TMI Blog2020 (2) TMI 563X X X X Extracts X X X X X X X X Extracts X X X X ..... other decisions is not relevant. Moreover, as regards the issue of foreign exchange gain is concerned, the learned CIT(A) has given a finding that no detail regarding the same was furnished before him. Before us also, the learned counsel of the assessee has shown his inability and submitted that details are not available. In these circumstances, in our considered opinion, there is no infirmity in the order of learned CIT(A). Hence, we uphold the same. TP Adjustment - proportionate adjustment sustained under Section 92C of the Act with respect to the arm s length price of technical services made to the associated enterprise - HELD THAT:- In assessee s own case for assessment year 2008-09 keeping the principles of judicial consistency and judicial discipline, it is directed that the arm s length price of the said transaction of technical service fees be taken at 50% of the amount claimed by the appellant (full consideration for clauses (a) and (b) of the agreement and half consideration for clauses (c), (d) and (e) of the agreement). Hence the arm s length price of the international transaction would be ₹ 1,73,25,000/-. This means an adjustment of ₹ 1,73,25,000/- is r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is year to such provision was of ₹ 1,61,30,000/-. The Assessing Officer was of the opinion that the same is contingent liability and added the same to the book profit u/s 115JB of the Act. Upon assessee s appeal, the learned CIT(A) by referring to his own order for assessment year 2008-09 dismissed the issue raised by the assessee. Against this order, assessee is in appeal before us. 3. We have heard both the counsels and perused the records. We find that an identical issue was considered by this Tribunal in assessee s own case for assessment year 2008-09. We find that vide order dated 28.09.2018, this Tribunal has dealt with the issue as under :- 19. On this issue, the A.O. noted that the assessee has made a provision for disputed claim amounting to ₹ 1,35,60,000/-. The amount in question was a provision for the sum towards security charges payable to Jawaharlal Nehru Port Trust as per the concession agreement. The A.O. was not satisfied with the assessee s response. He was of the opinion that the claims were in the nature of dispute and were not ascertainable as to whether the actual amount came could be spent. Hence, he added back the same holding them to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT(A) upheld the action of the A.O. 21. Against the above order, the assessee is in appeal before us. 22. We have heard both the counsel and perused the records. We find that it is settled law that it is the substance that counts and not the nomenclature given to it. In the present case, the assessee has received invoices from JNPT toward security charges. These were on account of deployment of CISF Personal. The payment for which was compulsory. The assessee accepted the liability but awaiting supporting documents made the debit in the name of disputed liability. As mentioned above, the name given by the parities is not determinative of the character of the transaction but it is the substance that counts. 23. In this regard, the case law referred in preceding issue from Hon ble Apex Court and Hon'ble Bombay High Court is germane. However, we also note that the ld. CIT(A) has noted that what was the ultimate fate of the liability has not been submitted before him. Even before us, the ld. Counsel of the assessee has not given details of the present position of this liability. In our considered opinion this aspect is crucial for proper adjudication of this issue. Hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in assessee s own case for assessment year 2008-09 referred above. The Tribunal had adjudicated the issue as under :- 24. This issue relates to the disallowance of deduction u/s. 80-IA in respect of the following income : Particulars of other income Amount (in. Rs.) Rent recovery 4,95,000 Sundry revenue 4,411,000 Interest income 58,154,000 Total 60,536,836 25. At the outset, the ld. Counsel of the assessee submitted that he shall not be pressing for the disallowance on account of a rent recovered and sundry revenue. Hence, these grounds are dismissed as not pressed. However, as regards the claim of the interest income, the following u/s. 80IA, the ld. Counsel of the assessee placed reliance upon the recent decision of the Hon'ble jurisdictional High Court in the case of M/s. Tema Exchangers Manufactures Pvt. Ltd. vs The Asst. CIT (in ITA No. 415 of 2004 vide order dated 18.07.2018), wherein the question was as under : (a) On the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee on the fixed deposit from the bank has to be extended deductions under Section 80IA of the Act. In support of the above, this Court relied upon the decision of the Delhi High Court in Commissioner of Income Tax Vs. Eltek SGS P. Ltd., 300 ITR 06 wherein the difference in the language employed in Sections 80IB and 80HH of the Act was brought out i.e. profits and gains derived from industrial undertakings as found in Section 80HH of the Act with profits and gains derived from any business of an industrial undertakings . In view of the difference in language of the two Sections, this Court held that interest on fixed deposits in the bank would be profits and gains derived from any business of an industrial undertaking. The same reasoning would apply to extend deductions under Section 80IA of the Act for the compensation received for non supply of spare parts. Thus, the issue stands concluded in favour of the appellant assessee by the decision of this Court in Jagdishprasad M. Joshi (supra). 7. Mr. Tejveer Singh, learned Counsel for the Revenue is unable to points out why the aforesaid decision in the case of Jagdishprasad M. Joshi (supra) would not apply to the present fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. It is in the business of actvities of managing, developing and maintaining the infrastructural facilities of the port. The items of burnt oil, empty barrel, used filter, used spare and sludge oil are the items which would be the discards of the users of the port and ships. Such discards are to cleaned or appropriately dumped. The appellant in the process of maitaining the the infrastructural facilities, sells such discards and has eaned this income from so called scale of scrap and sundry revenue. The learned CIT(A) has held that the above do no qualify for deduction under Section 80IA of the Act. In this regard, learned CIT(A) has placed reliance upon the decision of the Hon'ble Apex Court in the case of Liberty India vs. CIT, 317 ITR 218 (SC) wherein it has been held by the Hon'ble Apex Court that Sections 80I, 80IA and 80IB of the Act are to be read as having common scheme for eligibility of deduction under Section 80IB of the Act. The profit must be derived from an industrial undertaking. Placing reliance upon the above, the learned CIT(A) held that these items do not qualify for deduction under Section 80IA of the Act as they cannot be considered to be in the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing. They are admittedly beyond the first degree and the decision of Hon'ble Apex Court in Liberty India (supra) is squarely applicable. Since this issue is decided on the basis of applicable Hon ble Supreme Court decision, dealing with other decisions is not relevant. Moreover, as regards the issue of foreign exchange gain is concerned, the learned CIT(A) has given a finding that no detail regarding the same was furnished before him. Before us also, the learned counsel of the assessee has shown his inability and submitted that details are not available. In these circumstances, in our considered opinion, there is no infirmity in the order of learned CIT(A). Hence, we uphold the same. 10. Apropos transfer pricing issue; the common issue raised is with regard to the proportionate adjustment sustained under Section 92C of the Act with respect to the arm s length price of technical services made to the associated enterprise. Since the facts are identical, we are referring to figures from assessment year 2009-10. 11. On this issue, the Assessing Officer observed that it was seen from the audit report filed by the assessee in terms of Section 92CEB of the Act that during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es be taken at 50% of the amount claimed by the appellant (full consideration for clauses (a) and (b) of the agreement and half consideration for clauses (c), (d) and (e) of the agreement). Hence the arm s length price of the international transaction would be ₹ 1,73,25,000/-. This means an adjustment of ₹ 1,73,25,000/- is required to be made to the said international transaction. The AO is directed accordingly. iv. This ground of appeal is accordingly partly allowed. Referring to the above, learned CIT(A) held that the facts of the case are similar and the issue is identical. That the conclusion reached by the Assessing Officer is same as has been the findings given by the ITAT in assessee s own case in assessment year 2003-04 and followed in the earlier years. Hence, learned CIT(A) dismissed the ground raised. 13. Against this order, assessee is in appeal before us. We find that identical issue was considered by this Tribunal in assessment year 2008-09 as under :- 6. We have heard both the counsel and perused the records. Both the counsel fairly agreed that the issue has been dealt with by the ITAT for assessment year 2003-04 and 2004-05 wherein the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d), (e) of the agreement). In this way the adjustment to the tune of ₹ 2,88,22,327 was held to be correct thereby determining the true ALP of the international transaction at ₹ 2,89,22,327. 4. We have heard the learned Departmental Representative and perused the relevant material on record. There is no appearance from the side of the assessee despite notice. At the very outset, the learned Departmental Representative conceded that the issue in question is covered against the Revenue by virtue of the order passed by the Bangalore Bench of the tribunal in the case of M/s. Gemplus India Pvt. Ltd. Vs. ACIT in ITA No.352/Bang/2009 for assessment year 2003-2004. In the light of this order dated 21.10.2010, the learned Departmental Representative was fair enough to accept that the decision taken by the CIT(A) accords with the view taken by the Bangalore Bench of the Tribunal in the afore-noted case. In such circumstances, we are left with no choice but to uphold the impugned order on this issue and to this extent. 9. Accordingly respectfully following the precedent as above, we do not find any infirmity in the order of ld. CIT(A). Accordingly we uphold the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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