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2021 (11) TMI 220 - ITAT KOLKATADelay in deposit of employees contribution to PF and ESI u/s 36(1)(va) read with Section 2(24)(x) - assessee contributing/depositing the same before the due date of filing of return of income u/s 139(1) - CIT-A allowed deduction - HELD THAT:- As relying on M/S. VIJAY SHREE LIMITED [2011 (9) TMI 30 - CALCUTTA HIGH COURT] and HARENDRA NATH BISWAS VERSUS DCIT, CIRCLE-29 KOLKATA [2021 (7) TMI 942 - ITAT KOLKATA] CIT(A) has rightly allowed the deduction in respect of employee's contribution to PF & ESI which had been admittedly remitted on or before the due date for filing the return of income u/s. 139(1) of the Act. We therefore do not find any infirmity in the order of the Ld. CIT(A) and, we confirm the same and dismiss this ground of appeal of revenue. Disallowance of discount & brokerage debited to the Profit & Loss Account - HELD THAT:- As decided in [2018 (11) TMI 1877 - ITAT KOLKATA] adopt judicial consistency in this facts and circumstances to affirm the CIT(A)'s findings under challenge deleting discount and brokerage disallowance -Decided against revenue. Disallowance u/s 14A r.w.r. 8D - HELD THAT:- As decided in own case [2018 (5) TMI 420 - ITAT KOLKATA] we remand this issue to the file of A.O. with the direction to consider only the investment which yielded dividend income to the assessee for computing the disallowance under section 14A of the Act read with Rule 8D(2)(ii) of the Rules. Transfer pricing adjustment made by the TPO to the claim of deduction u/s 80-IA - arm’s length price of power transferred by the three CPPs at Vasavdatta, Karnataka to the cement unit - HELD THAT:- Even if the Ld. CIT, DR’s contention is accepted at its face value and the eligible unit is taken as the ‘tested party’, we still find that there was reliable internal CUP data available to benchmark the transfer price of power supplied by the CPPs to the cement unit. If the rates at which the CPPs sold power to IEX, GEPL (₹ 6.24/unit) is taken as the benchmark ALP rate, even then the transfer price of power adopted by the assessee (₹ 5.96 - ₹ 6.23/unit) was comparable and accordingly no adjustment was permissible in this regard. We find that, on same set of facts and circumstances, the Revenue had categorically accepted this manner of application of internal CUP Method in respect of power supplied by the CPPs at Karnataka in the immediately preceding AY 2013-14 and accordingly no transfer pricing adjustment was made in relation thereto. When enquired in this regard, the Ld. CIT, DR fairly agreed with the Ld. CIT(A)’s above findings qua the CPPs at Vasavdatta, Karnataka. For the reasons as aforesaid, we do not find any infirmity in the order of the Ld. CIT(A) deleting the transfer pricing adjustment of ₹ 40,03,60,133/- made by the TPO to the transfer value of power supplied by the CPPs at Vasavdatta, Karnataka to the noneligible cement unit. CPP at Hooghly, West Bengal - As from the data provided by the assessee, it is noted that both the CPP and SEB have supplied power in all the months of the year and therefore there are no timing differences as well. In the circumstances, we find merit in the findings of the Ld. CIT(A) that the transaction involving purchase of power by the non-eligible unit from the SEB, fulfilled the internal CUP parameters and thus the landed cost paid by the rayon unit to the SEB represented internal comparable arm’s length rate. CIT(A) had indeed taken into account the amendment made by the Legislature to Explanation to Section 80-IA(8) by the Finance Act, 2012 introducing the transfer pricing regulations, and had held that the ‘open market value’ as determined by this Tribunal in the earlier years in relation to the power transferred by the CPPs to the non-eligible units was in adherence to the arm’s length principle enunciated in Section 92C Referring to the decisions of this Tribunal in assessee’s own case for earlier years, we uphold the order of the Ld. CIT(A) deleting the transfer pricing adjustment made in relation to the transfer price of power supplied by the CPP at Hooghly, West Bengal to the rayon unit.
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