dividend income is not received should be excluded for the purpose of section 14A. The decisions of Hon'ble Gujarat High court and other court relied upon by appellant states that when no exempt dividend income is earned, 14A disallowance should not be made but nowhere state that 14A should be restricted only on those investments from which exempt income is earned. (iii) The Appellant has also submitted that investments conside....
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....ividend of Rs. 8,18,54,250/- however, the assessee has not made any disallowance with regard to the expenses incurred relatable to earning of the exempt income. During the assessment proceedings details were called for with regard to the dividend income claimed as exempt by the assessee vide Notice issued under section 142 of the Act on 18.08.2015. As per the submission made by the assessee, it was claimed that the investments held by the company have been held for business purpose and the same have been made out of the own funds of the company available with it in form of share capital and share premium Further, it was submitted that the assessee-company has disallowed a sum of Rs. 60,000/- in computation of total income towards administrative and other expenditure for earning of exempt income as per Statement of Total Income submitted during the course of hearing. 10.2 However, the assessee did not provide for the details of the manner in which such disallowance was computed. The assessee has merely made an ad hoc disallowance under section 14A of the Act. Further, the assessee is holding investments of Rs. 40,493.58 lacs as at 31.03.2012. Further, the investments as at ....
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....ores and also noting the substantial activity in the investments made, moving from Rs. 39 crores to Rs. 40 crores from the beginning to the end of the year, the A.O. had rightly recorded his non satisfaction with the reply of the assessee. Therefore even considering the decision of the Hon'ble Apex Court in the case of Godrej & Boyce Manufacturing Co. Ltd. (supra), pointed out by the Ld. Counsel for the assessee before us, we hold that there was valid satisfaction of the A.O. for rejecting the explanation of the assessee. The argument of the Ld. Counsel for the assessee therefore that the A.O. had recorded no satisfaction before proceeding to apply Rule 8D for calculating the disallowance to be made u/s. 14A, is therefore dismissed. 23. The next contention raised by the Ld. Counsel for the assessee before us was that the investment in SPVs and those investments which did not earn any dividend income during the year should not be considered for the purpose of applying Rule 8D. Reliance was placed on the following decisions in this regard: Ground No. 2.4 & 2.5 - Disallowance as per Rule 8D should be revised * Investments in SPVs (Jhajjar KT Transco Pvt. Ltd.)....
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....the order is as under: "34. Having clarified the aforesaid position, the first and foremost issue that falls for consideration is as to whether the dominant purpose test, which is pressed into service by the assessees would apply while interpreting Section 14A of the Act or we have to go by the theory of apportionment. We are of the opinion that the dominant purpose for which the investment into shares is made by an assessee may not be relevant. No doubt, the assessee like Maxopp Investment Limited may have made the investment in order to gain control of the investee company. However, that does not appear to be a relevant factor in determining the issue at hand. Fact remains that such dividend income is non-taxable. In this scenario, if expenditure is incurred on earning the dividend income, that much of the expenditure which is attributable to the dividend income has to be disallowed and cannot be treated as business expenditure. Keeping this objective behind Section 14A of the Act in mind, the said provision has to be interpreted, particularly, the word 'in relation to the income' that does not form part of total income. Considered in this hue, the principle of a....
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....27. Ground of appeal No. 2-2.5 is dismissed. 28. In effect appeal of the assessee is dismissed. 29. We shall now take up the Revenue's appeal in ITA No. 2853/Ahd/2017 for A.Y. 2012-13. 30. Ground No. 1 reads as under: 1. Whether on the facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the upward adjustment made u/s. 92CA of Rs. 1,07,38,080/-. 31. The issue relates to the deletion of Arm's Length Price adjustment made to the Success fees paid by the assessee to its subsidiary Kalpataru Power Transmission, USA, for its services in identifying projects in the US market. 32. The assessee had reported international transaction of Liaison Service Fee of Rs. 2,57,27,549/- paid to its associate enterprise Kalapatru Power Transmission USA Inc. and had bench marked it using CUP method in its report filed in Form No. 3CEB. The TPO in his order passed u/s. 92CA(3) rejected the bench marking adopted by the assessee and adopted the bench marking of Liaison support Service Fee @ 2% in the case of Cadila Health care Ltd. approved by the ITAT Ahmedabad Bench. Accordingly the difference amounting to Rs. 1,04,85,761/- was proposed to be adjust....
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.... Competent Authorities in difference jurisdictions. For providing these services, the AE charged a cost plus mark-up of 6 to 10% over the actual expenses. The said contract does not have any element of success fee involved therein. In the facts of the case, although the appellant has grouped the expenses under liaison support services, after having gone through the relevant facts, I am of the opinion that as the expenses paid to AE is a success fee it has to be benchmarked with the commission paid to third parties and the appellant has rightly used the US Census Bureau data published to benchmark the success fee. TPO on one hand has stated that the figures of the US Census Bureau is not applicable since the nature of service/product dealt by the appellant is totally different. Thereafter, he goes on to compare the appellant with a pharmaceutical company and benchmark the entire transactions at 2%. The data compiled by the US Census Bureau in respect of electronics market, commission agents etc. has also been compiled vide Annexure-G of the Paper-book. The data collection methodology has been elaborately described and it is seen that it is not merely an estimate but it is actual col....
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....sessee was in the business of establishing transmission network. That the CUP method did not approve such functionally distinct comparable to be used for bench marking. Accordingly the Ld. CIT(A) has rejected the bench marking of the A.O. and held that of the assessee to be justified. 36. Ld. DR was unable to point out any infirmity in the findings of the Ld. CIT(A) nor do we find any. 37. We therefore uphold the order of the Ld. CIT(A) deleting the adjustment made to the liaison fee on account of Arm's Length Price adjustment made u/s. 92CA(3) of the Act. 38. Ground of appeal No. 1 is therefore dismissed. 39. Ground No. 2 reads as under: 2. Whether on the facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition made on profit on sale of carbon credit of Rs. 5,25,41,076/-. 40. The issue relates to taxability of Carbon Credit i.e. CER certificate (Carbon Credits) issued to the assessee for saving emission of carbon. The assessee had two biomass based power generation plant using agricultural waste as fuel at Padampur and Tonk in Rajasthan State. The assessee had earned the following income/incurred expenditure in relation t....
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....ome. The relevant extracts of the judgment are as follows: "19, Adverting to the additional ground No. 1 in respect of income from realization-of carbon credits, which is taxed as Revenue receipt. The Ld. Counsel for the appellant, at the outset, contends that the Hon'ble Karnataka High Court in the case of CIT vs. Subhash Kabini Power Corporation Ltd., [2016] 69 taxmann.com 394 (Karnataka) dealt with the issue at length and relied on various judicial pronouncements, holding income received from realization of carbon credits as capital in nature. The Hon'ble Karnataka High Court in paragraph 6 of its order (supra) has dealt with the issue at length and square held that the carbon credits are generated out of environmental concerns which does not have any character of trading activity; therefore, any receipt from an activity which is not a trading activity is capital in nature by following observation:- 19.1 The Hon'ble High Court further relied on the judgment of Hon'ble Andhra Pradesh High Court in the case of CIT vs. My Home Power Ltd. [2014] 46 taxmann.com 314/365 ITR 82 and the judgment of Hon'ble Karnataka High Court in the case of CIT vs.....
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....in case of CIT v. Subhash Kabini Power Corporation Ltd. reported in (2016) 385 ITR 592 (Karn) and Andhra Pradesh High Court in case of Commissioner of Income tax v. My Home Power Limited reported in (2014) 365 ITR 82 (AP) have held that receipts of carbon credit are in nature of revenue receipts. Following the decision of said two High Courts, this question is also not considered." It is observed that entire legal issue involved in present case has been decided in favour of Assessee by Hon'ble Ahmedabad ITAT and Gujarat High Court. '8.3.5 It is further observed that while passing Assessment Order for A.Y. 2009-10 in case of Appellant, AO has taxed CERs on accrual basis even though there was no sale of such CERs. The said addition was deleted by CIT (Appeals) and Hon'ble Ahmedabad ITAT confirmed the order of CIT(A) deleting the addition, however, on a different ground that no income on account of CERs accrued during the relevant year. As regards characterization of CERs as capital or revenue receipts, the Hon'ble ITAT made certain observations. However, upon appeal filed by the Appellant, Hon'ble Gujarat High Court (TAXAP/73/2017) has quashed th....
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....dered in accordance with the law in the year in which the income from sale of CERs is received. It is observed that Hon'ble Ahmedabad TTAT in the case of Alembic Limited referred supra, has on identical facts has held that income from sale of CERs is capital receipt and said decision is upheld by Hon'ble Gujarat High Court referred supra, which has settled entire controversy as discussed herein above. 8.3.6 During the course of Appellate proceedings Appellant has also relied upon following decisions which are also in favour of Assessee: (i) Decision of Hon'ble Andhra Pradesh High court in the case of CIT v. My Home Power Ltd. (2014) 365 ITR 82]: Section 28(1) of the Income-tax Act, 1961 - Business income-Chargeable as (Carbon credits) - Assessment year 2007-08 - Appellant-company was 'engaged in business of power generation through biomass power generation unit - It received carbon credits, namely, carbon Emission Reduction Certificates for its project activity of switching off fossil fuel from naptha and diesel to biomass - It transferred said carbon credits and offered receipt from said transfer: as capital receipt - However/Assessing Of....
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....aracter of trading activity, receipt from sale of carbon credit was capital receipt and not business income - Held, yes [Para 12] [In favour of appellant]. Considering the facts discussed Herein above it is held that income from sale of CERs is capital receipt and AO is not justified in treating such income as revenue receipt. It is also held that AO is not justified in reducing deduction under Section 80-IA claimed by Appellant by reducing expenditure incurred for sale of CERs from profit derived from industrial undertaking. Thus, both the grounds of appeal are allowed. 43. We have gone through the order of the Ld. CIT(A) and we have noted that the Ld. CIT(A) relied on a plethora of decisions both of the ITAT and the Hon'ble High Courts of Karnataka and Andhra Pradesh holding CER receipts as capital in nature and income earned there from also being capital receipt. The Ld. D.R. unable to distinguish the case laws. 44. In view of the above, we see no reason to interfere in the order passed by the Ld. CIT(A) deleting the addition made on profit of sale of Carbon Credits of Rs. 5,25,41,076/-. 45. Ground of appeal No. 2 is dismissed. 46. Ground No. 3 reads as ....
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....only in the year in which the assets are acquired and installed and not in the subsequent year. The AO has stated that the law does not contain any provision enabling the tax payer to claim the balance half entitlement in the subsequent years as there is no explicit provision entitling the assessee to claim the balance of the additional depreciation in subsequent year. The proviso to Section 32(1)(ii) has to be construed in a restrictive way and liberal interpretation of the same cannot be made. 7.2 Before me, the Appellant submitted that since no additional depreciation was claimed in the return of income, the AO could not have added the sum to the total income while passing the assessment order. In view of the same the very action of the AO in firstly making the addition without there being any claim in the return of income, and secondly, not allowing the legally valid claim made by way of a communication dated 17/3/2014 is erroneous. The appellant has made written submissions and challenged the addition/disallowance made on account of depreciation claimed by the Appellant during the assessment proceeding towards additional depreciation u/s. 32(1)(iia) on the assets inst....
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.... or clause (iia), as the case may be, is acquired by the assessee during the previous year and is put to use for the purpose of business or; profession for a period of less than one hundred and eighty days in that previous year, the deduction under this sub-section in respect of such asset shall be restricted to fifty per cent of the amount calculated at the percentage prescribed for an asset under clause (i) or clause (iii) or clause (iia) as the case may be." 11. A bare reading of this section 32(1)(iia) clearly says that in case a new machinery or plant was acquired and installed after 31-03-2005 by an assessee, who is engaged in the business of manufacture or produce of article or thing, the, a sum equal to 20% of the actual cost of the machinery and plant shall be allowed as a deduction. It is not in dispute that the assessee has acquired and installed the machinery after 31-03-205. IT is also not in dispute that the assessee is engaged in the manufacture of article or thing. Therefore the assessee is eligible for additional depreciation which is equivalent to 20% of the actual cost of such machinery. The dispute is the year in which the depreciation has to be allowed....
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....td. (supra), the provisions related to it have to be construed reasonably liberally and purposive to make the provision meaningful while granting the additional allowance. This additional benefit is to give impetus to industrialization and the basic intention and purpose of these provisions can be reasonably and liberally held that the assessee deserves to get the benefit in full when there is no restriction in the statute to deny the benefit of balance of 50% when the new machinery and plant were acquired and used for less than 180 days. Onetime benefit extended to assessee has been earned in the year of acquisition of ne machinery and plant. It has been calculated @ 15% but restricted to 50% only on account of usage of these plant and machinery in the year of acquisition. In section 32(1)(iia), the expression used is "shall be allowed". Thus, the assessee had earned the benefit as soon as he had purchased the new machinery and plant in full but it is restricted to 50% in that particular year on account of period usages. Such restrictions cannot divest the statutory right. Law does not prohibit that balance 50% will not be allowed in succeeding year. The extra depreciation allowab....
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.... and machinery has been claimed by the assessee company during the year under consideration i.e. the FY 2006-07 relevant to this assessment year 2007-08. A bare reading of clause (iia) of section 32(1) of the Act w.e.f. the AY 2006-07, provides for allowance of additional depreciation equal to 20% of actual cost of new plant and machinery acquired and installed after March, 31st 2005 by an assessee engaged in the business of manufacture or production of any article or thing. Such additional depreciation is to be allowed as deduction u/s. 32(1)(iia) of the Act but second proviso to section 32(1)(ii) restricts the allowance of depreciation at 50%, if the plant and machinery is acquired during the previous year is put to use for a period of less than 180 days in that previous year. The second proviso specifically makes a reference to an asset referred to in clause (iia) of the said section 32(1) of the Act. And it is because of the second proviso assessee claimed only 50%; additional depreciation for AY 2006-07 and accordingly, claimed the balance amount of additional depreciation in the immediately subsequent year i.e. the year under consideration AY 2007-08. We are in full agreement....
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..... The assessee's contention was that he was eligible for additional depreciation @ 20% on the plant and machinery purchased in the second half of the financial year 2006-07 but being used less than 180 days, only 10% depreciation was allowed by A.O. The balance 10% additional depreciation was carried forward in the year under appeal and claimed in the computation of income which was disallowed by A.O. on the ground that carried forward of such additional depreciation is inadmissible as per provisions of section 32(1)(iia). The Ld. CIT(A) has given relief to the assessee by following the decision of ITAT, Delhi in the case of DCIT vs. Cosmo Films Ltd. (124 Taxman.com 189) wherein it has been held that the additional depreciation cannot be restricted to 50% and it has to be allowed in succeeding years if it is not allowed full in the relevant year. For the sake of convenience the relevant portion of the order is as under: "17. We have heard both the sides on this issue. Section 32(1)(iia) inserted by Finance (No. 2) with effect from 1.4.2003. In speech of Finance Minister this clause was inserted to provide incentive for fresh investment in industrial sector. This clause....
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....n year. Thus, the intension was not to deny the benefit to the assets who have acquired or instated new machinery or plant. The second proviso to section 32(1)(ii) restricts the allowances only to 50% where the assets have been acquired and part to use for a period less than 160 days in the year of acquisition. This restriction is only on the basis of period of use. There is no restriction, that balance of one time incentive in the form of additional sum of depreciation shall not be available in the subsequent year. Section 32(2) provides for a carry forward set up of unabsorbed depreciation. This additional benefit in the form of additional allowance u/s. 32(1)(iia) is one time benefit to encourage the industrialization and in view of the decision of Hon'ble Supreme Court in the case of Bajaj Tempo vs. CIT,; cited supra, the provisions related to it have to be constructed reasonably, liberally and purposive to make the provision meaningful while granting the additional allowance. This additional benefit is to give impetus to industrialization and the basic intention and purpose of these provisions can be reasonably and liberally held that the assessee deserves to get ....
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....d that as per Explanation 5 to section 32(1) it is compulsory for the AO to allow depreciation whether claimed or not in the computation of total income. In view of the statutory provisions the AO was not correct in not allowing the additional depreciation claim made during the course of assessment. I therefore delete the addition made, and additionally, allow the claim of additional depreciation of Rs. 7,91,852/-. This ground of appeal is thus allowed." 8.1. We find that the CIT(A) has appreciated the facts and loan in perspective and has rightfully came to a conclusion that assessee was entitled to remaining part of 50% of the claim of the additional depreciation eligible under s. 32(1)(iia) of the Act in the subsequent assessment year adopting purposive approach to the issue. We thus find no infirmity in the view taken by the CIT(A) and therefore decline to interfere. Ground No. 3 of Revenue's appeal is accordingly dismissed. 48. In view of the above, since identical issue stands adjudicated in favour of the assessee by the ITAT in preceding years. We see no reason to interfere in the order passed by the Ld. CIT(A) deleting the disallowance of additional deprecia....