TMI Blog2019 (11) TMI 341X X X X Extracts X X X X X X X X Extracts X X X X ..... kit Verma, Advocates. O R D E R C.M. No. 45245/2019 (delay) 1. By this application, the applicant seeks condonation of delay of 54 days in re-filing the application. For the reasons stated in the application, the delay is condoned. 2. The application stands disposed of in the aforesaid terms. ITA 901/2019 3. The Revenue is in appeal to assail the order dated 27.02.2019 passed by the Income Tax Appellate Tribunal, Delhi Bench I , New Delhi. We are concerned with ITA 1662/Del/2016 relevant to the assessment year 2011-12 in respect of the Respondent assessee. The Tribunal has rejected the said appeal. On the issue of Transfer Pricing Adjustment on account of AMP expenses, the Tribunal relied upon the Coordinate Bench decision in the Respondent assessee s own case for the assessment year 2010-11 which has been upheld by this Court in ITA 154/2017 deleting the addition on the ground that the TPO has wrongly invoked the provisions of Chapter X of the Act for the said AMP spent. In relation to the issue of deduction under Section 10A, the ITAT has followed its own decision in the Respondent assessee own case for the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Appellate Tribunal in Rusabh Diamonds' case (supra) is clearly applicable to the facts instant case. In the said judgment, it has been held by a co-ordinate Bench of the Tribunal as under (head note from Rusabh Diamonds): The interest income is an integral part of the PBIT inasmuch as interest income, in cases other than finance companies, is required to be included in the 'other income' and thus affects the profit before interest and taxes. While profit before interest and taxes does not take into account 'interest expenditure, it does take into account 'interest income because the interest income is part of the 'other income , under pre-amended as well as post -amended Schedule VI to the Companies Act, which is duly taken into account into computation of PBIT. In a way PBIT is a misnomer, as while PBIT does not take into account interest expenditure, it does take into account interest income appearing in the other income. Once the profitability, as per PBIT, is found to be comparable, there cannot be a separate adjustment for interest income on delayed realisation, which is an integral part of the PBIT figure. (paragraph 12.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancing of any type, including by way of 'deferred payment or receivable or any other debt arising during the course of business' will constitute an international transaction under section 92B. Going by this definition 'any debts arising during the course of business' will constitute an international transaction. A trade debt is, accordingly covered by this definition. However, since the assessment year that one is dealing with is prior to the assessment year 2012-13, the next important question is whether this amendment could be held to be applicable in the assessment year before as well. Undoubtedly, the amendment is said to be retrospective but then the question really is whether just stating the law to be retrospective will make it retrospective in effect. (paragraph 29) It is very important to bear in mind the fact that right now one is dealing with amendment of a transfer pricing related provision which is in the nature of a SAAR (specific anti-abuse rule) and that every anti-abuse legislation, whether SAAR (specific anti-abuse rule)or GAAR [general anti-abuse rule] is a legislation seeking the taxpayers to organize their affairs in a mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated as prospective in effect, i.e., with effect from April 1, 2012, onwards. (paragraph 39) For the detailed reasons set out above, the amendment in section 92B, at least to the extent it dealt with the question of issuance of corporate guarantees, is effective from April 1, 2012. The assessment year being an assessment year prior to that date, the amended provisions of section 92B have no application in the matter. (paragraph 43). Respectfully following the above, ground Nos. 7 and 8 of the appeal are allowed and the Assessing Officer is directed to delete the addition 9.1 It is not disputed that the revenue has not filed any appeal before the Hon'ble High Court against the above decision of the, Tribunal on the issue in dispute in A.Y. 2009-10. Moreover, following the decision in of A.Y. 2009-10, the coordinate Bench, in A.Y. 2010-11, has again decided the issue in favour of the assessee. It will also be relevant to note that there is no adjustment proposed on this issue by the TPO in A.Ys. 2011-12 2013-14. The contention of the Ld. DRP that working capital adjustment would not subsume adjustment on account of overdue receivables is no mo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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