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2024 (1) TMI 106
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.... to directions of the learned DRP-2, Bengaluru, issued u/s. 144C(5) for assessment year 2017-18 & 2018-19. Since, facts are identical and issues are common for the sake of convenience, the appeals filed by the assessee and revenue are heard together and are being disposed off, by this consolidated order. ITA No: 798/Chny/2020 for AY 2011-12: 2. The assessee has raised the following grounds of appeal: Sl. No. Grounds of Appeal Tax Effect 1. The order u/s 143(3) r.w.s. 147 of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') dated 30.09.2019 passed by the Commissioner of Income Tax (A)-1, Chennai (hereinafter referred to as 'the Ld. CIT (A)) is erroneous both on facts and in law. General Ground 2. The Ld. CIT (A) erred in not quashing the reassessment proceedings u/s 147 of the Income Tax Act without there being any tangible material on record to come to conclusion that there is escapement of income. Technical Ground 3. The Ld. CIT (A) ought to have appreciated the fact that the issues under consideration were reopened by A.O. merely on change of opinion and further were already verified during original scrutiny proceedings. Tec....
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....nder the provisions of Section 43A are of revenue in nature and corresponding effect of exchange differences are to be accorded in the Profit & Loss Account. Rs. 16,61,77,507/- 14. The Ld. CIT (A) ought to appreciate the fact that the method followed by the assessee being based on guidance (Accounting Standards) issued by the ICAI, is very scientific, approved and considered very aspect of the transaction and is being followed on consistent basis. Rs. 16,61,77,507/ 15. The Ld. CIT (A) ought to have appreciated the fact that the exchange difference has been accounted as per the rules of GAAP which enunciates it to be an allowable expenditure u/s 37(1) of the Act. Rs. 16,61,77,507/ 16. The AO without verifying the submissions and legal position passed the order should be set-aside to the AO. Rs. 16,61,77,507/ 17. The Appellant may add, alter or modify any other points to the grounds of appeal at any time before or at the time of hearing of the appeal. General Ground 3. The brief facts of the case are that, the assessee is a Public Ltd Company, engaged in the business of offshore drilling and production services to companies engaged in explora....
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....sented the case before the Tribunal. However, immediately after noticed that the appeal has not been filed against CIT(A) order, steps has been taken to file appeal which resulted in delay of 304 days. Therefore, in the interest of justice, the delay in filing of appeal may be condoned. 4.1 The ld. DR, on the other hand opposing petition filed by the assessee filed a detailed written submission and argued that the appellant has filed a false affidavit giving reasons which are totally incorrect, which is evident from the reasons given by the assessee for condonation of delay. The relevant submissions filed by the ld. DR are reproduced as under: "The appellant company is a limited company, having its head office at Door No.113, Pantheon Road, Egmore, Janapriya Chest, Chennai - 600 008. In this case, the assessment was reopened u/s 147 of the IT Act, by issuing notice u/s 148 of the I T Act dated 31.03.2018. In response to the notice, the assessee filed its return of income and requested for the reasons for reopening the assessment. It was duly communicated to the assessee and the appellant filed its objection on the reopening. This objection was disposed in compliance wit....
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....he CIT(A) order on 30.09.2019 itself. This fact was duly recorded at point no.3 of the Appeal Memo in Form No.36. Hence the first reason that the appeal delayed due to COVID-19 was a false reason. b) The second reason that the papers had been misplaced is also not found to be true that they were in receipt of the order of the CIT(A) on 30.09.2019 itself. What kind of paper were misplaced was not clearly mentioned in the affidavit filed after receipt of Defect Memo. c) After receipt of the order of CIT A dated 30.09.2019 the AO passed giving effect order dated 01.02.2020. Aggrieved against this order the appellant duly filed before CIT(A) on 04.03.2020. If so, the reason given in the affidavit for the delay in filing the appeal before Hon'ble ITAT due to COVID-19 is blatantly a false reason. d) The reason given in the affidavit filed on 24-02-2022 that the "appeal could not be filed in time as the papers had been misplaced by one of office staff and the same could not be traced out" cannot be a true and correct reason for the delay of 302 days. When the appellant filed appeal before Hon'ble ITAT with a delay of 302 days, the basic requirement is f....
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....ce of foreign exchange loss debited into profit & loss account u/s. 37(1) of the Act. The ld. Assessing Officer has disallowed forex loss incurred on various accounts including loans taken in foreign currency for the purpose of business of the assessee, on the ground that said forex loss relating to loan borrowed for the purpose of acquisition of fixed asset and thus, should be capitalized and cannot be allowed as revenue expenditure deductable u/s. 37(1) of the Act. The Assessing Officer, further, opined that the assessee has failed to furnish necessary evidences to prove forex loss is on account of revenue expenditure. 5.1 The Ld. Counsel for the assessee submitted that this issue is squarely covered in favour of the assessee by the decision of ITAT, Chennai Benches in assessee's own case for assessment year 2010-11 in ITA NO. 3063/Chny/2019, where the Tribunal under identical set of facts set aside the issue to the file of the Assessing Officer for further verification to ascertain nature of forex loss incurred by the assessee and give appropriate treatment in light of provisions of section 43A of the Act and thus, for the impugned assessment year also, the issue may be set a....
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....y, however, not discussed the issues on merits. The assessee has challenged the order of the ld. CIT(A) before the Tribunal on merits. The sole issue that came up for our consideration from this appeal is additions towards forex loss. Initially, the ld. CIT(A) vide order dated 13.09.2019 set aside the issue of disallowance of forex loss to the file of the Assessing Officer to ascertain the nature of forex loss, whether it is pertains to capital account or revenue account. Thereafter, in the consequent assessment proceedings in pursuant to the directions of the DRP, the Assessing Officer reiterated his observations with regard to disallowance of forex loss u/s. 37(1) of the Act and made additions on the ground that the assessee could not file requisite details as directed by the ld. CIT(A). The assessee challenged the order giving effect to CIT(A) order passed by the Assessing Officer dated 01.02.2020, before the CIT(A) on 04.03.2020, with a delay of three days. The ld. CIT(A) dismissed appeal filed by the assessee un-admitted on the ground that the assessee did not file affidavit in support of the reasons stated for delay in filing of appeal. The assessee has filed appeal against l....
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....Learned CIT(A) failed to appreciate the fact that the assessee is not availing/providing any significant services apart from funding with M/s Aban Holding Pte Ltd., Singapore oriented related parties, hence, no significant correlation can be established in ease or expansion of assessee's business and investment made in M/s Aban Holding Pte Ltd., Singapore, as seen from year on year related party disclosure (Annexure 1), Consolidated & Standalone financials (Annexure 2 & 3). 6. The Learned CIT(A) failed to appreciate the fact that it can never be legislature's intention to allow interest expense of assessee for funding a foreign company which ultimately benefit only the foreign company that is taxable only in foreign country, in absence of any availed / provided service with the assessee. 7. For these and other grounds that may be adduced at the time of hearing, it is prayed that the order of the learned CIT(A) may be set aside and that of the Assessing Officer restored. Each of the grounds of appeal is mutually exclusive of, independent and without prejudice to other. Based on the facts and the circumstances of the case and in law, the learned As....
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....n which is not in accordance with Rule10B(1) of the Income Tax Rules, 1962. j. Erred in not appreciating the fact that the comparison should be based on real transactions of similar nature and it cannot be based on the hypothesis as to what would have happened if the assessee was to have similar transactions with Non AEs. k. Without prejudice to the other grounds, the AO/DRP/TPO erred in applying the rate of 1% as the rate for calculation of the guarantee fee without any basis. l. Without prejudice to the other grounds, the AO/DRP/TPO erred in calculating the corporate guarantee for the whole year and not restricting the same to relevant period and for the utilised amount. Corporate Tax Matters 1. Disallowance of interest 5s 361 iii of the Act of Rs. 3 22 86 80 000 -: a. Erred in disallowing interest expenditure of Rs. 3,22,86,80,000/without following the DRP directions, wherein it has directed to follow the honourable ITAT order of the assessee's own case for the AY 2010-11 & AY 2011-12 in ITA No.585/Mds/2016. b. Erred in disallowing the interest expenditure of Rs. 3,22,86,80,000/on mere suspicion and presumptions, wit....
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.... out of assessee's own fund in view of business expediency and for which purpose section 14A cannot be invoked. c. Erred in not bringing any cogent material on record to show the nexus between the interest bearing funds being utilized to make the investments in Mutual funds. d. Ought to have appreciated that the term loan on which interest expenditure is incurred has been sanctioned by the bank to be utilized for a specific business purpose. c. Without prejudice, ought to have appreciated the fact that while calculating disallowance u/s Rule 8D, only those investments can be taken which gives rise to exempt income. 3. Disallowance u/s 40(a)(i) of Rs. 20,66,05,099/- a. Erred in disallowing certain expenses pertaining to Management Fees & Consultancy Charges amounting to Rs. 20,66,05,099/which were paid to various service providers who are non-residents in relation to services provided in connection with business interests & operations that exist completely outside India. b. Erred in additionally observing that the payments of Rs. 6,79,48,334/and Rs. 5,08,44,167/made to M/s. Haledon International Corporation and M/s. Hester Develo....
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.... "an assessee in default" as defined u/s. 201(1) of the Act and when no order u/s. 201(1) of the Act is passed, disallowance u/s. 40(a)(i) of the Act cannot be made. The appellant company is a limited company, having its head office at Door No.113, Pantheon Road, Egmore, Janapriya Chest, Chennai - 600 008. In this case, the assessment was reopened u/s 147 of the IT Act, by issuing notice u/s 148 of the I T Act dated 31.03.2018. In response to the notice, the assessee filed its return of income and requested for the reasons for reopening the assessment. It was duly communicated to the assessee and the appellant filed its objection on the reopening. This objection was disposed in compliance with Apex court's decision in GKN Driveshaft. Later, the AGM, Finance, Sri Subramaniam appeared and filed written submissions. After perusal of the written submissions, assessment u/s 143(3) rws 147 of the IT Act was completed vide order dated 26.12.2018. 2. Filing of Appeal before CIT A : Aggrieved against the order, the appellant filed an appeal before the CIT(A)-1, Chennai on 03.01.2019. It is to be mentioned here that this appeal was filed within a week's time. The C....
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.... After receipt of the order of CIT A dated 30.09.2019 the AO passed giving effect order dated 01.02.2020. Aggrieved against this order the appellant duly filed before CIT(A) on 04.03.2020. If so, the reason given in the affidavit for the delay in filing the appeal before Hon'ble ITAT due to COVID-19 is blatantly a false reason. d) The reason given in the affidavit filed on 24-02-2022 that the "appeal could not be filed in time as the papers had been misplaced by one of office staff and the same could not be traced out" cannot be a true and correct reason for the delay of 302 days. When the appellant filed appeal before Hon'ble ITAT with a delay of 302 days, the basic requirement is filing of a petition for condonation of delay with true and genuine reasons for the delay. In the present case, the appellant did not bother to file petition for condonation of delay at the time of filing of appeal. Only after receipt of defect memo issued b Hon'ble ITAT the appellant filed a cryptic affidavit by giving false reasons in the affidavit that due to COVID-19 lock down the appeal was filed with a delay of 302 day. Such affidavit shall not be considered as true and correct re....
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....total corporate guarantee given by the appellant to their AE. 8.2 The ld. DR, on the other hand supporting the order of the ld. DRP submitted that, although the issue is covered in favour of the assessee by the decision of ITAT, Chennai benches for earlier assessment year, but fact remains that Assessing Officer/TPO has given valid reasons for computing corporate guarantee commission at 1% of total corporate guarantee. Therefore, he submitted that the issue may be decided in accordance with law. 8.3 We have heard both the parties, perused materials available on record and gone through orders of the authorities below. An identical issue has been considered by the tribunal in assessee's own case for earlier assessment year and by, considering relevant facts and also by following the decision of Hon'ble Bombay High Court in the case of CIT vs Everest Kento Cylinders Ltd (Supra), directed the TPO to compute corporate guarantee commission @ 0.5% to total corporate guarantee given by the assessee to their AE. The relevant findings of the Tribunal are as under: "6.3 We have heard both the parties, perused the materials available on record and gone through orders of the auth....
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....n that guarantee issued by an entity on behalf of its AEs, a SUBSIDIARY is international transaction. However, while benchmarking the rate of commission, no comparison can be made between guarantee issued by the commercial bank as against corporate guarantee issued by holding company for benefit for its AE subsidiary company for computing ALP of guarantee commission. The relevant observation of the Hon'ble Bombay High Court (supra) is reproduced as under: "The adjustment made by the TPO was based on instances restricted to the commercial banks providing guarantees and did not contemplate the issue of corporate guarantee. No doubt, these are contracts of guarantee, however, when they are commercial banks that issue bank guarantees which are treated as the blood of commerce being easily encashable in the event of default and if the bank guarantee had to be obtained from commercial banks, the higher commission could have been justified. In the present case, it is assessee-company that is issuing corporate guarantee to the effect that if the subsidiary AE does not repay loan availed of it from ICICI, then in such event, the Assessee would make good the amount and repay the loa....
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....the directions given by the Tribunal for the AY 2012-13. 9.1 The Ld. DR, on the other hand, supporting the order of the AO, submitted that the assessee has failed to make out a case of commercial expediency by bringing on record necessary evidences to prove that, what is the business advantage derived by the assessee by investing in equity capital of subsidiary company in Singapore. The Ld. DR further submitted that, the assessee had also failed to make out a case that investments made in Singapore Company will aid the business interest of the assessee. The Assessing Officer, after considering relevant facts has rightly disallowed interest expenses u/s. 36(1)(iii) of the Act and his order should be upheld. 9.2 We have heard both the parties, perused the materials available on record and gone through orders of the authorities below. There is no dispute with regard to the fact that M/s. Aban Holdings Pvt. Ltd., Singapore, is a 100% subsidiary of Assessee Company. It was also not in dispute that the assessee company and subsidiary companies are in the business of rendering services in connection with exploration of oil and gas. The assessee had owned rigs required for carrying o....
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....hen it will be a revenue expenditure. In the present case, it is an admitted fact that the wholly owned subsidiary company has already acquired shares and it is functioning. 31.2 In this case the assessee claimed the interest incurred on loan which was used for the purpose of purchase of shares as revenue expenditure, but it was not capitalized as part of the investment in shares. The contention of the DR was that it is to be added to the cost of the investment so as to increase the value of the capital asset. 31.3 In the present case, there is no dispute that the assessee has borrowed funds for the purpose of investment in shares and thereafter the assessee has incurred interest on it. In our opinion, the interest is to be considered as part of the cost of investment till date of acquisition and interest paid by the assessee commencing from the date of acquisition of shares till the date of sale would not form part of the cost of acquisition. 31.4 Further, it is a settled legal position that income of an assessee has to be computed under various heads specified under section 14 of the Act. Therefore, the deductions are to be allowed in computing the inco....
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.... is allowable as deduction in computing the income under the head 'Income from other sources', even where the dividend is not received in a particular year. If this is the legal position, then we are afraid, how the interest paid by the assessee can be considered as part of the cost of acquisition of the shares. If the contention of the assessee is accepted then it would amount to allowing double deduction i.e., under section 57 as well as under section 48 of the Act, which can never be the intention of the Legislature. As already stated, the double deduction is prohibited as laid down by the Supreme Court in the case of Escorts Ltd. (supra). The entire scheme of the Act, therefore, reveals that interest component after the date of acquisition and till the date of sale cannot be treated as the cost of acquisition. It is only allowable as a revenue deduction on year to year basis against the income generated from such asset or likely to be generated to the extent provided by the Legislature under different heads. 31.6 The above view is also fortified by the decision of the coordinate Bench of the Tribunal in the case of Macintosh Finance Estates Ltd. vs. ACIT(12 SOT 324), w....
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....so because the borrowed funds and own funds are admittedly mixed up in such cases, the disallowance of interest has to be made on proportionate basis and benefit has to be given to the assessee towards investment of own fund. It is also to be noted that while computing disallowance if any u/s. 36(1)(iii) of the Act, interest considered for disallowance u/s. 14A of the Act was required to be excluded. With this observation, we restore the issue to the file of the Assessing Officer for fresh consideration after necessary examination and after allowing opportunity of hearing to the assessee. In the result, ITA No.585/Mds/2016 is partly allowed for statistical purpose. 5. Respectfully following the aforesaid order of the Tribunal we are inclined to remit the issue to the file of AO on similar direction. Further, we direct the AO to verify whether the investment is made in subsidiary to have a controlling interest, or to avoid the dilution of controlling interest, or to keep the controlling interest intact as per object clause of Memorandum of Association of the assessee company and to decide thereupon. Hence, this ground is partly allowed for statistical purposes. 9.4 In th....
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.... the Tribunal, in the assessee's own case for the AY 2015-16, wherein, the Tribunal by following its earlier decision for the AYs 2007-08 & 2012-13, held that the payment made by Branch Office of the assessee at Dubai to non-resident service provider does not come under the definition of fee for technical services and thus, remitted the matter back to the file of the AO to examine the issue afresh in light of our discussions and Article-7 of DTAA between India and UAE. The relevant findings of the Tribunal are as under: "30. We have heard both the parties sides, perused the material available on record and gone through the orders of the authorities below. 31. The similar issue has been considered by the Coordinate Bench of the Tribunal in assessee's own case for AY 2012-13 in ITA No.450/Mds/2017 dated 19.06.2017, wherein the Hon'ble Tribunal has remitted the matter back to the file of AO by observing as under: "12. We have heard both the parties and perused the material on record. The Explanation incorporated in Section 9 declares that "where the income is deemed to accrue or arise in India under clause (v), (vi) and (vii) and sub-sec.(1), such income sha....
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....or the assessee, submitted that this issue is also covered in favour of the assessee by the decision of the ITAT Chennai Benches in assessee's own case for assessment years 2010-11 & 2011-12 in ITA No. 585/Mds/2016, where the Tribunal has directed the Assessing Officer to consider only those investments which yielded exempt income for the purpose of determination of disallowance u/s. 14A of the Act. 11.2 The ld. DR, on the other hand supporting the order of the ld. CIT(A) submitted that, although the assessee has earned exempt income, but did not made any disallowance of expenses relatable to exempt income. Thus, the Assessing Officer has rightly invoked Rule 8D of I.T. Rules, 1962 and computed disallowance and their order should be upheld. 11.3 We have heard both the parties, perused materials available on record and gone through orders of the authorities below. We find that an identical issue has been considered by the Tribunal in assessee's own case for assessment year 2016- 17 in IT(TP)A No. 30/Chny/2021, where the Tribunal held as under: "12.2 We have heard both the parties, perused the materials available on record and gone through orders of the authorities bel....
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....essee could not make out a case of facts with regard to additional grounds, which were already on record before the Assessing Officer and thus, additional grounds filed by the assessee may be rejected. 12.2 We have heard both the parties and considered petition filed by the assessee for admission of additional grounds and we find that grounds taken by the assessee are purely legal issues, which can be taken at any time of proceedings, including pending proceedings before the Tribunal. Further, the grounds raised by the assessee are in relation to credit for DDT paid on account of Dividend Distribution and facts with regard to said payment are already recorded in Form no. 26AS for the assessment year 2012-13. Therefore, we are of the considered view, that an additional ground filed by the assessee requires to be admitted and thus, we admit additional grounds filed by the assessee for adjudication. 13. The Ld. Counsel for the assessee, submitted that the assessee has declared dividend on 20.09.2012 and dividend distribution tax at Rs. 6,70,00,685/- is paid on 11.10.2012 and 19.10.2012 and the same is reflecting in Form no. 26AS for assessment year 2012-13. But, the ld. Assessin....
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....rovide any help in. expanding or managing assessee's business being not engaged in same line of assessee's business. 4. The Learned CIT(A) erred in allowing the assessee's appeal in light of the decision of Hon'ble Mumbai High Court in the case of Crescent Organics (P.) Ltd. vs. DCIT (IT Appeal No.337 of 2012) dated 30° July, 2014 wherein it has been held that interest paid on borrowals utilized for investments in a foreign company was not in course of assessee's business, its claim for deduction under section 36(l)(iii) was to be rejected. 5. The Learned CIT(A) failed to appreciate the fact that the assessee 1s not availing/providing any significant services apart from funding with M/s Aban Holding Pte Ltd., Singapore oriented related parties, hence, no significant correlation can be established in ease or expansion of assessee's business and investment made in M/s Aban Holding Pte Ltd., Singapore, as seen from year on year related party disclosure (Annexure 1), Consolidated & Standalone financials (Annexure 2 & 3). 6. The Learned CIT(A) failed to appreciate the fact that it can never be legislature's intention to allow in....
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....est u/s. 36(1)(iii) of the Act, but fact remains that said issue had already been adjudicated by the Tribunal in ITA No. 2575/Chny/2017 and set aside the issue to the file of the Assessing Officer by following its earlier decision in assessee's own case for assessment year 2012-13. Since, the issue had already been adjudicated and decided in ITA No. 2575/Chny/2017 for assessment year 2013- 14, the present appeal filed by the revenue becomes infructuous and thus, the appeal filed by the revenue is dismissed as infructuous. 17. In the result, appeal filed by the revenue in ITA No. 1672/Chny/2019 for assessment year 2013-14 is dismissed. IT(TP)A 21/Chny/2022 for assessment year 2017-18: 18. The first issue that came up for our consideration is Transfer Pricing adjustment towards corporate guarantee amounting to Rs. 61,44,100/-. The AO has made TP adjustment of Rs. 61,44,100/- towards corporate guarantee fee @ 1% on total corporate guarantee outstanding at the end of the year, on the ground that corporate guarantee given by the assessee to their AEs, is an international transaction, which needs to be bench marked to determine the ALP of the transaction. It was the submission o....
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....lowing its earlier decisions for assessment years 2010-11 to 2012-13, has set aside the issue to the file of the Assessing Officer and direct the Assessing Officer to verify the issue in accordance with the directions given by the Tribunal for the AY 2012-13 and decide the issue for the impugned assessment year. 19.1 The Ld. DR, on the other hand, supporting the order of the AO, submitted that the assessee has failed to make out a case of commercial expediency by bringing on record necessary evidences to prove that, what is the business advantage derived by the assessee by investing in equity capital of subsidiary company in Singapore. The Ld. DR further submitted that, the assessee had also failed to make out a case that investments made in Singapore Company, will aid the business interest of the assessee. The Assessing Officer, after considering relevant facts has rightly disallowed interest expenses u/s. 36(1)(iii) of the Act and his order should be upheld. 19.2 We have heard both the parties, perused materials available on record and gone through orders of the authorities below. We find that an identical issue has been considered by us in assessee own case for Asst. Year ....
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....nsideration from grounds of appeal filed by the assessee is denial of tax credit u/s. 90 of the Act for Rs. 5,61,46,049/-. The Ld. Counsel for the assessee, submitted that although the assessee has disclosed income earned from M/s. Aban Holdings Pvt Ltd., and paid tax, the Assessing Officer, has not allowed credit for foreign tax paid u/s. 90 of the Act, even though Article 25 of DTAA between India and Singapore allows claim for credit for tax paid in Singapore. Further, he submitted that this issue is covered in favor of the assessee by the decision of ITAT, Chennai Benches in assessee's own case for assessment year 2016-17 in IT(TP)A No. 30/Chny/2021, where the issue has been set aside to the file of the Assessing Officer. 21.1 The ld. DR, on the other hand fairly agreed that the issue may be set aside to the file of the Assessing Officer for further verification. 21.2 We have heard both the parties, perused materials available on record and gone through orders of the authorities below. We find that a similar issue has been considered by the Tribunal in assessee's own case for assessment year 2016-17 in IT(TP)A No. 30/Chny/2021, where the issue has been set aside to the fil....