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2023 (2) TMI 789 - AT - Income TaxIncome accrued or arose or deemed to accrues or arise in India - adjustment of notional interest - extension of word “paid” to “payable” in respect of interest under Article 11 of Indo-Cyprus treaty - assessee company is incorporated outside India - HELD THAT:- As decided in assessee own case [2021 (9) TMI 529 - ITAT DELHI] nowhere the TPO/AO has been able to establish that notional interest satisfy the test of income arising or received under the charging provision of Income Tax Act. If income is not taxable in terms of section 4, then chapter X cannot be made applicable, because section 92 provides for computing the income arising from international transactions with regard to the ALP. Only the interest income chargeable to tax can be subject matter of transfer pricing in India. Making any transfer pricing adjustment on interest which has neither been received nor accrued to the assessee cannot be held to be chargeable in terms of the Income Tax Act read with Article 11(1) of DTAA. Here it cannot be the case of accrual of interest also, because none of the investee companies have acknowledge that any interest payment is due, albeit they have been requesting for waiving of interest of even coupon rate of 4%, leave alone the return of 18% which was dependent upon some future contingencies. Assessee despite all its efforts has acceded to such request. As in view of Article 11(1) we hold that, only the interest which has actually been received can only be subject matter of taxation and no TP adjustment can be made on some hypothetical receivable amount which was contingent upon certain event which has actually not been taken place during the year. Thus, the order of the Direction of the DRP is upheld and the grounds raised by the revenue are dismissed. Since, the matter stands adjudicated by various orders of the Tribunal and Hon’ble Courts that the word “paid” cannot be extended to “payable” in respect of interest under Article 11 of Indo-Cyprus treaty, we hereby allow the appeal of the assessee - Decided in favour of assessee.
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