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TMI Blog2025 (3) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... also challenged the notice under section 92CA (2) issued by respondent no. 2 dated 30.12.2019 and approval dated 24.12.2019. Facts of the case: 3. Brief facts of the case are that petitioner is a bank engaged in Financial Service Sector. For Assessment Year 2017-2018, the petitioner filed original return of income on 24.11.2017 at Rs. 14, 068.11 crores. The petitioner filed Accountant Report in From 3CEB dated 15.11.2017 on 22.11.2017. The petitioner thereafter filed revised return of income on 28.03.2019 at Rs.14, 163.69 crores. 4. Case of the petitioner was selected for scrutiny on non-transfer pricing risk parameters and notice under section 143(2) of the Act was issued on 27.09.2018 for which the assessment is going on. 5. On 13.12.2019, respondent no. 1 issued a show cause notice to the petitioner as to why the case of the petitioner should not be referred to the Transfer Pricing Officer. 6. The petitioner replied to said notice vide letter dated 23.12.2019 justifying as to why the case should not be referred. 7. It is the case of the petitioner that satisfaction recorded by respondent no. 1 was not provided to the petitioner to the effect that there is an income or a po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the assessee has not furnished the report under section 92E and such transaction comes to the notice of the Transfer Pricing Officer during the course of the proceeding before him, the provisions of this Chapter shall apply as if such transaction is an international transaction referred to him under sub-section (1). (2C) Nothing contained in sub-section (2B) shall empower the Assessing Officer either to assess or reassess under section 147 or pass an order enhancing the assessment or reducing a refund already made or otherwise increasing the liability of the assessee under section 154, for any assessment year, proceedings for which have been completed before the 1st day of July, 2012...." Submissions of the petitioner: 13. Learned Senior Advocate Mr. S.N. Soparkar for the petitioner submitted that as per section 92CA (1), the Assessing Officer has to refer the computation of Arm's Length Price (ALP) to Transfer Pricing Officer (TPO) when he considers that it is necessary or expedient so to do. Reference was made to the Instruction No. 3 of 2016 issued by the Central Board of Direct Taxes (CBDT) wherein CBDT has decided that Assessing Officer shall make a reference to the TPO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or specified domestic transactions or they do not impact the income of the taxpayer. In the above three situations, the AO must provide an opportunity of being heard to the taxpayer before recording his satisfaction or otherwise. In case no objection is raised by the taxpayer to the applicability of Chapter X [Sections 92 to 92F] of the Act to these three situations, then AO should refer the international transaction or specified domestic transaction to the TPO for determining the ALP after obtaining the approval of the PCIT or CIT. However, where the applicability of Chapter X [Sections 92 to 92F] to these three situations is objected to by the taxpayer, the AO must consider the taxpayer's objections and pass a speaking order so as to comply with the principles of natural justice. If the AO decides in the said order that the transaction in question needs to be referred to the TPO, he should make a reference after obtaining the approval of the PCIT or CIT." 14. Referring to above, it was submitted that respondent no. 1 has violated Instruction No. 3 of 2016 by making a reference contrary to para no. 3.3(a) though the Accountant's report is filed by the petitioner and trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case was transferred to TPO. 20. Learned Senior Advocate Mr. Soparkar therefore, referred to the order passed by TPO for Assessment Year 2016-2017 to point out that TPO has not made any adjustment so far as transaction between the branch office of the petitioner bank outside India with head office of the petitioner in India but has only made adjustment on account of interest on loan only. It was therefore, submitted that the respondent could not have made reference to TPO considering the identical facts to transfer case for Assessment Year 2017-2018 relying upon the order of transfer made for Assessment Year 2016-2017. 21. It was further submitted that there are no two AEs as per section 92B(1) of the Act as branches of the petitioner bank outside India cannot be considered as a separate AE as no income element would be involved in case of transaction between head office of the petitioner in India with the branch of the petitioner outside India as entire income would be clubbed in the hands of the petitioner bank in India which would be offered to tax. It was therefore, submitted that in absence of income escaping assessment, respondent no. 1 could not have passed the order to tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 14.08.2019. 27. Reliance was placed on the decision of Delhi High Court in case of Commissioner of Income-tax (International Arbitration) v. Brandix Mauritius Holdings Ltd. reported in (2023) 456 ITR 34 (Delhi) and decision of Bombay High Court in case of Ashok Commercial Enterprises v. Assistant Commissioner of Income Tax reported in (2023) 459 ITR 100 (BOM). 28. Reliance was also placed on decision of this Court in case of Hitachi Hi Rel Power Electronics Pvt. Ltd. v. The Deputy Commissioner of Income Tax Circle 2(1)(1), Ahmedabad rendered on 19.08.2021 in Special Civil Application No. 23302 of 2019 wherein in similar facts, this Court quashed and set aside the notice as well as order of transfer to TPO remitting the matter to the Assessing Officer for fresh consideration of the matter and issues discussed in the said order after giving opportunity of hearing to the petitioner. It was further submitted that the case of the petitioner does not fall within the parameters and circumstances stated in paragraph nos. 3.2, 3.3(b) and 3.3(c) of the Instruction No. 3 of 2016 and no satisfaction is recorded as per para no. 3.4 thereof and hence the contention of the Assessing Officer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Court by suppressing the factum of objections having been considered and disposed off by the respondent no. 1. It was therefore, submitted that only on this count, the petition is liable to be dismissed. 32. Learned Senior Standing Counsel Mr. Patel referred to chronology of events enumerated in para no. 5 of the affidavit in reply to submit that adequate opportunity has been granted to the petitioner and thereafter proposal dated 24.12.2019 was made by respondent no. 1 to Principal Commissioner of Income Tax for approval after recording the satisfaction to the effect that there is an income or a potential of an income arising and/or being affected on determination of ALP of international transaction or specified domestic transaction of the petitioner. 33. It was submitted that the Principal Commissioner of Income Tax-1 had accorded the approval by letter dated 24.12.2019 in accordance with the CBDT Circular No. 3 of 2016 for the purpose of reference of the case to the TPO and thereafter, respondent no. 1 made reference to TPO by letter dated 26.12.2019. In support of his submissions, learned Senior Standing Counsel Mr. Patel referred to and relied upon the following averments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (F&A)] [Head Tax (prosenjit.choudhuri @axisbank.com) and copy to Rakesh Gupta Shri (rakeshgupta346 @gmail.com) and Shri Lokhandwala (operation head(lokhandwala. operation head@axisbank.com). Therefore, the contention that reference is made without passing a speaking order disposing off the objections does not hold merit and is contrary to the records. I reiterate that satisfaction is recorded on 24.12.2019 to the effect that there is an income or a potential of an income arising and/or being affected on determination of the ALP of an international transaction or specified domestic transaction. I submit that satisfaction was recorded and detailed report was sent to Pr. CIT-1, Ahmedabad which was also endorsed by the Addl. CIT Range 1(1) Ahmedabad. The office of the Principal Commissioner of Income Tax-1 accorded approval under letter dated 24.12.2019 in accordance with CBDT Instruction no. 3 of 2016 dated 10.3.2016 for the purpose of reference of the case to the TPO. (ii) ... (iii) With reference to para 3.3(a), I submit that the petitioner failed to report details of international transaction with overseas branches located at Sri Lanka, Dubai and Singapore in the accountant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent no. 1 and satisfaction arrived at by respondent no. 1 as per para no. 3.3 of the CBDT Instruction No. 3 of 2016, no interference may be made in the impugned notice and order to refer the matter to TPO for Assessment Year 2017-2018. 36. With regard to the contention raised on behalf of the petitioner in the affidavit in rejoinder with regard to absence of DIN number in approval granted by the Principal Commissioner of Income Tax, it was submitted that it was an internal communication granting approval which does not require any DIN number. Discussion and Findings: 37. Having heard the learned advocates for the respective parties and considering the facts of the case, the petitioner has not disputed that the transactions which were entered into by the petitioner with his branch office for AY 2017-2018 were different than the transactions which were entered for AY 2016-2017. 38. The contentions are raised by the petitioner in this petition to challenge the notice to transfer case to TPO under section 92CA of the Act and transfer of case to the TPO by letter dated 26.12.2019 as per the approval granted by the Principal Commissioner of Income Tax-1. 39. The contentions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight be an argument that the assessee has to pay the differential rate of tax in India if the tax rate in Sri Lanka (in the given example) is less than the tax rate in India as the income of the branch is consolidated in the accounts of the Head Office. However, this does not capture the complete picture of the transaction as there can be a scenario in which if the tax rate is higher in Sri Lanka, the Indian Government does not get a single penny of tax. If the P.E. of the assessee is considered to be a resident in India, then it is liable to pay tax in India. 1.2 A bare reading of the Act makes it clear that the Permanent Establishment (PE) of an enterprise has been deemed to be an Associated Enterprise (AE) of that enterprise. Therefore, there is a deeming fiction created by the law which makes a PE of an enterprise as a separate legal person (AE) by introducing such deeming fiction. A deeming fiction is introduced by the law to make it as such which otherwise will not form an AE on its own. This is so because the PE of an enterprise is considered as part of the enterprise itself and, therefore, in the normal circumstances, the same would not be treated as a separate enterprise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermanent establishment, that qualifies as an associated enterprise, situated outside the country takes the form of an International Transaction, as defined u/s. 92B of the Act, and is therefore, covered by the provisions of Chapter X that deals with special provisions relating to avoidance of tax. Admittedly, any such international transaction has to be bench marked by the assessee and a report from an accountant in the prescribed form duly signed and verified in the prescribed manner by such accountant and setting forth such particulars as may be prescribed, as mandated u/s. 92E of the Act, should be obtained and furnished before the specified date. The form i.e. referred to herein above is Form 3CEB and as such the assessee was required to include the international transactions entered into with its permanent establishments in such form for the purpose of reporting as mandated by the Act. However, on perusal of the form 3СЕВ filed by the assessee it was noticed that the assessee did not report any transaction with its AEs apart from the transactions entered into with Axis Bank UK Ltd. 1.4 A perusal of Double Taxation Avoidance Agreement (DTAA) entered into by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... early demonstrates that the P.E in the form of branch office of the assessee company outside India would be an A.E of the assessee which is to be treated as a non resident for the purpose of application of transfer pricing provisions. There is definitely income accruing or arising to the assessee company in these transactions as these are normal banking company transactions. Even the DAA's signed by India creates a deemed allowance of interest payment to the H.O as a deductible expenditure as per Article 7 (3) of the DAA's which also demonstrates clearly that in the case of a banking company, the P.E would be treated as an A.E of the assessee and all the transactions are required to be not only disclosed but also benchmarked in the transfer pricing study. Therefore, in view of the above discussion, the arguments of the assessee that none of the entities is a non-resident and the status of both the entities is a resident in India and it does not constitute an international transaction in view of both the entities being resident are rejected 6.2 The reliance of the assessee on the judgment of Hon'ble ITAT in the case of Aithent Technologies is also not applicable to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. This is being highlighted by the assessee own example as under : Situation 1 : Over invoicing - If the H.O charges Rs. 110/- instead of Rs. 100/-, in that case, the profits of the B.O would be reduced by Rs. 10/- and profits of H.O. would increase by Rs. 10/-. The increase in the profit of H.O by Rs. 10/- would be entirely taxable in India. However, due to over invoicing, the profit of the B.O are understated in that country and the Indian Tax Department would be directly benefitted in terms of higher taxes in India. Situation 2 : Under invoicing - If the H.O charges Rs. 95/- instead of Rs. 100/-, in that case, the profits of the B.O would be increased by Rs. 5/- and profits of H.O would decrease by Rs. 5/-. The increase in the profit of B.O by Rs. 5/- would be taxable in the country in which the B.O is situated. Therefore, due to under invoicing, the profit of the B.O are overstated in that country resulting in higher taxes on this amount in that country. The Indian Tax Department will not be able to collect taxes on this amount as it is taxable in the hands of the B.O. as the assessee would ask for credit of taxes paid in the other country even though this income would be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest bearing loan transactions. The same is the case with the judgment of Hon'ble ITAT Mumbai in the case of Elder Exim Pvt. Ltd. 85 Taxmann.com 338. The assessee is a banking company and had entered into transactions of interest bearing loans with its branches during the year. 6.6 The assessee's reliance on the case of Mehta Brothers Exports 33 Taxman.com 504 of Hon'ble ITAT Mumbai judgment regarding non-levy of penalty on the basis of possible alternative view is also not applicable to the facts of the case as the given judgment was having regard to the interplay of section 92A(1) and (2) of the Act which is not the case as per the facts. In this case, the issue is whether the assessee should have reported transactions with its overseas A.Es which have a clear bearing on the profits/assets of the H.O as well as the P.E. 6.7 In view of the above, the arguments advanced by the assessee are not acceptable and accordingly rejected. 6.8 In view of the detailed discussion above, the A.O is requested to consider and initiate penalty under the provisions of sec.271AA of the Act amounting to Rs. 61, 05, 41, 401/- @2% of the value of the international transaction enter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the imagination of the assessee without any substance whatsoever. Therefore, the arguments of the assessee that there is no income arising from these transactions has not based on the facts of the case and accordingly rejected. 3. The assessee has relied on a number of judgments in support of its contention, however, all these judgments are relating to the capital account transactions in which admittedly no income arises as per the provisions of the charging section. Therefore, all those judgments are not at all applicable to the facts of the case of the assessee. The reliance of the assessee on CBDT instruction no. 2/2015 dated 29/01/2015 is also not applicable to the facts of this case as this instruction was relating to the adjustment on account of issue of shares by an Indian company to its foreign A.E on a premium which is admittedly on the capital account and no income whatsoever was arising from the transaction. Conversely, in the case of the assessee, it has entered into foreign currency exchange transactions with it's A.E and the assessee is also registered foreign exchange dealer. Therefore, the argument of the assessee that there is no income arises from this tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 3/2016, the cases selected for scrutiny on non transfer pricing risk parameters but also having international transactions or specified domestic transactions shall be reported to TPO, where the Assessing Officer comes to know that the tax payer has entered into international transactions or specified domestic transactions or both but the tax payers has either not field the Accountant's report under section 92E at all or has not disclosed the said transactions in the Accountant's report filed, then a reference to Transfer Pricing Officer shall be made to determine the Arm's Length price (ALP) of the transaction. The assessee was afforded opportunities vide letters dated 13.12.2019 and 23.12.2019. The request of personal hearing was also given to the assessee, however no compliance was made. The Ld TPO in order u/s 92CA (3) dtd 01.11.2019 for AY 2016-17 has unambiguously stated that the assessee has failed to report and disclose international transactions with Associated Enterprises/ overseas branches. The directions of TPO are binding on the AO. As per section 92CA(4), on receipt of order u/s 92CA (3) passed by the TPO, the AO shall proceed to compute the tot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 24.12.2019. 43. This Court in case of Hitachi Hi Rel Power Electronics Pvt. Ltd.(supra) has considered the following two questions which are also arising in facts of the present case: "[1] Whether it was incumbent on the A.O. to have given the writ applicant an opportunity of being heard before making a reference to the T.P.O. under Section 92CA (1) of the Act? [2] Whether the Assessing Officer could be said to have overlooked the jurisdictional requirement of a satisfaction in accordance with para 3.4 of the instruction No. 3 of 2016 that there ought to be an income or a potential of an income arising and/or being affected on determination of the A.L.P. of an international transaction or specified transaction? In the absence of recording of such satisfaction, as to the income or potential of an income, could it be said that the entire exercise undertaken by the A.O. is illegal?" 44. This Court relied upon the decision of Delhi High Court in case of Indorama Synthetics (India) Ltd vs. Additional Commissioner of Income-tax reported in [2016] 71 taxmann.com 349 (Delhi) relied upon by the assessee as well as decision of this Court in case of M/s. Veer Gems vs. Assistant Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected on determination of the A.L.P. of an international transaction or specified domestic transaction. In the absence of such satisfaction being recorded in the order disposing of the objections, the reference to the T.P.O. would also be without jurisdiction. We take notice of the fact that in the objections, a specific plea in this regard was taken, however, we do not find a word in this regard in the order disposing of the objections. On this issue, the only reply of the learned Senior Counsel appearing for the Revenue is that the same is self-serving and adherence the record. In other words, the only argument is that the Arm's Length Price on the interest paid would have bearing on the income. We are not convinced with such stance of the Revenue. 40 For all the foregoing reasons, we allow the present writ application. The impugned reference by the respondent No. 1 to the respondent No. 2 is hereby quashed and set aside and the notice dated 20th December 2019 (Annexure : 'A' to this writ application) is also quashed and set aside. The proceedings are remitted to the A.O. for fresh consideration of the matter and the issues as discussed in the present order. The A.O. sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions are not liable to be referred to TPO. In this regard you have also requested for personal hearing. 3. In this regard as per clear and categorical findings of the PO vide order uls 92CA (3) for. AY 2016-17, you have failed to disclose international transactions which were liable to be disclosed in Accountant's report under section 92E. Further as per section 92CA (4) on receipt of order u/s 92CA (3) passed by the TPO, the AO shall proceed to compute the total income of the assessee in conformity with the ALP so determined by the TPO. The facts for AY 2016-17 and AY 2017-18 are identical and hence failure on your part for disclosing such transactions makes your case fit to be referred to the TPO 4. As per Para 3.3 of CBDT. Instruction 03/2016, the cases selected for scrutiny on non transfer pricing risk parameters but also having international transactions or specified domestic transactions shall be reported to TPO, where the Assessing Officer comes to know that the tax payer has entered into international transactions or specified domestic transactions or both but the tax payers has either not field the Accountant's report under section 92E at all or has no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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