TMI Blog2022 (7) TMI 385X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Tribunal in case of ACIT vs. Vireet Investment Pvt. Ltd. [ 2017 (6) TMI 1124 - ITAT DELHI] - Decided against revenue. Disallowance of write off of the security deposits - CIT(A) decided the issue by referring the same back to the AO to verify whether the same were actually written off and if so allow the sum as deduction - HELD THAT:- Since department is not prejudiced in any manner with the findings returned by the Ld. CIT(A) as the amount if actually written off is an allowable deduction. It would be done by the AO only after verification. So this ground is determined against the Revenue. TP adjustment qua interest on shareholders deposit - Addition on the ground that the assessee has taken risk by giving deposit to an international Associate Enterprise (AE) without taking any security and charged the interest @ 11.71% with additional amount of 1% to the rate of interest for not taking any security, to the amount of shareholders deposit - HELD THAT:- The co-ordinate Bench of the Tribunal [ 2017 (11) TMI 376 - ITAT MUMBAI] decided the identical issue qua transfer pricing adjustment in relation to non-interest bearing shareholders deposit by considering the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pital account and as such not chargeable to tax. So the Ld. CIT(A) has rightly decided the issue in favour of the assessee LTCG computation - assessee has offered Long Term Capital Gain (LTCG) by applying the percentage completion method and by taking indexation till the year of sale - AO by disagreeing with the assessee proceeded to hold that the assessee is not entitled for this claim and by removing the wrong claim of indexation and by rejecting the percentage completion method for the working of LTCG, the AO made addition being the differential amount in capital gain offered - HELD THAT:- Since the issue before hand is identical to the issue decided by the co-ordinate Bench of the Tribunal in A.Y. 2012-13 [ 2017 (11) TMI 376 - ITAT MUMBAI] so by following the order we hereby set aside the same for verification purpose only to verify the sale of stock in trade affected and offered the proportionate capital gains in the relevant years to tax the same accordingly. Because whole of the capital gain on conversion of land to stock in trade in the year in which only part of sale of stock in trade is affected cannot be brought to tax. TP Adjustment on corporate guarantee - a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls sought to set aside the impugned order dated 21.11.2019, 14.03.2019 22.02.2019 passed by the Commissioner of Income Tax (Appeals), (hereinafter referred to as CIT(A)] qua the assessment years 200910, 2010-11 2013-14 respectively on the grounds inter alia that: Revenue s grounds of appeal ITA No.928/M/2020 for A.Y. 2009-10 1. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that no disallowance can be made if there is no exempt income while CBDT circular no. 5/2014 dtd 11.02.2014 clearly specifies that even if no exempt income is earned on the investments for the purpose of calculation of disallowance u/s 14A r.w.r. 8D, these are to be included. 1.1 On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in not appreciating that from A.Y. 2008-09, the disallowance u/s. 14A is required to be computed as per rule 8D as held by the Bombay High Court in Godrej Boyce and the method adopted by the assessee is not a valid method. 2. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in allowing relief to the assessee relying on the decision of Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assesses as Shareholder Deposit stating that the assessee is under statutory obligation not to charge interest, whereas RBI nowhere stated that the assessee should not charge interest on the said shareholder deposit? 3.4 Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is correct in following the ITAT decision in assessee's own case for A.Y 2010-11 2012-13 in assuming the permission given by the RBI to treat the arrears of technical fees receivable by the assessee as the shareholder deposit as a statutory bar on charging interest at arm's length on the said deposit under specific anti-avoidance provisions of Chapter X? 3.5 Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) is justified in following the ITAT decision in assessee's own case for A.Y 2010-11 2012-13 which in turn relies on RBI approval ignoring the decision of Hon'ble Punjab , Haryana High Court in Coco cola case (309 ITR 194) wherein it has been held that the Income tax Authorities are not bound by the RBI for determining ALP? 3.6 Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned AY 200910, the Ld. CIT(A) is correct in treating the issue as covered issue relying on the decision of the Hon'ble ITAT in assessee's own case for AYs 2010-11 2012-13 wherein the above facts and position of law have not been brought to the notice of the Hon'ble ITAT? 4.1 Whether on the facts and in the circumstances of the case and in law, the Ld. CJT(A) is justified in following the ITAT decision in assessee's own case for A. Y 2010-1 1 and A.Y. 2012-13 in holding that, the outstanding balances with Associated Enterprise-is outside the ambit of International Transaction, despite the existence of Explanation (c) to section 92B of the Act as inserted by the Finance Act 2012, with retrospective effect from 01.04.2002 and consequently deleting the adjustment made u/s.92CA(3) of the Act on account of interest on such outstanding balances amounting to Ks.51,13,361/-? 4.2 Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is correct in following the ITAT decision in assessee's own case for A.Y 2010-11 2012-13 in relying on Hon'ble Supreme Court's decision in the case of UCO Bank (supra) in deleting th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and in the circumstances of the case and in law, the Ld. CIT(A) is correct in relying on Tribunal's decision in assessee's own case for AY 2012-13 wherein it is held that, when recovery of principal is doubtful, the question of charging of interest thereon on hypothetical basis does not arise despite the fact that, assessee is following mercantile system of accounting and the very foundation of special provisions relating to avoidance of tax contained in chapter X of Income Tax Act, 1961 as introduced by Finance Act 2001 w.e.f. 01.04.2002 lies on computation of income from international transaction having regard to Arm's Length Price which is hypothetical and not real income and consequently deleting the adjustment made u/s.92CA(3) of the Act on account of Charging of interest on shareholder deposits placed with the assessee's Associate Enterprises amounting to Rs.1,86,09,281/-? 3.2 Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is correct in deleting the interest charged on the deposit on accrual basis as it is mandatory on the part of the companies to account only on mercantile basis as per Companies Act read with sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not appreciating the basic tenet of Transfer Pricing as enshrined in Section 92F(ii) that no unrelated party in uncontrolled circumstances would have kept such huge money exceeding Rs. 15 Crores for no return for a long period? 3.9 Whether on the facts and circumstances of the case and in law, the Ld. CIT(A) is correct in not appreciating the facts that royalty on technical knowhow accrued to the assessee long back from the AE at Indonesia has not been received and left in Indonesia itself with the AE as shareholder deposit lead to base erosion in India which needs to be set right by transfer pricing provisions charging arm's length interest on the same? 4.1 Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is correct in holding that, when the financial position of Associated Enterprise is weak or bad non-recognition of income on account of Technical fees receivable from AE as per the agreement for the F Y 2011- 12 on accrual basis is lawful despite the fact that, assessee is following mercantile system of accounting and the very foundation of special provisions relating to avoidance of tax contained in chapter X of Income Tax Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts are completely distinguishable? 6. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that the receipt of Rs. 18,62,51,866/- as subsidy from the Government of Maharashtra under ' The Package Scheme of Incentive ('PSI') 2007' as capital receipt' whereas there is no obligation casted upon the assessee to apply the subsidy for any particular purpose? 7. The appellant prays that the order of CIT(A) on the above ground be set-aside and that of the assessing officer be restored. ITA No.2779/M/2019 for A.Y. 2013-14 1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is correct in relying on Tribunal's decision in assessee's own case for AY 2012-13 wherein it is held that, when recovery of principal is doubtful, the question of charging of interest thereon on hypothetical basis does not arise despite the fact that, assessee is following mercantile system of accounting and the very foundation of special provisions relating to avoidance of tax contained in chapter X of Income Tax Act, 1961 as introduced by Finance Act 2001 w.e.f. 01.04.2002 lies o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whereas the assessee is not a banking company and hence the said section 43D and the said decision are not applicable in the present case? 7. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is correct in deleting the interest even when the jurisdictional High Court in the case of Tata Autocomp Systems Ltd and jurisdictional ITAT in the case of Aurinpro Solution Ltd. Vs Addl.CIT (2013) 33 taxmann.com 187 have clearly held that AO/TPO can compute ALP in case of interest free loan to subsidiary? 8. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) is correct in holding that, when the financial position of Associated Enterprise is weak or bad non-recognition of income on account of Technical fees receivable from AE as per the agreement for the F Y 2011- 12 on accrual basis is lawful despite the fact that, assessee is following mercantile system of accounting and the very foundation of special provisions relating to avoidance of tax contained in chapter X of Income Tax Act, 1961 as introduced by Finance Act 2001 w.e.f 01.04.2002 lies on computation of income from international transaction having regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d be the point when the stock in trade is sold or otherwise transferred. 14. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in relying on the decision of Hon ble ITAT in the case of Alok Industries Ltd. in ITA No. 1017/Mum/2017 dated 21.05.2018 while the facts of the instant case are different from it and the decision is not squarely applicable to this case. 15. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred m allowing relief to the assessee relying on the decision of Hon ble Special Bench of ITAT Delhi in the case of Vireet Investment (P) Ltd., without appreciating the facts that the issue has not reached to its finality as the Hon ble Delhi High Court in its decision in the case of Goetz India Ltd.3 repotted in 361 ITR 505 held that while computing Book Profit disallowance u/s 14A is required to be made. However, in its later judgment the Hon ble Delhi High Court in the case of Bhushan Steel Ltd. (ITA No. 593 594/2015) has taken a contrary view. 16. The appellant prays that the order of CIT(A) on the above ground be set-aside and that of the assessing officer be restored. Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . CIT(A) be directed to admit the additional ground and adjudicate the same. I.V. GROUND IV: ADDITION OF INCREMENTAL LONG TERM CAPITAL GAIN ON ACCOUNT OF CONVERSION OF CAPITAL ASSET INTO STOCK-INTRADE - RS. 8,78,21,905/-: 1. On the facts and circumstances of the case and in law, the ld. CIT(A) erred in confirming the action of the AO in recomputing the Long Term Capital Gain on sale of land recognized by the appellant based on the percentage completion method on land converted into stock-in-trade at Rs.1,66,88,61,759/- instead of Rs.1,58,10,39,854/- as offered by the Appellant. 2. The Appellant therefore prays that the AO be directed to take fair market value as on 01.04.1981 as supported by valuation report submitted by the Appellant and delete the addition. ITA No.2741/M/2019 for A.Y. 2010-11 GROUND NO. 1: TRANSFER PRICING ADJUSTMENT ON ACCOUNT OF RISK INVOLVED IN GIVING CORPORATE GUARANTEE ON LOANS ADVANCED TO THE AE: On the facts and circumstances of the case and in law, the CIT(A) erred in disregarding the binding decision of the Hon ble Jurisdictional Mumbai Tribunal in Appellant s own case for earlier year whereby the impugned trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Package Incentive Scheme, 2007 of Maharashtra while computing book profits u/s. 115JB of the Act. The AO failed to appreciate and ought to have held that having regard to the purpose for which the said subsidy was granted to the Appellant, the same was capital in nature and therefore deserves to be excluded while computing the book profits. The Appellant prays that the AO be directed to exclude the amount of Rs.18,62,51,866/- received towards subsidy while computing the book profits u/s. 115JB. 3. Briefly stated facts necessary for adjudication of the controversy at hand are : assessee is into the business of manufacturing cum trading, specifically in textiles and Polyester Staple Fibre (PSF) and Development of Real Estate. Draft order was passed in these cases which was served upon the assessee but no objections have been filed on behalf of the assessee and as such draft order is treated as final assessment order. Assessing Officer (AO) after making different additions/disallowances framed the assessment in all the aforesaid appeals under section 143(3) read with section 144C of the Income Tax Act, 1961 (for short the Act ). 4. Assessee carried the matter before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le 8D under Minimum Alternate Tax (MAT) computation under section 115JB of the Act. However, the Ld. CIT(A) deleted the disallowance made by the AO. Revenue is in appeal before the Tribunal. 9. In view of our findings on ground No.1 of A.Y. 2009-10, 2010-11 ground No.5 of A.Y. 2013-14, when there is no disallowance under section 14A read with rule 8D of the Act, no disallowance is sustainable under section 14A read with rule 8D under MAT computation under section 115JB of the Act as has been held by Special Bench of the Tribunal in case of ACIT vs. Vireet Investment Pvt. Ltd. 165 ITD 27 (SB). So Ground No.2 of A.Y. 2009-10, 2010-11 ground No.14 of A.Y. 2013-14 are decided against the Revenue. Ground No.3 of A.Y. 2009-10, 2010-11 bearing ITA No.928/M/2010 ITA No.3299/M/2019 and Ground Nos.1 to 7 of A.Y. 2013-14 bearing ITA Nos.2799/M/2019 10. Ld. Transfer Pricing Officer (TPO)/AO/CIT made transfer pricing adjustment qua interest on shareholders deposit to the tune of Rs.1,78,18,044/-, 1,86,09,281/- Rs.1,27,66,301/- for A.Y. 2009-10, 2010-11 2013-14 respectively on the ground that the assessee has taken risk by giving deposit to an international Associate Ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of statutory authorities. The statutory permissions required under the foreign exchange laws of India, are equally applicable to controlled and uncontrolled enterprises i.e. they are universally applicable and hence the very restrictions for permissions would be deemed to encompass the principle of neutrality and hence, the standard of arms length is inherent in the provision of law. Hence the company has a contractual and statutory obligation with the PTFSI for not charging any interest on the shareholder deposits and thereby it cannot take any recourse for charging interest till the year 2015 by which PTFSI is required to make payment to the company. There has been no inflow or outflow relating to the above deposit during the Previous Year 2011-12 and hence it is outside the purview of transfer pricing provisions. We are of the view that the assessee cannot be asked to do something which is impermissible in law and expenditure incurred in compliance of law or the direction of the statutory authorities, the same is allowable. This view is supported by the case law relied on by the assessee of Hon ble Bombay High court in the case of CIT vs. Hukumchand Mills Ltd. (1993) 202 ITR 47 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances, we are of the view that since there is uncertainty involved in collection of the technical knowhow fees from the PTFSI due to its bad financial condition, the assessee has rightly not recognized the revenue. This view of ours is supported by the decision of Hon ble Supreme Court in the case of Godhra Electricity Co. Ltd. vs. CIT (1997) 225 ITR 746 (SC), wherein the question whether there was real accrual of income to the assessee company in respect of the enhanced charges for supply of electricity had to be considered by taking the probability or improbability of realisation in a realistic manner. If the matter was considered in this light it was not possible to hold that there was real accrual of income to the assessee company in respect of the enhanced charges for supply of electricity which were added by the AO while passing the assessment orders in respect of the assessment years under consideration. Hon ble Supreme Court held that the Tribunal, therefore, had rightly held that the claim at the increased rates as made by the assessee-company on the basis of which necessary entries were made represented only hypothetical income and the impugned amounts as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e both transactions are already shown in form 3CEB of respective years. Hence this is not a transactions entered during the year. The assessee is not charging interest on debit balance due to bad financial condition of the AE. Even assuming, according to assessee, if it would have provided for interest on outstanding balance from PTFSI, it could not have recovered the same from PTFSI, as PTFSI has not honored its commitments to the lenders, as well as it has incurred heavy losses year after year. It was argued by Ld Counsel that following the real income principle it can be said that no interest accrues to the Company based on business prudence, commercial expediency and exigency. 24. We find from records that the AO has treated the debit balance outstanding on the year end as an International Transaction and have made proposed addition of notional interest. Now the question arises whether outstanding debit balance with the associate company cannot be regarded as an 'International Transaction' within the meaning of section 92B of the Act. Further, Ld Counsel drew our attention to section 92B of the Act which defines the term international transaction used in sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2010-11 2013-14 respectively on account of subsidy received by the assessee under the package scheme of incentives 2007 from the Government of Maharashtra by treating the same as revenue receipt, which has been deleted by the Ld. CIT(A) by following the order passed by the Tribunal in assessee s own case for A.Y. 2011-12. 25. The Ld. A.R. for the assessee contended that this issue has also been decided in favour of the assessee in assessee s own case for A.Y. 2012-13. However, on the other hand, the Ld. D.R. for the Revenue relied upon the assessment order passed by the AO. 26. We have perused the order passed by the Tribunal in assessee s own case for A.Y. 2012-13 (supra) which is on identical facts and has been decided in favour of the assessee by returning following findings: 28. We have gone through facts and circumstances of the case and noted the facts that the State Government of Maharashtra with a view to encourage the dispersal of industries to the less developed areas of the State of Maharashtra announced The Package Scheme of Incentives, 2007 w.e.f. 01.04.2007. The PSI was applicable based on the level of Fixed Capital Investment or Employment Generation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... profitably then the receipt is on 'revenue' account but if the object of the assistance under the subsidy scheme is to enable the assessee to set up a new unit or to expand the existing unit then the receipt would be on 'capital' account. Further, it was held that the point of time at which the subsidy is paid is not relevant, the source is irrelevant and the form of subsidy is irrelevant. Attention is also invited to a recent decision of the Hon'ble Jammu Kashmir High Court in Shri Balaji Alloys vs. CIT (2011) 333 ITR 335 (J K), wherein, considering Ponni Sugar (supra) and Sahney Steel (supra) it is held that the excise duty refund, interest subsidy and insurance subsidy received under a State Scheme are of 'capital' in nature. In arriving at its decision, the High Court noted that the foregoing incentives were given to achieve dual objectives, viz. acceleration of industrial development and generation of employment in the State and that such incentives designed to achieve a public purpose, could not be construed as production or operational incentives for the benefit of the assessee alone. Similarly, the Hon'ble Calcutta High Court in CIT v. Ras ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Long Term Capital Gain (LTCG) to the tune of Rs.1,48,68,37,792/- by applying the percentage completion method and by taking indexation till the year of sale. However, AO by disagreeing with the assessee proceeded to hold that the assessee is not entitled for this claim and by removing the wrong claim of indexation and by rejecting the percentage completion method for the working of LTCG, the AO made addition of Rs.2,52,57,37,458/- being the differential amount in capital gain offered and thereby added the same to the income of the assessee. 29. However, the Ld. CIT(A) by following the order passed by Tribunal in assessee s own case for A.Y. 2012-13 deleted the addition made by the AO, which is under challenge before the Bench. 30. We have perused the order passed by co-ordinate Bench of the Tribunal in assessee s own case in A.Y. 2012-13 which is on identical facts and issue and has been decided in favour of the assessee by returning following findings: 52. Facts are that one of the business segments of company is Real estate activity. Revenue is recognized on the 'Percentage of Completion Method' of accounting. This method of accounting has been consistently fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of such transactions/activities are: (a) The duration of such projects is beyond 12 months and the project commencement date and project completion date fall into different accounting periods. (b) Most features of the project are common to construction contracts, viz., land development, structural engineering, architectural design, construction, etc. (c) While individual units of the project are contracted to be delivered to different buyers these are interdependent upon or interrelated to completion of a number of common activities and/or provision of common amenities. (d) The construction or development activities form a significant proportion of the project activity. The accounting policy followed in respect of real estate activity as disclosed in Notes to Financial Statements at (d) under Significant Accounting Policies, is as under: (d) Revenue from real estate is recognized on the transfer of all significant risks and rewards of ownership to the buyers and it is not unreasonable to expect ultimate collection and no significant uncertainly exists regarding the amount of consideration. The freehold land under Real Estate Development planne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to gains on conversion of Fixed Assets to Stock in Trade) Business income (pertaining to revenue accruing thereafter). 55. Our attention was drawn towards the provision of section 2(47)(iv) of the Income Tax Act, 1961 ( the Act ) transfer, in relation to a capital asset, includes, - . (iv) In a case where the asset is converted by the owner thereof into, or is treated by him as, stock-in-trade of a business carried on by him, such conversion or treatment . Hence, under section 45 of the Act, profits gains arising from such transfer (conversion to stock in trade) is chargeable to tax in the year of transfer. However as per non obstante provision contained in sub section (2) of section 45, the capital gains shall be chargeable to income tax as income of the previous year in which such stock in trade is sold or otherwise transferred by him. Since the sale of Stock in Trade would actually happen when the flats are completed and ownership transferred, a strict interpretation of section 45(2) would suggest that the capital gains arising on conversion of stock in trade would be chargeable to tax when project is completed. However, it would be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proportionate capital gains in the relevant years to tax the same accordingly. Because whole of the capital gain on conversion of land to stock in trade in the year in which only part of sale of stock in trade is affected cannot be brought to tax. So ground No.13 of A.Y. 2013-14 of Revenue s appeal is determined against it. Ground No.14 of A.Y. 2013-14 bearing ITA No.2799/M/2019 32. In view of our findings on ground No.11 of A.Y. 2013-14 when the subsidy received by the assessee under package scheme of 2007, Maharashtra is held to be not taxable being capital in nature, the same is required to be excluded while computing the book profit under section 115JB of the Act. Identical issue has been decided by the co-ordinate Bench of the Tribunal in ITA No.4613/M/2016 CO No.166/M/2018 of A.Y. 2010-11 in case of DCIT vs. M/s. Deegee Orchards Pvt. Ltd. date of order 08.08.2018. The Ld. CIT(A) decided this issue by following order passed by coordinate Bench of the Tribunal in case of Alok Industries Ltd. ITA No.1017/M/2017. So we find no illegality or perversity in the findings returned by Ld. CIT(A), hence ground No.14 of A.Y. 2013-14 is decided against the Revenue. Ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a deduction. With this direction the ground is disposed of. No order prejudicial to assessee should be passed without granting opportunity of being heard. The ground is treated as partly allowed. 36. The Ld. A.R. for the assessee contended that since no prejudice is being caused to the revenue with the findings returned by the Ld. CIT(A) he has no objection if the issue is ordered to be verified by the AO as per directions issued by the Ld. CIT(A). Accordingly, this ground is decided in favour of the assessee for statistical purposes and AO is directed to verify and allow the deductions if the amounts claimed were actually written off. Ground No.6 of A.Y. 2009-10 bearing ITA No.928/M/2010 37. AO has disallowed the write off of the security deposits of Rs.21,57,000/- out of an amount of Rs.27,30,207/- claimed as written off by the assessee qua the security deposit paid by it. However, the Ld. CIT(A) decided the issue by referring the same back to the AO to verify whether the same were actually written off and if so allow the sum as deduction by returning following findings: 17. The fact of the case is examined. The sum is titled as Provision . The submission doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... D.R. for the Revenue who has rather relied upon the order passed by Ld. CIT(A). 41. We have perused the order passed by co-ordinate Bench of the Tribunal in assessee s own case for A.Y. 2012-13 which is on identical issue with no distinguishing feature and operative part whereof is as under: 14. Before us assessee contended that DRP as well as AO/TPO failed to understand that the provision of counter guarantee to a third party for the loans borrowed by the JV of the assessee cannot be regarded as an 'International Transaction' within the meaning of section 92B of the Act. Furthermore, the assessee had already debited actual commission on counter indemnity charged by banks for the year ended 31.03.2012 to the associate company's account. It was claimed that similar issue had also arisen in the assessee's own case for AY 2006-07, wherein the DRP has deleted the said disallowance made by the AO on account of the counter guarantee charges and the relevant para of DRP order reads as under: - In view of the submissions made by the assessee that counter indemnity charges have already been debited to PTFS, the very basis on which the TPO has made the adjustmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its associated enterprises. These guarantees do not cost anything to the enterprise issuing the guarantees and yet they provide certain comfort levels to the parties doing dealings with the associated enterprise. These guarantees thus do not have any impact on income, profits, losses or assets of the Assessee. There can be a hypothetical situation in which a guarantee default takes place and, therefore, the enterprise may have to pay the guarantee amounts but such a situation, even if that be so, is only a hypothetical situation, which is, as discussed above, excluded. In any event, the onus is on the revenue authorities to demonstrate that the transaction is of such a nature as to have bearing on profits, income, losses or assets of the enterprise, and there was not even an effort to discharge this onus. Such an impact on profits, income, losses or assets has to be on real basis, even if in present or in future, and not on contingent. or hypothetical basis, and there has to be some material on record to indicate, even if not to establish it to hilt, that an intra AE international transaction has some impact on profits, income, losses or assets. Clearly, these conditions are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent with the argument of the assessee that even if providing corporate guarantee falls within the definition of international transaction , in our view, providing such corporate guarantee by a parent company to its wholly owned subsidiary without charging any commission/fees would still be regarded as being at arm's length price, if such corporate guarantee was provided by the parent company for the overall benefit of the business of the group and therefore, ultimately benefiting the parent company itself. Having regard to the direct or indirect commercial interest of the Company, corporate guarantee is given with a view to safeguard and to further business interest. Hence, relying on the Hon'ble Supreme Court's decision in case of S.A. Builders Ltd. v. CIT (2007) 288 ITR 1 (SC), wherein it has been held that once it is established that there was nexus between the expenditure and the purpose of the business (which need not necessarily be the business of the assessee itself), the Revenue cannot justifiably claim to put itself in the arm-chair of the businessman or in the position of the board of directors and assume the role to decide how much is reasonable expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fg. Co. Limited (A.Y:2012-13) the assessee results in a direct or indirect benefit to the assessee itself, then there arises no need to charge any commission on the same. Thus, following the decisions of the coordinates benches of the Tribunal (supra), we, in the present case are of the view that the above transaction does not fall within the purview of international transaction as defined under section 92B of the Act and hence, the orders of the lower authorities are reversed. This issue of assessee s appeal is allowed. 42. So in view of the matter and following the order passed by co-ordinate Bench of the Tribunal, we are of the considered view that when corporate guarantee has been provided by the parent company for the overall benefit of business of the group and ultimately to the benefit of the parent company itself, the transaction qua providing corporate guarantee is to be treated at arms length without any separate mark up. Moreover, as already decided by co-ordinate Bench of the Tribunal the transaction as to providing corporate guarantee qua the loan availed of by the AE does not cover under the definition of international transactions as defined under section 92B of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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