2019 (10) TMI 1608 - AT - Income Tax

TP Adjustment - assessee has paid interest to AEs on CCDs - AO treated it as an international transaction and made a reference to the TPO for determining the ALP u/s 92CA - TPO held the CCDs to be a loan and further proposed to levy the interest at LIBOR plus 200 basis points - HELD THAT - We find that in the case of Adama India Pvt Ltd 2017 (1) TMI 893 - ITAT HYDERABAD has considered the decision of Sahara Real Estate Corporation Ltd and Sahara Housing Investment Corpn. Ltd. 2012 (9) TMI 559 - SUPREME COURT wherein the CCD has been held to be an hybrid instrument in nature of equity and cannot be thus considered as a loan particularly where the CCDs are compulsorily convertible debentures. We also find that the Tribunal has followed the decision of Cotton Naturals (I) Ltd 2015 (3) TMI 1031 - DELHI HIGH COURT to grant relief to the assessee. As in the assessee s own case the Tribunal has followed the said decision to grant relief to the assessee and since the DRP has also relied upon its own order for the A.Y 2013-14 we are of the opinion that the issue is covered in favour of the assessee by the decision of the Coordinate Bench of this Tribunal. Further we also find that the DRP in the last paragraph of its order has observed that the Department has filed an appeal against the order of the ITAT before the Hon ble High Court and therefore confirmed the order of the TPO. Thus it is evident that the DRP wanted the issue to be kept alive and therefore has upheld the order of the TPO. Respectfully following the decision of the Coordinate Bench in the assessee s own case for the A.Y 2013-14 2018 (1) TMI 1604 - ITAT HYDERABAD we allow the assessee s appeal

Summary

ISSUES PRESENTED and CONSIDERED

The core legal questions considered in this judgment include:

1. Whether the Fully & Compulsorily Convertible Debentures (FCCDs) issued by the assessee to its Associated Enterprise (AE) should be recharacterized as a loan for the purpose of determining the Arm's Length Price (ALP) under section 92CA of the Income-tax Act, 1961.

2. Whether the interest rate applied by the Transfer Pricing Officer (TPO) and upheld by the Dispute Resolution Panel (DRP), being LIBOR plus 200 basis points, is appropriate for the FCCDs, which were issued in Indian Rupees.

3. Whether the benchmarking analysis carried out by the assessee in support of the arm's length nature of the interest paid on the FCCDs was improperly rejected by the authorities.

4. Whether the rate of interest should be determined based on the lender's country or the borrower's country.

5. Whether the levy of interest under section 234B of the Act was justified.

ISSUE-WISE DETAILED ANALYSIS

1. Recharacterization of FCCDs as a Loan

- Relevant Legal Framework and Precedents: The recharacterization of financial instruments for transfer pricing purposes is guided by the principles set out in the Income-tax Act and relevant case law. The Tribunal referenced the decision in the case of Adama India Pvt Ltd and the Supreme Court's ruling in Sahara Real Estate Corporation Ltd, which recognized CCDs as hybrid instruments akin to equity.

- Court's Interpretation and Reasoning: The Tribunal found that the TPO erred in treating the issuance of CCDs as a loan. The decision was influenced by the nature of CCDs as hybrid instruments, which are fundamentally different from loans.

- Key Evidence and Findings: The Tribunal considered the issuance of CCDs in Indian Rupees and the policy of the Government of India and the Reserve Bank of India, which categorize CCDs as quasi-equity.

- Application of Law to Facts: The Tribunal applied the principles established in prior cases to determine that the TPO's characterization of CCDs as loans was incorrect.

- Treatment of Competing Arguments: The Tribunal favored the assessee's argument, supported by judicial precedents, over the TPO's approach.

- Conclusions: The Tribunal concluded that the CCDs should not be recharacterized as loans.

2. Interest Rate Determination

- Relevant Legal Framework and Precedents: The determination of interest rates for transfer pricing purposes involves consideration of the currency in which the transaction is denominated. The Tribunal referenced decisions from the High Court and other ITAT benches.

- Court's Interpretation and Reasoning: The Tribunal found that using LIBOR as a benchmark was inappropriate since the CCDs were denominated in Indian Rupees.

- Key Evidence and Findings: The Tribunal relied on the SBI PLR and data from the NSDL website to justify the arm's length nature of the interest rate.

- Application of Law to Facts: The Tribunal applied the appropriate benchmarks for Indian Rupee-denominated transactions.

- Treatment of Competing Arguments: The Tribunal rejected the TPO's reliance on LIBOR, favoring the assessee's submission of domestic benchmarks.

- Conclusions: The Tribunal concluded that the interest rate applied by the assessee was within an acceptable range and deleted the addition made by the TPO.

3. Rejection of Benchmarking Analysis

- Relevant Legal Framework and Precedents: The Tribunal examined the benchmarking analysis conducted by the assessee and its consistency with established precedents.

- Court's Interpretation and Reasoning: The Tribunal found that the TPO unjustifiably rejected the assessee's benchmarking analysis.

- Key Evidence and Findings: The Tribunal noted that the assessee's analysis was consistent with the principles laid out in prior decisions.

- Application of Law to Facts: The Tribunal applied the principles from previous cases to validate the assessee's benchmarking analysis.

- Treatment of Competing Arguments: The Tribunal sided with the assessee's detailed analysis over the TPO's ad hoc approach.

- Conclusions: The Tribunal upheld the assessee's benchmarking analysis.

4. Interest Rate Determination Based on Lender's or Borrower's Country

- Relevant Legal Framework and Precedents: The determination of interest rates should consider the economic context of the borrower's country when the transaction is denominated in local currency.

- Court's Interpretation and Reasoning: The Tribunal emphasized the importance of considering the borrower's country's economic conditions.

- Conclusions: The Tribunal agreed with the assessee that the interest rate should be determined based on the borrower's country.

5. Levy of Interest under Section 234B

- Relevant Legal Framework and Precedents: The imposition of interest under section 234B is contingent on the taxpayer's failure to pay advance tax.

- Court's Interpretation and Reasoning: The Tribunal did not delve into this issue in detail, as the primary focus was on the transfer pricing adjustments.

- Conclusions: The Tribunal did not provide a specific ruling on this issue due to the resolution of the primary transfer pricing matters.

SIGNIFICANT HOLDINGS

- The Tribunal held that the TPO erred in recharacterizing the CCDs as loans, stating: "CCDs cannot be categorised as a loan and LIBOR plus two hundred basis points benchmark cannot be accepted on the facts of the case."

- The Tribunal affirmed that the appropriate interest rate should be determined based on the currency in which the transaction is denominated, emphasizing domestic benchmarks over LIBOR.

- The Tribunal validated the assessee's benchmarking analysis and rejected the TPO's adjustments, concluding that the interest rate applied was within an acceptable range.

- The Tribunal allowed the assessee's appeal, providing relief consistent with prior decisions in similar cases.