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The Assistant Commissioner of Income Tax, Central Circle IV (3) (i/c) , Chennai Versus M/s. Trimex Industries (P) Ltd,

2015 (11) TMI 275 - ITAT CHENNAI

Transfer pricing adjustment - Held that:- Transfer pricing study made by the TPO is far away from reality. If the erroneous presumptions of the TPO are excluded, we find that the price disclosed by the assessee is comparable and compatible to ALP and no adjustment is called for in the present case. Since the facts in assessment year 2007-2008 are identical, we are inclined to confirm the order of the Commissioner of Income Tax (Appeals) on this issue by placing reliance on the above order of the .....

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rest and accordingly we are in agreement with the findings of the Commissioner of Income Tax (Appeals). Without entering into the controversy so as to whether the payment is within the ambit of interest in Sec. 2(28A), the assessee is also bound to succeed in its alternative argument that the entire payment if made during the previous year relevant to the assessment year under dispute no disallowance would be made u/s.40(a)(ia) of the Act - Decided in favour of assessee.

- I.T.A.No.422 .....

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the circumstances of the case, the learned Commissioner of Income Tax (Appeals) has erred in deleting the addition of A17,03,792/- towards adjustment on account of transfer pricing relating to Barite Lumps. (1b) The learned Commissioner of Income Tax (Appeals) has failed to note that the adjustment was done by the Assessing Officer as per rule 10B(1)(a) of the I.T. Rules 1962 and that this rule is to be applied for all the transaction without any exception relating to the transactions of a part .....

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in respect of debt incurred as clearly explained in the case of CIT vs. Vijay Ship Breaking Corporation 261 ITR 113 (Guj) 2003 . 3. The facts of the case regarding first issue is that the assessee is an exporter of minerals exporting to its associate enterprise (A.E) as well as Non-AE. The assessee adopted CUP method, where ever the assessee has comparable transctions, and TNMM method, when comparable transactions are not available. However, A.O/T.P.O has followed CPU method for all products by .....

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ieved, the assessee preferred an appeal before the Commissioner of Income Tax (Appeals). 4. The Commissioner of Income Tax (Appeals) observed that the Assessing Officer added a sum of A17,03,792/- under the head Barite lumps by comparing the month to month sales with that of competitors from the data obtained from the customs department. It may be seen from the department working that except in the month of June export realization of the assessee in all other months are favourable. The Assessing .....

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and supply, quality, quantity and the cost to the supplier, margin of profit etc. For Eg: One of the Comparable companies GIMPEX realised only US $31.10 in the month of August, 2008, when the assessee sale price fetched US $ 41.73. However, in the relevant month June 2008, the sale price fetched by the assessee is US $35 as against US $ 42.23 fetched by GIMPEX. The inconsistency in the pricing of the comparable was not taken note of by the Assessing Officer. The reason for the comparable sellin .....

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given to the higher investment and risks assumed in CIF sale. It is therefore natural that the sales made under CIF terms might command higher premium to compensate the additional investment and the higher risks assumed. The Annexure-A gives the details of comparison made by the department which formed part of assessment order and Annexure-B gives the variance in average realisation for each month. It may be noted from Annexure - B that except in the month of June where the average realisation .....

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fer pricing. The TPO has failed to appreciate that during the year there were six instances of sale of Barite lumps to Associated Enterprise and that in all but one instance the sale price compared favourbly with the arms length price. As rightly held by the Commissioner of Income Tax (Appeals) , the TPO while making adjustment to sale price of the assesses has not given weightage to the CIF sale of the competitor. The TPO simply deducted the freight incurred by the competitor from the sale pric .....

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e merits of the case, as explained by the assessee, before us. This position is clear from paragraph 5 of the proceedings of the DRP which is reproduced below : 5. We have carefully considered the facts of the case, examined the records and considered the oral and written submissions made on behalf of the assessee. The assessee has entered into international transactions with its AEs. In this connection, the facts recorded by the T.P.O. in the T.P.O s order are not disputed. What the assessee ha .....

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taining to the T.P. audit are not yet settled or resolved. We therefore uphold the action of the T.P.O. in making adjustment in respect of assessee s international transactions both its AEs. Consequently, the addition of ₹ 3,90,47,634/- proposed by the A.O. is confirmed and these grounds of dispute are rejected. 19. Therefore, we straightaway go to the order passed by the TPO to examine whether the addition is called for or not. 20. It is worthwhile to mention here that an appeal filed by .....

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the sale value of five items, Barite Powder, Bentonite Lumps, Bentonite Powder, Potash Feldspar Lumps and Soda Feldspar Lumps. In respect of Bentonite Lumps, Bentonite Powder, Potash Feldspar lumps, the assessee has adopted TNMM method. In respect of other two items, CUP method has been used. But the TPO has made the studies by adopting CUP method for all these five items. As far as this case is concerned, the CUP method is also equally acceptable and, therefore, we are not inclined to discuss o .....

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y the assessee on export of minerals to its AE is very much comparable to the price reflected in the transactions made by its competitor, M/s. IBC Ltd. As already stated, for the earlier assessment year 2005-06, the assessee is operating in a very limited sphere. The assessee and its competitor, few in number, have obtained licences from State Government undertaking of Andhra Pradesh on the basis of public auction. The dealers in this field are few in numbers. This is mainly because the exporter .....

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ing the rate declared by M/s. IBC Ltd. while proposing the additions in the hands of the assessee company. 24. Then what is the method of comparison adopted by the TPO? This is apparent in the case of Bentonite Lumps. The TPO has adjusted the price reflected in the sale of 40 MT Bentonite Lumps made to non AE. The TPO summarily rejected the sale price reflected in the case of a sale of 23500 MT made to its AE. Is it fair to say that the export price of 23500 MT would be exactly that of a sale of .....

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omparing the mountain with a mole hill. 25. This is the same case with Bentonite Powder, where the assessee has made a sale of 6000 MT to AE whereas the sale to non AE was just 110 MT. This is the fate of other remaining items. 26. The most glaring feature of the transfer pricing study placed before us, is that the TPO has overlooked the simple arithmetic of the case discussed in our order passed for the earlier assessment year 2005-06. We have made this point very clear that the assessee is mak .....

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is predominantly, because of the different methods of invoicing as FOB and CIF. 27. In addition to the above, it is to be seen that the TPO has not considered the quality variation in the minerals exported by the assessee. The assessee has in fact filed chemical analysis report before the TPO to show that different consignments have different qualities depending upon the contents of potash, nitrogen etc. The chemical analysis report submitted by the assessee showed that different consignments h .....

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ven though the assessee has furnished the price details of M/s. IBC Ltd. The TPO has accepted the particulars furnished by M/s. IBC Ltd. in the assessment of that company whereas there is no material difference in the price quoted by the assessee and that company. (2) The TPO has adopted the special sale price attributable to non AEs on small quantity by ignoring the price quoted by the assessee to its AE for bulk and regular sales. The variables adopted by the TPO for making comparison are fund .....

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exports. 30. Therefore, in the facts and circumstances of the case, we find that transfer pricing study made by the TPO is far away from reality. If the erroneous presumptions of the TPO are excluded, we find that the price disclosed by the assessee is comparable and compatible to ALP and no adjustment is called for in the present case. We accordingly delete the ALP addition of ₹ 3,90,47,634/-. 8. Since the facts in assessment year 2007-2008 are identical, we are inclined to confirm the o .....

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xpenditure includes a sum of A.28,56,735/- classified as interest paid to others. This interest includes a sum of A1422/- paid towards interest on service tax and the balance of A28,55,313/-was paid to APMDC [Andhra Pradesh Mineral Development Corporation). As per the agreement with APMDC [supplier of Barites] the buyer is required to pay 104% of the value of the cargo in advance of every lot of 5000MTs. However the assessee company instead of paying advance has opened Letter of Credit (LC) in f .....

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s so held in many cases that to claim interest u/s.36 (1) (iii), the relationship of borrower and lender is necessary. in our case as the interest payment is due to different arrangement with the supplier, this is to be treated as a part of Purchase Consideration. Hence TDS for this payment does not arise. The assessees reply was not convincing. (i) The assessee has failed to deduct TDS while making interest to others amounting to ₹ 28,55,313/-. . (ii)Because of different arrangement with .....

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nt made for purchase and a compensatory charge for the period of credit utilized for payment of the amount due. The compensation is referred to as interest, it cannot fall under the definition of interest and hence the disallowance made is not warranted and is directed to be deleted. Against this, the Revenue is in appeal before us. 12. The ld. Departmental Representative relied on the order of the Assessing Officer. 13. The ld. Authorised Representative submitted that the assessing officer is n .....

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Officer, Vs. Parag Mahasukhlal Shah (2011) 12 Taxmann.com 37(Ahd.) wherein it was held that when a payment is compensatory in nature and not related to any deposit/debt/loan, then such a payment is out of ambit of the provisions of Sec. 194A . The Commissioner of Income Tax (Appeals) has relied on the decision in the case of CIT vs. Vijay Ship Breaking Corporation 261 ITR 113 (Guj)(2003). The ratio of the said decision cannot be applied to the case of the assessee for the simple reason that in t .....

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hase price became payable on the delivery being effected. Here, the contract of sale itself has considered the purchase price of the ship as payable on delivery after notice of release, and that is why the interest is computed at the rate agreed for the usance period of 180 days being the credit facility given to the buyer. It is further submitted that the said case law was delivered in relation to disallowance under section 40(a)(i) and not in relation to Sec 40(a)(ia). In the light of the fore .....

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be deemed to have been inserted with retrospective effect. In such an event, the assessee may not be deemed to be an assessee in default u/s 201(1) and consequently as per second proviso to Sec.40(a)(ia) the assessee shall be deemed to have deducted and paid tax in accordance with the provisions of Chapter XVII -B. It is settled law that if a statute is curative or merely declaratory of the previous law, retrospective operation is intended. An amending Act may be purely clarificatory to clear a .....

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ad High Court in the case of CIT Vs. Vector Shipping Services (P) Ltd. (Allahabad), Sec.40(a)(ia) disallowance applies only to amounts payable as on 31st March and not to amounts already paid during the year. The majority decision in Merilyn Shipping 136 ITD 23(SB) was approved by the Allahabad High Court. The SLP filed by the revenue was dismissed in limine by the Apex court. The ld. Authorised Representative for assessee prays that since the Commissioner of Income Tax (Appeals) has allowed the .....

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tter from the undertaking dated 4-9-2004, and the undertaking charged A28,55,313/- as compensation charges for the credit period utilised by the assessee. The payment made is compensatory and the decision relied upon by the assessed holds that the definition of interest covers interest payable in any manner in respect of loans, debts, deposits, claims and other similar rights or obligation. It may even include service charges but only with regard to money borrowed. In this case, it is not a ques .....

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e payment and it will not fall under the category of interest as defined in Sec. 2(28A) of the Act. Payment made by the assessee in the present appeal cannot be termed as interest and accordingly we are in agreement with the findings of the Commissioner of Income Tax (Appeals). Without entering into the controversy so as to whether the payment is within the ambit of interest in Sec. 2(28A), the assessee is also bound to succeed in its alternative argument that the entire payment if made during t .....

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d. Accountant Member. I entirely agree with the conclusion reached by him in all the issues. However, in respect of the finding recorded by the Ld. Accountant Member for disallowance under Section 40(a)(ia) of the Income-tax Act, 1961 (in short the Act ) on the ground that the assessee has already paid the amount, I am unable to agree with the reasoning of the Ld. Accountant Member. Admittedly, what was paid by the assessee is not interest on loan or debt. The payment is compensatory nature. The .....

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40(a)(ia) of the Act? This issue has been elaborately considered by the Cochin Bench of this Tribunal in Shri Thomas George Muthoot v. ACIT in I.T.A. No. 63 & 64/Coch/2014 dated 28.08.2014. It is pertinent to note that the present Judicial Member and the Ld. Accountant Member were the Members of the Cochin Bench which delivered the order in the case of Shri Thomas George Muthoot (supra). For the purpose of convenience, I am reproducing the finding recorded by Cochin Bench of the Tribunal in .....

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s (P) Ltd. I.T.A. No. 122 of 2013 judgment dated 09-07-2013 and submitted that the SLP filed by the revenue in the Apex Court against the judgment of the Allahabad High Court in M/s Vector Shipping Services (P) Ltd. (supra) is dismissed by the Apex Court. It is well settled principles of law that the law laid down by the Apex Court is binding on all courts and authorities including this Tribunal under Article 141 of the Constitution of India. It is also equally settled principle that a dismissal .....

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he Allahabad High Court in CIT vs M/s Vector Shipping Services (P) Ltd (supra), copy of which is filed by the assessee. The Allahabad High Court, after reproducing the relevant paragraph from the order of CIT(A) and referring to the decision of the Special Bench of this Tribunal in Merilyin Shipping & Transports (supra) found that the Tribunal has not committed an error. It is obvious that there is no discussion about the correctness or otherwise of the decision rendered by the Special Bench .....

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wn by the Special of this Tribunal in Merilyn Shipping & Transports (supra). The Calcutta High Court also in the case of Crescent Exports Syndicate & Another in ITAT 20 of 2013 and GA 190 of 2013 judgment dated 03-04-2013 considered elaborately the judgment of the Special Bench of this Tribunal in Merilyn Shipping & Transports (supra) and found that the decision rendered by the Special Bench of this Tribunal is not the correct law. It is well settled principles of law that when diffe .....

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oning has also been recorded as to why the Special Bench is not correct. Therefore, this Tribunal is of the considered opinion that the judgments of the Calcutta High Court Crescent Exports Syndicate & Another (supra) and Gujarat High Court in Sikandarkhan N Tunvar (supra) have to be preferred when compared to the Allahabad High Court in M/s Vector Shipping Services (P) Ltd (supra). 13. For the purpose of convenience we reproducing below the observations made by the Calcutta High Court in Cr .....

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the majority view is based on the fact that the Legislature has replaced the expression amounts credited or paid with the expression payable in the final enactment. Comparison between the preamendment and post amendment law is permissible for the purpose of ascertaining the mischief sought to be remedied or the object sought to be achieved by an amendment. This is precisely what was done by the Apex Court in the case of CIT Vs. Kelvinator reported in 2010(2) SCC 723. But the same comparison bet .....

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et the section on the basis of any comparison between the draft and the section actually enacted nor was it open to speculate as to the effect of the socalled representations made by the professional bodies. The Learned Tribunal held that Section 40(a)(ia) of the Act creates a legal fiction by virtue of which even the genuine and admissible expenses claimed by an assessee under the head income from business and profession : if the assessee does not deduct TDS on such expenses are disallowed . Ha .....

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of omission to deduct tax even the genuine and admissible expenses are to be disallowed. But they sought to remove the rigour of the law by holding that the disallowance shall be restricted to the money which is yet to be paid. What the Tribunal by majority did was to supply the casus omissus which was not permissible and could only have been done by the Supreme Court in an appropriate case. Reference in this regard may be made to the judgment in the case of Bhuwalka Steel Industries vs. Bombay .....

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t is not adequately protected by legislation for welfare and benefits of the labour force in the State , these precise words were removed by the legislature and the definition was made limited as it has been finally legislated upon. It is to be noted that when the Bill came to be passed and received the assent of the Vice- President on 05-06-1969 and was first published in the Maharashtra Government Gazette Extraordinary, Part IV on 13-06- 1969, the aforementioned words were omitted. Therefore, .....

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. The law of supplying the casus omissus by the courts is extremely clear and settled that though this Court may supply the casus omissus, it would be in the rarest of the rate case and thus supplying of this casus omissus would be extremely necessary due to the inadvertent omission on the part of the legislature. But, that is certainly not the case here. We shall now endeavour to show that no other interpretation is possible. The key words used in Section 40(a)(ia), according to us, are on whic .....

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ny deduction. The language used in the draft was unclear and susceptible to giving more than one meaning. By looking at the draft it could be said that the legislature wanted to treat the payments made or credited in favour of a contractor of subcontractor differently than the payments on account of interest, commission or brokerage, fees for professional services or fees for technical services because the words mounts credited or paid were used only in relation to a contractor of sub-contractor .....

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gislature in the finally enacted law is clear and unambiguous whereas the language used in the bill was ambiguous. A few words are now necessary to deal with the submission of Mr. Bagchi and Ms. Roychowdhuri. There can be no denial that the provision in question is harsh. But that is no ground to read the same in a manner which was not intended by the legislature. This is our answer to the submission of Mr. Bagchi. The submission of Mr. Roychowdhuri that the second proviso sought to become effec .....

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anced by learned advocates have already been dealt with and rejected. Gujarat High Court in Sikandarkhan N Tunvar(supra) 23. Despite this narrow interpretation of section 40(a)(ia), the question still survives if the Tribunal in case of M/s Merilyn Shipping &Transpors vs. ACIT (supra) was accurate in its opinion. In this context, we would like to examine two aspects. Firstly, what would be the correct interpretation of the said provision. Secondly, whether our such understanding of the langu .....

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ommission or brokerage, rent, royalty, fees for professional services or fees for technical services payable to resident or amounts payable to a contractor or sub-contractor being resident for carrying out any work. (b) These amounts are such on which tax is deductible at source under XVIII-B. (c) Such tax has not been deducted or after deduction has not been paid on or before due date specified in sub-Section (1) of Section 39. For the purpose of current discussion reference to the proviso is n .....

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sequences envisaged therein can be applied. We are prepared to and we are duty bound to interpret such requirements strictly. Such requirements, however, cannot be enlarged by any addition or subtraction of words not used by the legislature. The term used is interest, commission, brokerage etc. is payable to a resident or amounts payable to a contractor or sub-contractor for carrying out any work. The language used is not that such amount must continue to remain payable till the end of the accou .....

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ction was made or more flagrantly deduction though made is not paid to the Government, would escape the consequence only because the amount was already paid over before the end of the year in contrast to another assessee who would otherwise be in similar situation but in whose case the amount remained payable till the end of the year. We simply do not see any logic why the legislature would have desired to bring about such irreconcilable and diverse consequences. We hasten to add that this is no .....

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s situation. The said decision, of course, recognizes the concept of ascertaining the profit and loss from the business or profession with reference to a certain period i.e. the accounting year. In this context, last date of such accounting period would assume considerable significance. However, this decision nowhere indicates that the events which take place during the accounting period should be ignored and the ascertainment of fulfilling a certain condition provided under the statute must be .....

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strength of the position emerging on 31t March. 25. This brings us to the second aspect of this discussion, namely, whether this is a case of conscious omission and therefore, the legislature must be seen to have deliberately brought about a certain situation which does not require any further interpretation. This is the fundamental argument of the Tribunal in the case of M/s Merilyn Shipping & Transports vs. ACIT (supra) to adopt a particular view. 26. While interpreting a statutory provisi .....

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ented in Parliament and ultimate legislation which may be passed. Secondly, the statutory provisions is amply clear. 38. In the result, w are of the opinion that Section 40(a)(ia) would cover not only to the amounts which are payable as on 20 ITA No. 63&64m 83-85&7-72/Coch/2014 31st March of a particular year but also which are payable at any time during the year. Of course, as long as the other requirement of the said provision exist. In that context, in our opinion the decision of the .....

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r Shipping Services (P) Ltd (supra) are not applicable to the facts of the case under consideration whereas the judgments of the Calcutta High Court in Crescent Export Syndicate (supra) and the Gujarat High Court in Sikandarkhan N Tunvar (supra) are squarely applicable to the facts of the case. Respectfully following the judgments of the Calcutta High Court in Crescent Export Syndicate (supra) and the Gujarat High Court in Sikandarkhan N Tunvar (supra), we do not see any infirmity in the orders .....

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this Tribunal. For the purpose of convenience, I am reproducing the relevant portion of the judgment of Kerala High Court in Shri Thomas George Muthoot v. CIT in ITA.No.278 of 2014 dated 3rd July, 2015:- 17. Another contention that was pressed into service was that the appellants had already paid the amount and therefore, the provisions of Section 40(a)(ia), applicable only in respect of the amount which remains to be payable on the last day of the financial year, is not attracted. Therefore, a .....

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