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Income Tax Appellate Tribunal, PUNE BENCH “C”, PUNE
आदेश / ORDER
PER SUSHMA CHOWLA, JM:
The appeal filed by assessee is against the order of ACIT, Circle-13, Pune, dated 29.12.2016 relating to assessment year 2012-13 passed under section 143(3) r.w.s. 144C(13) of the Income-tax Act, 1961 (in short ‘the Act’).
The assessee has raised the following grounds of appeal:- On the facts and in the circumstances of the case and in law, the Learned AO pursuant to the issuance of directions of DRP and based the draft order has:
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General Ground 1. erred in assessing the total income at Rs.20,92,22,040/- as against returned income of Rs.15,51,36,470 computed by the Appellant. Disallowance under section 40(a)(i) of the Act 2. erred in disallowing an amount of Rs.4,34,70,794 under section 40(a)(i) of the Act by re-characterizing reimbursement of expenses paid by the Appellant to Vishay Intertechnology Asia Pte Ltd., Singapore as „Royalty‟ in view of Explanation 2 and Explanation 6 to section 9(1)(vi) of the Act by disregarding the actual nature of payment i.e. reimbursement of expenses which was also accepted by the learned TPO; Disallowance of unabsorbed depreciation of Rs.53,07,389 3. erred in not granting the set-off of brought forward depreciation of Rs.53,07,389 against the taxable business income of the Appellant; Non-grant of valid brought forward credit of Minimum Alternate Tax (‘MAT’) paid in earlier years 4. erred in not granting the adjustment of valid brought forward MAT credit of Rs.1,27,15,701 against the tax demand of the current year; Erroneous levy of interest under section 234B and 234C of the Act 5. erred in levying interest under section 234B and 234C of the Act; Initiation of penalty proceedings under section 271(1)(c) of the Act 6. erred in initiating penalty proceedings under section 271(1)(c) of the Act. Any consequential relief, to which the Appellant may be entitled under the law in pursuance of the aforesaid grounds of appeal, or otherwise, may thus be granted.
The ground of appeal No.1 raised by assessee is general and hence does not require any adjudication.
Coming to ground of appeal No.2 which is against the disallowance made under section 40(a)(i) of the Act by re-characterizing the reimbursement of expenses paid by assessee to its associated enterprise as royalty and disallowing the said claim under section 40(a)(i) of the Act for non deduction of tax at source.
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Briefly, in the facts of the case, the assessee had filed return of income declaring income of ₹ 16.04 crores. The assessee was engaged in the manufacturing and trading of various types of resistors and capacitors used in electronic application / products. The facilities of assessee were located in Domestic Tariff Area (DTA), Export Oriented Unit (EOU) and Software Technology Park (STP). The assessee was also engaged in rendering outsourcing services to the overseas Vishay group. The case of assessee was picked up for scrutiny. The assessee had entered into various international transactions for which, reference was made to the Transfer Pricing Officer (TPO), who proposed an upward adjustment of ₹ 16.19 crores to the international transactions entered into by the assessee. The Assessing Officer in the draft assessment order also noted that the assessee had paid sum of ₹ 4.35 crores to its associated enterprise Vishay Intertechnology Asia Pte Ltd., Singapore out of which no tax was deducted at source. The assessee explained that the associated enterprise had cross-charged certain expenses to Vishay India which were in the nature of leased line charges (Communication cost of Equant charges), IT charges, IT support cost and allocation towards development, maintenance, upgradation, backup, security maintenance of global IT infrastructure / security / web charges. The assessee explained that the said expenses were incurred globally by associated enterprises and later on reimbursed from Vishay group entities, including the assessee, on cost to cost basis. Since it was reimbursement of expenses, it did not involve any element of additional markup or income and hence, there was no requirement to deduct tax at source. Reliance was placed on several decisions in this regard. However, the Assessing Officer in draft assessment order held the assessee to be in default in not deducting tax at source as there was element of income embedded in the aforesaid payment. The Assessing Officer held the payment
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made by assessee was towards royalty, which was defined in section 9 of the Income Tax Act as well as Article 12 of DTAA between India and Singapore. The Assessing Officer thus, held the assessee to be in default for non deduction of tax at source and applying the provisions of section 40(a)(i) of the Act, expenditure of ₹ 4.35 crores was disallowed. Further, disallowance was also made on account of set off of brought forward unabsorbed depreciation on the ground that from the assessment records it was clear that unabsorbed depreciation relating to earlier years has been wiped out. The assessee filed objections before the Dispute Resolution Panel (DRP). After the directions of DRP, the TP adjustment was reduced to Nil by Assessing Officer / TPO. As far as the disallowance made under section 40(a)(i) of the Act is concerned, the same was upheld at ₹ 4.35 crores. As far as last disallowance of unabsorbed depreciation is concerned, the DRP directed the Assessing Officer to verify, who in turn, disallowed sum of ₹ 53,07,389/-.
The assessee is in appeal vide ground of appeal No.2 against disallowance made under section 40(a)(i) of the Act.
The learned Authorized Representative for the assessee explained that the assessee was an Indian company and had one associated enterprise in Singapore, to which payment of ₹ 4.35 crores was made. The holding company of assessee was Vishay Intertechnology Inc, USA, which entered into various agreements for providing leaseline and also for provision of data transmission. The cost incurred by associated enterprise was apportioned to various entities across the world; for Asia Pacific Region, Vishay Intertechnology Asia Pte Ltd. allocated the cost. He stressed that there was no markup on the reimbursement made by assessee; it was a pure case of
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reimbursement. The learned Authorized Representative for the assessee explained that leaseline charges were paid on the basis of bandwidth used by entities. He stressed that same payment was made to same entities in earlier years and no disallowance whatsoever was made. Our attention was drawn to the order of TPO relating to assessment year 2008-09, which is placed at pages 294 to 344 of Paper Book and it was pointed out that the TPO had raised the issue during TP proceedings, for which reply was filed, copy of which is placed at pages 288 to 291 of Paper Book. However, no disallowance was made in earlier year. Coming to the year under consideration i.e. assessment year 2012-13, the learned Authorized Representative for the assessee pointed out that similar reply was filed before the Assessing Officer, which is placed at pages 364 to 366 of Paper Book and it was pointed out that the payment was in the nature of reimbursement and hence, no liability to deduct tax. The learned Authorized Representative for the assessee further referred to invoices, which are placed at pages 367 onwards of Paper Book and during the course of hearing, the learned Authorized Representative for the assessee has filed summary of invoices along with copies of invoices attached therein. The learned Authorized Representative for the assessee stressed that the Assessing Officer in the draft assessment order had referred to the decision of GE India Technology Centre Pvt. Ltd. Vs. CIT (2010) 327 ITR 456 (SC), but there is no discussion on reimbursement of cost in the said decision. Referring to the order of Assessing Officer, wherein he has concluded by holding the said payment to be in the nature of royalty and application of Article 12 of DTAA, the learned Authorized Representative for the assessee pointed out that before applying the said provisions, first step was to state whether it was income in nature. Referring to order of DRP at pages 62 and 65, the learned Authorized Representative for the assessee pointed out that relying on various decisions, it
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held that the payment to be in the nature of equipment royalty. The learned Authorized Representative for the assessee pointed out that once it is case of reimbursement of expenses, then there is no merit in holding the assessee liable for non deduction of tax at source. In this regard, he placed reliance on the ratio laid down by the Hon'ble Supreme Court in DIT (IT) Vs. A.P. Moller Maersk A S (2017) 78 taxmann.com 287 (SC) and the Hon’ble Bombay High Court in CIT Vs. BNP Paribas SA in Income Tax Appeal No.1193 of 2015, judgment dated 22.03.2018. He further pointed out that Pune Bench of Tribunal in M/s. T-3 Energy Services India Pvt. Ltd. Vs. JCIT in ITA No.826/PUN/2015, relating to assessment year 2010-11, order dated 02.02.2018 had decided the said issue. He further relied on the decision of Pune Bench of Tribunal in the case of John Deere India Pvt. Ltd. (2019) 70 ITR (Trib) 73 (Pune) with special reference to para 96, wherein on similar payments for leaseline charges, it was held that it was not royalty and no obligation to deduct tax at source. Further, in para 100 it was held that leaseline charges were not equivalent to equipment royalty. In para 101, the Tribunal held it to be reimbursement of expenses. He stressed that there is retrospective amendment to Income Tax Act but provision of DTAA was not amended, then there was no liability to deduct tax.
The learned Departmental Representative for the Revenue on the other hand, placed reliance on the orders of authorities below and he stressed that right to use facility was royalty and he placed heavy reliance on the observations of DRP in this regard.
We have heard the rival contentions and perused the record. The assessee was an Indian company, wherein the holding company was based in
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USA and it was providing various services to its entities worldwide. The assessee was one of such entities operating in Asia Pacific Region. For the said region, the control was with the Singapore company. The leaseline charges were charged on the basis of bandwidth used and no markup was charged to the assessee or any other entity worldwide. First of all, the said payment has been made by assessee to the entities in earlier years also and no disallowance whatsoever has been made either by Assessing Officer or TPO in this regard. The learned Authorized Representative for the assessee before us has produced assessment orders / TPO’s orders for the earlier years. Further, as far as the nature of payment is concerned, wherein the assessee has filed necessary documentation before the authorities below and even before us, it cannot be said that reimbursement of expenses for leaseline are in the realm of royalty and section 9 of the Act or Article 12 of DTAA is attracted. First of all, we observe that since there is no amendment to the provisions of DTAA and same being beneficial, would be applicable and the payment made by assessee cannot be held to be royalty.
In this regard, we find support from the decision of Pune Bench of Tribunal in the case of John Deere India Pvt. Ltd. (supra), wherein similar issue was raised and vide para 96, it was held as under:- “96. The assessee before us has explained that lease lines were established between Pune office of assessee and US entity office. The authorities below had relied on the decision of the Hon‟ble High Court of Madras in the case of Verizone Communications Singapore Pte Ltd. Vs. DDIT (supra). However, we find that the issue raised in the present appeal is squarely covered by the order of Pune Bench of Tribunal in M/s. T-3 Energy Services India Pvt. Ltd. Vs. JCIT (supra), wherein it has been held that payment made for such lease line charges was not royalty under DTAA and hence, there was no obligation to deduct tax at source. The Tribunal in turn, had relied on the decision of the Hon‟ble High Court of Delhi in DIT Vs. (1) New Skies Satellite BV (2) Shin Satellite Public Co. Ltd. (supra). The Hon‟ble High Court of Delhi had decided the issue on the general principles relating to international transactions of DTAA vis-à-vis royalty and also the amendment in the Income Tax Act widening the scope of royalty.”
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Further, vide para 100 it was held that payment of leaseline charges is not equipment royalty. Vide para 101, it was further held that where it is case of reimbursement of expenses, there is no requirement to deduct tax at source.
Further, the Hon'ble Supreme Court also in DIT (IT) Vs. A.P. Moller Maersk A S (supra) and the Hon’ble Bombay High Court in CIT Vs. BNP Paribas SA (supra) have held that when it is case of reimbursement of expenses, then there is no requirement of deduction of tax from such payments. Accordingly, we hold that there is no merit in the orders of authorities below in holding the assessee liable for such non deduction of tax at source. Reversing the same, we allow the claim of assessee and disallowance made under section 40(a)(i) of the Act is thus, deleted. The ground of appeal No.2 raised by assessee is thus, allowed.
Now, coming to the next issue raised vide ground of appeal No.3 i.e. claim of unabsorbed depreciation in the hands of assessee. The learned Authorized Representative for the assessee pointed out that the same was consequential to the decision in earlier years. So, we direct the Assessing Officer to verify the plea of assessee in this regard and re-work the unabsorbed depreciation to be adjusted against current year’s income. Further, the assessee pointed out that there is double disallowance made by Assessing Officer, which is noted by DRP at page 69 in para 17.4 that there are no brought forward losses of earlier years and credit for the same cannot be allowed merely because the assessee had contested the additions in appeal before the Tribunal. We direct the Assessing Officer that in case there is some relief given by the Tribunal in earlier years, effect of the same may be allowed
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to re-compute the unabsorbed depreciation in the hands of assessee. The ground of appeal No.3 is thus, allowed.
The ground of appeal No.4 is not pressed and hence, the same is dismissed as not pressed.
The ground of appeal No.5 is in respect of levying interest under section 234B and 234C of the Act, which is consequential.
The ground of appeal No.6 is premature and hence, the same is dismissed. The grounds of appeal raised by assessee are thus, allowed as indicated above.
In the result, the appeal of assessee is allowed as indicated above.
Order pronounced on this 12th day of September, 2019.
Sd/- Sd/- (D.KARUNAKARA RAO) (SUSHMA CHOWLA) ऱेखा सदस्य / ACCOUNTANT MEMBER न्याययक सदस्य / JUDICIAL MEMBER ऩुणे / Pune; ददनाांक Dated : 12th September, 2019. GCVSR आदेश की प्रयिलऱपप अग्रेपषि/Copy of the Order is forwarded to : The Appellant; 1. The Respondent; 2. The DRP-3, Mumbai; 3. The CIT(IT&TP), Pune; 4. The DR ‘C’, ITAT, Pune; 5. Guard file. 6. आदेशािुसार/ BY ORDER, सत्यापऩत प्रतत //True Copy// वररष्ठ तनजी सचिव / Sr. Private Secretary आयकर अऩीऱीय अचधकरण ,ऩुणे/ ITAT, Pune