TaxTMI 
TaxTMI 
2023 (10) TMI 1615
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.... the learned TPO erred in and the Hon'ble DRP further erred in confirming the action of TPO, inspite of the fact that the TPO could not prove that the conditions mentioned in clauses (a) to (d) of section 92C(3) of the Act were satisfied for warranting an adjustment to the income of the Appellant. 2. (a) On the facts and in the circumstances of the case and in law the learned TPO erred in and the Hon'ble DRP further erred in confirming adjustment of Rs.1,09,76,788 on account of not charging interest for delay in realization of debts and ought to have deleted the said addition in its entirety. (b) On the facts and in the circumstances of the case and in law, the learned TPO erred and the Hon'ble DRP further erred in applying the provisions of Chapter X to the credit extended by the assessee. (c) Without prejudice, on the facts and in the circumstances of the case and in law, the learned TPO erred in and the Hon'ble DRP further erred in upholding confirming the rate of 7% (i.e. LIBOR of 4% plus 3%) as arbitrarily determined by the TPO without any basis. 3. (a) On the facts and in the circumstances of the case and in law, the learned....
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....ction under section 10A of the Act. (c) Without prejudice to the above, on the facts and in the circumstances of the case, the learned AO has erred in not accepting and the learned Hon'ble DRP has further erred in not adjudicating on the ground that the expenditure incurred on telecommunication charges and expenditure incurred in foreign exchange outside India, if reduced from 'export turnover should also be reduced from the 'total turnover' while computing deduction under section 10A of the Act. 5. The (AO) at the time of giving effect to the DRP's order erred in allowing relief of Rs. 14,34,543 instead of Rs. 2,77,04,614 under section 90 of the Act with reference to the taxes paid in UK. 6. The learned Assessing Officer erred in directing levy of interest under sections 234B. The Appellant reserves the right to add to, alter or amend the grounds of appeal" 4. We proceed to adjudicate the issues raised by the assessee ground wise. 5. Ground No.1 is general in nature, accordingly, specific adjudication is not required. 6. With regard to, Ground No. 2 which is in respect of interest adjustment on delayed AE receivable ....
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....t of export proceeds realised belatedly cannot be faulted..." 10.2 We have also perused the decision of Hon'ble Bombay High in the case of CIT-16 v/s Mr Livingstone Ltd. as (supra) ".....4. The Tribunal by the impugned order rendered a finding of fact that the respondent-assessee has not charged any interest from third parties i.e. Non Associated Enterprises on delayed payments exceeding more than 300 to 400 days from the sale of goods. Consequently, it holds that once such delayed payment in respect of sale of goods made to third parties carries no interest, then adding of notional interest to delayed payments made by the Associated Enterprises is not called for. 6. In the present case also the Tribunal has rendered a finding of fact that the interest is not being charged in case of sales made to Non- Associated Enterprises for delayed payment just as in the case of Associated Enterprises. These finding of fact rendered by the Tribunal is not shown to be perverse in any manner..." 11. Considering the undisputed fact that assessee has also extended credit period to its non-associated enterprises without charging any interest on delayed payment, therefore,....
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.... and practices with regard to a US Dollar denominated extended credit for arriving at the benchmark rate, and take LIBOR as the base. Accordingly, the LIBOR (US Dollar) has to be as benchmark for US Dollar transactions rather than the rate of interest on domestic borrowings, even which is lower than the interest rate of 10 per cent taken as ALP by the TPO, or, for that purpose, rate of interest on any other currency loans. Having said that, we may also reiterate that as we hold so, we are not giving any decision on whether the ALP adjustment can be made, on the basis of LIBOR plus mark up, in respect of extended credit because we are dealing with a very limited issue in this appeal which does not require adjudication on the broader question as to whether an extended credit period can anyway be compared with a loan, much less a loan in some other currency which will have distinct lending rates depending on the peculiarities relating that currency, since it does not involve the lending period commitment as a loan necessarily involves. Be that as it may, the CIT(A) cannot thus be said to be in error in adopting the US Dollars LIBOR rate, with mark-up which is not in dispute for its be....
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.... the issue, the Coordinate Bench of the Tribunal in ITA. No. 2041/Mum/2010 dated 20.06.2023 held as under: - " 13. Heard both the sides and perused the material on record. The assessee has submitted before the lower authority and before the ITAT, during the course of appellate proceedings that it has not recovered any foreign currency expenses from the customers and it was not made part of the turnover. In this regard we have perused the decision of Jurisdictional High Court of Bombay in the case of assessee/Tech Mahindra Ltd. as referred (Supra) wherein held that expenses incurred in foreign currency on telecommunication charges and providing technical services outside India should be excluded from total turnover for the purpose of computation of deduction u/s 10A of the Act. We have also perused the decision of Hon'ble high Court of Karnataka in the case of Tech Mahindra Ltd. in ITA No. 205-206/2011 wherein also on the similar proposition it has been held that the impugned expenditure has to be excluded from the total turnover. During the course of assessment proceedings, assessee has also placed on record written submission that it has not separately recovered any freig....