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Further, stating that the principle of commercial expediency would not come into play under the present facts, it held that as the assessee had not charged interest on the outstanding receivables from the overseas subsidiaries, the ALP of the same had rightly been determined by the A.

The assessee had extended a corporate guarantee in respect of loan of Rs. The TPO, ignoring the alternate contention of the assessee that if the corporate guarantee was considered as an international transaction, a corporate guarantee fee of 0. Ltd [TS ITAT TP], held that when the assessee had provided the guarantee in the course of its stewardship activities for its subsidiaries, it would not constitute an international transaction, and, as such, no ALP adjustment could be made in respect of the same.

Accordingly, it deleted the addition made by the TPO. As a result of the crisis, the assessee availed additional loan amounting to USD million and the interest rate was changed from floating rate of interest to a fixed rate of interest of 6.

Though the TPO accepted CUP method adopted by assessee, he held that the assessee had not provided any documentary evidence or convincing argument for shift in the interest rates from floating rate of interest to fixed rate of interest mechanism and no independent party would have agreed to such an increase and opined that the interest paid at the rate of 6.

Accordingly, he proposed adjustment an of Rs. Based on the a well settled proposition of law it held that the TPO was not supposed to question the business decision of the assessee, and further observed that assessee had given ample reasons for its business decision, even stating that most of the reported loans in that particular period were having a clause of fixed rate of interest. Accordingly, it held that it was beyond the authority of the TPO to question the wisdom of the assessee, and it was not the prerogative of revenue to direct assessee to conduct its business in a particular manner, despite heavy business risk.

It also held that the TPO had not performed his duty of determining ALP of interest payment made by assessee, but had only analyzed and questioned the international transactions.

Consequently, it remitted the matter to the TPO with a direction to examine ALP computation strictly in accordance with the provisions of Sec 92C considering the evidences placed by the assessee. Further, it held that as per the decision of the Apex Court Court in Vegetable Products 88 ITR SC , where there are two conflicting decisions, the decision in favour of the assessee is to be followed.

Accordingly, it dismissed the appeal of the Revenue. Accordingly, where the assessee failed to discharge its onus of establishing the justification for clubbing and aggregating royalty transaction with other transactions, the Tribunal upheld the TP-adjustment made by the TPO on the royalty payment arrived at by benchmarking the royalty payment transaction under TNMM on standalone basis.

Further, the with regard to the part disallowance of publicity and sales promotion expenses paid by the assessee to the AE, it upheld the finding of the Tribunal that the TPO was incorrect in making such disallowance on the ground that AE should have borne a part of such cost considering it received higher royalty due to higher sales. It stated the determination of the ALP had to be done only by following one of the methods prescribed under the Act and since the Revenue had not acted in accordance with the clear mandate of law, it held that the appeal of the Revenue did not give rise to any substantial question of law.

Further, it noted that the Government of India, vide. Press Note No-8 series dated December 16, , had waived all the restrictions on payment of royalty under foreign technology collaboration and put the same under automatic route and therefore it held that under these circumstances the assessee could not be permitted to take this stand that since there were no restrictions on payment of royalty by the Government of India, any amount paid by assessee on account of royalty would ipso-facto be its ALP.

Faber Castell India P. The assessee made payments to its AE towards information management support at 10 percent mark-up of the costs allocated by the AE, which it benchmarked by adopting comparables in the IT sector. The TPO, contended that the services rendered by the AEs were more of infrastructure support than software development since the software were procured from outside and distributed to the AEs and rejected the mark-up of 10 percent and adopted a 3 percent mark-up as ALP.

The Tribunal held that no specific comparables had been considered by the Revenue for the purpose of determining mark-up at 3 percent and that the TPO was incorrect in rejecting the comparables selected by the assessee merely because the AE was not developing the software on its own but was providing software obtained from outside vendors. Accordingly, it deleted the addition. The Tribunal deleted the TP adjustment with respect to the payment of intra-group management services made by the assessee to its AEs.

The Tribunal held that whether a particular expense on services received actually benefits an assessee was not even a consideration for determination of ALP and held that the ALP determination was to be made on the basis of a recognized method and not on the basis of subjective perceptions as done by the TPO.

On submission of evidence by the assessee, the DRP reduced the addition from Rs. The TPO had applied the CUP method and determined Nil ALP of the services contending that assessee had failed to substantiate actual receipt of the services or the benefit received from these services. It held that while evaluating the intra-group services availed by the assessee, the TPO was required to assess a need test, b benefit test, c rendition test, d duplication test and e shareholder activity test.

Further, it held that rendering of intragroup services was subject to determination for each AY independently based on the evidences for rendering of the services, and that assessee was required to demonstrate it with the credible evidence.

Since the assessee had not filed proper evidences with respect to each class of services with corresponding manner of rendering of the services it directed the assessee to provide proper and credible evidence. Avery Dennison India Pvt. The assessee had provided management services to its AEs to the tune of Rs. However, the TPO noted that the details of specific services provided by assessee were not available and further considering the proportion of the AE companies in terms of inventory, business size and value of assets, he concluded that the assessee should have received double the amount towards management consultancy fee from its AEs and made an adjustment of Rs.

It opined that it was obligatory on the part of TPO to bring on record the exact nature of services rendered by assessee and thereafter to compare the same with an uncontrolled transaction. It noted that the assessee had reimbursed its AE for salary expenses relating to two expatriate employees seconded to it by its AEs, which were paid by AEs outside India for administrative convenience and subsequently reimbursed by the assessee.

The remuneration had been agreed upon between two independent parties, i. Vis-à-vis the consultancy charges reimbursed by the assessee, it noted that the assessee had not claimed a deduction in respect of these charges and therefore the amount had been taxed twice in the hands of the assessee and accordingly directed the AO to make proper adjustment in respect of consultancy charges.

Mars International India Pvt. Assessee made payment of Rs. The CIT A deleted the addition. It noted that this issue was referred by AE under India-Japan MAP pursuant to which order was passed wherein royalty payment was agreed to be allowable 1.

Since the ground relating to royalty was not pressed by the assessee on account of them being infructuous as on date, the issue was dismissed by the Tribunal. AY , and It explained that brand building which increased market in India was a subliminal exercise and a by-product of the economic activity of sales. It held that even if the notice was not served on the assessee, the assessee should have been vigilant to find out the date of hearing because in normal cases, the stay petition is fixed for hearing on the second Friday after filing of the stay petition.

The Tribunal held that the said order was maintainable and accordingly directed the CIT A to admit the same. Further, it stated that it was the choice of the assessee as to whether to file an objection before the DRP or to pursue the normal channel of filing appeal against the assessment order before the ld.

Accordingly, it remitted the matter to the file of the CIT A. Samsung Heavy Industries India Pvt. Microchip Technology India Pvt. The Division bench of the Court stayed the order of the Single judge dismissed the writ petition filed by the assessee on the issue of jurisdiction of TPO to examine the existence of international transaction without the AO making a particular finding that there was an international transaction within the meaning of Section 92B before referring the matter to the TPO.

On further appeal, the Division bench was prima facie satisfied with the contention of the assessee viz. Accordingly, it proposed to hear the entire appeal and stayed the operation of the judgment of the single bench. Price Waterhouse and Anr.

VeriFone India Technology Pvt. The Tribunal noted that CIT A had deleted the penalty since the primary reason on which the penalty had been levied i. Since the Tribunal had remitted the matter relating to management consultancy fees for ascertaining exact nature of services, it directed the AO to also decide afresh the issue relating to levy of penalty after bringing on record the failure of assessee to provide the exact information and documents.

Thus, concluding that since assessee had entered into an international transaction, failure on the part of the assessee to furnish the Audit Report in Form 3CEB from an Accountant in the prescribed proforma within the prescribed period, without reasonable cause, was a clear violation of the provisions of section 92E of the Act and therefore the levy of penalty under section BA of the Act was clearly warranted.

The Tribunal granted stay of outstanding demand of Rs It noted that the demand arose due to TP-adjustment on account of AMP expenditure, and held that the issue was a highly debatable issue in view of various decisions on this point. Accordingly, it held that the assessee made out a prima facie good case for grant of stay subject to part payment.

It clarified that if assessee sought adjournment without reasonable cause, stay granted would stand vacated. The Tribunal granted stay of outstanding demand of Rs 5. It noted that that after making additional payment of Rs 1cr, the total demand deposited would be Rs 4.

It fixed an early appeal hearing and clarified that if assessee sought adjournment for unjustified reasons, stay order would get automatically vacated. Misys Software Solutions India Pvt. It held that it was a fit case for granting of stay and accordingly, it granted stay of the balance outstanding demand. Noting that appeal hearing was already fixed.

It clarified that in the course of appeal hearing if the assessee sought adjournment without justifiable reasons, stay granted would get automatically vacated. LG Soft India Pvt. The Tribunal granted stay of outstanding demand of Rs 9. Outsource Partners International P Ltd. It noted that the original stay was granted vide order dated March 11, and thereafter extended for a period of 3 months vide order dated December 2, Vs ACIT supra , the assessee had made out a prima facie good case for extension of stay even beyond days.

Novo Nordisk India Pvt. Accordingly, it held that the stay granted earlier should be extended if the delay in disposal of the appeal is not attributable to the assessee-company. It clarified that the assessee shall not seek adjournment from appeal hearing without just and reasonable cause.

Manipal Global Education Services Pvt. The Tribunal granted the assessee extension of stay of outstanding demand for a period of 3 months or till disposal of appeal, whichever is earlier.

It noted that after stay was granted on July 29, , the appeal hearing was fixed for December 15, which was adjourned as AR of the assessee was travelling on that date due to prior commitments.

It observed that the date of hearing fixed on It clarified that the assessee should not seek adjournment during the course of appeal hearing without justifiable reasons and if assessee did so, the stay granted would get automatically vacated. It fixed early hearing for the appeal hearing and clarified that in the course of appeal hearing if the assessee sought adjournment without justifiable reasons, stay granted would be automatically vacated.

Cisco Systems India P Ltd vs. It noted that out of the total disputed demand as per rectification order of Rs It fixed the early hearing for the appeal and clarified that if the assessee sought adjournment without justifiable reasons, stay granted would be automatically vacated.

It held that the mere fact that the assessing authority did not agree with the claim of the applicant would not lead to the conclusion beyond doubt that there was concealment of particulars of income or furnishing inaccurate particulars to attract penal provisions under section 1 c of the Act.

Halcrow Consulting India Pvt. For its US operations, the AE viz. The cost of telecom equipment ownership and maintenance was reimbursed by assessee to the AEs on actual costs. With respect to reimbursement of expenses towards telecom cost, establishment charges and reimbursement of other expenses, assessee submitted that it had provided various additional documents to demonstrate that the reimbursements were actually at cost. For the purpose of conducting a racing event i.

Further, it held that mere construction of the track by Japyee was of no consequence while determining whether FOWC had disposal over the track.

Accordingly, it upheld the findings of the High Court and held that the tests laid down for constitution of a PE viz. It concluded that the Buddh International Circuit was the fixed place of business at the disposal of FOWC and that the taxable event i. Formula One World Championship Ltd. The Tribunal observed that as per Article 13 of India- Italy DTAA, taxability in the hands of the non-resident is triggered at the time of payment by the resident and accordingly, held that unless the actual payment took place, the taxability under article 13 of Indo Italian DTAA did not arise.

Saira Asia Interiors Pvt. It clarified that the mere fact that the assessee had benefitted from rich experience of the service provider while availing of these services was wholly irrelevant. It directed the AO to compute the admissible tax credit after examining i the residential status of the assessee under treaty since for claiming treaty benefits, the assessee needs to be resident under the Act as well as under Article 4 of India-US DTAA , ii whether amounts shown as dividends were actually in the nature of dividends, iii whether tax deducted in US was in accordance with the provisions of Article 10 of the India-US DTAA and iv whether the FTC claimed by the assessee was lower of tax withholding rates in US or Indian tax on such income which was to be restricted to the rate specified under Article 10 of DTAA.

The Tribunal noted that the bank statement obtained by the AOs did not have any signature of a bank official, name of the bank or place where the branch of the bank was situated and that the AO had not mentioned the same in his assessment order and instead had asked the assessee to furnish the bank statements of impugned account, the existence of which was denied by the assessee.

It also noted that nothing was brought on the record to substantiate that the documents were obtained by the AO under any DTAA. The assessee had received dividend from its JV company in Oman which was exempt by virtue of Article 8 bis of Omanian Tax Laws and it claimed tax credit in India as per Article 25 4 of India- Oman DTAA which provides that credit would be granted for the tax which would have been payable in Oman but is not paid due to tax incentives granted in Oman to promote economic development.

The same was allowed by the AO. The Tribunal allowed the FTC claim of the assessee which was upheld by the Court by relying on the letter of Oman Ministry of Finance wherein it was clarified that Article 8 bis. However, since the assessee had failed to claim the foreign tax credit FTC in its return of income, it claimed the same before the AO.

The assessee had earned foreign incomes on which taxes were withheld in respective source countries Rs. Indian income-tax and that it would not extend to the taxes paid abroad. The Tribunal observed that as per the explanation to Sec.

It observed that none of the 3 tests laid down in Article 5 1 of India-Mauritius DTAA for constitution of fixed place PE were satisfied in present case, viz 1 physical criterion 2 subjective criterion and 3 functionality criterion and as Articles 5 and Article 7 relating to PE and its attribution were not applicable, Article 11 would apply. Assessee, a non-resident, entered into a contract with Coal India Ltd. CIT A held that held that since the assessee was a non-resident, the payer i. CIL was responsible to deduct tax at source in terms of section and the liability of the assessee to pay advance tax had to be computed after giving credit to the tax deductible whether actually deducted or not and accordingly, the assessee could not be called upon to pay interest under section B and therefore, deleted the interest under section B.

White Industries Australia Ltd. The assessee had incurred the expenditure for the purchase of advertisement space from Google Ireland on which it did not deduct tax contending that the said amount was not chargeable to tax.

While pursuing the remedy before the DRP, the assessee made an application for stay of outstanding demand before the AO which was declined by him and consequently, relying on the CBDT Memorandum dated The Tribunal held that the assessee failed to establish the prima-facie case for demand non-recovery and that, the expenditure was rightly disallowed by the AO treating the assessee as dependent agent PE.

It also noted that the assessee had sound financial position to pay the demand. Where mobilization advance given to the contractor by the assesse for the purpose of contract work of laying down the railway line and the same was intrinsically connected with the capital expenditure of the appellant prior to the commencement of its business, the Tribunal held that the interest income earned by the assessee on mobilization advance which was later adjusted against charges payable to the contractor and which had gone on to reduce the cost of construction, was rightly treated by the assessee as capital receipt and not income from other sources.

Tribunal, accordingly, deleted the addition of the same and allowed appeal of the assessee. Angul Sukinda Railway Ltd. The Tribunal allowed deduction to assessee-employee with respect to notice pay recovered from his salary by previous employers. It held that this was a case of recovery of the salary, for which Sec 16 was not to be referred and that assessee had actually received the salary from his previous employers after deducting the notice period as per the job agreement with them and thus only the actual salary received by assessee was taxable.

Deputy Commissioner of Income Tax — [] 80 taxmann. The fact that the equipments were used in the business premises of the clients could not be the basis to disallow the claim of the assessee for deduction on account of depreciation. Deputy Commissioner of Income Tax v.

Where Assessing officer disallowed interest expenses on account of interest free loans advanced by the assessee, the Tribunal held that if the assessee was having its own interest free surplus funds and such funds were utilised as interest free advances even for non-business purpose, there could not be any disallowance of interest paid on interest bearing loans where such loans were used for the purpose of business or profession.

Accordingly, it directed the assessing officer to recompute disallowance to the extent relatable to share of profit from firm. The Tribunal held that the manufacturing, selling and administrative expenses claimed by the assessee could not be allowed as business expenses as they were not incurred wholly and exclusively for purpose of business of assessee as there was no business carried on by assessee during previous year and there was also no possibility of carrying on business by assessee in near distant visible future keeping in view the severe and serious disability imposed by actions of secured lenders under SARFESI Act.

Depreciation claimed by assessee was also not allowable as entire block of asset was not put to use by assessee. However, expenses like auditor fees, ROC fee etc. Assessee entered into an agreement for export of groundnuts with one Alimenta. Subsequently a dispute arose between the parties and an Award was passed in favour of Alimenta wherein the Court held that Alimenta would be entitled to interest from date of award till date of payment.

Also it could not be said that merely because there was a stay granted by the division bench of the court, order of the single judge imposing payment of interest had been wiped out from existence.

Accordingly, order of the Tribunal was set aside and appeal of the assessee was allowed. The Court, accordingly, upheld the order of Tribunal in favour of the assessee. Commissioner of Income Tax v. The Court held that Tribunal failed to consider the reasonableness of the expenditure in relation to the prudent business practice from a fair and reasonable point of view.

The Revenue without benchmarking VPs expertise with any other consultant proceeded on the assumption that the VP could not have performed multiple tasks for more than one concern. The Tribunal upheld deletion of Sec 14A disallowance in case of assessee engaged in providing investment research advisory support, consultancy services to group companies. Noting that during relevant AYs assessee made strategic investments in group companies and no exempt income was earned on such investment and investments were made out of owned funds and there was no borrowing by assessee, the Tribunal held that as the assessee did not earn any tax free income, Sec.

Appeal of the Revenue was, accordingly, dismissed. Where assessee challenged the validity of Section 80A 5 and the fourth Proviso to Sec 10B 1 as violative of Article 14 of the Constitution , the Court held that Article 14 permits reasonable classification on fulfilment of two factors: The objective behind insertion of the impugned provisions was to defeat multiple claims of deductions and to ensure better tax compliance.

Further the parliament acted within its power to differentiate between a return of income filed under Section 1 and a belated return filed under Section 4 for the purposes of deductions claimed Section 10B 1. Thus there was no violation of Article 14 of the Constitution and accordingly, order of CIT A was upheld and writ petition of the assessee was dismissed.

The appeal was, accordingly, disposed of in favour of the asssessee. Deeplok Financial Services Ltd. Commissioner of Income Tax [] 80 taxmann. The appeal of the revenue was, accordingly, dismissed. Ltd — [] 80 taxmann. Accordingly, the Tribunal canceled the same by accepting the cross objection filed by the assessee and dismissed the appeal of the Revenue. Where Assessee objected that A.

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