The Mumbai Bench of the Income Tax Appellate Tribunal (‘the Tribunal’), in the case of ITO v. Zydus Altana Healthcare Pvt. Ltd. [2010-TI I-29-ITAT–MUM-TP], while deciding the case in favour of the assessee, ruled that the determination of arm’s length price should be based on the functional and asset profile of a company and profit margins earned by comparable companies should be adjusted for functional differences between the tested party and the comparables. The Tribunal also ruled that in case an assessee’s income is exempt from tax (and taxable in the overseas jurisdiction), this factor should be considered by the revenue authorities while undertaking a tax assessment since in such a situation, there is no benefit to the assessee in charging its associated enterprise a lower mark-up.
In a recent ruling in the case of Nimbus Communications Ltd v. ACIT [2010–TI1-21-ITAT-MUM-T9, the Mumbai Bench of the Income Tax Appellate Tribunal (“the Tribunal”), while deciding the case in favour of the assessee, ruled that for determination the of arms’ length price (“ALP”), any one of the methods as prescribed in section 92C(1) of the Income Tax Act, 1961 (“the Act”) must be followed. The Tribunal also ruled that levying interest on outstanding trade balances is different from interest charged on loans and cannot be compared.
ADIT (Int. Tax) v. Bank International Indonesia – ITAT held that provision made for doubtful debts will be required to be added back to the net profit as per the profit and loss account while computing the Book Profit for the purpose of determination of Minimum Alternate Tax , subsequent to the amendment to Explanation 1 to section 115JB of the Income-tax Act, 1961 , with retrospective effect from 1 April, 2001.
The Tribunal ruling has reiterated the principle of ‘bona fide difference of opinion’ arising in the context of application of most appropriate transfer pricing method. The Tribunal has ruled that any addition to income arising as a result of bona fide difference of opinion cannot be used as a basis for levy of penalty.
The Delhi Bench of Income Tax Appellate Tribunal (“the Tribunal”) in its recent ruling in the case of ACIT v. Vedaris Technologies (Pvt.) Ltd [2010-TII-10-ITAT-DEL-TP] has held that selection of comparable uncontrolled transactions (“comparables”) for determining arm’s length price (“ALP”) should be done with reference to Rule 10C(2) of the Income-tax Rules, 1962 (“the Rules”).
Reopening of tax assessment beyond four years on the basis of a retrospective amendment is not justified, if the assessee has fully and truly disclosed all the material facts necessary during the original assessment proceedings
This is an important decision of the Tribunal, which brings out the importance of a Double Taxation Avoidance Agreement (Treaty), that where thin capitalization rules are not in the domestic law/Treaty, there can be no artificial disallowance of interest paid on borrowings.
On a careful consideration of the submissions, we find that the issue involved in this case is the very same which was remanded by this Bench vide Final Order No 612/2009 dated 6.5.2009 . We find that vide Stay Order No 1093/2006 dated 06.10.2006 , this Bench had directed the appellant to pre-deposit Rs 14,00,000/- which was duly complied with. Since this amount is still lying with the department, we consider this amount as enough deposit to hear and dispose off the appeal. Application for waiver of the pre-deposit of the balance amount is allowed and recovery thereof stayed till the disposal of the appeal.
Q of S. 40A (2) not examined as exercise is “revenue-neutral”. Transfer Pricing Provisions should be extended to domestic transactions to “reduce litigation” The assessee did not have any employee other than a company secretary and all administrative services relating to marketing, finance, HR etc were provided by Glaxo Smith Kline Consumer Healthcare Ltd (“GSKCH”) pursuant to an agreement under which the assessee agreed to reimburse the costs incurred by GSKCH for providing the various services plus 5%. The costs towards services provided to the assessee were allocated on the basis suggested by a firm of CAs. The AO disallowed a part of the charges reimbursed on the ground that they were excessive and not for business purposes which was upheld by the CIT (A). However, the Tribunal deleted the disallowance on the ground that there was provision to disallow expenditure on the ground that it was excessive or unreasonable unless the case of the assessee fell within the scope of s. 40A (2). It was held that as it was not the case of the Department that s. 40A (2) was attracted, the disallowance could not be made (see 290 ITR 35 (Del) for facts). The department challenged the deletion. HELD dismissing the SLP
In a recent decision in the case of Tecumseh India Pvt. Ltd. v. ACIT [2010-TIOL-408-ITAT-DEL-SE3], the Special Bench of Delhi Income-tax Appellate Tribunal (the Tribunal) has held that non-compete fees inextricably linked with the acquisition of a business constitute capital expenditure.
