Indian Additives Limited Vs The ACIT (ITAT Chennai)- Fact that a particular MAM used by the taxpayer cannot be rejected without providing any cogent reasons. Further, the Tribunal has mentioned that if there exist significant amount of purchases from Associates enterprises , the same cannot be included while computing the gross margins under the Resale Price Method [RPM]. The Tribunal have also re-emphasised the importance of comparing the FAR analysis of the tested party and that of the comparable companies while applying the TNM method.
ITAT Chennai
I.T.A. No. 703/Mds/2009
Assessment Year : 2004- 05
Indian Additives Limited Vs The Assistant Commissioner of Income Tax
I.T.A. No. 951 /Mds/2009
Assessment Year : 2004- 05
The Assistant Commissioner of Income Tax Vs Indian Additives Limited
O R D E R
PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER :
These are appeals filed by the assessee and Revenue respectively, for assessment year 2004-05, both directed against an order dated 27.3.2009 of Commissioner of Income Tax (Appeals)-XI, Chennai.
“2.17 In the facts and circumstances of the case, when the royalty payments shall be computed at a particular percentage of sales priced, and if there was no sales, no royalty would be payable. Merely because goods were produced in India by the assessee acquiring the technical process from the foreign collaborator, it cannot be said that the royalty payment is referable to the production house / manufacturing of the products. The technical know-how for the manufacturing process was acquired by the assessee against a lump sum payment of royalty and subsequent to that, if there is no sale of the product manufactured by the assessee, then there would be no royalty payable. Thus, the running royalty payable has no nexus or direct connection with the manufacture of the product. The liability to pay the royalty arises only when there is a sale. Therefore, we are of the view that the running royalty cannot be said to be a capital expenditure. We do not find any rationale in bifurcation of the running royalty and treating one part as capital and the other part as revenue by the learned Commissioner of Income Tax (Appeals) without any basis. The decision relied upon by the learned Commissioner of Income Tax (Appeals) is on the facts that the assessee could continue to use the technology even after the expiry of the period of payment of royalty. Therefore, when the lump sum royalty was separately agreed and paid, then the running royalty, in the facts and circumstances, would only be a revenue expenditure paid for the use of the licence, trade mark and technical information for a particular period. Accordingly, this issue is decided in favour of the assessee and against the Revenue.”





