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Facts
The assessee company incurred interest expense on non-convertible debentures. A portion of this interest was capitalized to inventory, and the remaining was debited to the profit and loss account. The assessee suo moto disallowed a portion of the interest expense as per Section 94B. The Assessing Officer (AO) and Transfer Pricing Officer (TPO) proposed an adjustment for the entire interest expense, which was confirmed by the Dispute Resolution Panel (DRP) with a direction to avoid double disallowance. The AO passed the final order incorporating the TPO's proposed adjustment without fully adhering to the DRP's directions.
Held
The Tribunal held that Section 94B applies only to expenditures that are deductible in computing income. Since the capitalized interest was not claimed as a deduction in the current year, it could not be disallowed under Section 94B. The Tribunal found that the final assessment order was not in conformity with the DRP's directions regarding avoiding double disallowance and that the TPO erred in using Section 94B restrictions for benchmarking.
Key Issues
Whether the disallowance of interest expense under Section 94B is valid when a portion of the interest was capitalized and not claimed as a deduction, and whether the final assessment order was passed in conformity with the DRP's directions, particularly regarding the avoidance of double disallowance.
Sections Cited
143(3), 144C, 94B, 92CA, 234A, 234B, 270A
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Income Tax Appellate Tribunal, “K” BENCH MUMBAI
Before: SHRI PAWAN SINGH & SHRI GIRISH AGRAWAL
PER GIRISH AGRAWAL, ACCOUNTANT MEMBER:
This appeal filed by the assessee is against the order of CIT, Dispute Resolution Panel-1, Mumbai, vide order no. ITBA/DRP/F/144C(5)/2024-25/1064665316(1) dated 06.05.2024, passed u/s. 144C(5) of the Income-tax Act, 1961 (hereinafter referred to as the “Act”), for Assessment Year 2020-21.
Grounds taken by the assessee are reproduced as under: “1. On the facts and circumstances of the case and in law, the Appellant not being an 'eligible assessee' within the meaning of section 144C(15)(b) of the Act, the Learned Assessing Officer (Ld. AO) erred in passing a draft order under section 143(3) r.w.s. 144C(11) of the Act instead of an assessment order under section 143(3) of the Act.
2. On the facts and circumstances of the case and in law, the Ld. AO erred in passing the assessment order under section 143(3) r.พ.ร. 144C(13) of the Act, which is barred by limitation, bad in law and ought to be quashed.
3. On the facts and circumstances of the case and in law, the impugned final assessment order passed by the Ld. AO in pursuance of the directions of the Dispute Resolution Panel (hereinafter referred to as 'DRP') under section 143(3) read with section 144C read with section 1448 of the Act, is bad in law and void ab-initio as learned AO failed to consider direction of DRP to avoid double disallowance of amount already disallowed by Appellant under section 948 of the Act and thereby bad in law and out to be annulled or quashed.
4. On the facts and circumstances of the case, the learned Transfer Pricing Officer 1(2)(1), ('TPO') erred in proposing upward adjustment on account of interest on Non-Convertible Debentures ('NCDs') amounting to Rs. 31,40,82,376 as Arm's length Price ('ALP") merely placing reliance on provisions of section 948 of the Act, thereby acting without jurisdiction, order ought to be quashed being bad in law.
5. On the facts and circumstances of the case and in law, the Ld. AO erred in not considering the interest expenditure of INR 17,79,08,415 suo moto disallowed by the Appellant in the return of income while passing the impugned assessment order section 143(3) r.w.s. 144C(13) r.w.s 1448 of the Act.
6. On the facts and circumstances of the case and in law, the Ld. AO and TPO erred in computing disallowances under section 948 of the Act amounting to INR 31,40,82,736-being total interest on NCD without considering the fact that such interest claimed as deductible expenses as per provisions of section 948 of the Act have been duly disallowed in Return of Income.
7. On the facts and circumstances of the case and in law, the Hon'ble DRP erred in confirming the disallowance of the expenses to the tune of INR 13,61,74,321 which have not been claimed as allowable expenses as not debited to the statement of profit and loss as such interest on NCD pertaining to on-going project debited to cost of inventory under head "Work-in-progress" without considering the fact that such interest have been disallowed in subsequent year in which it was debited to profit and loss account resulting in double disallowance of same expenditure in different AY, thereby requested to allow specific direction to delete such disallowance or allow to rectify the return of income of subsequent year.
On the facts and circumstances of the case and in law, the Ld. AO erred on facts and in law in computing the income of the Appellant at INR 33,18,30,871 against the income of INR 1,77,48,135 returned by the Appellant.
9. On the facts and circumstances of the case and in law, the Ld. AO erred on facts and in law in non-granting the credit of taxes deducted at source amounting to INR 99,17,889 as claimed in the return of income by the Appellant.
10. On the facts and circumstances of the case and in law, the Ld. AO erred on facts and in law in non-granting set off of brought forward business losses of INR 8,82,23,855.
11. On the facts and circumstances of the case and in law, the Ld. AO erred in levying interest under section 234A of the Act. 12. On the facts and circumstances of the case and in law, the Ld. AO erred in computing interest under section 2348 of the Act. 13. On the facts and circumstances of the case and in law, the Ld. AO erred in initiating penalty proceedings under section 270A of the Act.”
2.1. Assessee has also moved an application dated 28.08.2024 for taking additional ground which is reproduced as under: “On the facts and circumstances of the case and in law, if Ld. AO contention is accepted that a sum of Rs 13,61,74,321 not debited to profit and loss account to be considered for disallowances under section 94B then in such case "profit before tax" shall be recomputed considering such an amount of Interest Rs 13,61,74,321 and accordingly there shall be no impact on total taxable income of Appellant.”
2.2. There being objection on the admission of the said ground, it is admitted for adjudication.
For ground No.2, relating to legal issue raised by the assessee that the impugned assessment order is barred by limitation, assessee made a submission vide letter dated 25.03.2025 by stating that it does not press on this ground but at the same time also does not wish to withdraw it but be kept upon. Accordingly, this ground is not adjudicated upon and left open.
We have heard both the parties and perused the material on record. We have also given our thoughtful consideration to submissions made along with the written submission by the assessee and material placed in the paper book as well as several judicial precedents in the form of legal paper book.
4.1. Ground No. 3 to 8, all relate to one single controversy on the allowability of interest expense incurred by the assessee, which is subjected to provisions of section 94B. We take up all these grounds together and deal with various aspects of the issue raised by the assessee.
Assessee is engaged in the business of development and construction of townships, construction of residential commercial premises, buildings and development of lands. It filed its return of income of 22.10.2021, reporting total income at Rs 1,77,48,135/. During the year, assessee had only one international transaction, which was reported in Form 3CE, details of which is tabulated below:
Sr.No. Nature of Name of AE Amount Method international (in Rs.) Adopted by transactions Assessee for benchmarking 1 Interest on Be Choice 32,40,00,000/- Other Method non- Investments convertible Pte Limited Debentures (“NCDs”)
5.1. Reference was made u/s. 92CA(1) by the ld. Assessing Officer to the ld. Transfer Pricing Officer (TPO) for determination of Arms Length Price (ALP) for the aforesaid transaction entered into by the assessee. Assessee had paid interest of Rs. 32.40 crores to its Associate Enterprise (AE) on non-convertible debentures. The treatment given by the assessee for this interest in its return of income and books of accounts is tabulated below: Particulars Amount (in Rs.) Interest accrued on Non-convertible 32,40,00,000 Debentures issued to Associated Enterprise during AY 2020-21 (A) (Less): Interest capitalised to inventory (14,60,91,585) work in progress (B) [No deduction claimed by the Appellant Company during AY 2020-21]
Interest debited to the statement of profit 17,79,08,415 and loss and claimed as deduction (A-B-C)
5.2. From the aforesaid table, it is noted that assessee has capitalized part of the interest amounting to Rs.14,60,91,585/- to the inventory of WIP and did not claim a deduction while computing its profit and gains from business, only an amount of Rs.17,79,08,415/- was debited to the profit and loss account. Further, while computing income under the profit and gains from business or profession, in respect of amount debited to profit and loss account, out of the total interest of Rs. 32.40 crores, assessee suo moto disallowed interest, by applying provisions of section 94B, restricting its deduction to 30% of its earnings, before interest, taxes, depreciation, and amortization (EBITDA). The working in this respect is tabulated below:
Particulars Amount (in INR) Earnings before interest, taxes, depreciation and 3,21,69,877 amortisation (EBITDA) (D)
30% of EBITDA (E = 30%*D) 96,50,963
Excess interest disallowed by Appellant u/s 16,82,57,452 94B (F = C-E)
5.3. Thus, assessee in effect, had claimed a deduction of Rs. 96,50,963/- out of the total interest expense of Rs. 32.40 crores, while computing its income under the head profit and gains from business or profession. Ld. TPO by referring to provisions of section 94B was of the view that if the interest paid or payable by the assessee is more than 30% of EBITDA, then the same is not allowable as per the said section, for which he issued a show cause notice, content of which are reproduced in para 5.3 of his order. On perusal of the same, we note that ld. TPO has asked the assessee to show cause as to why the ALP price of interest paid by the assessee to its AE on its borrowings should not be computed as per Section 94B of the Act, using the “other method” as most appropriate method (MAM). After taking into account submissions made by the assessee and deliberating on the concept of thin capitalization, ld. TPO in para 5.7 of his order, took the restriction imposed by section 92B as a reference for benchmarking, the impugned international transaction of payment of interest on NCDs for arriving at its ALP. Ld. TPO thus, applied “other method”, whereby conditions prescribed in section 94B were taken for the purpose of benchmarking. Accordingly, he arrived at figure of Rs.31,40,82,736/- as the excess interest paid by the assessee for proposing adjustment to ALP. The working made by the ld. TPO in this respect by applying provisions of section 94B to use the other method is tabulated below:
Particulars Amount(in Rs.) Total Income (A) 9,94,09,576 Expenses Employee Benefit expense 2,69,91,997 (B)
Other expenses 3,93,60,032 6,63,52,029
Earnings before interest, (C) 3,30,57,547 taxes, depreciation and amortization (EBIDTA) profit of the assessee 30% of EBIDTA profit (D) 99,17,264 As per section 94B of the 31,40,82,736 Income-tax Act, 1961, excess interest is amount of total interest paid i.e., Rs. 32,40,00,000 is excess of 30% of (C)
(32,40,00,000-99,17,264)
5.4. In addition to the proposal made by ld. TPO for an upward adjustment on account of interest on NCDs, he also stated in his order that the Ld. Assessing Officer may independently examine the applicability of section 94B in the case of the assessee, as noted by him in para 6.
5.5. Subsequently, a draft assessment order, dated 30.09.2023 was issued by the Ld. Assessing Officer, u/s. 144C(1) incorporating the proposal made by Ld. TPO for an upward adjustment of Rs.31,40,82,736/-. However, while making this draft order, there is nothing mentioned about his independent examination about the applicability of section 94B, as suggested by Ld. TPO. Assessee filed objections against the draft order before the ld. Dispute Resolution Panel-1, Mumbai (DRP). Factual position noted by ld. DRP on the objections raised by the assessee as contained in para 2.2, states that Ld. TPO had passed the order u/s. 92CA(3) wherein as per section 94B excess interest amounting to Rs.31,40,82,736/-, i.e., total interest paid minus 30% of EBIDTA was proposed as an upward adjustment to ALP of the international transaction undertaken by the assessee.
5.6. Assessee furnished its factual position corroborated by documentary evidence before the ld. TPO on the claim of deduction towards interest on NCDs, details of which are already tabulated above and therefore not reiterated here. It was asserted that ld. TPO had completely ignored the fact that assessee itself had made calculation u/s.94B and suo moto disallowed the correct amount of excess interest in the return filed by it, fact of which was duly placed on record in the said proceedings before the ld. TPO. Assessee also claimed that interest which was not debited to the profit and loss account and not claimed as a deduction by the assessee in its return of income cannot be subjected to the provisions of section 94B. Unless and until an expenditure i.e., interest is deductible in computing the income chargeable under the head ‘profits and gains of business or profession’, the said expenditure can never be disallowed u/s.94B of the Act. Assessee also asserted that part of interest was capitalized in inventory of WIP. Since it followed percentage completion method, such interest expenditure was recognised in the profit and loss account in the subsequent Assessment Year, i.e., 2023-24 and was disallowed u/s.94B in that year. Addition made in the year under consideration tantamount to double disallowance on the same amount of interest.
5.7. Ld. DRP rejected the characterisation and booking of interest as capitalised by assessee and held that entire interest of Rs.32.40 crores is amenable to section 94B. It thus, gave a direction by upholding the disallowance u/s.94B after giving credit to voluntary disallowance under the said section by the assessee. Direction of ld. DRP as contained in para 6.4 of its order states that “The Assessing Officer/TPO are directed to give effect to the disallowance u/s.94B, but to avoid double disallowance of the already carried out disallowance”. The aforesaid direction thus, implied that the disallowance was confirmed u/s.94B to the extent not disallowed by the assessee.
5.8. Subsequently, ld. Assessing Officer passed the final order after obtaining order giving effect (OGE) from the ld. TPO by making an addition of Rs.31,40,82,736/- as suggested by ld. TPO. From the above, it is noted that the addition made is of Rs.31,40,82,736/- as against total interest expense of Rs.32.40 crores. for the year under consideration. This amount of addition was proposed by ld. TPO, for which a draft assessment order was issued by the ld. Assessing Officer, against which assessee went before the ld. DRP, raising its objections and ld. DRP thereafter gave specific direction to give effect to the disallowance u/s. 94B but to avoid double disallowance of the already carried out disallowance. While making the aforesaid addition ld. Assessing Officer has not taken into account the disallowance already made by the assessee in computing its business income, details of which are already tabulated above.
On this aspect, ld. Counsel for the assessee asserted that the final assessment order passed by the ld. Assessing Officer is not in conformity with the directions of ld. DRP and is therefore without jurisdiction. According to him, assessee had suo moto disallowed a sum of Rs. 16,82,57,42/- and therefore it is only the difference between the said amount and Rs. 32.40 crores which would have been disallowed in the final order so as to be in line with the specific direction given by ld. DRP. By referring to provisions of Section 144C(13), the impugned assessment order is without jurisdiction and bad in law.
6.1. Reliance was placed on the decision of Hon'ble Jurisdictional High Court of Bombay in the case of S.H.L. (India) Pvt. Ltd. vs. DCIT, [2021] 438 ITR 317 (Bom), wherein it was held that failure on part of Assessing Officer to follow procedure u/s.144C is not a mere procedural or inadvertent error but a breach of mandatory provision which is incurable. According to the Hon'ble Court, the final assessment order passed by the Assessing Officer stands vitiated on account of lack of jurisdiction, since the assessment order has not been passed in accordance with the provisions of section 144C.
6.2. Reliance was also placed on the decision of Hon'ble High Court of Karnataka in the case of PCIT vs. Flextronics Technologies (India) (P) Ltd. [2023] 459 ITR 493 (Kar), wherein it was held that where the Assessing Officer passed draft assessment order and made transfer pricing adjustment without reworking ALP as per the direction of DRP, said draft assessment order was to be set aside as Assessing Officer was bound by the directions issued by DRP u/s. 144C and required to pass assessment order in conformity with the said directions. Hon'ble Court dismissed the appeal of the Revenue by holding that assessment was not in conformity with section 144C.
6.3. Reference was also made to the decision of Hon'ble High Court of Delhi in the case of ESPN Star Sports Mauritius S.N.C. ET Compagnie [2016] 388 ITR 383 (Del) wherein Hon'ble Court held that in view of the provisions of section 144C(10) r.w.s. 144C(13), Assessing Officer was bound by the order passed by DRP and thus, where DRP accepted assessee's plea that it was not eligible assessee, Assessing Officer, could not make adjustment to assessee's ALP in total disregard to the aforesaid view taken by DRP.
Admittedly, it is a fact on record that assessee had suo moto disallowed interest of Rs.16,82,57,452/- by taking 30% EBIDTA for which ld. DRP had given a direction in its order in para 6.4 to avoid double disallowance of the already carried out disallowance. Contrary to this direction, ld. Assessing Officer has made the addition of the full amount of upward adjustment as proposed by ld. TPO of Rs.31,40,82,736/-. We thus, find that final order passed by ld. Assessing Officer is not in conformity with the direction given by ld. DRP to this effect. Our finding is fortified by the aforesaid judicial precedents. Accordingly, grounds raised by assessee in this respect are allowed.
8. On the contention of the assessee that restrictive provisions, of section 94B cannot be used for benchmarking exercise to arrive at ALP of an international transaction under the “other method”, reference is made to Rule 10AB of the Income-tax Rules, 1961 (The Rules) which provides that the other method for determination of ALP shall be any method which takes into account the price which has been charged or paid or would have been charged or paid for the same or similar uncontrolled transactions, with or between non-associated enterprises under similar circumstances, considering all the relevant facts. Important here is to note that while applying this method to arrive at ALP the price has to be with or between non-associated enterprises. Restrictive conditions prescribed u/s.94B do not satisfy the requirements of Rule 10AB, since there is no price which has been charged or paid or would have been charged or paid with or between non-associated enterprises. Section 94B deals with deduction in relation to interest payable to AE providing for limitation on the interest paid to AE in excess of 30% of EBIDTA for making the disallowance. Disallowance prescribed u/s. 94B, thus cannot be considered a method for the purpose of Rule 10AB. Furthermore, it is important to note that section 94B is applicable on transactions between two AEs. For the purpose of Rule 10 AB, the price for determining ALP has to be with or between non-AEs. Thus, when the other method is applied requiring a price of an uncontrolled transaction with or between non-AEs, provision of section 94B cannot be imputed into it as it deals with a transaction between two AEs.
8.1. We refer to the show cause notice issued by ld. TPO, wherein the assessee was show caused in specific terms as to why the ALP of interest paid by it to its AE on borrowings should not be computed as per section 94B using the other method as most appropriate method. We also take note of the conclusion drawn by ld. TPO in para 5.7, whereby he has categorically stated that restriction imposed by section 94B is taken as a reference for benchmarking the impugned transaction of payment of interest on NCD to arrive at ALP.
8.2. In the given set of facts and the provisions of law, we note that ld. TPO has erred in taking section 94B restrictions as other method for benchmarking the impugned transaction and thus the adjustment so proposed is bad in law. Accordingly, the adjustment so made in the final order is deleted.
It is also important to note the fact that assessee has capitalized part of the total interest, that is Rs.14,60,91,585/- to the inventory of WIP. No deduction was claimed in this respect. In this context, reference is made to the relevant provisions of the section 94B. “……………..(1). Notwithstanding anything contained in this Act, where an Indian company, or a permanent establishment of a foreign company in India, being the borrower, incurs any expenditure by way of interest or of similar nature exceeding one crore rupees which is deductible in computing income chargeable under the head "Profits and gains of business or profession" in respect of any debt issued by a non-resident, being an associated enterprise of such borrower, the interest shall not be deductible in computation of income under the said head to the extent that it arises from excess interest, as specified in sub-section (2)
(2) For the purposes of sub-section (1), the excess interest shall mean an amount of total interest paid or payable in excess of thirty per cent of earnings before interest, taxes, depreciation and amortisation of the borrower in the previous year or interest paid or payable to associated enterprises for that previous year, whichever is less………………” 9.1. From the above, the important ingredients of section 94B in the present context are noted as: Indian company is borrower; Indian company has incurred an expenditure; Expenditure involved is interest or of similar nature; The said expenditure is deductible in computing income chargeable under the head 'profits and gains of business or profession'; The lender is associated enterprise; Excess interest is interest paid/payable in excess of 30% of earning before interest, taxes, depreciation and amortization ('EBITDA')
9.2. From the above, it is noted that unless and until the expenditure on interest is deductible in computing the income chargeable under the head ‘profits and gains of business or profession’, the said expenditure cannot be disallowed u/s.94B of the Act. What has not been claimed as deduction under the profit and loss account but has been capitalized, cannot be brought into the provisions of section 94B for the purpose of making disallowance. The word ‘deductible’ is not defined under the Act. However, in taxation, an item which may be subtracted from gross income or adjusted in gross income for determination of taxable income can be said to ‘deductible’. In other words, where the said expenditure is not claimed in first place, the same cannot be disallowed. Interest cost which has been allocated to WIP and does not form part of expenditure in the profit and loss account cannot be considered for the purpose of section 94B.
9.3. Reference is made to para- 46.3 of the explanatory notes to the provisions of the Finance Act, 2017 vide circular No.2/2018, dated 15.02.2018 wherein it is stated that “In view of the above, the new section 94B has been inserted in the Income Tax Act, so as to provide that interest expenses claimed by an entity to its Associated Enterprises shall be restricted to 30% of its earnings before interest, taxes, depreciation and amortisation (EBITDA) or interest paid or payable to Associated Enterprises or whichever is less.” Based on this reading and explanation, the provisions of section 94B relates to allowability of interest expenditure claimed by an entity. Reference is also made to explanatory circular explaining the provisions of Finance Act, 2023, vide Circular No.1/2024, dated 23.01.2024 vide para 38.1, wherein it states that section 94B provides restriction on deduction of interest expense in respect of any debt issued by a non-resident, being an AE of the borrower. This in itself provides that the restriction is on the deduction of the interest expense and not otherwise.
9.4. Accordingly, there is no question of taking into account the component of interest which has been capitalized by the assessee and not claimed as a deduction in its profit and loss account for the year under consideration. On this aspect, it is also important to note that assessee follows percentage completion method and such interest expenditure is recognised in the profit and loss account in the subsequent Assessment Year, i.e., 2023-24 and is disallowed u/s.94B in that year. Accordingly, direction of ld. DRP to take into account the total interest expense of Rs.32.40 crores for the purpose of computing the disallowance u/s.94B is not proper, to meet the requirement of section 94B.
Considering the overall factual matrix of the case, elaborate discussion made in the above paragraphs and judicial precedents relied upon, addition made in the hands of the assessee in respect of interest expenditure of non-convertible debentures to its AEs is deleted. Accordingly, grounds raised by the assessee in this respect are allowed.
For ground no.9 which relates to short grant of TDS credit, we direct the ld. Assessing Officer to verify the records and after due satisfaction grant the appropriate credit as claimed by the assessee. Accordingly, this ground is allowed for statistical purposes.
Ground Nos. 10,11,12 and 13 are consequential in nature and therefore not adjudication upon since the addition so made has been deleted in terms of our observations and findings.
In the result, appeal of the assessee is allowed.
Order is pronounced in the open court on 29th May, 2025