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2018 (9) TMI 1937 - ITAT KOLKATATP Adjustment - determination of arm’s length price of Corporate Guarantee Fees - HELD THAT:- As decided in own case [2018 (5) TMI 1853 - ITAT KOLKATA] we hold that the issuance of Corporate Guarantee by the assessee to its subsidiary company does not fall under the ambit of International Taxation u/s 92B of the Act in the facts and circumstances of the case, in as much as there was no guarantee fee charged by the assessee from its subsidiary company. Determination of arm’s length price for rate of interest on loan provided to AE - HELD THAT:- As decided in own case [2018 (5) TMI 1853 - ITAT KOLKATA] LIBOR and basis points should be the criteria for meeting the cost of interest on the international transaction in respect of interest to be charged on the loan advanced to AE. For this purpose the credit rating of the assessee as well as the credit rating of the AE should be taken into account. Accordingly we deem it fit to remand the issue to the ld. TPO to determine the basis points on the basis of the aforesaid parameters and such other relevant parameter in accordance to law. Therefore, we remand this issue for this limited purpose back to the ld TPO / ld AO and to determine the issue as directed by us. Disallowance u/s 14A r.w.r. 8D of the Rules both under normal provision of the Act as well as u/s 115JB - HELD THAT:- We find from the comparative statement of own funds vis-àvis the investment made for the last six years as submitted by the ld. AR that the assessee is possessing sufficient own funds which are much more than the domestic investments made by it. Hence by placing reliance on the decision of Hon’ble Bombay High Court in the case of Reliance Utilities and Power Limited [2009 (1) TMI 4 - BOMBAY HIGH COURT] we hold that no disallowance of interest is required to be made under Rule 8D(2)(ii) of the Rules. Disallowance under Rule 8D(2)(iii) of the Rules, the assessee pleaded that domestic investments which had yielded dividend income alone should be considered for the purpose of computing the disallowance under Third limb of Rule 8D(2) of the Rules, We find this argument is in consonance with the decision rendered by this Tribunal in the case of REI Agro Ltd. [2013 (9) TMI 156 - ITAT KOLKATA] . Accordingly, we direct the ld. AO to re-compute the disallowance in the light of the decision referred to supra. There is no dispute with regard to disallowance made under Rule 8D(2)(i) of the Rules. Accordingly, ground raised by the assessee are partly allowed for statistical purposes. Disallowance u/s 14A of the Act read with Rule 8D of the Rules while computing the book profits u/e 115JB - As in the case of ACIT vs. Vireet Investment Pvt. Ltd. [2017 (6) TMI 1124 - ITAT DELHI] that the computation mechanism provided under Rule 8D of the Rules cannot be applied for the disallowance u/s 14A in the computation of book profit u/s 115JB of the Act and for this purpose, the expenditure debited in the profit & loss account is to be gone into by the ld. AO. In the instant case, the assessee had voluntarily disallowed a sum of ₹ 30,73,963/-having regard to its accounts by considering various expenditures debited in the profit and loss account and had attributed some percentage of the same towards the disallowance. We direct the ld. AO to verify the veracity of the said workings and proceed to make disallowance u/s 14A of the Act vis-à-vis computation of book profits u/s 115JB of the Act in the light of the aforesaid Special Bench decision Disallowance of principal repayment of finance lease charges - HELD THAT:- As decided in own case [2018 (5) TMI 1853 - ITAT KOLKATA] the agreement provided that during the lease period, only the lessor shall be treated as owner of the trucks and not the lessee. Moreover, the lessor had been allowed depreciation on the trucks. Therefore, considering the terms and conditions of the lease agreement and the fact that depreciation on these trucks had been allowed to the lessor, the lease rent was deductible as revenue expenditure Disallowance of certain foreign currency payments u/s 40a(ia) - ‘make available clause’ - HELD THAT:- various expenditures, nature of remittances, country wise foreign remittances, taxability of the same under the domestic law as well as under DTAA, availability of FTS clause, availability of make available clause in DTAA and non-existence of Permanent Establishment (in short PE) in India have been narrated hereinabove. The same are not reproduced herein for the sake of brevity. We find that the ld. CIT(A) had granted relief to the assessee in the earlier years on the very same issue by placing reliance of ‘make available clause’ prevailing in various tax treaties but the same was not done by the ld. DRP in the year under consideration. Since various factual and legal submissions were indeed made by the assessee before lower authorities as narrated above which were not properly examined by the ld. AO, we deem it may fit and appropriate, to remand this entire issue to the file of ld. AO, for de novo adjudication of the issue afresh in accordance with law. We find that the similar direction has been given by this Tribunal in assessee’s own case for assessment year 2012-13 [2018 (5) TMI 1853 - ITAT KOLKATA]. Credit of tax deducted at source and tax collected at source - HELD THAT:- this requires factual verification and accordingly we direct the ld. AO to verify the veracity of the said claim of the assessee and grant necessary TDS/TCS credit to it as per law. Error in calculation of dividend distribution tax of gross dividend - HELD THAT:- This issue has been adjudicated by this Tribunal in assessee’s own case for assessment year 2012-13 [2018 (5) TMI 1853 - ITAT KOLKATAwherein, this issue was remanded back to the file of the ld. AO.
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