SBS TRANSPOLE LOGISTICS PVT. LTD.,GURGAON vs. ACIT, CIRCLE- 22(2), NEW DELHI
What did the Tribunal hold?
The Tribunal held that a 0.5% guarantee commission is at arm's length, reducing the TPO's enhancement. For interest on loans, the Tribunal directed the TPO to apply LIBOR + 2% as the arm's length benchmark, finding the TPO's addition of 5.5% to be excessive.
What were the facts?
The assessee company, engaged in international freight forwarding, provided a corporate guarantee to its associated enterprise (AE) without charging any commission. The assessee also provided interest-free loans to its AEs. The TPO made transfer pricing adjustments for both guarantee commission and interest on loans.
What were the issues?
The key issues were the appropriate arm's length price for corporate guarantee commission and the appropriate interest rate for loans advanced to associated enterprises.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cases cited in this judgment(6)Show listHide list
Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.
- CIT v. Everest Kento Cylinders Ltd.304 citing58 Taxmann.com 254 · 2015 · HC · Read judgment
- CIT v. Cotton Naturals (I) (P.) Ltd.273 citing55 Taxmann.com 523 · 2015 · HC · Read judgment
- CIT v. Tata Autocomp Systems Ltd.119 citing374 ITR 516 · 2015 · HC
- Hindalco Industries Ltd. v. ACIT30 citing69 Taxmann.com 443 · 2005
- 10 Glenmark Pharmaceuticals Ltd. v. Addl. CIT26 citing43 Taxmann.com 191 · 2014
- Aditya Birla Minacs Worldwide Ltd. v. JCIT21 citing41 Taxmann.com 386 · 2014 · ITAT
Income Tax Appellate Tribunal, DELHI BENCH ‘I-2’ : NEW DELHI
Before: SHRI AMIT SHUKLA & DR. B.R.R. KUMAR
Date of Hearing : 11.03.2022 Date of Order : 06.05.2022
O R D E R PER AMIT SHUKLA, JM
The aforesaid appeal has been filed by the assessee against the final assessment order dated 31.07.2017, passed under section 144C(3) read with section 143(3) of the Income-tax Act, 1961 (for short ‘the Act’) in pursuance of the direction given by the ld. Dispute Resolution Panel (DRP)- 2, New Delhi for the assessment year 2013-14.
In various grounds of appeal, the effective issue which has been raised is with regard to firstly, the DRP has erred on law and fact in upholding the action of the TPO for enhancing the income of the assessee by commission @ 4.65% as against ‘nil’ shown by the assessee; and secondly, TP adjustment of Rs.63,31,572/- on account of interest receivables on loan given to AE by applying the rate of LIBOR + 550 BPS on interest free loans advances to Associated Enterprises (AES). The other grounds have not been pressed or argued.
Facts in brief are that the assessee company is engaged in the business of international freight forwarding by air freight services, sea freight services, international railway services and transportation. The main dispute regarding the transfer pricing adjustment in the international transaction with AE was with regard to providing guarantee to AE, Transpole Logistics, Singapore which was as under :-
AE Nature of Amount as Amount Business shown in the reflected in Transaction TP analysis the Books of (Rs.) Accounts (Rs.) Transpole Logistics, Stand By 60,00,000 15,60,00,000 Singapore Letter of Credit (Guarantee)
The assessee has provided guarantee to enable SBI Singapore to lend working capital loan to subsidiary, Transpole Logistics Pte Ltd., Singapore, for which it was stated that it has not incurred any cost for issuing guarantee nor has charged any commission from its subsidiary. In the TP analysis, it was stated that there was no impact on the profit, income, loss or assets of either of the company on account of providing guarantee. external CUP and called for data from various banks u/s 133(6) which are as under :-
Sl.No. Name of Bank Bank Guarantee rates 1 Syndicate Bank 2.50% 2 SBI 1.30% 3 Punjab & Sind Bank 3% 4 Indusland Bank 2% 5 South Indian Bank 3.40% 6 Federal Bank 3% 7 PNB 3% 8 Karur Vysya Bank 3% Average 2.65%
Accordingly, he made adjustment by taking arm’s length of computation of commission of the corporate guarantee fee in the following manner :-
AE Nature of Amount Rates of Arms Length Adjustment Business reflected in Commission/ Rate of (Rs.) Transaction the Books of Charge/Fee Commission/ Accounts earned by the Charge/Fee (Rs.) assessee Transpole Stand By 15,60,00,000 Nil 4.65% 72,54,000 Logistics, Letter of Singapore. Credit provided (Guarantee)
Thereafter, ld. TPO noted that assessee has provided loans to various AEs in the previous years but no interest has been charged, the details of which are as under :- ./2017 Transpole Container Lines Loan Opening – 39,93,500 5,53,78,729 Ltd., India Advanced 5,93,72,229 Closing – 5,09,93,554 Transpole Logistics, - 2,22,36,500 2,22,36,500 Singapore Transpole Logistics, - Opening – 1,24,26,000 Hongkong 1,24,26,000 Transpole Logistics, - Opening 91,74,600 Malaysia 91,74,600 Closing – Nil Transpole Logistics, Korea - Opening – Nil 1,31,68,100 Closing – 1,31,68,100 Transpole Logistics - Opening 4,85,21,000 Holdings, Hongkong 1,26,50,000 Closing – 4,85,21,000
The ld. TPO had taken US LIBOR + 550 basis points for benchmarking the interest and applied 6% interest rate to make the adjustment and computed in the following manner :-
AE Nature of Amount as Amount Difference Rate of Amount in (Rs.) Business shown in reflected in interest Transaction the TP the Books analysis of Accounts (Rs.) Transpole Stand By 60,00,000 156000000 9600000 4.65% 7254000 Logistics, Letter of Singapore Credit (Guarantee) Transpole Opening 55182892 12.86% 7096519.8 Container 5,93,72,229 39,93,500 Lines Ltd. Closing – 5,09,93,554 Transpole - 2,22,36,500 22236500 6% 1334190 Logistics, Singapore 6% Loan Transpole - Opening – 12426000 745560 advanced Logistics, 1,24,26,000 ./2017 Hongkong Closing Nil 6% Transpole - Opening – 9174600 550476 Logistics, 91,74,600 Malaysia Closing-Nil 6% Transpole - Opening-Nil 13168100 790086 Logistics, Closing – Korea 1,31,68,100 6% Transpole - Opening – 48521000 2911260 Logistics 1,26,50,000 Holdings, Closing – Hongkong 4,85,21,000 Total 2,06,82,092
Before us, ld. Counsel for the assessee on the issue of guarantee commission, apart from stating that it was not an international transaction and there is not an impact on the profit, income, loss or assets of either of the company due to this transaction based on certain judgments cited before us, ultimately agreed that commission on corporate guarantee as charged by the TPO is much higher. It was stated that, now there are umpteen numbers of judgments wherein it has been held that bank rates cannot be considered as a comparable arm’s length rate to corporate guarantee rate, for which reliance was placed on the following decisions where 0.5% guarantee commission has been held to be reasonable :-
S. Case law Citation Rate No. 1 Dabur India Ltd. vs. ACIT TS-82-ITAT-2021(DEL)-TP 0.30% 2 Manugraph India Ltd. vs. TS-113-ITAT-2015(MUM)-TP 0.50% DCIT 3 Everest Kanto Cylinders vs. 58 taxmann.com 254 (BOM HC) 0.50% DCIT 4 Asian Paints Ltd. (upheld by TS-297-ITAT-2013(MUM)-TP 0.20% ./2017 Bombay HC) 5 Thomas Cook (India) Ltd. 69 taxmann.com 443 (Mumbai 0.50% (2016) Trib.) 0.50% 6 Godrej Household Products 41 taxmann.com 386 (Mum.- Ltd. (2014) Trib.) 0.50% 7 Nimbus Communication Ltd. 42 taxmann.com 139 (Mum) 8 M/s. Reliance Industries TS-260-ITAT-2013 (MUM)-TP 0.38% Ltd. 9 Prolifics Corporation Ltd., ITA No.237/Hyd./2014 0.53% Hyderabad
On the issue of interest, ld. counsel for the assessee submitted that TPO/DRP has added higher rate of interest i.e. LIBOR + 550 BPS for calculating interest on loan to subsidiaries and stated that suitable benchmark is only to be taken as LIBOR as held by Hon’ble Delhi High Court in the case of CIT vs. Cotton Naturals (I) Pvt. Ltd. 55 taxmann.com 523. In any case, it is stated that if at all, in order to take risk adjustment, at best it would be added at 2% and not 5.5% as has been held in the case of Tata Autocomp Systems Ltd. 374 ITR 516. He further relied upon the following judgments wherein following rates have been applied :-
S.No. Case Law Citation Rate Established 1 Aithent Technologies Pvt. Ltd. TS-8-ITAT-2021 (DEL)-TP Libor + 1.7% 2 Aithent Technologies Pvt. Ltd. Libor + 1.7% 3 Manugraph India Ltd. vs. DCIT TS-113-ITAT-2015 (MUM)-TP Libor + 2% 4 ACIT VS. CCL Products Ltd. ITA 192 7 193/Vizag/2017 2% interest considered at arm’s length 5 Siva Industries & Holdings Ltd. (2012) 145 TTJ 197 (Chennai) Libor+ 1.58% vs. ACIT 6 UFO Moviez India Ltd. [TS-883-HC-2016 (DEL)-TP] Libor+ 2.47% 7 Everest Kanto Cylinders vs. ITA No.550/Mum/2014 Libor + 2% DCIT 8 PMP Auto Components P. Ltd. ITA No.1484/Mum/2014 Libor + 2% 9 Tata Autocomp Systems Ltd. 374 ITR 516/56 taxmann.com 206 Euribor+0.8% 10 Kohinoor Foods Ltd. (2014) ITA Nos.3688- Libor + 0% 3691/Del/2012
On the other hand, ld. DR for the Revenue strongly relied upon the order of the DRP stating that detailed reasoning has been given for confirming the TPO action.
We have heard the rival submission and also perused the relevant finding given in the impugned orders. The controversy before us which has been argued by the parties is limited to, whether how much guarantee commission should be charged for providing guarantee to AE and how much interest should be charged on the loan given to AEs. Insofar as guarantee commission is concerned, admittedly assessee has not shown any commission, however the argument that guarantee commission of 4.56% charged by the TPO is on higher side and external CUP for using the data from the guarantee profit by the bank cannot be used in intra-group guarantees appears to be acceptable on the facts of the case. We find that there has been consistent view by various Benches of the Tribunal and Hon’ble Bombay High Court in the case of Everest Kanto Cylinders 58 taxmann.com 254 and Glenmark Pharmaceuticals Ltd. 43 taxmann.com 191 (supra)wherein 0.5% of the guarantee commission has been held to be at arm’s length. Accordingly, respectfully following the aforesaid decisions which is also in consistent with various decision of the coordinate Benches of the Tribunal as cited supra, we hold that the guarantee commission of 0.5% will be at arm’s length and accordingly, TPO 0.5%. Accordingly, grounds no.1 & 2 are partly allowed.
Insofar as the issue of adjustment on account of interest, the TPO/DRP has held that LIBOR + 550 BPS on interest free loan advanced to AEs should be at arm’s length price. It is not in dispute that assessee has not charged any interest on loan given to foreign AEs. Application of LIBOR should be a suitable benchmark which also has been admitted by the TPO.
However, he has added 5.5% over and above LIBOR which on the facts and circumstances of the case is much higher. Looking to the fact that in most the cases, the coordinate Benches of the Tribunal have held that 1 to 2% is sufficient over and above the LIBOR rate to meet the arm’s length price.
Accordingly, we direct TPO to apply LIBOR + 2% for benchmarking the interest rate which should meet the arm’s length price. Accordingly, grounds no.3 & 5 are partly allowed.
Ground no.4 is not pressed, hence the same is dismissed as not pressed.
In the result, the appeal filed by the assessee is partly allowed.
Order was pronounced on 6th day of May, 2022.
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