TaxTMI 
TaxTMI 
2023 (9) TMI 1712
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....22 Disallowance of payment of royalty on technology paid to Cadbury Enterprises Pte Ltd Ground Nos. 23 to 27 Ground Nos. 23 to 27 Disallowance of service fees paid to Cadbury Enterprises Pte Ltd. Singapore Ground Nos. 28 to 30 Ground Nos. 28 to 30 Disallowance of service fees paid to Mondelez International Holdings LLC Ground Nos. 31 to 33 Ground Nos. 31 to 33 Adjustment on account of information technology charges Ground Nos. 34 to 37 Disallowance under section 14A of the Act read with Rule 8D Ground No. 34 Ground No. 38 Allocation of expenditure at Baddi Unit-I & II Ground Nos. 35 to 36 Ground Nos. 39 to 40 Short-granting of credit of taxes deducted at source Ground No. 37 Ground No. 41 Non grant of MAT credit Ground No. 38 Non grant of credit of distributed taxes paid Ground No. 39 2. The assessee also raised an additional ground in both AY 2013-14 and AY 2013-14 contending the validity of final assessment order passed under section 143(3) r.w.s. 144C relying on the decision of the Hon'ble Madras High Court in the case of Roca Bathroom Products Private Limited (WA No. 151....
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....e is having with its Associated Enterprises (AE). The TPO, vide order dated 31/10/2016 proposed a total adjustment of Rs. 253,73,00,819/- as per the break up given below: - Name of Adjustment Amount in (Rs.) Adjustment of Advertising and Marketing expenses 2,41,39,32,782 Adjustment of receipt of services from CEPT 5,63,20,192 Adjustment of receipt of services from MIHL 5,50,75,089 Payment of technical know-how royalty to CEPT 1,19,72,756 Total 253,73,00,819 5. The Assessing Officer passed the draft assessment order incorporating the TP adjustments. The Assessing Officer, besides the TP adjustment also made additions on the corporate tax front as listed below - (1) Disallowance under section 14A Rs. 6,79,072/- (2) Denial of deduction under section 80IC Unit I Rs. 12,10,78,108/- Unit II Rs. 40,41,80,939/- (3) Disallowance under section 40(a)(ia) Rs. 6,65,60,220/- 6. Aggrieved, the assessee filed its objections before the DRP. The DRP confirmed the adjustments/disallowances made by the TPO/Assessing Officer except for the disallowance made ....
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....cal issue, has followed the order of another order of the co-ordinate bench [A.Y.2009-10 (ITA No. 2214/Mum/2014] to decide the issue in assessee's favour by holding as under: - 10. We heard the parties and perused the materials on record. We notice that the co-ordinate bench in assessee's own case for A.Y.2009-10 (ITA No. 2214/Mum/2014) has considered the similar issue and held that - "23. Considered the rival submission and material placed on record. We notice from the records that the identical ground has already been decided by the Coordinate Bench of ITAT in ITA No. 1512/Mum/2013 for AY 2006-07 in assessee's own case on merits. For the sake of clarity, which is reproduced below: - 14. We have considered rival submissions and perused materials on record. Undisputedly, as could be seen from the material on record, in response to the show cause notice issued by the Transfer Pricing Officer the assessee had specifically submitted that there is no arrangement or agreement with the overseas A.E. for incurring AMP expenditure. It is also apparent the expenditure was wholly and exclusively incurred for marketing assessee's own products and the payment was made to thir....
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....002 and are being amended from time to time to meet the new challenges thrown up by the dynamism of the current commercial and business realities. Having regard to the object for which provisions have been enacted, applicability of the said provisions has to be limited to situations where there is diversion of profits out of India or where there may be erosion of tax revenue in intra group transaction. So, intra-group transaction is the first pre-condition for invoking the TP provisions. Calculation of ALP is the next and logical step. But, if the first step itself is missing, the AO cannot go to the second stage. In other words, the AOs cannot climb the second storey of a building without reaching to the first storey if the existence of an IT and calculation of ALP can be compared with a double storeyed building. 3.4.1. We find that the assessee is the market leader of the chocolate market in India, that it was commanding 70% of the market share in the year under appeal, that it had debited AMP expenses, amounting to Rs. 85.15 crores to its P& L a/c, that the net turnover of the assessee was of Rs. 766.21 crores, that it was 11.11% of the sales recorded by the assessee du....
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....nts of Section 37 while dealing with the TP adjustments, when he talked of the, higher expenditure 'and' justification' of such expenditure. In our opinion, the approach of the FAA was not in accordance with the basic philosophy of TP provisions. In our opinion, it is the assessee who has to decide how much to spend for earning his income. The tax authorities are prevented from entering into the proverbial shoes of the assessee to decide the justification of the expenditure. The Act stipulates that in certain conditions only the so called higher expenditure can be questioned. The FAA had not proved that the expenditure incurred by the assessee for advertisement etc. was covered by those sections. If it was the case then the transaction would not fall under section 92 of the Act. Therefore, in our opinion he had adopted a totally incorrect approach, while dealing the allowability of AMP expenditure. 3.4.2. We further hold that the claim of the assessee is factually correct that it had incurred the AMP expenditure for creating product awareness and to recall the value of existing products and that it had a local marketing strategy of making advertisement/slogans in the local....
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....re located in India. 3.4.3. We find that in the cases of Maruti Suzuki(supra), Whirlpool India(supra), Bausch & Lomb Eyecare (India) Pvt. Ltd (ITA 643 of 2014 of Hon'ble Delhi HC), the issue of AMP expenses had been deliberated upon extensively and each and every argument raised by the TPO/DRP have been analysed thread bare. We would like to reproduce relevant portion of the judgment of Bausch & Lomb Eyecare (India) Pvt. Ltd.(supra) and same reads as under: "53. A reading of the heading of Chapter X['Computation of income from international transactions having regard to arm's length price"]and Section 92 (1) which states that any income arising from an international transaction shall be computed having regard to the ALP and Section 92C (1) which sets out the different methods of determining the ALP, makes it clear that the transfer pricing adjustment is made by substituting the ALP for the price of the transaction. To begin with there has to be an international transaction with a certain disclosed price. The transfer pricing adjustment envisages the substitution of the price of such international transaction with the ALP. 54. Under Sections 92....
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.... contribution to the any cost or expenses incurred or to be incurred in connection with the - benefit, service or facility provided or to be provided to one or more of such enterprises. 57. Clauses (b) and (c) above cannot be read disjunctively. Even if resort is had to the residuary part of clause (b) to contend that the AMP spend of BLI is "any other transaction having a bearing" on its "profits, incomes or losses', for a 'transaction' there has to be two parties. Therefore for the purposes of the 'means' part of clause (b) and the 'includes' part. of clause (c), the Revenue has to show that there exists an 'agreement' or 'arrangement' or' 'understanding' between BLI -and B&L, USA whereby BLI is obliged to spend excessively on AMP in order to promote the brand of B&L, USA. As far as the legislative intent is concerned, it is seen that certain transactions listed in the Explanation under clauses (i) (a) to (e) to Section 92B are described as an 'International transaction'. This might be only an illustrative list, but significantly' it does not list AMP spending as one such transaction. 58. In Maruti ....
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.... de hors the element of the shared common Objective' or purpose the idea of "person acting in concert" is as meaningless as criminal conspiracy without any agreement to commit a criminal offence. The idea of "persons acting in concert" is not about a fortuitous relationship coming into existence by accident or chance. The relationship' can come into being only by design, by meeting of minds between two or more persons leading to the shared common objective or purpose of acquisition of substantial acquisition of shares etc. of the target company. It is another matter that the common objective or purpose may be in pursuance of an agreement' or an understanding, formal or informal; 'the acquisition of shares etc. may be direct or indirect or the persons acting in concert may cooperate in actual acquisition of shares etc. or they may agree to, cooperate in such acquisition. Nonetheless, the element of the shared common objective or purpose is the sine qua non for the relationship of "persons acting in concert" to come into being 60. The transfer pricing adjustment is not expected to be made by deducing from the difference between the 'excessive' AMP exp....
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.... in a transaction between persons other than AEs in uncontrolled conditions", Since the reference is to 'price' and to 'uncontrolled conditions' it implicitly brings into play the BLT. In other words, it emphasises that where the price is something other than what would be paid or charged by one entity from another in uncontrolled situations then that would be the ALP. The Court does not see this as a machinery provision particularly in light of the fact that -the-BLT has been expressly negatived by the Court in Sony Ericsson. Therefore, the existence of an international transaction will have to be established de hors the BLT. 70. What is clear is that it. is the 'price' of an international transaction which is required to be adjusted: The very existence of an international transaction cannot be presumed by assigning some price to it and then deducing that since it is not an ALP, an adjustment had to be made. The burden is on the Revenue to first show the existence of an international transaction. Next, to ascertain the disclosed 'price' of such transaction and thereafter ask whether it is an ALP. If the answer to that is in the negative the....
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....' assessment as a device to disallow what he considers to be an excessive expenditure. There is no corresponding 'machinery' provision in Chapter X which enables' an AO to determine what should be the fair 'compensation' an Indian entity would be entitled to if it is found' that there is an International transaction in that regard. In practical terms, absent a clear statutory guidance, this may encounter further difficulties. The strength of a brand, which could be product specific, may be "impacted by numerous other imponderables not limited to the nature of the industry, the geographical peculiarities, economic trends both international and domestic, the consumption patterns, market behaviour and so on. A simplistic approach using one of the modes similar to the ones contemplated by Section 92C may not only be legally impermissible but will lend itself to arbitrariness. What is then needed is a clear statutory scheme encapsulating the legislative policy and mandate which provides the necessary checks against arbitrariness while at the same time addressing the apprehension of tax avoidance.' 64. In the absence of any machinery provision, bringi....
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.... informal, between the assessee and the AE to share/reimburse the AMP expenses incurred by the assessee in India. In absence of such an agreement the first and primary precondition of treating the transaction-in-question an IT remains unfulfilled. Conducting FAR analysis or adopting an appropriate method is the second stage of TP adjustments. The first thing is to find out whether the disputed transaction in is IT or not. Without crossing the first threshold second cannot be approached, as stated earlier. In the case under consideration, we are of the opinion that AMP expenditure is not an IT and therefore we are not inclined to restore back the issue to the file of the AO. Considering the facts and circumstances of the case under consideration, we are of the opinion that the FAA was not justified in upholding the order of the TPO. Therefore, reversing his order, we decide second ground in favour of the assessee.' 15. Facts being identical, respectfully following the aforesaid decision of the Co- ordinate Bench in assessee's own case, we delete the addition made by the Assessing Officer towards transfer pricing adjustment on account of AMP expenditure. Ground raised is all....
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....sion of this very bench in assessee's own case for AY 2006-07 wherein the matter has been concluded in the following manner: - 7. We have considered rival submissions and perused materials on record. As could be seen from the order of the Transfer Pricing Officer, he has determined the arm's length price of royalty payment on trademark to SCOL at zero. In other words, he has disallowed royalty payment on trademark at 1% while allowing royalty payment on technical knowhow at 1.25% of net sales. The reasoning on which the Assessing Officer has denied royalty payment on trademark are basically that as per the terms of earlier agreement approved by the Government, the assessee can pay royalty for technical knowhow at the maximum rate of 2%, whereas, the assessee has paid royalty both for technical knowhow and trademark aggregating to 2.25%. He has also referred to the Press Note issued by the Government clarifying that royalty payment cannot exceed 2% and further the royalty payment for technical knowhow subsumes royalty payment for trademark. In this context, the Transfer Pricing Officer has also referred to similar dispute arising in the preceding assessment years. It is....
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....rned Commissioner (Appeals) has upheld the disallowance of royalty payment of trademark simply relying upon the order passed by him in assessee's own case for assessment year 2005-06. As could be seen from the material available on record, the assessee has entered into agreement with its current company in the year 1993, for availing technical knowhow for which it was required to pay royalty @ 2%. Subsequently, the assessee has entered into fresh agreements with the parent company for transfer of technical knowhow as well as use of trade mark for which assessee is required to pay royalty @ 1.25% and 1% of the net sales respectively. As could be seen from the materials placed on record, the payment of royalty for technical knowhow @ 1.25% has been approved by the Ministry of Commerce and Industry, Government of India, vide letter dated 14th September 2000 (copy is placed at Page-85 of the paper book). Similarly, payment of royalty for trademark @ 1% has been approved by the Reserve Bank of India, vide letter dated 25th June 2001, copy at Page-119 of the paper book. Thus, as could be seen, payment of royalty for trademark at 1% over and above the royalty paid at 1.25% for technical k....
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....independent source to benchmark the transactions. 39. On going through the records and the orders of the revenue authorities, we find that in so far as the payment of royalty on technical knowhow concerned, the assessee has been paying to its parent AE right from 1993, as, other group companies are paying across the globe. It has been accepted by the TPO that the payment does not effect the profitability of the assessee, if we are to examine the issue from that angle as well. In any case the payment of royalty on technical knowhow is at par with the similar payments from the group companies in other countries & region. Besides this, the payment is made as per the approval given by the RBI and SIA, Government of India. Hence there cannot be any scope of doubt that the royalty payment on technical knowhow is not at arm's length. 40. Coming to the issue of royalty payment on trademark usage, we find that the assessee, in fact is paying a lesser amount, if the payments are compared with the payments towards trademark usage, by the other group companies using the Brand Cadbury in other parts of the world. On the other hand, if we examine the argument taken by the TPO w....
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....de for use of technical knowhow. It is the say of the Transfer Pricing Officer that since as per the Government guidelines, payment of royalty on trade mark under the automatic route is fixed at the maximum rate of 1%. Royalty paid for trademark at 2.7% is not at arm's length. Accordingly, he has allowed payment of royalty for trademark at 1%. While doing so, the Transfer Pricing Officer has also observed that the agreement executed in December 2007, amending the terms of the original agreement having come in to existence after expiry of relevant financial year would not be applicable for a transaction undertaken in the relevant financial year. The learned Commissioner (Appeals) has also endorsed the aforesaid view of the Transfer Pricing Officer. No doubt, on a perusal of the agreement dated 1st June 2006 between the assessee and CAUSA it appears that the said agreement has been termed as trademark license agreement. However, reading the agreement as a whole and more particularly, Clause-7(b) of the said agreement, it becomes clear the licensee (the assessee) shall manufacture licensed product using any technology of the licensor provided to the licensee in accordance with all....
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....oth for trademark and technical knowhow, there is no reason why it should not be allowed in the impugned assessment year, since, it cannot be said that the assessee was manufacturing 'Halls‟ brand products without obtaining the required technical knowhow. Accordingly, we hold that payment of royalty to CAUSA is at arm's length. The ground is allowed. Respectfully following the same, we delete the impugned addition of Rs. 87.61 Lacs. Ground No. 4 stand allowed. With regard to disallowance of payment of royalty on on technology paid to Cadbury Enterprises Pvt. Ltd. 3.5.1 It was noted that the assessee entered into Technical collaboration Agreement dated 28/06/2007 with CEPT to avail the benefits of Technical Know-how, trade secrets etc. for mixed fruit flavored and strawberry flavored sugar noncoated center filled bubble gums / chewing gums. Another agreement was entered into with the same entity for Trademarks and copyright licenses in respect of products Bubbaloo, Bubba the Cat & Adams. As per agreement, the assessee paid Technical royalty @4% and Trademark Royalty @1%. Applying the same reasoning, it was held that CEPT was authorized to sublicense the rights of the ....
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....identical ground has already been decided by the Coordinate Bench of ITAT in ITA No. 7539/Mum/2012 for AY 2008-09 in assessee's own case on merits in which ITAT has restored the matter back to the file of AO with direction to enable the revenue to take a consistent stand in the matter and also to follow the ITAT order for Assessment Year 2006-07. We draw strength from the following decisions in which matter cannot be remanded back when the TPO has failed to follow the prescribed method u/s 92C: - i) Kodak India Pvt. Ltd. (2013) 37 taxmann.com 233 (Mum) ii) Barclays Bank PLC vrs. ADIT (90 taxmann.com 378) (Mum iii) Vedanta Ltd. Vrs. PCIT (ITA 303/2018, C. M. Appl. 10257/2018). 15. For the sake of clarity, the decision of ITAT in the case of Kodak India Pvt. Ltd. is reproduced below: - I. Section 92B, read with section 92C, of the Income-tax Act, 1961 - Transfer pricing -Meaning of international transaction - Assessment year 2008-09 - Assessee, an Indian company sold its medical imaging business to 'C' Ltd. another Indian company for USD 13.543 million - Being domestic transaction, assessee returned its income, disclosing sale tran....
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....the submission of Ld. AR. Accordingly, these grounds raised by the assessee are allowed.' 17. One of the grounds on which the TP adjustment is contested by the assessee is that the TPO has computed the ALP based on an adhoc estimation of salary and the number of man hours. The Ld AR submitted that the TPO has not followed the CUP method but has arrived at the ALP on some estimation. It was further submitted that the determination of ALP cannot be done except under one of the methods as prescribed in section 92C (1) and therefore the TPO's computation of ALP based on adhoc assumptions is not correct. We notice that the TPO while arriving at the ALP has used the estimated salary and also used earlier years man hours to determine the current year man hours spent. In the above decision, the coordinate bench has considered the issue of determination of ALP by the TPO and has held that the TP adjustment is not tenable by relying on the decision in the case of Kodak India Pvt. Ltd (supra) where it is held that - 64. On the other legal issue that whether the TPO was correct to employ an alien method for arriving at the ALP. Once again, relevant section is very clear, ....
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....P.) Ltd., (supra), in paras 22.10 and 22.11, pages 128 and 129, observes, "As regards the contention that methods are tools for determining the ALP, we find that there is dispute that there is no dispute the main purpose of Chapter X is to determine the ALP of an international transaction, but such determination can be done only by way of the methods specified by the statute. When the Legislature has specifically enshrined a provision under section 92C requiring the computation of ALP by any of the prescribed methods, it does not fall in the realm of the TPO or for that matter any other authority to breach such mandate and apply or direct to apply any other method. Going by the dictate of the provision as subsists under subsection (1) of section 92C, there can be absolutely no doubt on adoption of any single method of those set out in section. Rule 10B has specified a set procedure to be followed for determining the ALP distinctly under the five methods. It is equally not permissible to invent a new procedure and try to fit such procedure within any of the existing procedures prescribed as per these methods. No one is authorized to add one ore more new steps in the prescri....
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....dia and, therefore, there has been no tax based erosion. The assessee further submitted that as per the benchmarking done, the comparable companies earn an average margin of 9.22% on operating cost whereas CHL has charged cost plus 5% for the services provided and accordingly, it was submitted that the transaction is within arm's length price. The TPO rejected the submissions of the assessee and applied CUP method where he has applied the amount / rate of Rs. 6,250 to be the arm's length compensation for the services rendered. The TPO made the TP adjustment based on the man-hours of services rendered by the AE at 3913 hours to arrive at the ALP of Rs. 2,44,56,250/- and made the TP adjustment for the difference of Rs. 14,56,22,330/-. 19. The Ld.AR submitted that this issue is also covered by the decision of the coordinate bench in assessee's own case for A.Y. 2009-10. The Ld.AR further brought to our attention that the assessee raised a Miscellaneous Application with regard to the finding given by the Hon'ble Tribunal in the order 17.02.2021 and that the Hon'ble Tribunal passed the order in M.A. vide order dated 31/08/2021 substituting "3. The contents of misc. application ....
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....wed the issue while following the decision of the Co-ordinate Bench of the Tribunal rendered in Kodak India Pvt. Ltd. v/s ACIT, [2013] 37 taxmann.com 233 (Mum.). Since the issue raised in these grounds no. 11 to 13, are identical to the issue decided by us in grounds no. 8 to 11 vide Para-14, 15 and 16, as aforesaid, consistent with the view taken therein, we set aside the impugned order passed by the learned CIT(A) and allow these grounds. Thus, grounds no. 11 to 13, are allowed.' We have already held in the earlier part of this order that the determination of ALP without applying any methods as prescribed under section 92C(1) by the TPO is not tenable. We notice that the TPO has computed the TP adjustment towards global services rendered by Cadbury Holdings Limited also in the same way by applying adhoc estimation of salary cost and man hours. Therefore our decision with respect regional service fee paid to Cadbury Enterprises Pte Ltd., is equally applicable to the current issue under consideration also. Therefore considering the decisions of the coordinate bench in assessee's own case for AY 2009-10 and in the case of Kodak India Private Ltd., (supra) we hold that t....
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....al funds investment on regular basis and the total salary paid to them was Rs. 9.20 Lacs therefore, a part of the same could be disallowed. The arguments were also raised to submit that investments were made out of reserves and surplus. However, not satisfied, Ld. AO, applying Rule 8D, worked out aggregate disallowance of Rs. 233.04 Lacs which comprised-off of direct disallowance u/r 8D(2)(i) for Rs. 9.20 Lacs, interest disallowance u/r 8D(2)(ii) for Rs. 80.56 Lacs and indirect expense disallowance u/r 8D(2)(iii) for Rs. 143.28 Lacs. The direct expense disallowance u/r 8D(2)(i) for Rs. 9.20 Lacs is the same disallowance which has been offered by the assessee against Treasury department expenses. The disallowance, upon confirmation by learned DRP, is under appeal before us. 5.2 The arguments of Ld. Sr. Counsel are two-fold viz. (i) Ld. AO has not recorded requisite satisfaction before proceeding to compute disallowance as per Rule 8D; (ii) The assessee had surplus funds to make the investments and therefore, the presumption that the investments were out of surplus funds stood in assessee's favor by the judgments of Hon'ble Bombay High Court rendered in in HDFC Bank Ltd. V/s....
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....anted under section 14A r.w.r.8D of the Act. With regard to the contention that the suo motu disallowance we notice that the Assessing Officer in the OGE passed for AY 2009-10 has deleted the disallowance made under section 14A and therefore we see merit in the submission of the ld AR that the suo moto disallowance based on the salary of employees in treasury department is being accepted by the revenue. We therefore remit the issue of verification of direct / indirect expense disallowance to the file of Ld. AO for re-adjudication in the light of suo-moto disallowance offered by the assessee i.e. of Rs. 3,44,215/- keeping in mind the fact that for AY 2009-10 the suo motu disallowance based on salary of employees in treasury department has been accepted by the Assessing Officer. Needless to say that the assessee be given an opportunity of being heard. It is ordered accordingly. 19. For the year under consideration also we notice that the assessee is having sufficient own funds which is more than the investments made. Further the assessee has made a suo moto disallowance of Rs. 81,000 towards salary paid to personnel working in Treasury Department. Therefore the facts and circumsta....
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....on also. Therefore, respectfully following the earlier decision of the co-ordinate bench, we delete the disallowance made by the Assessing Officer. These grounds of the assessee are allowed. 22. With regard to Ground No. 37 pertains to short grant of credit of taxes deducted at source and Ground No. 39 relating to non-grant of credit for dividend distribution tax paid, the ld AR submitted that the assessee has filed a petition under section 154 before the assessing officer on 02nd January, 2019, which is not yet disposed of. In this regard we direct the Assessing Officer to verify the claim of the assessee made in the petition filed under section 154 and allow the claim in accordance with law. These grounds are allowed for statistical purpose. 23. Ground No. 38 pertains to non grant of MAT credit. We find that the Tribunal while considering the appeal for A.Y. 2011-12 has observed as under with regard to similar issue: - "36. The Ld.AR submitted that the MAT credit is carried forward from A.Y. 2010-11 and the credit was modified due to additions made in the assessment order for A.Y. 2010-11. The Ld.AR further submitted that the Tribunal vide order dated 14th November....