Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, DELHI BENCH: ‘I-1’ NEW DELHI
Before: SHRI R. K. PANDA & MS SUCHITRA KAMBLE
ORDER PER SUCHITRA KAMBLE, JM
This appeal is filed by the Revenue against the Assessment Order dated 25.04.2014 passed by the Assessing Officer u/s 143 (3) read with Section 144C of the Income Tax Act, 1961, for Assessment Year 2010-11.
The grounds of appeal are as under:-
“1. The Ld.CIT(A) erred in law and on facts of the case in deleting the adjustment of Rs. 5,63,84,899/- made by the A.O on account of computation of ALP.
2. The Ld.CIT(A) erred in law and on facts of the case in deleting the A.O to restrict the disallowance u/s 14A of the I.T Act read with Rule 8D of the IT Rules to the administrative cost.
3. The Ld.CIT(A) erred in law and on facts of the case in deleting the addition of Rs. 15,475/- made by the A.O on account of late payments of ESI.”
The assessee is a manufacturer of oncology formulations and bulk drug which are used for curing cancer related diseases. With growing overseas market, the company was keen to set-up subsidiaries outside India such as Dabur Oncology Pic (“Dabur UK”), Dabur Pharma (Thailand) Company Ltd., (“Dabur Thailand”). The assessee has filed its return of income on 6/10/2010 electronically declaring nil income under normal provision and at the book profit of Rs. 76,14,02,588/- u/s 115JB of the Act. The case was selected for the scrutiny assessment and the notice u/s 143(2) was issued after processing the return. During the year under consideration, the assessee entered into following international transactions with its AE:-
S. International Transaction Amount (IN Rs.) No. 1 Sale of bulk drugs 163,701,935/- 2 Sale of Formulations 2,510,140,047/- 3 Information technology services availed 14,415,000/- 4 Interest received on loan granted to 147,115,890/- subsidiaries 5 Interest paid on loan taken 9,860,584/- 6 Recovery of loan granted to subsidiaries 708,960,364/- 7 Loan taken from holding company 704,035,000/-
8 Reimbursement of deputed employees cost 7,436,802/- The TPO has accepted the benchmarking of other international transaction except the interest charged to its AE. Following are the details of interest charged to loan given by the assessee to its AE:-
Name of the AE Interest Rate Interest Received Fresenius Kabi 7% 131,683,690/- Oncology Plc, UK Dabur Pharma 7% 15,432,200/- (Thailand) Co. Ltd. TOTAL 147,115,890/- The assessee benchmarked these interest on loan taking resident foreign currency (RFC) issued by and arrived at average rate of interest on such RFC on the basis of 5 banks as under:-
Sl No. Bank Name RFC Deposit rate (in%) 1 Hongkong and Shanghai 0.76 Banking Corporation (HSBC) 2 ICICI 2.39 3 Industrial Credit and 2.39 Investment Corporation of India (IDBI 4 Punjab National Bank (PNBP 2.44 5 State Bank of India (SBI) 2.39 AVERAGE 2.07% Applying CUP method, the assessee concluded that the interest earned by the assessee from its AE being higher than the average rate of RFC deposits of the comparables companies, international transactions of receipt of interest from AE is at arm’s length price. The TPO was of the view that RFC rate of various banks may not be a good benchmark in appellant case on the ground that in the CUP benchmarking on the basis of RFC it is not known from which geographical territory the fund has originated whereas in present case it is clear that the fund is originated from India and the opportunity cost would be the interest that the fund could have earned in India. The TPO has issued a show cause to the appellant as to why the benchmarking of the interest should not be made at the average PLR of State Bank of India during the year at the rate of 11.88% + mark-up of 300 points for the different factors and risks associated with the transaction i.e. effective rate of interest on the loan advanced by the appellant to its AE @ 14.88% and proposed the adjustment u/s 92CA for Rs. 16,56,10,459/- computation of the adjustment as per the show cause is reproduced as under:- Name of Inter Interest Received Interest Difference the A.E est @14.88% Rate Fresenius 7% 131,683,690 279,921,901 148,238,211 Kabi Oncology Plc, UK Dabur 7% 15,432,200147,11 32,804,448312 17,372,248 Pharma 5,890 .726.349 (Thailand) Co. Ltd. TOTAL 165,610,459
Being aggrieved by the assessment order, the assessee filed appeal before the CIT(A). The CIT(A) partly allowed the appeal of the assessee.
The Ld. DR, as regards Ground No. 1 submitted that the CIT(A) was not correct in deleting the adjustment of Rs. 5,63,84,899/- made by the Assessing Officer on account of computation of ALP and relied upon the order of the TPO and Assessing Officer. As regards Ground No. 2, the Ld. DR submitted that the Assessing Officer was right in making disallowance u/s 14A read with Rule 8D (3) which should have been sustained by the CIT(A) as regard to administrative cost. The Ld. DR further submitted that in relation to Ground No. 3, the late payment of ESI Contribution is also rightly added by the Assessing Officer to the assessee’s income.
The Ld. AR submitted that Ground No. 1 is covered in favour of the assessee by Tribunal’s order in Assessment Year 2008-09, 2009-10 being & 6264/Del/2015 order dated 31/12/2018. As regards Ground No. 2, the Ld. AR submitted that the investment in domestic bank was only 2.5 lakhs and total availability of assessee’s own fund was approximately Rs. 2 crores. Thus, the CIT(A) has rightly directed the Assessing Officer to restrict the disallowance u/s 14A read with Rule 8D (3) being administrative cost. As regards Ground No.3, the Ld. AR submitted that the assessee has paid the ESI Contribution before the due date. Therefore, the CIT(A) has rightly deleted this addition.
We have heard both the parties and perused the material available on record. As regards Ground No. 1, the issue is squarely covered in assessee’s favour by the decision of the Tribunal for Assessment Year 2008-09 & 2009- 10.
“10. After considering the submissions of both the parties and the material available on the record, it is noticed that an identical issue having similar facts has already been adjudicated by this bench of the Tribunal in & 3495/Del/2014 for the assessment years 2005-06 and 2007-08 respectively. The Fresenius Kabi Oncology Ltd.relevant findings have been given in paras 10 & 10.1 of the said order which read as under:
"10.0 Coming to the department's appeal for assessment year 2007- 08, it is seen that the transfer pricing adjustment comprise of two limbs viz. corporate guarantee fee and interest on loan. As far as the issue of corporate bank guarantee is concerned, the issue arose because the assessee had failed to 32 charge service fee for the corporate guarantee given to its UK subsidiary and the TPO, after obtaining information u/s 133(6) of the Act from State Bank of India regarding rate of bank guarantee, proposed the ALP adjustment at 4.75% as against nil being claimed by the assessee. It is well settled that providing bank guarantee is an international transaction and the same needs to be benchmarked as per provisions of Section 92(1) of the Act. The Ld. Commissioner of Income Tax (A) has also held so and thereafter he proceeded to compute the corporate guarantee fee @ 0.5%. While doing so, the Ld. Commissioner of Income Tax (A) observed that the assessee had given corporate guarantee to a foreign bank for providing loan to its foreign AE in foreign currency whereas the TPO had considered the quote for giving guarantee in India. The Ld. Commissioner of Income Tax (A) also took into account the fact that the assessee's bank was ABN AMRO whereas the TPO had used the quote from the SBI. The Ld. Commissioner of Income Tax (A) thereafter placed reliance on the quote from Royal Bank of Scotland (RBS) (formerly ABN AMRO Bank) and held that there was a saving of 1% in this regard, the benefit of which was attributable both to the assessee as well as the foreign AE. Thereafter by splitting the benefit between the two, the Ld.CIT (A) arrived at corporate bank fee of 0.5%. We agree with the observation of the Ld. Commissioner of Income Tax (A) that this letter from RBS Bank has more evidentiary value as it is from the very same bank which gave loan to Dabur UK. The Ld. Commissioner of Income Tax (A) has also recorded a finding that he has also examined the terms and conditions of the loan agreement dated 17.3.2006 between ABN AMRO Bank, Dabur UK and that Dabur UK has provided adequate security collaterals to the satisfaction of the Bank. The Ld. Commissioner of Income Tax (A) has also mentioned that the bank had the first charge on the assets of the borrower as security for the loan. The Department was not able to point out any factual infirmity in this categorical observation of the Ld. Commissioner of Income Tax (A). However, we do not fully agree with the findings of the Ld. Commissioner of Income Tax (A) in this regard that the benefit of interest saving of 1% should be shared Fresenius Kabi Oncology Ltd. between the AE and the assessee equally as no cogent reasoning has been given for the same and, accordingly, we deem it fit to modify the order of the Ld. Commissioner of Income Tax (A) in this regard to the extent that corporate guarantee fee @1% should be applied in the case of the assessee in place of 0.5% as has been applied by the Ld. Commissioner of Income Tax (A). We accordingly direct the Assessing Officer to re-compute the ALP for corporate guarantee fee @1%. Thus, this ground stands partly allowed.
10.1 Coming to the second limb of the transfer pricing adjustment which pertains to interest on loan, it is seen that the assessee had given loan to two foreign subsidiaries in UK and Thailand and had charged interest rate of LIBOR plus 1.1% and 7% respectively whereas the TPO had applied the interest rate at 14%. The reason for the TPO in applying interest rate of 14% was that since the assessee has chosen itself as the tested party, the rate to be applied was to be seen from the perspective of the tested party in the Indian bank and further for the reason that the loan advance of Dabur Thailand was from borrowed capital. While allowing relief to the assessee, the Ld. Commissioner of Income Tax (A) took into consideration the submission of the assessee that the loan advanced to the UK subsidiary was at LIBOR plus 1.1% and the loan taken by the UK subsidiary from ABM AMRO Bank was at LIBOR +1.5% with the corporate guarantee of the assessee and further the corporate guarantee loan was available to the UK subsidiary at LIBOR plus 1.5%. With respect to the loan to Dabur Thailand @7%, the Ld. Commissioner of Income Tax (A) was of the view that LIBOR plus 1.5% could be used as the basis for arriving at the ALP for the loan transaction. Accordingly, the Ld. Commissioner of Income Tax (A) held that interest of both the loans was to be charged at LIBOR plus1.5%. We also note that the Ld.
DRP for immediately preceding assessment year 2006-07 has held that the foreign loan given to UK subsidiary was to be benchmarked at LIBOR plus 100 bps plus certain risk adjustment and accordingly, rate of LIBOR plus 300 bps was proposed by the Ld. DRP. Although the Ld. Commissioner of Income Tax (A) has duly made a mention of this direction of the Ld. DRP for assessment year 2006-07, it is apparent that he has not considered the directions of the Ld. DRP while deciding this issue. We also note that the assessee has not filed any appeal against this direction of the Ld. DRP for assessment year 2006-07. Accordingly, in view of the factual matrix, this issue needs to be restored to the file of the Ld. Commissioner of Income Tax (A) to be decided afresh after Fresenius Kabi Oncology Ltd. considering the directions of the Ld. DRP in this regard in assessment year 2006-07 and after giving the assessee a proper opportunity present its case. Accordingly, this ground stands allowed for statistical purposes."
So, respectfully following the said order dated 03.10.2018, this ground is partly allowed for statistical purposes as has been directed in the said order dated 03.10.2018.” In the present assessment year also the facts remains the same and there is no distinguishing factors pointed out by the Ld. DR. Thus, Ground No. 1 is partly allowed for statistical purpose.
As regards Ground No. 2, the CIT(A) was right in directing the Assessing Officer to restrict the disallowance u/s 14A of the Act read with Rule 8D of the Rules to the Administrative Cost as the investment is running into 2.14 lakhs and the funds available with the assessee was running into 100s of crores. Therefore, Ground No. 2 of Revenue’s appeal is dismissed.
As regards Ground No. 3, the CIT(A) has rightly deleted the addition on account of late payment of ESI as the payment was made within the approved due date of filing of the return u/s 139. Therefore, Ground No. 3 of Revenues’ appeal is dismissed.