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Instrumentarium Corporation Limited, Finland Versus Assistant Director of Income Tax International Taxation I Kolkata

Transfer pricing adjustment - interest free advances granted by the assessee to its Indian AE - base erosion theory - Held that:- We are not inclined to accept the base erosion argument, in principle, nor do we find anything in the facts on record to even support the factual elements embedded in the plea of the assessee. We reject this plea. The intervener has picked up an aspect of the matter totally “divorced from its context” and proceeded to treat the same as “a full exposition of law on a q .....

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tion 92 of the Act mandates that the income from such transactions is to be computed on the basis of arm’s length price. - The assessee is not really correct in contending that when the assessee has not reported any income from a particular international transaction, the ALP adjustment cannot compute the same. The computation of income on the basis of arm’s length price does not require that the assessee must report some income first, and only then it can be adjusted for the ALP. Section 92 .....

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f income. There is no, and there cannot be any, dispute or controversy about this character of income. The point of dispute is whether zero interest, or no interest, is good enough for computing the income or whether an arm’s length interest must substitute this zero interest. The answer is obvious. As long as the transaction is an international transaction between the AEs, the computation of income has to be on the basis of arm’s length interest. Therefore, in our considered view, even when no .....

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ian AE, i.e. Datex Ohmeda India Pvt Ltd. However, so far as quantification of the arm’s length price adjustment is concerned, the same will have to be dealt with the division bench as no arguments, with respect to the quantification part, were advanced before us. It is also open to the parties to take up any other issue, not specifically dealt with above, before the division bench in accordance with law. - I.T.A. Nos. 1548 and 1549/Kol/2009 - Dated:- 15-7-2016 - Justice D D Sud (President), N V .....

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umstances of the case, no arm s length rate of interest was required to be charged on the loan granted by the non-resident assessee-company to its wholly owned subsidiary Indian company M/s. Datex-Ohmeda (India) Pvt. Ltd. (Datex)? (2) Whether, in the given facts and circumstances of the case, CBDT Circular No.14 of 2001 [252 ITR (St.) 104] and Taxation Ruling TR 2007/1 issued by Australian Taxation Officer are relevant in the context of Transfer Pricing Regulations of India, in particular to the .....

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on certain narrow facets of the issues requiring our adjudication. As all these aspects will have to be dealt with in the course of our adjudication anyway, it is not necessary to have specific questions on each of the arguments. It was in this background, and with a view to succinctly set out the controversy requiring our adjudication, that the need to modify the questions to be answered by the Special Bench was felt. Accordingly, with the consent of the parties, Hon ble President was pleased t .....

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diary in India? The assessee and the transaction: 2. The background in which this question has come up for the consideration of this special bench is like this. The assessee before us, Instrumentarium Corporation Limited (ICL-Finland, in short), is a company incorporated in, and tax resident of, Finland. The assessee is engaged in the business of manufacturing and selling medical equipment, and it has a wholly owned subsidiary in India by the name of Datex Ohmeda India Pvt Ltd (Datex India, in s .....

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n this loan, an arm s length price (ALP) adjustment is required to be made to the income to be brought to tax in the hands of the assessee, i.e. ICL-Finland, the assessee is of the view that, for a variety of reasons- including primarily the issue of base erosion of Indian tax base, no such adjustment can be made. AAR saga: 3. The assessee had approached the Authority for Advance Ruling in this regard. While we will deal with this aspect of the matter in more detail at a later stage, suffice to .....

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y the AAR as follows: Adverting to question No. 3, as reframed, it will be necessary to bear in mind the scheme of sections 92, 92A, 92B. The assessing officer is enjoined to work out the arm s length price as per sub-sections (1) and (2) of section 92 following the method outlined in section 92C. If he considers necessary or expedient so to do, he may with the previous approval of the Commissioner, refer the computation of arm s length price in relation to the international transaction to the T .....

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ve to proceed with the assessment without giving effect to sub-sections (1) and (2). Without complying with the statutory requirements it will be too presumptuous to assume the said transaction is beneficial for the Revenue and then invoke sub-section(3) of section 92. 12. To consider the applicability of sub-section (3) of section 92, we have perused the loan agreement between the applicant and the Datex dated August 26, 2002. Clauses 5, 6 and 7 of the agreement are relevant for our purpose. 5. .....

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rrower free of any interest. 7. Overdue interest. If the payment is delayed default interest of 16% will be charged. Overdue interest is calculated for the period beginning from the maturity date and ending to date the Principal amount is received to the Lender s bank account. The overdue interest shall be paid with the principal amount. Though clause 6 provides that the loan will be made available by the Lender to the Borrower free of any interest, clause7 stipulates that if the payment is dela .....

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be taken in conjunction with clauses 5 and 7 which stipulate about repayment of loan and for payment on overdue interest. Without knowing the exact position in regard to the repayment of loan or the applicability of overdue interest, it will be premature to assume that the rate of interest is 0% and proceed to pronounce ruling on that premise. 13. In this context, it is important to notice proviso (ii) to sub- section (2) of Section 245R of the Act, which gives no option to the Authority except .....

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or the determination of any cost or expense allocated or apportioned, or, as the case may be, contributed under sub-section(2), has the effect of reducing the income chargeable to tax or increasing the loss, as the case may be, computed on the basis of entries made in the books of account in respect of the previous year in which the international transaction was entered into. Having regard to the aforementioned provision - proviso (ii) to sub-section (2) of Section 245R of the Act - it is a pro .....

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Act with respect to the said transaction of loan. Whether or not the applicant would charge the interest, as per the principles of the arm s length price, on the said loan advanced to Datex, having regard to its contractual obligation, is a matter for the applicant to consider but for the purposes of the Act the rate of interest will have to be taken as per the principles of arm s length price. [Emphasis, by underlining, supplied by us now] 4. It was in this backdrop that the Authority for Adva .....

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ute, therefore, that even though there are certain observations by the Authority for Advance Ruling, which may be construed against the assessee on merits, nothing really turns on the same as the application for advance ruling was dismissed in principle and as all the issues were left open for adjudication in the course of the normal assessment proceedings of the assessee. Proceedings before the authorities below: 5. Turning to the proceedings before the authorities below, even after this unsucc .....

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s issued under section 148 and under section 142(1). It was in this backdrop that the Assessing Officer proceeded to treat the Datex Ohmeda (India) Pvt Ltd (Datex India, in short) as a representative assessee of the assessee, and proceed to finalize the assessment under section 144 r.w.s. 147.The Assessing Officer noted that Datex India is a loss making concern and that it has, as on 1st April 2003, accumulated unabsorbed business loss of ₹ 12,25,42270 and accumulated unabsorbed depreciati .....

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see to its subsidiary was not at an arm s length price, and, accordingly, an arm s length price adjustment was normally required to be made in respect of interest earning of the assessee from the grant of this loan. The only defence of the assessee, according to the Assessing Officer, was that erosion of tax base and consequent loss of tax revenue in India but then this argument was on the presumption that the Datex was making profits and paying taxes thereon. The Assessing Officer was of the vi .....

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efly referred to, and relied upon, the Report of Expert Committee Group on Transfer Pricing Guidelines, 2002, and Section 482 of US Internal Revenue Code. On factual aspects regarding quantum of adjustment, the Assessing Officer noted that, as evident from the material on record in the case of Datex India, the assessee had an outstanding balance, as at the year end, of ₹ 50,62,98,144 as against ₹ 14,72,87,857 in the beginning of the year. This fact, according to the Assessing Officer .....

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nting treatment for provision of interest) clearly indicates that Datex has stopped providing for interest on the loan from the assessee w.e.f. 2002-03, the earlier loan of USD 3 million was interest bearing . The Assessing Officer also noted, as was stated in the transfer pricing report of Datex India, that average PLR of the State Bank of India for 2002-03 was 10.87% . Based on this analysis, and without the benefit of any assistance or cooperation from the assessee, the Assessing Officer fina .....

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he arm's length price of the interest income receivable by the assessee from Datex in the present case. As mentioned in the Transfer Pricing report filed by Datex, the PLR of SBI @ 10.87% was a prime indicator of the interest rate prevailing in the market in F.Y.2002-03. 8.1. It would, therefore, be only appropriate to apply rate of 10.87% to determine the interest income of the assessee. However, as indicated above, such interest is chargeable not only on the loan of ₹ 36 crores grant .....

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was entered in to i.e. 31.08.02) plus on 14,72,87,857/- for the entire F.Y.2002-03. In case any small adjustment in the figures by way of repayment etc. was made during the year, the same cannot be accounted for in absence of any co operation from the assessee. Interest income of the assessee is, therefore, computed as under: Loan Amount 36,00,00,000 14,72,87,857 Period 01.09.2002 to 31.3.2003 = 7 Months 01.4.2002 to 31.3.2003 = 12 Months Interest @ 10.87% 2,28,27,000 1,60,10,190 Total 3,88,37,1 .....

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e rejecting the contentions of the assesse on merits, learned CIT(A), inter alia, observed as follows: 14. The appellant has relied on the Board s Circular No.14 of 2001 that the new Section 92 is not intended to be applied in cases where the adoption of arm s length price determined under the regulations would result in a decrease in the overall tax incidence in India in respect of the parties involved in the international transaction. It is true, but as mentioned earlier or also observed by th .....

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o. In fact, the A.O. of appellant company has taken the view in favour of the revenue by bringing to tax the interest not charged by the appellant against the provisions of the Act. 15. Under the new provisions, the primary onus is on the taxpayer to determine an arm's length price in accordance with the rules, and to substantiate the same with the prescribed documentation. Where such onus is discharged by the assessee and the data used for determining the arm's length price is reliable .....

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tment is made to the transfer price involved and. thereby the expenditure represented by the amount so remitted is partly disallowed. Under the income Tax Act, a non-resident in receipt of income from which tax has been deducted at source has the option of filing a return of income in respect of the relevant income. In such case, a non-resident could claim a refund of a part of the tax deducted at source on the ground that an arm's length price has been adopted by the A.O. in the case of the .....

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at by doing so it has taken decision in favour of the Govt. exchequer or the tax revenue of the country. On the contrary, by doing so it has acted against the tax revenue of the country. In continuation of above, it has further been clarified in the Circular that however, the adoption of the arm's length price in such cases would not alter the commercial reality that the entire amount claimed earlier would have actually been received by the entity located abroad. It has therefore been made c .....

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im of the loss. Hence, the A.O. has not acted against the spirits of the Board's Circular referred by the appellant. In view of above discussion, it is held that appellant has failed to comply with the provisions of the Act relating to an international transaction and hence the A.O. was justified in bringing to tax the interest income on loan granted to M/s. Datex by applying the principles of arm's length price. The action of the A.O. in this regard is upheld. 7. The assessee is not sat .....

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were subject to tax @10% on gross basis in the hands of the appellant (i.e. intervener before us) as fees for technical services, as per the provisions of the India Netherlands tax treaty, with respect to which there is no dispute . In the course of proceedings before the Transfer Pricing Officer, and for the detailed reasons set out in the order passed by the TPO, he was of the view that the intervener should have charged the higher amount of fees for technical services. Accordingly, the TPO pr .....

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nded that the application of arm s length principle in computation of income in these international transactions, between these associated enterprises i.e. the intervener and its Indian AEs, will result of erosion of tax base by 24%. While Dispute Resolution Panel agreed with these contentions of the assessee in principle, it proceeded to uphold applicability of transfer pricing provision in this case as the Indian AEs of the intervener had suffered losses in the relevant assessment years, and a .....

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ntervener, it is prayed that the intervener should also be allowed an opportunity of hearing by us. Base Erosion theory- taxpayer s perspective 9. The basic argument of the assessee is that since there is no erosion of tax base in India by the assessee company giving an interest free loan to its wholly owned subsidiary Indian company, the provisions of the transfer pricing cannot be pressed into service in this case. Learned counsel submits that an arm s length price adjustment is permissible an .....

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ccording to the assessee, in a situation in which result or consequence of an arm s length price adjustment is erosion of domestic tax base, the provisions of transfer pricing cannot be invoked. Elaborating upon the factual elements embedded in this proposition, it is submitted that while the receipts in the hand of the assessee are taxable @10% on gross basis, in view of the specific treaty provisions to that effect, the expenditure so incurred will be fully deductible in the hands of the resid .....

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of the loan, its usage and return to the assessee is also not in dispute. It is also pointed out that if the computation of interest is imputed to the loan, the net result will be (a) a withholding tax of 10% on the interest payable, (b) a statutory reduction or deductibility of the said expenses e which will allow benefit of 36.75% tax to the assesse, and (c) a resultant base erosion of 26.75% to the Indian revenue. Learned counsel then invites our attention to the CBDT circular no. 14 of 2001 .....

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ational transactions . A reference is then made to the CDBT circular no. 12 dated 23rd August 2001 which, inter alia, states that the aforesaid provisions have been enacted with a view to provide statutory framework which can lead to computation of reasonable, fair and equitable profit and tax in India so that the profits chargeable to tax in India do not get diverted elsewhere by altering the prices charged and paid in intra-group transactions leading to erosion in our tax revenues . Learned co .....

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estic company even if the domestic company is incurring losses. He submits that the same principle must follow in the present case as well, and, accordingly, no ALP adjustment is required to be made in respect of the loans given by the assessee to its Indian AE i.e. Datex India. Learned counsel submits that the bar on corresponding deduction adjustments in the hands of the AE, as set out in second proviso to Section 92C(4), comes into play only when arm s length price is paid to the AE as is evi .....

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ed us to hold that the transfer pricing provisions cannot be invoked on the facts of this case as indeed similarly placed cases. Learned counsel gives a rather dramatic touch to his opening submissions by stating that while there may not be much tax revenues involved in this case, which is no more than, to use his words, a drop in the ocean, our decision on this macro issue of relationship between base erosion and transfer pricing will have a huge impact on the transfer pricing administration in .....

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he unique facts of his case which are, to the material extent, common with that of the appellant. He submits that for every additional monetary unit of fees charged by the assessee to its Indian AEs, the Indian AEs will get a tax shield of 34%, whereas the assessee will suffer tax only @ 10% on gross basis. There is thus base erosion of the Indian tax revenue to the extent of 24%, and this base erosion defeats the very intent and objective of introducing the transfer pricing provisions in India. .....

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national transaction . He submits that in the instant case, charging of higher service fees by the assessee to Indian AEs would have resulted in an erosion of tax base in India since the tax applicable on the additional income, by way of ALP adjustment, would be insufficient to offset the tax forgone by the Government on account of deduction available to Indian AEs of the assessee. He then refers to Hon ble Supreme Court s judgment in the case of K P Verghese Vs Income Tax Officer [(1981) 131 IT .....

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make profits in the subsequent assessment years and started absorbing the losses incurred earlier. It cannot, therefore, be said that the assessee was all along incurring losses only and had no tax liability. He emphasizes that an effort to increase losses has always been viewed with the same degree of disdain and apathy, under the law, as an effort to decrease the profits. Learned counsel then referred to Hon ble Supreme Court s decision in the case of CIT Vs Gold Coin Health Food Pvt Ltd [(200 .....

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e (ATO, in short), i.e. ruling no. 2007/1, which holds that no ALP adjustment needs to be made in the case of non-resident lender giving an interest free loan to the Australian domestic company, and this principle will apply even if the Australian domestic company was to incur a genuine tax loss since the tax loss eligible to being carried forward. He submits that the said ruling of the ATO, which is also the opinion of the Government of Australia- a country well experienced in the field of tran .....

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annot be applied on the facts of this case as long as the additional income, which is sought to be brought to tax by way of ALP adjustments, is otherwise subject to tax in India. He submits that this decision was rendered in the context of attribution of profits to the PE but then it accepts, and in fact lays down, the broad principle that unless there are profits residing in the foreign enterprise in a jurisdiction outside India, there cannot be any occasion to bring them to tax in India. In ca .....

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gment in the case of Morgan Stanley (supra) also, the transfer pricing provision cannot apply on the facts of this case. Revenue s stand on base erosion theory 12. Learned Commissioner (DR) submits that the provisions of the statute are quite clear and unambiguous, and admit no controversy. It is submitted that there is no dispute that the transactions between the foreign company and its Indian AEs are transactions between the AEs, as defined under section 92A, and that the transactions are in t .....

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nation of the allowance for any expense or interest under, or the determination of any cost or expense allocated or apportioned, or, as the case may be, contributed under sub-section (2), has the effect of reducing the income chargeable to tax or increasing the loss, as the case may be, computed on the basis of entries made in the books of account in respect of the previous year in which the international transaction was entered into but then this limitation comes into play only when the income .....

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oints out just because ALP adjustments are made in the hands of the non-resident associated companies, these ALP adjustments will not entitle the Indian AEs to get any deductions in respect of the ALP adjustments. It is contended that learned counsel has misinterpreted the second proviso to suggest that corresponding deduction will be available in the hands of the AE on the ground that no arm s length price has actually been paid by the Indian AE. It is stated that there is no provision in the s .....

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in any event, time value of money cannot be ignored and even if there was to be any impact of this ALP adjustment on the taxability in the hands of the Indian AE, it would have been only in a subsequent year and there is nothing on record to even remotely suggested that discounted net present value of this future loss is more than the tax revenue at present. He submits that a rupee in tax, say five years from now, cannot be treated as a rupee in tax today. It is submitted that the Indian AE is .....

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intervener, but declining to take it to the logical conclusion only on the ground that the assessee has suffered the losses in the relevant assessment year, learned Departmental Representative submits that at the relevant point of time the orders passed by the DRP were not appealable and that is the only reason that even when the revenue authorities did not agree with the interpretation given by the DRP, the matter could not have been carried further, but then in any event, the interpretation of .....

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the field authorities but then since there is no deduction available to the AEs in respect of ALP adjustments made in the hands of the assessee non-resident companies, there is no reduction in overall incidence of taxation as a result of the ALP adjustments being made in the hands of the non-resident companies earning income from their Indian AEs- which is sine qua non for the non application of transfer pricing provisions in such cases. Learned DR submits that as far as the circulars are conce .....

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e subject matter of consideration by Hon ble Supreme Court. As for the loss to the revenue as a result of the impugned ALP adjustments, learned DR submits that it is for the revenue to decide what is best for the revenue, and just as much as the revenue is prevented from sitting in judgment over how should the assessee conduct his business, the assessee should not step into the shoes of the revenue authorities either. If the assessee thinks that as a result of the ALP adjustments being made in t .....

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ivate such submissions. He submits that it is interesting to note that the assesse was earlier charging interest on loans given to the Indian companies but it was only when the losses suffered by the Indian AEs surfaced, and the Indian AEs did not gain any tax advantage from these interest payments, that the assessee stopped charging the interest on loans to the Indian AEs. By no stretch of logic, therefore, it could be said that not charging the interest was a bonafide business decision. As the .....

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ing to the learned DR, based on some broad purpose and notions of the transfer pricing and with complete disregard to the facts of the present cases. Learned DR also invited our attention to the fact that the assessee has been completely indifferent to the notices served by the Assessing Officer and that no information was furnished by the assessee at the assessment stage. The assessee did not, despite specific requisition to that effect, even file the income tax return and has been completely n .....

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strength of these submissions, learned Commissioner (DR) urges us to hold that the transfer pricing provisions have been rightly invoked in these cases and that the theory of non applicability of TP provisions on the basis of base erosion of Indian revenue is neither correct in principle nor applicable on the facts of these cases. Rejoinder of the assessee on base erosion theory 14. Learned counsel submits that while it is true that Indian AE was making losses in the relevant assessment years, o .....

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of eight years. Without being committal on whether or not the loss incurred by the Indian AE was completely set off against the profits of the company in which it merged, learned counsel submits that Wipro GE must have subsumed the accumulated losses in the first year of merger itself. This, according to the learned counsel, shows that the loss to the Indian revenue was a real loss. As for the Indian AE not being eligible for deduction as a result of the ALP adjustments, learned counsel that the .....

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Section 92(3) is has the effect of reducing the income chargeable to tax or reducing the loss , that the expression effect and impact are synonymous, and, therefore, what needs to be examined is the consequence which should flow from the computation. He then submits that if the contentions of the revenue are to be upheld it will result in a situation that the foreign company will be taxed @ 10% on the same income in respect of which a tax shield at much higher rate, i.e. 36% in this case, is al .....

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provisions deal with the transactions involving two or more parties, and what should be put to test is tax implications of a transaction as a whole rather than tax implications of the transaction in the hands of one of the assessee. Therefore, according to the learned counsel, section 92(3) cannot be given such a restrictive meaning so as to examine the impact of taxability only in the hands of the assesse rather than of all the AEs put together. As for the impact of Aztec decision (supra) by a .....

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requires that any income arising from an international transaction shall be computed having regard to the arm s length price . To this extent, there is no dispute that the transactions before us are international transactions between the associated enterprises, and the income arising from these transactions is, therefore, required to be computed having regard to the arm s length price. The case of the assessee, however, at best is that the assessee is covered by the exclusion clause set out in .....

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be, computed on the basis of entries made in the books of account in respect of the previous year in which the international transaction was entered into 17. In plain words, what this sub section holds is that where as a result of computation of income under section 92(1) on the basis of arm s length principle, either the income of the assessee is reduced or loss of the assessee is increased, the provisions of Section 92(1) will not be pressed into service. In other words, where computation of .....

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t in a situation in which, the computation of arm s length price will have the effect of lowering the profits or increasing the losses. Essentially, therefore, it refers to the computation of income in the hands of the assessee in respect of which computation of income is being done under section 92(1). 18. In substance, fundamental contention of the assessee, however, is that we should take a holistic view of the matter and adopt the concept of lowering overall profits and increasing overall lo .....

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tual tax impact but also the possible tax advantage, de hors the time value of money, should be taken into account. This interpretation, according to the assessee, will advance the intent of the legislature and objectives of the transfer pricing. 19. A plain reading of Section 92(3), however, indicates that what is to be seen is impact on profits or losses for the year in consideration itself as it is to be computed on the basis of entries made in the books of accounts in respect of previous yea .....

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isolation without appreciating the impact of the other part of the same section. Such an approach is clearly not permissible. This legal position apart, the arguments of the assessee also proceed on the fallacious logic inasmuch as the amount by which income of the assessee is increased by the arm s length price adjustments, under the Indian law, is not available for deduction in the hands of the corresponding Indian AE. Take for example a situation in which the assessee has not earned an income .....

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by ₹ 400. There is no base erosion by the ALP adjustments in the hands of income of the non-resident company in respect of transactions with the Indian AEs. The base erosion could have, if at all, taken place at best in a situation in which the Indian AE was to actually allow the income to the non-resident company. That is not the case before us, and in such a situation, in any event, ALP adjustments would not have come into play at all. As regards learned counsel s contention that if ther .....

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a corresponding deduction or demonstrate, or even remotely suggest, the line of demarcation as visualized by the learned counsel. As regards the reference to second proviso to Section 92C(4) made by the learned CIT(A), on incorrectness of which so much reliance has been placed by the learned counsel, the CIT(A) was indeed in error as it refers to re-computation of income in the hands of an AE, as a result of lower deduction being allowed, but then nothing really turns on that. The reasoning giv .....

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e arm s length price of the interest was ascertained at ₹ 40. In such a situation, while deduction, as per arm s length principle, is to be allowed only for ₹ 40, the taxability in the hands of the AE shall continue to be for ₹ 100. Clearly, therefore, reference to second proviso to Section 92C(4), as made by the learned CIT(A), was wholly unwarranted. However, learned counsel of the assessee is also equally in error when he contends that since the second proviso to Section 92C .....

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higher deduction in the hands of the Indian AE as a result of increasing non-resident AE s income. 20. One must also take note of the fact that as far as the years before us are considered, base erosion has taken place because of assessee granting an interest free loan to Indian AE. It is so for the reason that if this transaction structure is to be accepted without ALP adjustment, while Indian tax administration will lose the taxability of interest in the hands of the assessee @10%, it will hav .....

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actually set off against the future profits of the Indian AE. 21. The case of the assessee is that the approach adopted above is myopic because such an approach overlooks the tax shield available to the Indian AE in the form of accumulated losses. In our considered view, however, tax administration cannot be expected to have clairvoyance of whether or not Indian AE will actually make sufficient profits in the next eight assessment years which will subsume the losses incurred by the assessee by .....

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trouble is that it inherently comes a bit too late. If the assessee was to be so certain of the tax benefit to the Indian revenue by this transaction structure by way of interest free loan to Indian AE, the transaction would not have been structured in this manner; after all the underlying motive in the activities of the assessee is to maximise gains for its shareholder rather than broaden the tax base of Indian revenue. Of course, even this tax shield of accumulated losses is wholly academic i .....

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mpany to an Australian resident company, if the Commissioner were to make a determination and adjustment under subsection 136AD(2) against the non-resident company so as to deem an interest withholding tax liability, no consequential adjustment could be made by way of a deemed deduction to the resident company under section 136AF. The reason for this is that the circumstances specified in subsection 136AF(1) do not provide for a consequential adjustment where a section 136AD determination is mad .....

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t company to raise the withholding tax liability in the first instance. Such an interest free loan arrangement does not involve the allowance of a deduction to the Australian borrower and, thus, has not by itself disadvantaged the Australian revenue. 17. By contrast, a determination and adjustment under subsection 136AD(2) of the ITAA 1936 could be appropriate where the Australian borrower is a tax exempt entity. Another case would be where section 8-1 of the ITAA 1997 would not allow a deductio .....

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paragraphs 16 and 17 of this Ruling should be followed with no determination and adjustment under subsection 136AD(2). 23. It is important to bear in mind the fact unlike in the provisions of Section 92 of the Indian Income Tax Act, 1961, wherein use of arm s length principle is mandatory in computation of income arising to an assessee from the international transactions, Section 136 AD of the Australian Income Tax Assessment Act 1936, a computation of income on the basis of arm s length price .....

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the taxpayer in respect of the supply but the amount of that consideration was less than the arm s length consideration in respect of the supply; and (d) the Commissioner determines that this subsection should apply in relation to the taxpayer in relation to the supply (https://www.legislation.gov.au/Details/C2013C00040/Html/Volume_3#_Toc346211123).. The provisions of the Indian Income Tax Act 1961 and the Australian Income Tax Assessment Act 1936 are thus not at all in pari materia in this con .....

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nternational agreement was made in forming a view as to whether the amount of consideration in an international agreement needs to be adjusted. It would also be relevant to consider subsequent events to the extent that they are relevant to testing purpose or assist in determining the true nature of any agreement by comparing the conduct of the parties and the stated terms of the agreement. The Commissioner must not consider irrelevant circumstances (paragraphs 390 - 391) . 115. In particular the .....

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ed with other factors, including the effect on the Australian revenue of the use of non-arm's length consideration, against the wording and legislative purpose of section 136AD (paragraph 393) . 117. Having regard to the legislative intent, where paragraphs (a), (b) and (c) of subsections 136AD(1) - (3) have been satisfied, then, in the absence of sound reasons to the contrary, it could be expected that the discretion in paragraph (d) of the relevant subsection would be exercised where the A .....

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s no occasion for any guiding principles in the use of discretion. So far as the Indian transfer pricing provisions are concerned, the use of arm s length price, in computation of income arising from international transactions between the AEs, is mandatory. The only rider is that these provisions are not to be applied only in the event of the exclusion clause in Section 92(3) being satisfied, but then, as we have seen earlier in our analysis, this exclusion clause does not come into play on the .....

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vant legal provisions are not in pari materia, the clarifications issued by the ATO are not even relevant. Of course, even when the provisions were to be in pari materia, nothing really turns on these clarifications issued by the ATO. At best, the approach adopted in these clarifications could be taken as arguments in support of the assessee. 26. Let us now turn to the CBDT circulars relied upon by the assessee. When transfer pricing provisions were introduced on the statute, the CBDT vide circu .....

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ing the prices charged and paid in such intra-group transactions, thereby, leading to erosion of tax revenues. 55.2 Under the existing section 92 of the Income-tax Act, which was the only section dealing specifically with cross border transactions, an adjustment could be made to the profits of a resident arising from a business carried on between the resident and a non-resident, if it appeared to the Assessing Officer that owing to the close connection between them, the course of business was so .....

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as not scientific. It also did not apply to individual transactions such as payment of royalty, etc., which are not part of a regular business carried on between a resident and a non-resident. There were also no detailed rules prescribing the documentation required to be maintained. 55.3 With a view to provide a detailed statutory framework which can lead to computation of reasonable, fair and equitable profits and tax in India, in the case of such multinational enterprises, the Act has substitu .....

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ions and definitions of certain expressions occurring in the said sections. 55.4 The newly substituted section 92 provides that income arising from an international transaction between associated enterprises shall be computed having regard to the arm s length price. Any expense or outgoing in an international transaction is also to be computed having regard to the arms length price. Thus in the case of a manufacturer, for example, the provisions will apply to exports made to the associated enter .....

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lized functions which also benefit one or more other associated enterprises, or two or more associated enterprises agree to carry out a joint activity, such as research and development, for their mutual benefit. The new provision is intended to ensure that profits taxable in India are not understated (or losses are not overstated) by declaring lower receipts or higher outgoings than those which would have been declared by persons entering into similar transactions with unrelated parties in the s .....

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international transaction. [Emphasis, by underlining, supplied by us] 27. What the circular states is the intent of the legislature and the fact that it is intent of the legislature is stated in so many words. However, it is not an order, direction or instruction to the field authorities to the effect that Section 92 is not to be applied when overall tax incidence in India, in respect of the parties involved in the international transaction, will decrease. Section 119 (1), which makes CBDT circ .....

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of the CBDT which binds the field authorities. There are certain situations, as envisaged in Section 119(2), in which the CBDT circulars can relax the rigour of law but it is not even the case of the assessee, and rightly so, that the provisions of Section 92 can be relaxed under section 119(2). The Board s understanding about the intent of legislature, in our considered view, does not in any way fetter the field authorities. 28. Having said that, the role of intent of legislature at best comes .....

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ch of this Tribunal, in the case of Tata Tea Ltd Vs JCIT [(2003) 87 ITD 351 (Kol)], has observed as follows: The House of Lords itself, in a later judgment in the matter of Magor & St Mellons Rural District Council vs. Newport Corporation (1951) 2 All ER 839, did not approve the proposition advanced by Lord Denning. It is interesting to note the articulate expressions of Lord. Simonds, supporting the majority view and at p. 841 of 2 All ER (1951), unequivocally and categorically rejecting Lo .....

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me when so large a proportion of the cases that are brought before the Courts depend on the construction of modern statutes, it would not be right for this House to pass unnoticed the propositions that the learned Lord Justice lays down for the guidance of himself and presumably others....... .......The part which is played in judicial interpretation of a statute by reference to the circumstances of its passing is too well known to need re-statement........ The duty of the Court is to interpret .....

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Lord Justice in the earlier case of Seaford Court Estates Ltd. vs. Asher (to which Lord Justice himself refers) cannot be supported. .......It appears to me to be naked usurpation of legislative function in the thin guise of interpretation and it is less justifiable when it is guesswork with what material the legislature would, if it had to discover the gap, have filled it in. If a gap is disclosed, the remedy lies in an amending Act......" Lord Denning s aggressive definition of the power .....

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English Judges would appear to incline away from the Denning approach. These views are also echoed by Hon ble Supreme Court of India from time to time. In the case of State of Kerala vs. Mathai Verghese AIR 1987 SC 33, Hon ble Supreme Court has taken a view that the Court cannot reframe the legislation for the very good reason that it has no power to legislate. In Jumma Masjid vs. Kodiamaniandra AIR 1962 SC 847, at p. 850 Hon ble Supreme Court referred to, with approval, Lord Loreburn s observa .....

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greement with the view so stated by the division bench. In this view of the matter, even if it is indeed intent of the legislature that transfer pricing provisions are not to be invoked in the cases where there is lowering of the overall profits of all the associated enterprises connected with the transactions, since the words of the statutory provision did not translate this intent into the law, it cannot be open to us to hold that in the light of the legal provisions, as they stand embodied in .....

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es and uncertain contingencies also have no role in the computations of overall tax impact of structuring of a transaction. In this view of the matter, even if we accept the plea that the transfer pricing provisions are not to be invoked when overall profitability is reduced by the way in which the impugned international transaction is structured by the assessee, it will have no impact on the present fact situation as a limited period entitlement, for set off of loss against future profits, cann .....

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entity. These facts, even if true, could not have been known at the assessment stage, and, therefore, nothing really turns on these facts. What is known, only with the benefit of hindsight today, could not have been known at the time of assessment. That apart, this vague submission cannot have any bearing any bearing on our adjudication. It is only elementary that when a party leans upon, or refers to, a fact not borne out of records, he has to state that on an affidavit- as is the mandate of r .....

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a bonafide business decision without any tax motive. When even basic facts about the assessee s dealings with the Indian AE are not furnished by the assessee, and had to be collected by the Assessing Officer from the secondary sources, it is difficult to have faith in these wholly unsubstantiated claims of the assessee; there is no material before us to support these claims either. 30. Coming to the Morgan Stanley (supra) decision of Hon ble Supreme Court, we find that it was on a wholly unrelat .....

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conomic activities of the Indian AE (a permanent establishment in that case) were taxed in India, even if in the hands of a separate legal entity, no further profit attribution can be made in the hands of the Indian AE. By this logic, it is wholly immaterial as to in whose hands an income is to be taxed as long as entire profits are subjected to tax in India, and every payment by the Indian AE to the non-resident company will be outside the ambit of ALP adjustment because whatever is earned by t .....

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The observations made by Their Lordships in the context of PE profit attribution, which is on the basis of a bilateral tax avoidance agreement, cannot be used to nullify or restrict the impact of transfer pricing provisions under the statute. These observations may at best show that the transfer pricing legislation is not based on, what could be construed as, sound first principles as appreciated by Hon ble Supreme Court but then as long as this law is on the statute, we are bound by the same. .....

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ase of CIT Vs Sun Engineering Works Pvt Ltd [(1992) 198 ITR 297 (SC)]: …………… It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this .....

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n of India [1971] 3 SCR 9 this Court cautioned: "It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment." 32. Ironically, however, this is precisely what the learned counsel for intervener has ended up doing. He has picked up an aspect of the matter totally divorced from its context and p .....

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in the plea of the assessee. We reject this plea. Other arguments 34. Learned counsel for the assessee, however, has much more armoury in store. He contends that base erosion argument apart, even otherwise no arm s length price adjustments cannot be made on the facts of this case. It is submitted that grant of interest free loan to the Indian subsidiary is in the nature of a shareholder service inasmuch as it is only because of ownership interest in the Indian subsidiary was given the interest f .....

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ide a benefit if sole effect of the activity is to protect the capital investment of the renderer. Moving on from the shareholder activity argument, learned counsel submits that it is not open to the Assessing Officer to question the commercial expediency of a transaction. When in his wisdom the assessee has advanced an interest free loan, according to the learned counsel, the revenue authorities cannot disregard the commercial expediency of the interest free loan and instead impute interest the .....

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sregarded by the revenue authorities, without assigning cogent reasons. In substance, according to the learned counsel, a non interest bearing loan cannot be re-characterized as, even for transfer pricing purposes, an interest bearing loan. His contention is that an interest free loan being treated as an interest bearing loan amounts to re-characterization of a transaction- which is not permissible under the scheme of the law. Learned counsel refers to, and relies upon, judgments of Hon ble Delh .....

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ITR 144 (SC)], CIT Vs Arihant Avenues and Credit Ltd [(2013) 217 taxmann.com 105 (Guj)] and Shivnandan Buildcon Pvt Ltd Vs CIT [(2015) 60 taxmann.com (Del)] in support of the proposition that notional interest cannot be brought to tax. Learned counsel then takes us through Hon ble Supreme Court s judgment in the case of SA Builders Ltd Vs CIT [(2007) 288 ITR 1 (SC)] and points out that when assessee has deep interest in the other company, as a subsidiary, grant of interest free loan is fully ju .....

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92 (1) requires that income arising out of international transactions will be computed on the basis of arm s length prices but when there is no income in the hands of the assesse, from such transactions, income cannot be invented on the basis of assigning arm s length prices to the transactions. What is not an income cannot be brought to tax under the transfer pricing legislation. Reliance is placed on the judgment of Hon ble Bombay High Court in the case of Vodafone India Services Limited Vs AC .....

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gth of these arguments, learned counsel urges us to hold that no ALP adjustments were warranted, even if permissible in law, on the facts and in the circumstances of this case. 35. Learned Departmental Representative vehemently opposes the submissions of the assessee. He submits that these arguments are wholly ill conceived and factual elements embedded in these arguments are not borne out from the material on record. We are once again reminded that the assessee has not made any factual submissi .....

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ing interest on loans from the assessee. It is the fact of AE incurring the losses which has apparently triggered non charging of interest. He also submits that bonafides of the change in interest policy is far from established; even the basic details have not been filed by the assessee. He then submits that it is not the commercial expediency of the interest free loans which is being questioned by the revenue authorities. The assessee is indeed free to advance interest free loan to a subsidiary .....

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t in the context of transfer pricing. Learned DR further submits that assigning arm s length interest to an interest free loan does not amount to re-characterizing a transaction. The transaction continues to be in the nature of a loan; its only an arm s length consideration which has been assigned to this transaction. As regards reference to Section 2(28A) defining interest , it is submitted that the argument of the assessee is wholly irrelevant and nothing can be even made out of this argument. .....

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ansactions at ALP lead to an income, the income, as computed on the basis of ALP, is to be brought to tax. We are urged to reject the hyper technical, and rather creative but wholly divorced from the existing legal provisions, contentions of the assessee. 36. In brief rejoinder, learned counsel for the assessee once again reiterates his contentions and urges us to interpret the law in a manner to as to be in tune with the underlying intent of legislature and the realities of business. He once ag .....

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l it out of financial distress. It is submitted that, while taking a call on submission of the assesse, we should bear in mind these business realities as well. In the light of these discussions, according to the learned counsel, it was indeed not a fit case for making an ALP adjustment even on merits. We are urged to hold so. 37. In our considered view, the commercial expediency of a loan to subsidiary is wholly irrelevant in ascertaining arm s length interest on such a loan. There is indeed no .....

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ustified on the grounds of commercial expediency are in the context of the question whether such a use of borrowed funds can be said to be for the purposes of business, and, accordingly, whether interest on borrowings for funds so used can be allowed as a deduction in computation of business income of the assessee. That is not the issue here, and these judicial precedents on the commercial expediency, therefore, have no relevance in computation of arm s length price of loan given to an associate .....

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these specific anti abuse provisions. While a notional interest income cannot indeed be brought to tax in general, the arm s length principle requires that income is computed, in certain situations, on the basis of certain assumptions which are inherently notional in nature. When the legal provisions are not in pari materia, as the provision of normal computation of income and the provision of computation of income in the case of international transactions between the associated enterprises, wha .....

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l on record to demonstrate, or even indicate, the existence of these facts. The references to OECD report and BEPS report is in the context of benefit test, but then the benefit test is not really relevant in the context of Indian transfer pricing legislation. Learned counsel has not explained as to how these inputs are relevant in interpreting the scope of the statutory provision before us, nor do we see any relevance of this material in the present context and given the fact situation above. I .....

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find that the claim of the assessee is ill conceived inasmuch as there is no re-characterization of the transaction, inasmuch as it continues to be a loan transaction and inasmuch as the substitution of zero interest by arm s length interest does not alter the basic character of transaction. The question of re-characterization arises only when the very nature of transaction is altered, such as capital subscription being treated as loan or such a trade advance received being treated as a borrowi .....

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ents cannot be disregarded by the revenue authorities. This observations, taken out of the context, cannot be interpreted to mean that an arm s length price of an interest free loan cannot be adopted for ascertaining income from loan transaction. 39. In our considered view, the assessee is not really correct in contending that when the assessee has not reported any income from a particular international transaction, the ALP adjustment cannot compute the same. The computation of income on the bas .....

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a), that deals with a situation in which the international transaction was inherently incapable of producing the income chargeable to tax as it was in the capital field. This is evident from the observation of Hon ble Bombay High Court to the effect that, In this case, the revenue seems to be confusing the measure to a charge and calling the measure a notional income. We find that there is absence of any charge in the Act to subject issue of shares at a premium to tax . Undoubtedly, learned coun .....

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News: RBI Reference Rate for US $

Highlight: GST - Detention of goods under transport - discrepancy in documents - the statutory provisions provide a mechanism for adjudication following detention of goods including for the provisional release thereof pending adjudication - HC

Highlight: Reassessment - first few paragraphs of the assessment order dealt with objections and disposed of accordingly - Unfortunately, the manner in which the AO has decided the issue is wholly unsustainable in law - HC

Highlight: Business expenditure u/s 37 - liquidated damage - breach of contract terms - Expenditure was not incurred for any purpose which is an offence or which is prohibited by law - cannot be disallowed - HC

Highlight: Valuation - inclusion of reimbursement of expenses - managing participation of clients in certain mela, fairs, promotional activities etc. - They are liable to service tax on the gross amount received - They cannot restrict their tax liability to only agency commission

Highlight: TDS liability - ITAT confirmed the liability - We do not see how it is possible for us to uphold the order of the Tribunal and when it purports to decide two Appeals of the Revenue by single paragraph conclusion - HC

Highlight: Reopening of assessment - sufficiency of material available with the AO to form a belief that income chargeable to tax had escaped assessment - bogus purchases - seller refused to respond - notice would not be interfered with - HC

Highlight: Exemption u/s 11 - education activities - transport and hostel facilities surplus cannot be considered as business income of the assessee society

News: Draft Notification for insertion of new rule 39A in the Income-tax Rules, 1962 – comments and suggestions-reg.



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