Abacus Distribution wins stay against Rs.8.81 Cr tax demand. Transfer pricing & depreciation issues contested. Next hearing on 8th July 2013.
On the question as to whether the assessee is entitled to deduction u/s 80IA of the Act on the net interest income on employees loans & advances, interest on margin money and interest income on dues towards income tax refund adjustment from Essar Project Ltd., we are of the opinion that the issue involved in the present case is no more res-integra and is covered by the decision of the Hon’ble Apex Court in the case of Liberty India (supra) wherein it has been held that duty drawback, DEPB benefits, rebates, etc., cannot be credited against the cost of manufacture of goods debited in the profit and loss account for purposes of section 80-IA/80-IB as such remissions (credits) would constitute independent source of income beyond the first degree nexus between profits and the industrial undertaking.
In the case of dredger Hector even though there is no dispute with reference to the examination of the international transactions in this year under the provisions of transfer pricing, while determining the ALP what is required to be considered is whether the price paid has any significant impact on the income. As submitted by assessee, the agreement was entered when the entities are independent and therefore, the price paid can be considered at arms length. Moreover, assessee also justified the price paid is within the permitted range of +/- 5% in both the cases, the fact of which was accepted by the CIT(A).
Since the issue of LIBOR has been considered and decided by the Tribunal in various cases as relied upon by the assessee (supra); therefore, to maintain the rule of consistency, we follow the decision of the coordinate Benches of this Tribunal, and accept LIBOR for benchmarking interest on interest free loans to AEs. Since the LIBOR is a rate applicable in the transactions between the banks and further the loans advanced by the bank to clients are secure by security and guarantee; therefore, a loan which has been advanced without any security or guarantee as in the case of the assessee has to be benchmark by taking the Arm’s Length interest rate as LIBOR plus.
It is noticed that the ancestral property was received by two brothers and the same was divided by two brothers by entering into an agreement between the two brothers. The assessee sold his share and shown the capital gain in the hands of HUF capacity. Whatever, the interest was received on sale consideration etc., the same was offered for taxation in his HUF capacity. The return was filed with the department, copy of the same is placed at page 70A along with computation of income as well as balance sheet. The same has been accepted by the department.
It is not in dispute that salary and wages accrue daily, weekly, fortnightly or monthly as per the contract of the employment. This is so as services is rendered in praesenti, the liability of the employer to compensate the employees for the services rendered also accrues in praesenti. A perusal of the Orders of the lower authorities show that what is actually in dispute is the quantification of compensation. As the assessee is a PSU, the pay revision depends upon the decision of the Government.
Regarding the applicability of the provision of section 2(24)(iv) of the Act, we find that the same is discussed at length in the order of this Tribunal in the case of Ashok W. Phansalkar (supra) it is the finding of the Tribunal that the similar concessions offered to the Director attract such provisions. The facts of the said case are that the assessee-Director purchased a flat from the company for Rs. 10 lakhs against the market value of Rs. 3.85 crores.
Assessing Officer while making certain additions by restricting 90% of the receipts by applying clause (baa) of Explanation to sec. 80HHC has travelled beyond his jurisdiction and scope of enquiry as directed by the Commissioner of Income Tax (Appeals) because it was not the subject matter of remand proceedings. Since the Assessing Officer was lacking the jurisdiction in the remand proceedings to go into the issue other than directed to be re-examined, the Commissioner of Income Tax (Appeals), in the appeal proceedings against the order giving effect also has no jurisdiction to go into the said issue because under the provisions of sec. 251, the Commissioner of Income Tax (Appeals) can exercise his jurisdiction on the issue on which the Assessing Officer could have exercised but did not do so.
We have heard the parties, and perused the material on record as well as the case law cited. The reopening of assessments in the instant case is decidedly before the expiry of a period of four years from the end of the relevant assessment years, so that the first proviso to s. 147 is not applicable.
Regarding disallowance of foreign travelling expenses, it is seen that on similar circumstances and facts, the Assessing Officer has disallowed 4% of the expenditure claimed which was based on ratio of such expenses with export sales. Thus, such a view taken by the Assessing Officer cannot be disturbed without any difference in the facts and circumstances of the case.
