Smc Pneumatics (India) Pvt. Ltd., New ... vs Assessee

1. This appeal by the assessee has been directed against the assessment

order passed u/s 143(3) r.w.s.144C of the Income Tax Act, 1961 (for short the

'Act') passed in pursuance to the directions of the Dispute Resolution Panel

(DRP) u/s 144C(5) of the Act 09.10.2014 for AY 2010-11.

ITA No.6962/Del /2014 Stay No.03/Del/2015 2. Briefly stated the facts giving rise to this appeal are that the assessee

company is a 100% subsidiary company of SMC Corporation, Japan, which is

engaged in the business of manufacturing of air control equipment, valves and

actuator. The assessee company filed its return of income on 07.10.2010 and

same was revised on 14.11.2011, declaring an income of Rs.29,35,56,847/- for

AY 2010-11.

3. The Assessing Officer vide draft assessment order dated 25.02.2014

proposed to make an addition of Rs.21,42,19,918/- on account of adjustment in

the arm's length price (ALP) in respect of international transaction. The above

addition was proposed consequent to the addition made in the preceding

assessment year 2009-10 wherein the assessee company had issued 50,07,686

shares of Rs.100% each to its parent holding company SMC, Japan. The TPO

computed the value of shares at Rs.449.21 per share and on this basis it was

alleged that the assessee company had received an amount of

Rs.174,97,24,028/- less on account of the share premium while issuing shares

to its parent holding company. On these basis an adjustment of

Rs.6,29,18,492/- was made by applying an interest rate of 12.75% per annum

on the share premium amount less receipt.

4. On the basis of conclusion of this issue in AY 2009-10 the AO applying

the same logic and the interest rate of 12.75% per annum an addition of

Rs.21,42,19,918/- was proposed in the draft assessment order. However, the 2 ITA No.6962/Del /2014 Stay No.03/Del/2015

assessee company aggrieved by the draft assessment order filed objection

before the DRP contesting the above addition on the ground that the issue of

share capital to the parent holding company does not fall within the meaning of

International transaction and hence no adjustment on this can be made. The

DRP, however, confirmed the order of the AO by making the above impugned

addition. Now, aggrieved assessee is before this Tribunal in this appeal. Mainly

challenging the notional addition proposed by the AO and confirmed by the

DRP on the issue of notional premium on share capital to the parent holding

company of the assessee.

5. In this appeal, the assessee has raised as many as 28 grounds, but except

ground no.3, other grounds are argumentative and supportive to the main

ground no.3, which reads as under:-

"3. On the facts and circumstances of the case, the learned AO has erred, both on facts and in law in making adition of Rs,21,42,19,918/- as the opportunity cost of the deficient funds received by the assessee for non- payment of share premium by the associate enterprise as determined by Transfer Pricing Officer (TPO) in the preceding year."

6. We have heard arguments on both the sides and careful perused the

relevant material placed on record. Interalia draft assessment order, order of the

DRP, finally impugned assessment order and order of the ITAT 'I' Bench in

assessee's own case i.e. ITA No. 847/Del/2014 SMC Pneumatics (India) Pvt.

Ltd. Vs. ACIT dated 22.02.2015 for AY 2009-10. The Ld. assessee's

3 ITA No.6962/Del /2014 Stay No.03/Del/2015

Representative (AR) submitted that the issue is squarely covered in favour of

the assessee by the order of the Tribunal for AY 2009-10 (Supra). The Ld. DR

supported the action of the AO and directions of the DRP and submitted that

the assessee company had received amounts on account of share premium

while issuing share to its parent holding company. However, subsequently, the

Ld. Departmental Representative (DR) submitted that the same issue in the

similar facts and circumstances of the case has been decided in favour of the

assessee company for AY 2009-10 by the order of the Tribunal (Supra).

7. On careful consideration of above submission, at the very outset, we

respectfully take cognizance of the decision of the Tribunal for AY 2009-10

(supra) in assessee own case, wherein in the similar set of facts and

circumstances, the similar issue has been decided in favour of the assessee by

following the ratio of judgment of the Hon'ble Bombay High Court in the case

of Vodafone India Services Pvt. Ltd. Vs. Union of India in Writ Petition No.

871 of 2014, dated 10.10.2014 wherein the Hon'ble High Court has decided

the issue in favour of the assessee. The relevant operative part of the order of

the Hon'ble Bombay High Court in the said case reads as under:-

"In view of the above, we find considerable substance in the Petitioner's case that neither the capital receipts received by the Petitioner on issue of equity shares to its holding company, a non- resident entity, nor the alleged short-fall between the so called fair market price of its equity shares and the issue price of the equity shares can be considered as income within the meaning of the expression as defined under the Act.

4 ITA No.6962/Del /2014 Stay No.03/Del/2015 Page 41 para 31

Similarly, the reliance by the revenue upon the definition of International Taxation in the sub clause (c) and (e) of Explanation

(i) to Section 92B of the Act to conclude that Income has to be given a broader meaning to include notional income, as otherwise Chapter X of the Act would be rendered otiose is farfetched. The issue of shares at a premium does not exhaust the universe of applicability of Chapter X of the Act. There are transactions which would otherwise qualify to be covered by the definition of International Transaction.

The transaction on capital account or on account of restructuring would become taxable to the extent it impacts income i. e. under reporting of interest or over reporting of interest paid or claiming of depreciation etc. It is that income which is to be adjusted to the ALP price. It is not a tax on the capital receipts. This aspect appears to have been completely lost sight of in the impugned order.

Page 44 para 36

Be that as it may, Section 92(2) of the Act deals with a situation where two or more AE's enter into an arrangement whereby they are to receive any benefit, service or facility then the allocation, apportionment or contribution towards the cost or expenditure is to be determined in respect of each AE having regard to ALP. Thus, to illustrate, the cost of research carried on by an AE for the benefit of three AE's, then the cost will be distributed i.e. allocated, apportioned or contributed depending upon the ALP of such benefit to be received by the assessed AE. It would have no application in the cases like the present one, where there is no occasion to allocate, apportion or contribute any cost and/or expenses between the Petitioner and the holding company. Therefore, we find no substance in the above submission. Page 47 para 40

It was contended by the Revenue that in view of Chapter X of the Act, the notional income is to be brought to tax and real income will have no place. The entire exercise of determining the ALP is only to arrive at the real income earned i.e. the correct price of the

5 ITA No.6962/Del /2014 Stay No.03/Del/2015

transaction, shorn of the price arrived at between the parties on account of their relationship viz. AEs. In this case, the revenue seems to be confusing the measure to a charge and calling the measure a notional income. We find that there is absence of any charge in the Act to subject issue of shares at a premium to tax. Page 48 para 42 It was contended by the Revenue that in any event the charge would be found in Section 56(1) of the Act. Section 56 of the Act does provide that income of every kind which is not excluded from the total income is chargeable under the head income from other sources. However, before Section 56 of the Act can be applied, there must be income which arises. As pointed out above, the issue of shares at a premium is on Capital Account and gives rise to no income. The submission on behalf of the revenue that the shortfall in the ALP as computed for the purposes of Chapter X of the Act give rise to income is misplaced. The ALP is meant to determine the real value of the transaction entered into between AEs. It is a re-computation exercise to be carried out only when income arises in case of an International transaction between AEs. It does not warrant recomputation of a consideration received /given on capital account. It permits re-computation of Income arising out of a Capital Account Transaction, such as interest paid/received on loans taken/given, depreciation taken on machinery etc. All the above would be cases of income being affected due to a transaction on capital account. This is not the revenue's case here. Therefore, although Section 56(1) of the Act would permit including within its head, all income not otherwise excluded, it does not provide for a charge to tax on Capital Account Transaction of issue of shares as is specifically provided for in Section 45 or Section 56 (2)(viib) of the Act and included within the definition of income in Section 2(24) of the Act.

Page 49 para 43

It was contended by the revenue that income becomes taxable no sooner it accrues or arises or when it is deemed to accrue or arise and not only when it was received. It is submitted that even though the Petitioner did not receive the ALP value/ consideration for the issue of its shares to its holding company, the difference between the ALP and the contract price is an income, as it arises even if not received and the same must be subjected to tax. There can be no 6 ITA No.6962/Del /2014 Stay No.03/Del/2015

dispute with the proposition that income under the Act is taxable when it accrues or arises or is received or when it is deemed to accrue, arise or received. The charge-ability to tax is when right to receive an income becomes vested in the assessee. However, the issue under consideration is different viz: whether the amount said to accrue, arise or receive is at all income. The issue of shares to the holding company is a capital account transaction, therefore, has nothing to do with income. We, thus do not find substance in the above submission.

Page 51 para 45-46

Chapter X of the Act is a machinery provision to arrive at the ALP of a transaction between AEs. The substantive charging provisions are found in Sections 4, 5, 15 (Salaries), 22 (Income from house property), 28 (Profits and gains of business), 45 (Capital gain) and 56 (Income from other Sources). Even Income arising from International Transaction between A.E. must satisfy the test of Income under the Act and must find its home in one of the above heads i.e. charging provisions. This the revenue has not been able to show. It was next submitted that the machinery Section of the Act cannot be read dehors charging Section. The Act has to be read as an integrated whole. On the aforesaid submission also, there can be no dispute. However, as observed by the Supreme Court in CIT v/s. B. C. Srinivasa Shetti 128 ITR 294, "there is a qualitative difference between the charging provisions and computation provisions and ordinarily the operation of the charging provisions cannot be affected by the construction of computation provisions." In the present case, there is no charging provision to tax capital account transaction in respect of issue of shares at a premium. Computation provisions cannot replace/ substitute the charging provisions. In fact, in B. C. Srinivasa Shetti (supra), there was charging provision but the computation provision failed and in such a case the Court held that the transaction cannot be brought to tax. The present facts are on a higher pedestel as there is no charging provision to tax issue of shares at premium to a non-resident, then the occasion to invoke the computation provisions does not arise. We, therefore, find no substance in the aforesaid submission made on behalf of the Revenue. "

7 ITA No.6962/Del /2014 Stay No.03/Del/2015 6. In another recent case of Shell India Markets (P.) Ltd. Vs. ACIT,W.P. No. 1205 of 2013, dt. 18.11.2014, Hon'ble Bombay High Court allowed the petition of the assessee relying on the above judgment in the case of Vodafone. Relevant findings are at internal page 4, Para 12.

"As held in Vodafone IV, the jurisdiction to apply Chapter X of the Act would occasion only when income arises out of International Transaction and such income is chargeable to tax under the Act. The issues raised in the present petition are identical to the issues which arose for consideration before this Court in Vodafone IV. Therefore, following the aforesaid decision we set aside the order dated 30 January 2013 of the TPO to the extent it holds that ALP of issue of equity shares is 0 183.44 per share as against 0 10 per share as declared by the petitioner and consequent deemed interest brought to tax on the amount not received when benchmarked to the ALP. Accordingly, we set aside the draft assessment order dated 30 March 2013 to the extent it seeks to bring to tax the ALP of the share issued by the petitioner to its non resident AE's and also deemed interest which is sought to be brought to tax on the ground of non receipt of the consideration equivalent to the ALP by the petitioner on issue of equity Shares."

8. In view of above we respectfully following the decision of the Hon'ble

Bombay High Court (Supra) and order of the Tribunal in assessee own case for

AY 2009-10 (Supra) we are of the considered view that there is no charging

provision to tax capital account transaction in respect of issue of shares at a

premium, therefore, transfer pricing adjustment made by the AO and upheld by

the DRP amounting to Rs.21,42,19,918/- does not survive and we direct the

AO to delete the same. Accordingly, the main ground of the assessee is

allowed.

9. In the result, appeal of the assessee is allowed.

8 ITA No.6962/Del /2014 Stay No.03/Del/2015 Stay Application No. 03/Del/2015

10. Since we have allowed the appeal of the assessee, therefore, the stay

application of the assessee becomes infructuous and we dismiss the same.

The decision is pronounced in the open court on 10th July, 2015.

Sd/- Sd/- (R.S.SYAL) (CHANDRAMOHAN GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER

Dated: 10th July, 2015. Aks/-

Copy forwarded to:

1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR Asst. Registrar, ITAT, New Delhi

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