DCIT, CIR-8(1), KOLKATA, Kolkata V. M/s EIH Ltd., Kolkata

ITA 153/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1788 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 11 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 11-04-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 03-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Business income; Depreciation; Transfer pricing; Salary income; Double taxation relief; International transaction; Rule of consistency; Earning of tax free income; Source of fund; Deemed to accrue or arise in india; Proportionate interest; Retrospective amendment; Permanent establishment; Question of law; Wholly owned subsidiary; Non-deduction of tax; Corroborative evidences; Notional interest; Revenue expenditure; Capital expenditure
• Section: 92B; 14A; 115JB; 32; 263; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SHRI ABY. T. VARKEY, JM & SHRI M. BALAGANESH, AM ] I.T.A NO. 153/KOL/201 6 ASSESSMENT YEAR : 2011-1 2 DCIT, CIRCLE-8(1), KOLKATA -VS- M/S EIH LIMITED [PAN: AAACE 6898 B] (APPELLANT) (RESPONDENT) I.T.A NO. 110/KOL/201 6 ASSESSMENT YEAR : 2011-1 2 M/S EIH LIMITED -VS- DCI T, CIRCLE-8(1), KOLKATA [PAN: AAACE 6898 B] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI KANCHUN KAUSH AL,AR FOR THE DEPARTMENT : SHRI G.MALLIKARJUNA, CIT DR DATE OF HEARING : 26.10.2017 DATE OF PRONOUNCEMENT : 12.01.2018 ORDER PER BENCH: 1. THESE CROSS APPEALS ARE PREFERRED BY THE REVENUE AS WELL AS ASSESSEE AGAINST THE ORDERS OF THE DRP-2, KOLKATA. SINCE IDENTICAL FACT S ARE INVOLVED IN BOTH THE APPEALS, THEY ARE TAKEN UP TOGETHER AND DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. DISALLOWANCE U/S 14A OF THE ACT GROUND NOS. 3.1 TO 3.6 OF ASSESSEES APPEAL THE BRIEF FACTS OF THIS ISSUE IS THAT THE LD AO WHI LE FRAMING ASSESSMENT SHOW CAUSED THE ASSESSE AS TO WHY DISALLOWANCE U/S 14A OF THE ACT S HOULD NOT BE MADE BY APPLYING RULE 2 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 2 8D OF THE RULES. THE ASSESSEE IN REPLY THEREON FIL ED A WRITTEN SUBMISSION STATING THAT THE ASSESSEE HAD SUO-MOTO DISALLOWED RS 4248,850/- ON ACCOUNT OF INDIRECT EXPENSE AND RS 496/- ON ACCOUNT OF DIRECT EXPENSES ATTRIBUTABLE TOWARDS EARNING OF EXEMPT INCOME. THE LD AO DISREGARDED THE SAME AND WORKED OUT THE D ISALLOWANCE UNDER RULE 8D(2)(II) AND RULE 8D(2)(III) OF THE RULES IN THE SUMS OF RS 2,39,52,830/- AND RS 23,77,882/- RESPECTIVELY. THIS ACTION OF THE LD AO WAS UPHELD BY THE LD CITA. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GR OUNDS:- 3.1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. PANEL ERRED IN CONFIRMING THE DISALLOWANCE OF RS. 2,20,81,366/- MA DE BY THE LD. AO UNDER SECTION 14A OF THE ACT READ WITH RULE 8D OF THE INC OME TAX RULES IN COMPUTING INCOME UNDER NORMAL PROVISIONS OF THE ACT. 3.2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. PANEL AS WELL AS THE LD. AO ERRED IN NOT APPRECIATING THAT THE PR OVISIONS OF SECTION 14A OF THE ACT CAN BE INVOKED ONLY WHEN THE CONDITIONS LAID DO WN UNDER SUB-SECTION (1) OF SECTION 14A OF THE ACT HAVE BEEN SATISFIED. 3.3 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. PANEL ERRED IN CONFIRMING DISALLOWANCE OF RS. 2,20,81,366/- U/S 14 A MADE BY THE LD. AO BASED ON SURMISE AND CONJECTURE WITHOUT HAVING RECORDED A NY REASONED SATISFACTION UNDER SECTION 14A(2) OF THE ACT AGAINST THE SUO-MOT O DISALLOWANCE MADE BY THE ASSESSEE. 3.4 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW AND WITHOUT PREJUDICE TO GROUNDS TAKEN HEREIN ABOVE, THE LD. PANEL AS WEL L AS LD. AO WHILE COMPUTING ALLEGED DISALLOWANCE UNDER RULE 8D OUGHT TO HAVE EX CLUDED:- - INVESTMENTS IN FOREIGN COMPANIES DERIVING TAXABLE DIVIDEND INCOME; -INVESTMENTS ON WHICH NO EXEMPT DIVIDEND INCOME WAS EARNED DURING THE YEAR; -STRATEGIC INVESTMENTS MADE IN SUBSIDIARIES/GROUP C OMPANIES OUT OF BUSINESS EXIGENCIES; AND CONSEQUENTLY ERRED IN CONFIRMING THE DISALLOWAN CE OF RS. 2,20,81,366/- IN THE PRESENT CASE. 3.5 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW AND WITHOUT PREJUDICE TO GROUNDS TAKEN HEREIN ABOVE, THE LD. PANEL AS WEL L AS THE LD. AO GROSSLY ERRED IN IGNORING THE DECISION OF KOLKATA TRIBUNAL IN ASS ESSEES OWN CASE IN DCIT VS EIH LTD (2015) I.T.A. NO. 426/KOL/2006 AND DISALLOW ING PROPORTIONATE INTEREST 3 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 3 COST UNDER SECTION 14A READ WITH RULE 8D(2)(II) WIT HOUT APPRECIATING THAT VARIOUS INVESTMENTS ON WHICH EXEMPT INCOME WAS EARN ED WERE MADE IN PAST YEARS OUT OF OWN/ SURPLUS FUNDS AND NO EVIDENCE WAS AT ALL BROUGHT TO PROVE ANY NEXUS BETWEEN THE BORROWED FUNDS AND THE AMOUNT INV ESTED. 3.6 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND WITHOUT PREJUDICE TO GROUNDS TAKE HEREINABOVE, THE LD. AO AS WELL AS THE PANEL E RRED IN NOT ALLOWING NETTING OFF OF INTEREST EXPENDITURE WITH INTEREST INCOME WH ILE COMPUTING DISALLOWANCE OF PROPORTIONATE INTEREST COST UNDER SECTION 14A READ WITH RULE 8D(2)(II). 2.1. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD INCLUDING THE PAPER BOOK FILED BY THE ASSESSEE. WE FIND FROM PAGE 745 OF THE PAPER BOOK THAT THE ASSESSEE HAS SUFFICIENT OWN FUNDS TO THE EXTENT OF RS 2587,79,74,512/- FOR MAKING INVESTMENTS. HENCE THERE CANNOT BE ANY DIS ALLOWANCE OF INTEREST UNDER RULE 8D(2)(II) OF THE RULES BY APPLYING THE RATIO LAID D OWN IN THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS RELIANCE UT ILITIES & POWER LTD REPORTED IN (2009) 313 ITR 340 (BOM) WHEREIN IT WAS HELD THAT T HE PRESUMPTION WOULD GO IN FAVOUR OF THE ASSESSEE IF THE INTEREST FREE FUNDS ARE MORE THAN THE LOANS TAKEN BY THE ASSESSEE , THEN IT WOULD BE PRESUMED THAT THE INVESTMENTS WERE MADE OUT OF OWN FUNDS OF THE ASSESSEE. THE SAID RATIO WOULD SQUARELY APPLY TO THE FACTS OF THE INSTANT CASE. HENCE WE HOLD THAT THE DISALLOWANCE MADE UNDER THE SECOND LIMB OF RULE 8D(2)(II) OF THE RULES IS HEREBY DIRECTED TO BE DELETED. 2.2. WITH REGARD TO THE THIRD LIMB OF RULE 8D(2)(II I) OF THE RULES, WE HOLD THAT THE ASSESSEE HAS GOT INVESTMENTS IN FOREIGN COMPANIES , THE DIVIDEND EARNED FROM WHICH WOULD BE TAXABLE INCOME AND HENCE SHOULD BE OUTSIDE THE AMBIT OF DISALLOWANCE U/S 14A OF THE ACT READ WITH RULE 8D OF THE RULES. SIM ILARLY, INVESTMENTS MADE IN SUBSIDIARY COMPANIES WOULD HAVE TO BE RECKONED AS S TRATEGIC INVESTMENTS AND HENCE THE SAME SHOULD BE EXCLUDED WHILE WORKING OUT THE DISAL LOWANCE UNDER RULE 8D(2)(III) OF THE RULES. SIMILARLY , THE INVESTMENTS WHICH HAD Y IELDED DIVIDEND INCOME ALONE , ARE TO BE CONSIDERED WHILE WORKING OUT THE DISALLOWANCE UN DER RULE 8D(2)(III) OF THE RULES AS 4 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 4 HAS BEEN HELD BY THE DECISION OF THIS TRIBUNAL IN T HE CASE OF REI AGRO LTD REPORTED IN 144 ITD 141. BUT WE FIND THAT IF THE DISALLOWANCE MADE UNDER SECOND LIMB OF RULE 8D(2) OF THE RULES IS DELETED, THEN THE DISALLOWANC E MADE BY THE LD AO WOULD REMAIN AT RS 23,77,882/- AND WHEREAS THE ASSESSEE ITSELF HAD VOLUNTARILY DISALLOWED RS 42,48,850/-. HENCE WE DIRECT THE LD AO TO ADOPT TH E DISALLOWANCE FIGURE OF RS 42,48,850/- WHICH HAD ALREADY BEEN DISALLOWED BY TH E ASSESSEE AND HENCE NO FURTHER DISALLOWANCE IN THAT REGARD IS TO BE MADE. 2.3. ACCORDINGLY , THE GROUND NOS. 3.1 TO 3.6 RAISED BY THE ASSESSEE ARE ALLOWED. 3. THE GROUND NO. 3 RAISED IN REVENUES APPEAL IS W ITH REGARD TO THE DISALLOWANCE U/S 14A OF THE ACT WHILE COMPUTING THE BOOK PROFITS U/S 115JB OF THE ACT. THE LD AO ADDED THE SUM OF RS 2,20,81,366/- IN THE DRAFT ASSE SSMENT ORDER U/S 14A OF THE ACT READ WITH RULE 8D OF THE RULES WHILE COMPUTING THE BOOK PROFITS U/S 115JB OF THE ACT. THE LD DRP DELETED THE SAID ADDITION IN ITS ORDER ON TH E GROUND THAT SECTION 115JB OF THE ACT ARE SELF CONTAINED PROVISIONS AND HENCE DISALLOWANC E U/S 14A OF THE ACT READ WITH RULE 8D OF THE RULES CANNOT BE IMPUTED THEREON WHILE COM PUTING BOOK PROFITS U/S 115JB OF THE ACT. AGGRIEVED, THE REVENUE IS IN APPEAL BEFOR E US ON THE FOLLOWING GROUND:- 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. DRP ERRED AS THE PROVISIONS OF SECTION 14A R.W. RULE 8D OF TH E ACT NOT APPLICABLE IN MAT PROVISION. 3.1. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. WE HAVE ALREADY HELD IN PARA 2 ABOVE THAT NO DISALL OWANCE IS TO BE MADE IN ACCORDANCE WITH RULE 8D OF THE RULES IN THE FACTS AND CIRCUMST ANCES OF THE INSTANT CASE UNDER THE NORMAL PROVISIONS OF THE ACT. HOWEVER, WE FIND THA T THE ASSESSEE HAD MADE DISALLOWANCE OF RS 42,49,346/- BASED ON ITS BOOKS O F ACCOUNTS U/S 14A OF THE ACT BY ATTRIBUTING CERTAIN EXPENSES INCURRED FOR THE PURPO SE OF EARNING EXEMPT INCOME, WHILE COMPUTING THE BOOK PROFITS U/S 115JB OF THE ACT. WE FIND THAT THE SPECIAL BENCH OF 5 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 5 DELHI TRIBUNAL IN THE CASE OF ACIT VS VIREET INVEST MENT (P) LTD REPORTED IN 165 ITD 27 (DELHI)(SPECIAL BENCH) DATED 16.6.2017 HAD HELD THAT NO DISALLOWANCE U/S 14A OF THE ACT COULD BE MADE BY RESORTING TO COMPUTATION MECHA NISM PROVIDED IN RULE 8D OF THE RULES. HOWEVER, THE LD AO WOULD HAVE TO DISALLOW U /S 14A OF THE ACT HAVING REGARD TO THE BOOKS OF ACCOUNTS ON SOME RATIONAL BASIS AS EXP ENDITURE INCURRED FOR EARNING EXEMPT INCOME, IN TERMS OF CLAUSE (F) OF SECTION 115JB(2) OF THE ACT. HENCE THE DISALLOWANCE ALREADY MADE BY THE ASSESSEE HAVING REGARD TO THE B OOKS OF ACCOUNTS OF THE ASSESSEE IN THE SUM OF RS 42,49,346/- DOES NOT REQUIRE TO BE DI STURBED. HENCE THE ADDITION MADE BY THE LD AO U/S 115JB OF THE ACT HAD BEEN RIGHTLY DEL ETED BY THE LD CITA. ACCORDINGLY, THE GROUND NO. 3 RAISED BY THE REVENUE IS DISMISSED . 4. ADHOC DISALLOWANCE OF AIRCRAFT MAINTENANCE EXPEN SES INCLUDING DEPRECIATION THEREON GROUND NO. 4.1 OF ASSESSEES APPEAL THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESSEE IS INTER ALIA ENGAGED IN THE BUSINESS OF TIME CHARTER OF AIRCRAFT. IT HOLDS A VALID LICENSE TO OPERATE NON-SCHEDULED AIR CHARTER SERVICES. THE ASSESSEE CHARTERED THE AIRCRAFT TO O UTSIDE PARTIES, HOTEL GUESTS AND TIME TO TIME USED THE AIRCRAFT FOR ITS OWN BUSINESS PURPOSE S. IT WAS SUBMITTED TO THE LD AO THAT THE AIRCRAFT WAS EXCLUSIVELY USED FOR THE BUSINESS PURPOSES OF THE ASSESSEE AND DID NOT INVOLVE ANY ELEMENT OF PERSONAL USE. THE LD AO BY F OLLOWING THE PRINCIPLE OF CONSISTENCY FLOWING FROM THE ASSESSMENT OF PAST YEA RS AND THE SEVERAL DECISIONS OF THE LD CITA IN THE ASSESSEES OWN CASE ON THE IMPUGNED ISSUE IN RELATION TO PAST YEARS, HE HELD THAT THE TWO AIRCRAFTS WERE NOT USED WHOLLY AN D EXCLUSIVELY FOR THE PURPOSE OF ASSESSEES BUSINESS. ACCORDINGLY , HE HELD THAT 90 % OF THE USER OF THE AIRCRAFTS RELATES TO BUSINESS PURPOSES AND THE REMAINING 10% RELATES TO NON-BUSINESS PURPOSES. THEREFORE, BY APPLYING THE PROVISIONS OF SECTION 38(2) OF THE ACT, THE PROPORTIONATE EXPENDITURE 6 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 6 INCURRED ON RUNNING , REPAIRS & MAINTENANCE OF THE AIRCRAFTS AND DEPRECIATION WERE DISALLOWED BY THE LD AO AS UNDER:- EXPENDITURE ON RUNNING, REPAIRS & MAINTENANCE OF AI RCRAFTS 2,75,56,751/- DEPRECIATION CLAIMED U/S 32 OF THE ACT 4,06,46,4 62/- TOTAL 6,82,03,213/- 10% PROPORTIONATE DISALLOWANCE THEREON 68,20,3 21/- THIS ACTION OF THE LD AO WAS UPHELD BY THE LD DRP. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUND:- 4.1 ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. PANEL ERRED IN CONFIRMING THE AD-HOC DISALLOWANCE MADE BY THE LD. AO OF EXPENDITURE INCURRED ON RUNNING AND MAINTENANCE OF AIRCRAFTS INCLUDING D EPRECIATION TO THE EXTENT OF RS. 68,20,321/- BEING 10% OF THE TOTAL EXPENDITURE OF RS. 6,82,03,213/- IGNORING THE DECISION OF HONBLE KOLKATA TRIBUNAL IN ASSESSE ES OWN CASE IN EIH LIMITED VS. DCIT (2015) I.T.A. NO. 316/KOL/2006 FOR A.Y. 20 02-03. 4.1. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD INCLUDING THE PAPER BOOK OF THE ASSESSEE. WE FIND T HAT THE ASSESSEE OWNS THE AIRCRAFTS AND WERE USED FOR PROVIDING SERVICES TO THE TOURIST S OF THE ASSESSEE COMPANY AS WELL AS OTHERS WHO CHARTERED THEM ACCORDING TO THEIR REQUIR EMENTS. THESE AIRCRAFTS WERE UTILIZED FOR CHARTERING FLIGHTS ALSO AND ASSESSEE H AD DERIVED CHARTERING INCOME ALSO WHICH ARE REFLECTED AS INCOME IN THE PROFIT AND LOS S ACCOUNT WHICH EVIDENCES THE BUSINESS NEXUS OF USE OF AIRCRAFTS. WE ALSO FIND THAT THE ASSESSEE HAD STATED THAT SOMETIMES THE DIRECTORS OF THE ASSESSEE COMPANY HAD TO USE THE AIRCRAFTS FOR THE PURPOSE OF URGENT BUSINESS MEETINGS IN DIFFERENT LOCATIONS AND NO PERSONAL EXPENSES HAVE BEEN CHARGED TO REVENUE. THE CHARTERING REVENUE OFFERE D BY THE ASSESSEE HAS BEEN ACCEPTED BY THE REVENUE AND HENCE IT CAN SAFELY BE CONCLUDED THAT THE AIRCRAFTS ARE USED FOR THE PURPOSE OF ITS BUSINESS. WE HOLD THAT ASSESSEE COMPANY BEING A NON-NATURAL PERSON 7 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 7 CANNOT HAVE PERSONAL ELEMENT THEREON AND ALL THE EX PENDITURE INCURRED THEREON HAD TO BE CONSTRUED ONLY FOR BUSINESS PURPOSES. EVEN IF THER E WAS ANY PERSONAL ELEMENT INVOLVED IN THE AFORESAID EXPENDITURE, THE SAME HAVE TO BE T AXED AS PERQUISITE IN THE HANDS OF THE DIRECTORS OR EMPLOYEES AND IT IS ONLY FOR THE LD TD S OFFICER TO LOOK INTO THE ALLEGED VIOLATIONS, IF ANY, ON THE SAME AND THE LD AO CANNO T RESORT TO MAKE ANY DISALLOWANCE OF EXPENDITURE ON THAT COUNT ON AN ESTIMATED BASIS. WE ALSO DRAW SUPPORT FROM THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF SAYAJI IR ON AND ENGINEERING CO VS CIT REPORTED IN 253 ITR 749 (GUJ) IN THIS REGARD. BASED ON THESE FINDINGS AND JUDICIAL PRECEDENT RELIED UPON, WE HOLD THAT NO DIS ALLOWANCE OF EXPENDITURE ON MAINTENANCE OF AIRCRAFTS NEED TO BE MADE ON AN ESTI MATED BASIS TOWARDS EXPENDITURE INCURRED FOR NON-BUSINESS PURPOSES. HENCE THE ISSU E OF MAINTENANCE OF AIRCRAFTS BEING UTILIZED FOR BUSINESS PURPOSES ARE PROVED BEYOND DO UBT AND THERE IS NO QUESTION OF MAKING ANY DISALLOWANCE ON THAT COUNT. ONCE IT IS ESTABLISHED THAT THE AIRCRAFTS WERE USED ONLY FOR BUSINESS PURPOSES, THERE IS NO QUESTI ON OF DISALLOWANCE OF DEPRECIATION , BEING PROPORTIONATE OR OTHERWISE, ON THE SAME. HEN CE THE PROVISIONS OF SECTION 38(2) OF THE ACT ARE NOT AT ALL APPLICABLE TO THE FACTS OF T HE INSTANT CASE. WE ALSO FIND THAT SIMILAR ISSUE HAD CROPPED UP FOR THE ASST YEARS 2007-08 TO 2009-10 IN ASSESSEES OWN CASE ITA NOS. 1431/1557/KOL/2011 ; ITA NOS. 932 & 866/KOL/20 12 AND ITA NOS. 352& 191/KOL/2013 RESPECTIVELY , WHEREIN IT WAS HELD THA T :- 3.3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THIS ISSUE IS SQUARELY CONVERE D BY THE DECISION OF THE CO- ORDINATE BENCH OF THIS TRIBUNAL IN ASSESSEES OWN C ASE FOR ASST YEAR 2006-07 IN ITA NO. 314 & 318/KOL/2011 DATED 1.6.2016 WHEREIN I T WAS HELD THAT :- 9.1. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THIS ISSUE IS SQ UARELY COVERED IN ASSESSEES OWN CASE FOR THE ASST YEARS 2003-04, 200 4-05 & 2005-06 IN ITA NO. 57/KOL/2007 ; 1846/KOL/2007 AND 299/KOL/20 10 DATED 9.12.2015 RESPECTIVELY, WHEREIN IT WAS HELD THAT :- 8 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 8 6.3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. WE FIND THAT THIS ISSUE IS SQU ARELY COVERED BY THE DECISION OF THE CO-ORDINATE BENCH DECISION OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR ASST YEAR 2002-03 IN ITA NO. 316/KOL/2 006 DATED 11.9.2015 IN PARA 4.4 HAD HELD AS UNDER:- IT IS SEEN THAT THE NET EXPENDITURE TOWARDS RUNNIN G AND MAINTENANCE OF AIRCRAFTS DEBITED IN PROFIT AND LOSS ACCOUNT IS ONLY RS. 95,64,995/- AND HENCE THE PREMISE OF THE LEARNE D AO THAT A SUM OF RS. 2,14,04,416/- IS DEBITED TO PROFIT AND L OSS ACCOUNT IS GROSSLY INCORRECT. IT IS OBSERVED THAT ULTIMATELY THE ASSESSEE HAD DERIVED SURPLUS OF RS. 1,07,87,457/- BEING THE DIFF ERENCE BETWEEN THE CHARTERING INCOME OF RS. 2,02,52,452/- AND MAI NTENANCE AND RUNNING OF AIRCRAFTS EXPENDITURE TO THE TUNE OF RS. 95,64,995/-, EVEN THOUGH DERIVING SURPLUS THEREON IS NOT A PRE-REQUIS ITE FOR ALLOWANCE OF EXPENDITURE INCURRED. WE ALSO FIND TH AT COMPLETE DETAILS OF THE ENTIRE EXPENDITURE TOWARDS RUNNING A ND MAINTENANCE OF AIRCRAFTS TOGETHER WITH THE LOG BOOK HAS BEEN FI LED BEFORE THE LEARNED AO AND HENCE THERE IS ABSOLUTELY NO CASE FO R THE LEARNED AO TO REJECT THE SAME AND PROCEED TO MAKE DISALLOWA NCE ON ESTIMATED BASIS TO BE IN LINE WITH THE DISALLOWANCE S MADE IN EARLIER YEARS. WE ALSO FIND THAT THE EARLIER YEARS ITAT O RDER ON THIS ISSUE NEED NOT BE FOLLOWED FOR THE ASST YEAR UNDER APPEAL AS IN THIS YEAR, THE ENTIRE DETAILS WERE VERY MUCH BEFORE THE LEARNE D AO. WE ALSO FIND LOT OF FORCE IN THE ARGUMENTS OF THE LEAR NED AR THAT THE ASSESSEE COMPANY BEING A NON-NATURAL PERSON CANNOT HAVE ANY PERSONAL ELEMENT THEREON AND ALL THE EXPENDITURE IN CURRED THEREON HAD TO BE CONSTRUED ONLY FOR BUSINESS PURPOSES . T O THIS EXTENT, THE RELIANCE ON THE GUJARAT HIGH COURT DECISION IN 253 ITR 749 IS WELL PLACED AND SUPPORTS THE CASE OF THE ASSESSEE. WE ALSO FIND LOT OF FORCE IN THE ARGUMENTS OF THE LEARNED AR THAT IF AT ALL THERE IS ANY PERSONAL ELEMENT INVOLVED IN THE AFORESAID EXPE NDITURE, THE SAME HAVE TO BE TAXED AS PERQUISITE IN THE HANDS OF THE DIRECTORS AND IT IS ONLY FOR THE TDS OFFICER TO LOOK INTO THE VIOLATIONS, IF ANY, ON THE SAME AND HENCE ON THAT GROUND ALSO, NO DISAL LOWANCE OF EXPENDITURE COULD BE APPRECIATED. WE FIND THAT THE LEARNED AO HAD MADE THE ENTIRE ADDITION BASED ON SURMISES AND CONJECTURES AND MADE ON AD HOC BASIS . IT IS WELL FOUNDED PRO POSITION THAT WHAT IS APPARENT IS REAL AND THE ALLEGATION TO PROV E THE CONTRARY IS ON THE PERSON MAKING SUCH ALLEGATION. THE FOLLOWI NG DECISIONS SUPPORT OUR VIEW IN THIS REGARD:- 9 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 9 CIT VS DAULAT RAM RAWATMULL (1973) 87 ITR 349 (SC) SUKHDAYAL RAMBILAS VS CIT (1982) 136 ITR 414 MADURA KNITTING CO VS CIT (1956) 30 ITR 764 (MAD) IN VIEW OF THE AFORESAID FACTS AND CIRCUMSTANCES AN D RESPECTFULLY FOLLOWING THE JUDICIAL PRECEDENTS THEREON, WE HAVE NO HESITATION IN DELETING THE ADDITION MADE IN THE SUM OF RS. 42,80, 883/- ON AN ESTIMATED BASIS. ACCORDINGLY, THE GROUND NO. 4 RAI SED BY THE ASSESSEE IS ALLOWED. IN VIEW OF THE AFORESAID FACTS OF THE CASE AND RESP ECTFULLY FOLLOWING THE CO-ORDINATE BENCH DECISION (SUPRA), WE HOLD TH AT NO ADDITION NEED TO BE MADE ON AN ESTIMATED BASIS TOWARDS RUNNI NG AND MAINTENANCE OF AIRCRAFTS. ACCORDINGLY, THE GROUND NOS. 6 & 7 RAISED BY THE ASSESSEE ARE ALLOWED. 3.4. RESPECTFULLY FOLLOWING THE SAID DECISION, WE H OLD THAT NO ADDITION COULD BE MADE ON AN ESTIMATED BASIS TOWARDS RUNNING AND MAIN TENANCE OF AIRCRAFTS. ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE IN THIS REGARD FOR VARIOUS ASSESSMENT YEARS ARE ALLOWED AND GROUNDS RAISED BY THE REVENUE IN THIS REGARD ARE DISMISSED. 4.2. RESPECTFULLY FOLLOWING THE AFORESAID DECISION, WE HOLD THAT NO DISALLOWANCE COULD BE MADE ON AN ESTIMATED BASIS TOWARDS RUNNING, REPA IRS & MAINTENANCE OF AIRCRAFTS INCLUDING DEPRECIATION THEREON. ACCORDINGLY, THE GROUND NO. 4.1 RAISED BY THE ASSESSEE IS ALLOWED. 5. NON-GRANTING OF SET OFF OF LONG TERM CAPITAL LOS S AGAINST DEEMED SHORT TERM CAPITAL GAIN GROUND NOS. 5.1 & 5.2 OF ASSESSEES APPEAL 10 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 10 THE ASSESSEE CLAIMED SET OFF OF LONG TERM CAPITAL L OSS AMOUNTING TO RS 9,77,54,843/- ARISING ON SALE OF LAND, AGAINST THE DEEMED SHORT T ERM CAPITAL GAIN OF RS 7,18,74,000/- ARISING OUT OF SALE OF RESIDENTIAL PROPERTY (BEING A LONG TERM CAPITAL ASSET AS THE HOLDING PERIOD OF THEM EXCEEDED 36 MONTHS). BASED ON THE P ROVISIONS OF SECTION 50(1) OF THE ACT, THE ASSESSEE COMPANY COMPUTED SHORT TERM CAPIT AL GAINS ON SALE OF DEPRECIABLE ASSETS, ALTHOUGH THE ASSETS WHICH WERE SOLD WERE LO NG TERM CAPITAL ASSET AS THE HOLDING PERIOD OF THEM EXCEEDED 36 MONTHS. HENCE ONLY BY D EEMING FICTION IN TERMS OF SECTION 50 OF THE ACT, THE GAIN WAS TREATED AS SHORT TERM C APITAL GAIN. THE LD AO IN THE DRAFT ASSESSMENT ORDER DENIED THE SET OFF OF LONG TERM CA PITAL LOSS WITH DEEMED SHORT TERM CAPITAL GAIN COMPUTED U/S 50 OF THE ACT. THE LD AO PLACED RELIANCE ON THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF M.RAGHAVAN VS ACIT REPORTED IN (2004) 266 ITR 145 (MAD) WHEREIN IT WAS HELD THAT THE BOOKS WHEN TREATED A S PLANT , THE ASSESSEE WAS GIVEN THE BENEFIT OF DEPRECIATION AND GAINS RECEIVED BY THE ASSESSEE ON SALE OF SUCH ASSETS, OVER AND ABOVE THE WRITTEN DOWN VAL UE THEREON , WOULD BE TAXED AS SHORT TERM CAPITAL GAIN. ACCORDINGLY, THE LD AO DENIED THE BENEFIT OF SET OFF OF BROUGHT FORWARD LONG TERM CAPITAL LOSS WITH DEEMED SHORT TE RM CAPITAL GAIN BY APPLYING THE PROVISIONS OF SECTION 74 OF THE ACT, WHICH PERMITTE D SET OFF OF LONG TERM CAPITAL LOSS ONLY WITH LONG TERM CAPITAL GAINS. THIS ACTION OF THE LD AO WAS UPHELD BY THE LD DRP. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON T HE FOLLOWING GROUNDS:- 5.1 ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. PANEL ERRED IN CONFIRMING THE ACTION OF THE LD. AO IN NON-GRANTING OF SET-OFF U/S 74 OF LONG TERM CAPITAL LOSS AMOUNTING TO RS. 9,77,54,843/- WITH DE EMED SHORT TERM CAPITAL GAIN COMPUTED AS PER SECTION 50(1) OF RS. 7,18,74,000/- IN THE PRESENT CASE. 5.2 ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. PANEL WHILE CONFIRMING THE ACTION OF LD. AO IN DENYING SET-OFF U/S 74 FAILED TO APPRECIATE THAT SECTION 50 BEING A DEEMING PROVISION ITS SCOPE EXTE NDED ONLY UP TO COMPUTATION OF CAPITAL GAIN, HOWEVER SUCH GAIN BEING ARISING FR OM TRANSFER OF LONG TERM CAPITAL ASSETS, RETAINED THE CHARACTER OF LONG TERM CAPITAL GAIN FOR ALL OTHER PROVISIONS AND IS ELIGIBLE FOR SET OFF U/S 74 AGAIN ST BROUGHT FORWARD LOSS FROM LONG TERM CAPITAL ASSET. 11 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 11 5.1. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD. IT IS NOT IN DISPUTE THAT THE ASSET THAT WAS THE SU BJECT MATTER OF TRANSFER WAS A RESIDENTIAL PROPERTY WHICH WAS HELD BY THE ASSESSEE FOR A PERIO D EXCEEDING 36 MONTHS. HENCE THE ASSET HELD WAS A LONG TERM CAPITAL ASSET IN THE HAN DS OF THE ASSESSEE. IT IS NOT IN DISPUTE THAT THE ASSESSEE HAD CLAIMED DEPRECIATION ON THE S AID PROPERTY IN THE RETURNS OF EARLIER YEARS AND HENCE BECOMES DEPRECIABLE ASSET. WE HOLD THAT MERELY BECAUSE THE DEPRECIABLE ASSET HAS BEEN SOLD AND THE SALE CONSID ERATION RECEIVED THEREON EXCEEDS THE WRITTEN DOWN VALUE OF SUCH ASSET, THE CHARACTER OF THE ASSET (I.E BEING A LONG TERM CAPITAL ASSET) DOES NOT UNDERGO ANY CHANGE. MAY BE , IT WO ULD BE ELIGIBLE TO TAXED IN TERMS OF DEEMING FICTION U/S 50 OF THE ACT AS SHORT TERM CA PITAL GAINS ON SALE OF DEPRECIABLE ASSETS. WE HOLD THAT THE DEEMING FICTION CREATED B Y SECTION 50 OF THE ACT THAT THE CAPITAL GAIN ARISING ON TRANSFER OF A DEPRECIABLE ASSET SHA LL BE TREATED AS CAPITAL GAIN ARISING ON TRANSFER OF SHORT TERM CAPITAL ASSET IS ONLY FOR TH E PURPOSE OF SECTIONS 48 AND 49 OF THE ACT AND NOT FOR THE PURPOSE OF ANY OTHER SECTION. IT IS WELL SETTLED THAT THE DEEMING FICTION AND THE DEEMING PROVISIONS SHOULD BE CONSTR UED VERY STRICTLY AND TO BE APPLIED IN LIMITED SENSE AND THE SAME CANNOT BE IMPORTED INTO OTHER SECTIONS OF THE ACT UNLESS OTHERWISE SPECIFIED . SECTION 74(1)(B) OF THE ACT BEING AN INDEPENDENT SECTION IS NOT BOUND BY THE DEEMING PROVISIONS OF SECTION 50 OF TH E ACT. THE NATURE OF CAPITAL ASSET, WHETHER SHORT TERM OR LONG TERM, HAS TO BE DETERMIN ED APPLYING THE PROVISIONS OF SECTION 2(42A) AND SECTION 2(29B) OF THE ACT. HENCE WE HOL D THAT THE DEPRECIABLE ASSETS WHICH HAD BEEN HELD FOR MORE THAN 36 MONTHS PRIOR TO ITS SALE, DOES NOT LOSE ITS CHARACTER OF BEING A LONG TERM CAPITAL ASSET, EVEN THOUGH IT MIG HT GET TAXED AS SHORT TERM CAPITAL GAIN IN TERMS OF DEEMING FICTION PROVIDED U/S 50 OF THE ACT. RELIANCE IN THIS REGARD IS PLACED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS V.S.DEM PO COMPANY LTD REPORTED IN (2016) 74 TAXMANN.COM 15 (SC) WHEREIN IT WAS HELD THAT :- 1. IN THE RETURN FILED BY THE RESPONDENT/ASSESSEE F OR THE ASSESSMENT YEAR 1989-90 THE ASSESSEE HAD DISCLOSED THAT IT HAD SOLD ITS LOADING PLATFORM M.V. PRIYADARSHNI FOR A SUM OF RS. 1,37,25,0001- ON WHICH IT HAD EARNED SOME CA PITAL GAINS. ON THE SAID CAPITAL GAINS THE .ASSESSEE HAD ALSO CLAIMED THAT IT WAS EN TITLED FOR EXEMPTION UNDER SECTION 54E OF THE INCOME TAX ACT. ADMITTEDLY, THE ASSET WA S PURCHASED IN THE YEAR 1972 AND 12 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 12 SOLD SOMETIME IN THE YEAR 1989. THUS, THE ASSET IS ALMOST 17 YEARS OLD. GOING BY THE DEFINITION OF LONG TERM CAPITAL ASSET CONTAINED IN SECTION 2(29B) OF THE INCOME TAX ACT, 1995 (HEREINAFTER REFERRED TO AS 'THE ACT'), IT WAS ADMITTEDLY A LONG-TERM CAPITAL ASSET. FURTHER THE ASSESSING OFFICER REJECTED THE CLAIM FO R EXEMPTION UNDER SECTION 54E OF THE ACT ON THE GROUND THAT THE ASSESSEE HAD CLAIMED DEP RECIATION ON THIS ASSET AND, THEREFORE, PROVISIONS OF SECTION 50 WERE APPLICABLE . THOUGH THIS WAS UPHELD BY THE COMMISSIONER OF INCOME TAX (APPEALS), THE INCOME TA X APPELLATE TRIBUNAL ALLOWED THE APPEAL OF THE ASSESSEE HEREIN HOLDING THAT THE ASSE SSEE SHALL BE ENTITLED FOR EXEMPTION UNDER SECTION 54E OF THE ACT. THE HIGH COURT HAS CO NFIRMED THE VIEW OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND DISMISSED THE APPEAL OF THE REVENUE. WHILE DOING SO THE HIGH COURT HAS RELIED UPON ITS OWN JUD GMENT IN THE CASE OF CIT V. ACE BUILDERS (P.) LTD. [2006] 281 ITR 210/[2005]144 TAX MAN 855 (BORN.). THE HIGH COURT HAS OBSERVED THAT SECTION 50 OF THE ACT WHICH IS A SPECIAL PROVISION FOR COMPUTING THE CAPITAL GAINS IN THE CASE OF DEPRECIABLE ASSETS IS NOT ONLY RESTRICTED FOR THE PURPOSES OF SECTION 48 OR SECTION 49 OF THE ACT AS SPECIFICALLY STATED THEREIN AND THE SAID FICTION CREATED IN SUB-SECTION (L) & (2) OF SECTION 50 HAS LIMITED APPLICATION ONLY IN THE CONTEXT OF MODE OF COMPUTATION OF CAPITAL GAINS CONTAINED I N SECTIONS 48 AND 49 AND WOULD HAVE NOTHING TO DO WITH THE EXEMPTION THAT IS PROVI DED IN A TOTALLY DIFFERENT PROVISION I.E. SECTION 54E OF THE ACT. SECTION 48 DEALS WITH THE MODE OF COMPUTATION AND SECTION 49 RELATES TO COST WITH REFERENCE TO CERTAIN MODE O F ACQUISITION. THIS ASPECT IS ANALYSED IN THE JUDGMENT OF THE BOMBAY HIGH COURT IN THE CAS E OF ACE BUILDERS (P.) LTD. (SUPRA) IN THE FOLLOWING MANNER: 'IN OUR OPINION, THE ASSESSEE CANNOT BE DENIED EXEM PTION UNDER SECTION 54E, BECAUSE, FIRSTLY, THERE IS NOTHING IN SECTION 50 TO SUGGEST THAT THE FICTION CREATED IN SECTION 50 IS NOT ONLY RESTRICTED TO SECTIONS 48 AND 49 BUT ALSO APPLIES TO OTHER PROVISIONS. ON THE CONTRARY, SECTION 50 MAKES IT EXPLICITLY CLEAR THAT THE DEEMED FICTION CREATED IN SUB-SECTION (I) & (2) OF SECTION 50 IS RESTRICTED ONLY TO THE MODE OF COMPUTATION OF CAPITAL GAINS CONTAINED IN SECTION 48 AND 49. SECONDLY, IT IS WELL ESTABLISHED IN LAW THAT A FICT ION CREATED BY THE LEGISLATURE HAS TO BE CONFINED TO THE PURPOSE FOR WHICH IT IS C REATED. IN THIS CONNECTION, WE MAY REFER TO THE DECISION OF THE APEX COURT IN THE CASE OF STATE BANK OF INDIA V. D. HANUMANTHA RAO 1998 (6) SCC 183. IN THAT CASE, T HE SERVICE RULES FRAMED BY THE BANK PROVIDED FOR GRANTING EXTENSION OF SERV ICE TO THOSE APPOINTED PRIOR TO 19.07.1969. THE RESPONDENT THEREIN WHO HAD JOINE D THE BANK ON 1.7.1972 CLAIMED EXTENSION OF SERVICE BECAUSE HE WAS DEEMED TO BE APPOINTED IN THE BANK WITH EFFECT FROM 26.10.1965 FOR THE PURPOSE OF SENI ORITY, PAY AND PENSION ON ACCOUNT OF HIS PAST SERVICE IN THE ARMY AS SHORT SE RVICE COMMISSIONED OFFICER. IN THAT CONTEXT, THE APEX COURT HAS HELD THAT THE L EGAL FICTION CREATED FOR THE LIMITED PURPOSE OF SENIORITY, PAY AND PENSION CANNO T BE EXTENDED FOR OTHER PURPOSES. APPLYING THE RATIO OF THE SAID JUDGMENT, WE ARE OF THE OPINION, THAT THE FICTION CREATED UNDER SECTION 50 IS CONFINED TO THE COMPUTATION OF CAPITAL GAINS ONLY AND CANNOT BE EXTENDED BEYOND THAT. THIRDLY, S ECTION 54E DOES NOT MAKE ANY DISTINCTION BETWEEN DEPRECIABLE ASSET AND NON-D EPRECIABLE ASSET AND, THEREFORE, THE EXEMPTION AVAILABLE TO THE DEPRECIAB LE ASSET UNDER SECTION 54E CANNOT BE DENIED BY REFERRING TO THE FICTION CREATE D UNDER SECTION 50. SECTION 13 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 13 54E SPECIFICALLY PROVIDES THAT WHERE CAPITAL GAIN A RISING ON TRANSFER OF A LONG TERM CAPITAL ASSET IS INVESTED OR DEPOSITED (WHOLE OR ANY PART OF THE NET CONSIDERATION) IN THE SPECIFIED ASSETS, THE ASSESSE E SHALL NOT BE CHARGED TO CAPITAL GAINS. THEREFORE, THE EXEMPTION UNDER SECTI ON 54E OF THE LT. ACT CANNOT BE DENIED TO THE ASSESSEE ON ACCOUNT OF THE FICTION CREATED IN SECTION 50.' 2. WE ARE IN AGREEMENT WITH THE AFORESAID VIEW TAK EN BY THE HIGH COURT. 3. WE ARE INFORMED THAT THE GUJRAT HIGH COURT AS WE LL AS GUAHATI HIGH COURT HAVE ALSO TAKEN THE SAME VIEW IN THE FOLLOWING CASES: I) CIT VS. POLESTAR INDUSTRIES [2014] 41 TAXMANN.C OM 237/221 TAXMAN 423 II) CIT VS. ASSAM PETROLEUM INDUSTRIES (P) LTD. [ 2003] 262 ITR 587/131 TAXMAN 699 (GAU) 4. WE ARE ALSO INFORMED THAT AGAINST THE AFORESAID JUDGMENTS NO APPEAL HAS BEEN FILED. 5. IN VIEW OF THE FOREGOING, WE DO NOT FIND ANY MER IT IN THE INSTANT APPEAL WHICH IS, ACCORDINGLY, DISMISSED. 5.2. WE FIND THAT THE RELIANCE PLACED BY THE LD AR ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS MANALI INVESTMENT REPORTED IN (2013) 219 TAXMAN 113 (BOM) WHEREIN IT WAS HELD THAT SHORT TERM CAPITAL GAIN C OMPUTED U/S 50 OF THE ACT ON LONG TERM DEPRECIABLE ASSETS CAN BE SET OFF AGAINST LONG TERM CAPITAL LOSS U/S 74 OF THE ACT. 5.3. RESPECTFULLY FOLLOWING THE DECISIONS OF THE HO NBLE SUPREME COURT AND HONBLE BOMBAY HIGH COURT SUPRA , WE HOLD THAT THE ASSESSEE IS INDEED ENTITLED TO SET OFF THE BROUGHT FORWARD LONG TERM CAPITAL LOSS OF RS 9,77,5 4,843/- AGAINST THE DEEMED SHORT TERM CAPITAL GAIN OF RS 7,18,74,000/- IN THE FACTS OF THE CASE. THE LD AO IS ACCORDINGLY DIRECTED TO GIVE BENEFIT OF THE SAME TO THE ASSESSE E BASED ON THE CORRECTNESS OF THE CLAIM OF BROUGHT FORWARD LOSS FIGURE MADE BY THE ASSESSEE . ACCORDINGLY, THE GROUND NOS. 5.1 & 5.2 RAISED BY THE ASSESSEE ARE ALLOWED FOR ST ATISTICAL PURPOSES AS DIRECTED ABOVE. 14 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 14 6. DISALLOWANCE OF FOREIGN CURRENCY PAYMENTS U/S 40 (A)(I) OF THE ACT RS 4,52,43,617/- GROUND NOS. 6.1 & 6.2 OF ASSESSEES APPEAL THE LD AO OBSERVED THAT THE ASSESSEE HAD PAYMENTS U NDER VARIOUS HEADS IN FOREIGN CURRENCY ON WHICH DUE DEDUCTION OF TAX AT SOURCE WA S NOT MADE. A TOTAL PAYMENT OF RS 28,23,83,789/- HAS BEEN MADE DURING THE FINANCIAL Y EAR TOWARDS VARIOUS HEADS OF EXPENSES ACROSS VARIOUS UNITS OF EIH LTD. THE LD A O OBSERVED THAT ON PERUSAL OF THE RECORDS, IT IS SEEN THAT THE ASSESSEE HAS NOT DEDUC TED TDS ON THE FOLLOWING PAYMENTS :- ADVERTISEMENT IN MAGAZINE / WEBSITE LISTING INSPECTION FEES MARKETING & DEVELOPMENT CHARGES RECRUITMENT CHARGES MANAGEMENT FEES PROFESSIONAL / CONSULTANCY CHARGES IN RESPONSE TO THE SHOW CAUSE NOTICE ISSUED BY THE LD AO, THE ASSESSEE REPLIED VIDE ITS SUBMISSION DATED 17.3.2015 THAT THE REMITTANCES MAD E FOR THE AFOREMENTIONED HEADS OF EXPENSE, IN TERMS OF FOREIGN CURRENCY, WERE NOT FOR ANY USE OR RIGHT TO USE OF ANY EQUIPMENT, COPYRIGHT, SCIENTIFIC WORK ETC AND SHOUL D NOT QUALIFY AS ROYALTY U/S 9(1)(VI) OF THE ACT. SIMILARLY THE SAID REMITTANCES WERE NO T FOR RENDERING ANY MANAGERIAL, TECHNICAL OR CONSULTANCY SERVICES AND HENCE SHOULD NOT QUALITY AS FEES FOR TECHNICAL SERVICES (FTS) U/S 9(1)(VII) OF THE ACT. ACCORDING LY, THE REMITTANCES WOULD NOT BE TAXABLE AS ROYALTY / FTS UNDER THE ACT. FURTHER SI NCE ALL THE OPERATIONS OF PAYEE ARE CARRIED OUT OUTSIDE INDIA, IN ACCORDANCE WITH CLAUS E (A) OF EXPLANATION 1 TO SECTION 9(1)(I) OF THE ACT, THE PROPOSED REMITTANCE SHOULD NOT BE DEEMED TO ACCRUE OR ARISE IN INDIA AND ACCORDINGLY SUCH INCOME OUGHT NOT TO BE C HARGEABLE TO TAX IN INDIA U/S 9(1)(I) 15 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 15 OF THE ACT. IT WAS FURTHER STATED THAT WITHOUT PREJ UDICE TO THE TAXABILITY OF THE SAID REMITTANCES UNDER THE ACT, THE SAID REMITTANCES WO ULD NOT FALL WITHIN THE DEFINITION OF ROYALTIES / FTS UNDER ARTICLE 12 OF THE TAX TREATY. HENCE THE PROPOSED REMITTANCE SHOULD NOT BE TAXABLE AS ROYALTIES / FTS UNDER ARTI CLE 12 OF THE TAX TREATY. ONCE IT IS CONCLUDED THAT THE REMITTANCE DOES NOT QUALIFY AS R OYALTIES / FTS, IT WOULD BE TREATED AS BUSINESS INCOME UNDER ARTICLE 7 OF THE TAX TREATY. IN THE ABSENCE OF A PE (UNDER ARTICLE 5 OF THE TREATY) OF PAYEES IN INDIA, THE SAID REMIT TANCE SHOULD NOT BE TAXABLE IN INDIA AS BUSINESS INCOME UNDER ARTICLE 7 OF THE TAX TREATY. SECTION 90(2) OF THE ACT PROVIDES THAT A TAXPAYER MAY APPLY THE PROVISIONS OF THE AC T OR THE APPLICABLE TAX TREATY WHICHEVER ARE MORE BENEFICIAL TO THE TAX PAYER. 6.1. THE LD AO OBSERVED THAT THE PAYMENTS OF RECRUI TMENT CHARGES, MANAGEMENT FEES, PROFESSIONAL / CONSULTANCY CHARGES , ADVERTISEMENT IN MAGAZINE /WEBSITE LISTING, INSPECTION FEES AND MARKETING & DEVELOPMENT FEES WO ULD REQUIRE THE ENGAGEMENT OF CERTAIN AMOUNT OF SKILL AND INTELLECTUAL INPUT OF E XPERTISE AND ACCORDINGLY THE SAME WOULD PARTAKE THE CHARACTER OF FTS AND HENCE THE AS SESSEE IS LIABLE TO DEDUCT TAX AT SOURCE, FAILURE OF WHICH WOULD RESULT IN DISALLOWAN CE U/S 40(A)(I) OF THE ACT. WITH THESE OBSERVATIONS, THE LD AO PROPOSED A DISALLOWANCE OF RS 5,10,87,110/- IN THE DRAFT ASSESSMENT ORDER AFTER LISTING OUT THE DETAILS OF E ACH SUCH EXPENDITURE PARTY WISE IN HIS DRAFT ORDER. THE LD DRP GAVE RELIEF TO THE EXTENT OF RS 58,43,493/- OUT OF THESE EXPENDITURES AND SUSTAINED THE BALANCE DISALLOWANCE OF RS 4,52,43,617/- WHICH WAS DULY MADE BY THE LD AO IN THE FINAL ORDER PASSED ON 30.11.2015. AGGRIEVED, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GR OUNDS :- 6.1 ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LD. AO WHILE GIVING EFFECT TO THE DIRECTIONS OF THE LD. PANEL ERRED IN CONFIRMING THE DISALLOWANCE U/S 40(A)(IA) OF THE ACT TO THE EXTENT OF RS. 4,52,43,6 17/- FOR ALLEGED NON-DEDUCTION OF TAX U/S 195 IGNORING THE VARIOUS DETAILS/EXPLANATIO N FILED IN THE COURSE OF ASSESSMENT AND FAILING TO APPRECIATE THAT THE VARIO US REMITTANCES WERE NOT TAXABLE IN INDIA EITHER UNDER THE PROVISIONS OF THE INCOME TAX ACT OR UNDER THE BENEFICIAL PROVISIONS OF DOUBLE TAXATION AVOIDANCE AGREEMENT (DTAA). 16 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 16 6.2 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. AO WHILE CONFIRMING DISALLOWANCE TO THE EXTENT OF RS. 4,52,4 3,617/- U/S 40(A)(IA) OF THE ACT FAILED TO PROVIDE PROPER/SUFFICIENT OPPORTUNITY TO THE ASSESSEE TO HAVE ITS SAY OR MAKE COMPLIANCE OF THE REASONS RELIED UPON BY HIM IN MAKING THE SAID DISALLOWANCE IN SPITE OF THE FACT THAT THE APPELLAN T FILED SAMPLE INVOICES ALONG WITH SUPPORTING EVIDENCES IN SUPPORT OF THE NON-TAX ABILITY OF REMITTANCE. 6.2. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSE D THE MATERIALS AVAILABLE ON RECORD INCLUDING THE PAPER BOOK FILED BY THE ASSESSEE. WE FIND THAT THE ASSESSEE HAD GIVEN UNIT WISE DETAILS OF VARIOUS EXPENDITURES INCURRED IN FO REIGN CURRENCY VIDE ITS LETTER DATED 12.3.2015 & 16.3.2015 WITH DETAILED WRITE UP ABOUT THE EACH EXPENDITURE AS UNDER:- EXPENDITURE IN FOREIGN CURRENCY TOWARDS PROFESSIONA L, CONSULTANCY & OTHER MATTERS [CLAUSE 25(A) OF SCHEDULE 24 TO ANNUAL ACCOUNTS] NAME OF THE HOTEL/DIVISION AMOUNT(RS.) THE OBEROI GRAND 4,625,991 THE OBEROI, NEW DELHI 65,397,301 THE OBEROI MUMBAI/TIDENT NARIMAN POINT 35,607,111 TRIDENT BANDRA KURLA, MUMBAI (OPERATIONS) 9,260,223 OBEROI FLIGHT SERVICES, MUMBAI 1,081,847 OBEROI AIRPORT SERVICES, MUMBAI 169,761 THE OBEROI, BANGALORE 9,805,671 THE OBEROI VANYAVILAS, RANTHAMBORE 2,113,523 MAIDENS HOTEL, DELHI 3,806 OFS NEW DELHI (NEW PROJECT) 63,794,695 OBEROI CENTRE FOR LEARNING & DEVELOPMENT 10,765 OBEROI FLIGHT SERVICES, CHENNAI 5,000 THE OBEROI UDAIVILAS, UDAIPUR 13,647,420 OBEROI CONTACT CENTRE 3,738,353 HEAD OFFICE, KOLKATA 73,122,322 TOTAL 282,383,789 NATURE OF EXPENDITURE ANNEXURE -1 ROOM RESERVATION COMMISSION ANNEXURE-2 PARTICIPATION/LISTING FEES ANNEXURE-3 INSPECTION FEES ANNEXURE-4 ADVERTISEMENT IN MAGAZINE/WEBSITE LISTI NG 17 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 17 ANNEXURE-5 TELEPHONE EXPENSES ANNEXURE-6 MEMBERSHIP/ANNUAL SUBSCRIPTION ANNEXURE-7 REIMBURSEMENT OF EXPENSES AT ACTUAL ANNEXURE-8 SALARY/ADVANCE AGAINST SALARY ANNEXURE-9 DOMESTIC PAYMENT ANNEXURE-10 RECRUITMENT CHARGES ANNEXURE-11 MANAGEMENT FEES ANNEXURE-12 AIRCRAFT REPAIR & MAINTENANCE ANNEXURE-13 PROFESSIONAL/CONSULTANCY ANNEXURE-14 MARKETING AND DEVELOPMENT 6.3. ADVERTISEMENT IN MAGAZINES / WEBSITE LISTING THE ASSESSEE EXPLAINED THAT MAGAZINES ARE PRINTED O UTSIDE INDIA AND / OR THE WEBSITES ARE LISTED OUTSIDE INDIA. THE ASSESSEE BEING IN TH E LUXURY HOSPITALITY, ITS BUSINESS HEAVILY DEPENDS ON CLIENTS FROM THE WESTERN WORLD. CONSEQUENTLY, AS IN THE PAST IT SPENT A CONSIDERABLE SUM OF MONEY ON ADVERTISEMENTS BOTH IN THE PRINT AND WEB MEDIA. AS ALREADY EXPLAINED IN THE PAST YEARS, SUCH ADVERTISE MENTS ARE PRINTED MOSTLY IN USA AND SOME IN THE UK ETC. THE SERVERS OF THE WEB ARE ALS O LOCATED OUTSIDE INDIA. AS ALREADY EXPLAINED, THE TARGET FOR THE ADVERTISEMENTS ARE TH E FOREIGN TOURISTS. HENCE, IN THOSE CASES, WHAT IS ENSURED IS THAT THESE FOREIGN ADVERT ISEMENTS ARE CIRCULATED IN THE US/ CANADA AND IN UK AND EUROPEAN COUNTRIES. ACCORDING LY, THE PAYMENTS DO NOT ATTRACT TAX WITHHOLDING U/S 9 SINCE ALL ACTIVITIES RELATING TO THE ADVERTISEMENTS TAKE PLACE OUTSIDE INDIA AND THE REMITTANCES ARE MADE OUTSIDE INDIA SU CH REMITTANCES SHOULD NOT CALL FOR ANY TAX WITHHOLDING. FURTHER, EVEN UNDER THE RESPE CTIVE TREATIES, US / UK ETC, WITH RESTRICTED FTS CLAUSE WITH MAKE AVAILABLE PROVISI ON, NO TDS IS CALLED FOR IN INDIA. 18 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 18 6.4. INSPECTION FEES THE ASSESSEE EXPLAINED THAT FEES PAID TO OVERSEAS P ARTIES FOR CARRYING ON INSPECTIONS OUTSIDE INDIA. TO ENSURE QUALITY ASSURANCES, INSPE CTION FEES WERE PAID TO VARIOUS AGENCIES MOSTLY FROM THE UK. EVEN IF IT IS ADMITTE D THAT THE SERVICES TO PROVIDE SUCH INSPECTION REQUIRES TECHNICAL EXPERTISE, UNDER THE INDO-UK TAX TREATY, THE FTS CLAUSE IS VERY NARROW. TO QUALIFY FOR AN AMOUNT ALLING UNDER THE FTS CLAUSE, THERE SHOULD BE MAKING AVAILABLE OF A TECHNOLOGY. IN CASE OF INS PECTION FEES, THE SERVICE PROVIDER ONLY PROVIDES THEIR REPORT OR ONLY PROVIDES A QUALITY AS SURANCE. SUCH SERVICES DO NOT FALL UNDER FTS AND HENCE IN THE ABSENCE OF THEIR PES IN INDIA, THERE WSA NO WITHHOLDING TAX REQUIREMENT IN INDIA UNDER THE INDIA UK TREATY. 6.5. RECRUITMENT CHARGES PAYMENTS TOWARDS PROFESSIONAL FEES FOR MANPOWER REC RUITMENT IN HOTELS OUTSIDE INDIA. THE ASSESSEE HAD TO TAKE THE SERVICES OF VARIOUS FO REIGN RECRUITMENT AGENTS (SPECIALLY FOR SPAS , CHEFS ETC) . THE SERVICES ARE RENDERED OUTS IDE INDIA AND THE PAYMENTS ARE MADE OUTSIDE INDIA. THEREFORE UNDER THE DOMESTIC LAW, T HE REMUNERATION FOR SUCH SERVICES ARE NOT TAXABLE IN INDIA. EVEN OTHERWISE, THE RECRUITM ENT SERVICES PROVIDERS ARE BASED IN INDONESIA OR THAILAND. BOTH THE COUNTRIES HAVE TRE ATIES WITH INDIA AND DO NOT HAVE ANY FTS CLAUSE AT ALL. NONE OF SUCH SERVICES PROVIDERS HAVE ANY PE IN INDIA. THEREFORE ANY REMITTANCE MADE IN THIS REGARD IS NOT TAXABLE IN IN DIA. 6.6. PROFESSIONAL / CONSULTANCY CHARGES THE PAYEES ARE MAINLY FROM THE USA , UK AND AUSTRAL IA. THE PROFESSIONAL SERVICES RENDERED DO NOT FALL IN THE CATEGORY OF ROYALTY A S PER THE INDIA-AUSTRALIA TAX TREATY. FURTHER THAT TREATY DOES NOT HAVE ANY EXCLUSIVE FTS CLAUSE. AS REGARDS THE USA AND UK, THE FTS/ INCLUDED SERVICE DEFINITIONS ARE VERY NARROW. SERVICES RENDERED TO THE ASSESSEE DO NOT FALL UNDER MAKE AVAILABLE CATEGOR Y. THEREFORE IN THE ABSENCE OF PE IN INDIA, THE PAYMENTS MADE TO THE PAYEES OUTSIDE INDI A DO NOT CALL FOR ANY TDS. 19 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 19 6.7. MANAGEMENT FEES MANAGEMENT FEES IS PAID TO THE THAI SPA MANAGEMENT FIRM. FOR ARGUMENT SAKE, EVEN IF THE PAYMENT IS CONSIDERED TAXABLE IN INDIA UNDER TH E DOMESTIC LAW, THE SAME IS NOT TAXABLE IN INDIA UNDER THE INDIA THAILAND TAX TREAT Y. AS MENTIONED EARLIER, THE THAI TREATY DOES NOT HAVE ANY EXCLUSIVE FTS CLAUSE. HEN CE IN THE ABSENCE OF ANY PE IN INDIA, THESE PAYMENTS MADE TO THE SERVICE PROVIDERS DO NOT CALL FOR ANY TDS. 6.8. MARKETING & DEVELOPMENT PAYMENTS ARE MADE TO THE TAX RESIDENTS OF USA / MAU RITIUS. WHILE USA HAS MAKE AVAILABLE CLAUSE IN THE INCLUDED SERVICES ARTICLE , MAURITIUS DOES NOT HAVE ANY EXCLUSIVE FTS CLAUSE. IN VIEW OF THE ABOVE, NO TAX WITHHOLDING IS CALLED FOR. 6.9. APART FROM THIS, THE ASSESSEE HAD GIVEN AN EXC LUSIVE SUBMISSION BEFORE THE LD AO VIDE LETTER DATED 19.11.2015 WITH REGARD TO NON-APP LICABILITY OF WITHHOLDING TAX UNDER DOMESTIC LAW AS WELL AS DTAA OF THE RESPECTIVE COUN TRIES FOR EACH OF THE AFORESAID EXPENDITURE AS UNDER:- 20 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 20 21 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 21 22 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 22 1. ADVERTISEMENTS IN MAGAZINES AND WEB SITE LISTING THE ASSESSEE BEING IN THE LUXURY HOSPITALITY, ITS B USINESS HEAVILY DEPENDS ON CLIENTS FOR THE WESTERN WORLD. CONSEQUENTLY, AS IN THE PAST IT SPEN T A CONSIDERABLE SUM OF MONEY ON ADVERTISEMENTS BOTH IN THE PRINT AND WEB MEDIA. AS ALREADY EXPLAINED IN THE PAST YEARS, SUCH ADVERTISEMENTS ARE PRINTED MOSTLY IN USA, UK AND EU ROPEAN COUNTRIES. THE SERVERS OF THE WEB ARE ALSO LOCATED OUTSIDE INDIA. AS ALREADY EXPLAINE D, THE TARGET FOR THE ADVERTISEMENTS ARE THE FOREIGN TOURISTS. HENCE, IN THOSE CASES, WHAT ENSUR ED IS THAT THESE FOREIGN ADVERTISEMENTS ARE CIRCULATED IN THE US; CANADA AND IN UK AND EUROPEAN COUNTRIES. TAXABILITY UNDER THE INCOME TAX ACT, 1961 THE SERVICES RENDERED BY FOREIGN VENDORS IN RELATIO N TO ADVERTISEMENT/ WEB LISTING ARE IN THE NATURE OF MARKETING EXPENSES. THESE SERVICES ARE NO T TAXABLE UNDER THE PROVISION OF INCOME TAX ACT, 1961 FOR THE FOLLOWING REASONS: IT IS NOT RECEIVED OR DEEMED TO BE RECEIVED IN IN DIA. THE INCOME DOES NOT ACCRUES OR ARISES OR DEEMED T O ACCRUE OR ARISE IN INDIA AS THE ADVERTISEMENT IS PUBLISHED/PRINTED/ DISTRIBUTED OUT SIDE INDIA , SINCE ALL THE OPERATIONS OF PAYEE ARE CARRIED OUT OUTSIDE INDIA, IN ACCORDANCE WITH CLAUSE (A) OF EXPLANATION 1 TO SECTION 9(1)(I), THE VARIOUS REMITTANCES SHOULD NOT BE CONSIDERED AS DEEMED TO ACCRUE OR ARISE IN INDIA AN D ACCORDINGLY SUCH INCOME OUGHT NOT TO BE CHARGEABLE TO TAX IN INDIA UNDER SECTION 9(1)(I) OF THE ACT. THE REMITTANCES MADE ON ACCOUNT OF WERE NOT FOR A NY USE OR RIGHT TO USE OF ANY EQUIPMENT, COPY RIGHT, SCIENTIFIC WORK ETC. AND HEN CE SHOULD NOT QUALIFY AS ROYALTY UNDER SECTION 9(1)(VI) OF THE ACT. THE SAID REMITTANCE WERE ALSO NOT FOR RENDERING A NY MANAGERIAL, TECHNICAL OR CONSULTANCY SERVICES AND HENCE SHOULD NOT QUALIFY A S FEES FOR TECHNICAL SERVICE (FTS) 23 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 23 UNDER SECTION 9(1)(VII) OF THE ACT. THE ACTIVITY O F ADVERTISEMENT DOES NOT PER SE INVOLVE ANY TECHNICAL EXPERTISE. IT HAS TO BE TREATED AS BU SINESS INCOME OF THE SERVICE PROVIDER. IT IS PERTINENT TO NOTE THAT THE LD CIT(A) IN THE C ASE OF THE ASSESSEE ITSELF IN THE A.Y.2006-07 FOLLOWED BY SUBSEQUENT YEARS HAS CATEGO RICALLY HELD THAT THE PAYMENTS TO FOREIGN PARTIES ON ACCOUNT OF ADVERTISEMENT OUTSIDE INDIA SHOULD NOT BE TAXABLE IN INDIA AS PER THE PROVISIONS OF SECTION 9(1)(VII) OF THE I NCOME TAX ACT. THE RELEVANT EXTRACT OF THE CLT(A) ORDER FOR THE ASSESSMENT YEAR 2006-07 IS REPRODUCED AS FOLLOWS: 'IN MY CONSIDERED VIEW, THE PAYMENTS TO THE FOREIG N PARTIES ON ACCOUNT OF ADVERTISEMENT OUTSIDE INDIA SHOULD NOT BE TAXABLE IN INDIA AS PER THE PROVISIONS OF SECTION 9(1)(VII) OF THE INCOME TAX ACT, SINCE E ARNING THROUGH ADVERTISEMENT ARE NOT IN NATURE OF 'MANAGERIAL, TECHNICAL OR CONS ULTANCY SERVICES. IN MY VIEW THE INCOME AT BEST CAN BE CONSIDERED AS BUSINESS PR OFITS IN THE HANDS OF THE PAYEES. HOWEVER, IN ABSENCE OF PERMANENT ESTABLISHM ENT OF THE PAYEES IN INDIA, THE AMOUNT WOULD NOT BE TAXABLE IN INDIA. SINCE THE INCOME WAS NOT TAXABLE IN INDIA, THERE WAS NO OBLIGATION ON PART OF THE APPEL LANT TO WITHHOLD TAX ON SUCH PAYMENTS. THUS, IN THE INSTANT CASE, THE PROVISIONS OF SECTION 40(A)(IA) DO NOT APPLY. (A COPY OF CIT(A) ORDER FOR A.Y.2006-07 IS ATTACHED AS ANNEXURE 15) FURTHER, RELIANCE IN THIS CONNECTION IS PLACED ON T HE DECISION OF SHERATON INTERNATIONAL INC VS DEPUTY DIRECTOR OF INCOME-TAX REPORTED IN (2007) 293 ITR (A.T.) 68 (ITAT)(DEL). THE DELHI IT AT HELD AS FOLLOWS: HELD, (I) THAT THE PAYMENTS IN QUESTION MADE FOR RE NDERING THE SERVICES IN QUESTION COULD BE SAID TO HAVE ACCRUED OR ARISEN IN INDIA BY INVOKING THE DEEMING PROVISIONS OF SECTION' ONLY IF THE SUM WAS PAYABLE BY THE INDIAN HOTELS OR CLIENTS TO THE ASSESSEE BY WAY OF 'ROYALTY' AS DEFINED IN EXPLANATION 2 BELOW CLAUSE (VI) OF SECTION 9(1) OR BY WAY OF 'FEES FOR TECHNICAL SERVICES' AS DEFINED IN EXPL ANATION 2 BELOW CLAUSE (VII) OF SECTION 9(1) . THE AGREEMENTS HAD TO BE READ AS A WHOLE. TH E MAIN INTENTION OF BOTH PARTIES TO CONTINUE THEIR ASSOCIATION WAS TO DEVELOP TOURISM O N A WIDE FRONT BY PROVIDING, INTER ALIA, THE BEST HOTEL FACILITIES OF INTERNATIONAL ST ANDARDS TO TOURISTS WORLDWIDE BY PROMOTING AND ADVERTISING WORLDWIDE THE SHERATON CH AIN OF HOTELS FOR MUTUAL BENEFIT. BOTH PARTIES HAD COME TOGETHER WITH THEIR SPECIALIZ ED INFORMATION, EXPERIENCE AND KNOWLEDGE IN THE FIELD OF HOTEL BUSINESS FOR MUTUAL BENEFIT. THE MAIN INTENTION OR PURPOSE OF THE ASSOCIATION BETWEEN THE ASSESSEE AND ITC WAS TO PUBLISIZE, MARKET AND PROMOTE THE HOTELS OF THE ITC AND THE ASSESSEE-CO MPANY, HAD UNDERTAKEN TO PROVIDE ALL THE SERVICES AS ENUMERATED IN THE VARIOUS ARTIC LES TO ACHIEVE THIS MAIN INTENTION OR PURPOSE. IF ALL THE TERMS THEREOF WERE READ TOGETHE R AS A WHOLE, IT EXPLICITLY SHOWED THAT THE ASSESSEE IN SUBSTANCE, HAD MAINLY UNDERTAKEN TH E JOB OF PUBLICITY, MARKETING AND ADVERTISING OF THE HOTELS OF INDIAN CLIENTS WORLDWI DE AND ALL THE SERVICES TO BE RENDERED BY IT AS ENUMERATED IN THE VARIOUS ARTICLES OF THE AGREEMENT WERE INCIDENTAL OR SUPPLEMENTARY TO CARRYING OUT THIS JOB EFFECTIVELY AND EFFICIENTLY IN THE INTEREST OF ITS BUSINESS OF WHICH THE SAID ACTIVITY OR JOB FORMED A PART. THE SERVICES, THEREFORE, WERE AN INTEGRAL PART OF THE MAIN WORK UNDERTAKEN BY THE AS SESSEE OF PUBLICITY, MARKETING AND 24 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 24 PROMOTION OF THE INDIAN HOT WORLDWIDE. THE SERVICES DESCRIBED IN THE VARIOUS ARTICLES OF THE AGREEMENT HAD NOT MUCH SIGNIFICANCE INDEPENDENT LY AND WERE AN INTEGRAL PART OF THE ARRANGEMENT BETWEEN THE ASSESSEE AND THE INDIAN HOT ELS OR CLIENTS FOR PUBLICITY, MARKETING AND ADVERTISING OF HOTEL BUSINESS. THAT THE PAYMENTS UNDER THE AGREEMENTS BEING ENTIRE LY MADE BY THE INDIAN HOTELS TO THE ASSESSEE-COMPANY FOR THE MAIN SERVICES, THE INCIDEN TAL OR ANCILLARY SERVICES NOT BEING INDEPENDENT OF AND SEPARABLE FROM THE MAIN JOB UNDE RTAKEN BY THE ASSESSEE IN THE PECULIAR FACTS OF THE CASE, IT WAS NEITHER POSSIBLE NOR DESIRABLE TO APPORTION OR ATTRIBUTE ANY PART OF THE CONSIDERATION RECEIVED BY THE ASSES SEE THERETO. THE VARIOUS SERVICES RENDERED BY THE ASSESSEE TO ENABLE IT TO COMPLETE EFFICIENTLY AND EFFECTIVELY THE JOB UNDERTAKEN BY IT AS AN INTEGRATED BUSINESS ARRANGEM ENT TO PROVIDE THE SERVICES RELATING TO ADVERTISING , PUBLICITY AND SALES PROMOTION INCL UDING RESERVATIONS OF THE INDIAN HOTELS WORLDWIDE IN MUTUAL INTEREST COULD NOT BE CO NSIDERED IN ISOLATION TO SAY THAT PART OF THE CONSIDERATION RECEIVED BY THE ASSESSEE WAS I N THE NATURE OF ROYALTIES OR FEES FOR TECHNICAL SERVICES DEFINED IN EXPLANATION 2 TO SECTION 9(1)(VI) OR TO SECTION 9(1)(VII) OR OF ROYALTIES OR FEES FOR INCLUDED S ERVICES AS DEFINED IN ARTICLE 12(3) AND 12(4) OF THE DTAA BETWEEN INDIA AND THE U.S.A. IN VIEW OF THE ABOVE, IT IS SUBMITTED THAT THE SERV ICES PROVIDED BY THE FOREIGN RESIDENTS IN RELATION TO ADVERTISEMENT IS NOT COVERED WITHIN THE SCOPE OF ROYALTIES OR FEES FOR TECHNICAL SERVICES UNDER SECTION 9(1)(VI) OR 9(1)(V II) OF THE INCOME TAX ACT. A) INDIA - AUSTRALIA DTAA IN AUSTRALIA DTAA, FEES FOR TECHNICAL SERVICES (FTS ) IS DEFINED WITHIN THE DEFINITION OF ROYALTY. THE DTAA DEFINE~ FTS AS FOLLOWS: 'THE RENDERING OF ANY SERVICES (INCLUDING THOSE OF TECHNICAL OR OTHER PERSONNEL), WHICH MAKE AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE, SKI LL, KNOW-HOW OR PROCESSES OR CONSIST OF THE DEVELOPMENT AND TRANSFER OF A TECHNI CAL PLAN OR DESIGN'. THE CONCERNED FOREIGN REMITTANCES ARE NOT COVERED U NDER THE SCOPE OF ROYALTY AS PER ARTICLE 12 SINCE THE CONCERNED SERVICES DOES NOT MA KE AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL, KNOW-HOW, OR PROCESSES OR CONSIS T OF THE DEVELOPMENT AND TRANSFER OF A TECHNICAL PLAN OR DESIGN. BROADLY SPEAKING, THE T ERM 'MAKE AVAILABLE' MEANS THAT THE PERSON ACQUIRING THE TECHNICAL SERVICE IS ENABLED T O INDEPENDENTLY APPLY THE TECHNOLOGY. 'THE WORD 'ENABLE' IS USED IN THE SENSE THAT THE TE CHNICAL SERVICES SHOULD BE SUCH THAT THEY MAKE THE RECIPIENT ABLE OR WISER IN THE SUBJEC T MATTER. THUS, WHERE THE RECIPIENT OF TECHNICAL SERVICES DOES NOT GET EQUIPPED WITH THE K NOWLEDGE OR EXPERTISE AND THE RECIPIENT WOULD NOT BE ABLE TO APPLY IT IN FUTURE I NDEPENDENTLY WITHOUT-SUPPORT FROM THE SERVICE PROVIDER, IT WILL NOT BE A CASE OF TECHNICA L SERVICE HAVING BEEN 'MAD AVAILABLE'. AND IN SUCH CASES THE CONCERNED TRANSACTION WOULD N OT BE TAXABLE IN INDIA AND SUBJECT TO WITHHOLDING TAX IN INDIA. IN SUCH CASES, THE INC OME OF THE RECIPIENT SHALL BE TREATED AS BUSINESS INCOME UNDER THE ARTICLE 7. SINCE THE ENTI RE OPERATION OF THE SERVICE PROVIDER IS CARRIED OUTSIDE INDIA, THERE IS NO EXISTENCE OF ANY PE IN INDIA AND IN SUCH CASES THE 25 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 25 CONCERNED TRANSACTION WOULD NOT BE TAXABLE IN INDIA AND SUBJECT TO WITHHOLDING TAX IN INDIA. RELIANCE IN THIS CONNECTION IS PLACED ON DECISION ' OF ITAT DELHI IN CASE OF SHERATON INTERNATIONAL INC VS. DEPUTY DIRECTOR OF INCOME-TAX REPORTED IN (2007) 293 ITR (A.T.) 68 (ITAT) (DEL) B) SINGAPORE - ARTICLE 12 THE CONCERNED SERVICES ARE NOT COVERED WITHIN THE S COPE OF FEES FOR TECHNICAL SERVICES' AS DEFINED IN THE ARTICLE 12(4) FOR THE FOLLOWING R EASONS: SUCH SERVICES DO NOT INVOLVE ANY MANAGERIAL; TECH NICAL OR CONSULTANCY NATURE. SUCH SERVICES DO NOT INVOLVE APPLICATION OR ENJOY MENT OF THE RIGHT, PROPERTY OR INFORMATION. DOES NOT MAKE AVAILABLE TECHNICAL KNOWLEDGE, EXPE RIENCE, SKILL, KNOW-HOW OR PROCESSES WHICH ENABLE THE PERSON ACQUIRING THE SER VICES TO APPLY THE TECHNOLOGY CONTAINED THEREIN. THE CONCEPT OF 'MAKE AVAILABLE' HAS BEEN ELABORATELY EXPLAINED HEREIN ABOVE. CONSIST OF DEVELOPMENT AND TRANSFER OF A TECHNICA L PLAN OR TECHNICAL DESIGN BUT EXCLUDES ANY SERVICE DOES NOT ENABLE THE SERVICE PR OVIDER TO APPLY THE TECHNOLOGY CONTAINED THEREIN. RELIANCE IN THIS CONNECTION IS PLACED ON DECISION O F ITAT DELHI IN CASE OF SHERATOR INTERNATIONAL INC VS. DEPUTY DIRECTOR OF INCOME-TAX REPORTED IN (2007) 293 ITR (A. T.) 68 (ITAT) (DEL). C) UK - ARTICLE -13 THE CONCERNED SERVICES ARE NOT COVERED WITHIN THE S COPE OF 'FEES FOR TECHNICAL SERVICES' AS DEFINED IN THE ARTICLE 13(5) FOR THE F OLLOWING REASONS: . SUCH SERVICES DO NOT INVOLVE RENDERING OF ANY TEC HNICAL OR CONSULTANCY SERVICES; SUCH SERVICES ARE NOT ANCILLARY AND SUBSIDIARY TO THE APPLICATION OR ENJOYMENT OF THE RIGHT, PROPERTY OR INFORMATION FOR WHICH A PAYMENT IS RECEIVED BY THE VENDOR. IT IS UNDERSTOOD THAT, IN ORDER FOR A SERVICE TO BE CONSI DERED 'ANCILLARY AND SUBSIDIARY' TO- THE APPLICATION OR ENJOYMENT OF SOME RIGHT, PROPERT Y, OR INFORMATION FOR WHICH A PAYMENT IS RECEIVED, THE SERVICE MUST BE RELATED TO THE APPLICATION OR ENJOYMENT OF THE RIGHT, PROPERTY, OR INFORMATION. SUCH SERVICES ARE NOT ANCILLARY AND SUBSIDIARY TO THE ENJOYMENT OF ANY PROPERTY; 26 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 26 DO NOT MAKE AVAILABLE TECHNICAL KNOWLEDGE, EXPERI ENCE, SKILL KNOW-HOW OR PROCESSES OR CONSIST OF THE DEVELOPMENT AND TRANSFER OF TECHN ICAL PLAN OR TECHNICAL DESIGN. THE CONCEPT OF 'MAKE AVAILABLE' HAS BEEN ELABORATELY EX PLAINED HEREIN ABOVE. RELIANCE IN THIS CONNECTION IS PLACED ON DECISION O F IT A T DELHI IN CASE OF SHERATON INTERNATIONAL INC VS. DEPUTY DIRECTOR OF INCOME-TAX REPORTED IN (2007) 293 ITR (A.T.) 68 (ITAT) (DEL) D) USA - ARTICLE - 12 THE CONCERNED SERVICES ARE COVERED WITHIN THE SCOPE OF FEES FOR INCLUDED SERVICES AS DEFINED IN THE ARTICLE 12 OF THE DTAA FOR THE FOLLO WING REASONS: SUCH SERVICES ARE NOT ANCILLARY AND SUBSIDIARY TO THE APPLICATION OR ENJOYMENT OF THE RIGHT, PROPERTY OR INFORMATION FOR WHICH A P AYMENT IS RECEIVED BY THE VENDOR; DO NOT MAKE: AVAILABLE TECHNICAL KNOWLEDGE, TECHN ICAL KNOWLEDGE, EXPERIENCE, SKILL KNOW-HOW OR PROCESSES OR CONSIST OF THE DEVEL OPMENT AND TRANSFER OF TECHNICAL PLAN OR TECHNICAL DESIGN. THE CONCEPT OF 'MAKE AVAILABLE' HAS BEEN ELABORATELY EXPLAINED HEREIN ABOVE. FURTHER, THE PR OTOCOL TO THE TAX TREATY ELUCIDATES THE SITUATION WHERE THE SERVICES CAN BE SAID TO BE MADE AVAILABLE TO THE RECIPIENT OF THE SERVICES. AS PER THE PROTOCOL, GENERALLY SPEAKING, TECHNOLOGY WILL BE CONSIDERED 'MADE AVAILABLE' WHEN THE PERSON ACQUIRING THE SERVICE IS ENABLED TO APPLY THE TECHNOLOGY. THE FACT THAT THE PROVISION OF THE SERVICE MAY REQUIRE TECHNICAL INPUT .BY THE PERSON PROVIDING TH E SERVICE DOES NOT PER SE MEAN THAT TECHNICAL KNOWLEDGE, SKILL ETC. ARE MADE AVAILABLE TO THE PERSON PURCHASING THE SERVICE. SIMILARLY, THE USE OF A PRO DUCT WHICH EMBODIES TECHNOLOGY SHALL NOT PER SE BE CONSIDERED TO MAKE T HE TECHNOLOGY AVAILABLE. . RELIANCE IN THIS CONNECTION IS PLACED ON DECISION OF IT AT DELHI IN CASE OF SHERATOR INTERNATIONAL INC VS. DEPUTY DIRECTOR OF INCOME-TA X REPORTED IN (2007) 293 ITR (A.T.) 68 (ITAT) (DEL) E) BRAZIL IN THE TAX TREATY ENTERED INTO WITH INDIA AND BRA ZIL, PARAS OF ARTICLE 12 OF THE DTAA DEAL WITH THE MEANING OF THE TERM 'ROYALTIES A ND THE RATE AT WHICH SUCH INCOME IS TO BE TAXED. OBVIOUSLY, THERE IS NO REFER ENCE TO THE 'FEES FOR TECHNICAL SERVICES' IN ARTICLE 12 OF THE DTAA. THUS IT IS EVI DENT THAT THE FEE FOR TECHNICAL SERVICES DOES NOT FALL WITHIN THE PURVIEW OF ARTICL E 12. OBVIOUSLY, THE APPLICATION OF ARTICLE 12 IS RULED OUT. IN THAT VIE W OF THE MATTER, SUCH INCOME WOULD REMAIN INCLUDED UNDER ARTICLE :- THE AMOUNT F ALLS UNDER ARTICLE 7 AS 'BUSINESS PROFITS' AND IS HENCE NOT CHARGEABLE TO T AX BECAUSE OF THE ABSENCE OF ANY PE IN INDIA. IN THIS CONNECTION, RELIANCE IS PL ACED ON THE DECISION OF HON'BLE MUMBAI ITAT IN CASE OF MCKINSEY & COMPANY (THAILAND ) CO. LTD VS DEPUTY 27 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 27 DIRECTOR OF INCOME-TAX (INTERNATIONAL TAXATION) 4(1 ), MUMBAI IN IT APPEAL NO. 7624 (MUM.) OF 2010 F) BELGIUM - ARTICLE 12 READ WITH PROTOCOL OF THE DTAA AS PER ARTICLE 12(3)(B), THE TERM 'FEES FOR TECHNIC AL SERVICES' MEANS PAYMENTS OF ANY KIND TO ANY PERSON IN CONSIDERATION FOR SERVICE S OF A MANAGERIAL, TECHNICAL OR CONSULTANCY NATURE, INCLUDING THE PROVISION OF S ERVICES OF TECHNICAL OR OTHER PERSONNEL FURTHER. THE PROTOCOL TO THE DTAA PROVIDE S THAT IF UNDER ANY CONVENTION OR AGREEMENT BETWEEN INDIA AND A THIRD S TATE BEING A MEMBER OR THE OECD WHICH ENTERS INTO FORCE AFTER 1ST JANUARY, 1990, INDIA LIMITS ITS TAXATION ON ROYALTIES OR FEES FOR TECHNICAL SERVICE S TO A RATE LOWER OR A SCOPE MORE RESTRICTED THAN THE RATE OR SCOPE PROVIDED FOR IN THE PRESENT AGREEMENT ON THE SAID ITEMS OF INCOME, THE SAME RATE OR SCOPE AS PROVIDED FOR IN THAT CONVENTION OR AGREEMENT ON THE SAID ITEMS OF INCOME SHALL ALSO APPLY UNDER THE PRESENT AGREEMENT WITH EFFECT FROM THE DATE FROM WH ICH THE PRESENT AGREEMENT OR THE SAID CONVENTION OR AGREEMENT IS EFFECTIVE, W HICHEVER DATE IS LATER. SINCE THE NETHERLAND IS MEMBER OF OECD, THE ARTICLE 12 OF INDIA-NETHERLAND DT AA CAN BE APPLIED FOR THE PURPOSE 'OF EXAMINING TAXING RIGHTS AS PER INDIA-BELGIUM DTAA. THE DTAA WITH THE NETHERLAND PROVIDES RESTRIC TED SCOPE OF FEES FOR TECHNICAL SERVICES DUE TO PRESENCE OF 'MAKE AVAILAB LE' IN ARTICLE-12 OF DTAA BETWEEN INDIA AND THE NETHERLANDS. SINCE IN THE INS TANT CASE, THE SERVICES DO NOT INVOLVE MAKE AVAILABLE OF TECHNICAL KNOWLEDGE, THE SAME IS OUT OF PURVIEW OF THE FEES FOR TECHNICAL SERVICES WITHIN THE SCOPE OF DTAA BETWEEN INDIA AND BELGIUM. ACCORDINGLY WITHHOLDING TAX IS NOT APPLICA BLE FOR THE SERVICES PERTAINING TO ADVERTISEMENTS. G) FRANCE - ARTICLE 13 READ WITH PROTOCOL OF THE DTAA H) SWITZERLAND - ARTICLE 12 READ WITH PROTOCOL OF THE DTAA. I) SPAIN - ARTICLE 13 READ WITH PROTOCOL OF THE DTAA AS PER ARTICLE 13(4), THE TERM 'FEES FOR TECHNICAL SERVICES' MEANS PAYMENTS OF ANY KIND TO ANY PERSON IN CONSIDERATION FOR SERVICE S OF A MANAGERIAL, TECHNICAL OR CONSULTANCY NATURE. FURTHER, THE CLAUSE 7 OF PROTOC OL TO THE DTAA PROVIDES THAT IN RESPECT OF ARTICLE 13 CONCERNING FEES FOR TECHNICAL SERVICES, IF UNDER ANY CONVENTION, AGREEMENT OR PROTOCOL SIGNED AFTER 01.09.1989, BETW EEN INDIA AND A THIRD STATE WHICH IS A MEMBER OF THE GECD, INDIA LIMITS ITS TAXATION AT SOURCE ON FEES FOR TECHNICAL SERVICES TO A RATE LOWER OR A SCOPE MORE RESTRICTED THAN THE RATE OF SCOPE PROVIDED FOR IN THIS CONVENTION, AGREEMENT OR PROTOCOL WITH EFFECT FROM THE DATE ON WHICH THE PRESENT CONVENTION OR THE RELEVANT INDIAN CONVENTIO AGREEME NT OR PROTOCOL ENTERS INTO FORCE, WHICHEVER ENTERS INTO FORCE LATER. SINCE USA IS MEM BER OF OECD, THE ARTICLE 12 OF INDIA-USA DTAA CAN BE APPLIED. THE DTAA WITH THE US A PROVIDES RESTRICTED SCOPE OF FEES FOR TECHNICAL SERVICES DUE TO PRESENCE OF 'MAK E AVAILABLE' IN ARTICLE-12 OF THE OTAA. SINCE IN THE INSTANT CASE, THE SERVICES DO NO T INVOLVE MAKE AVAILABLE OF TECHNICAL KNOWLEDGE, THE SAME IS OUT OF PURVIEW OF THE FEES F OR TECHNICAL SERVICES WITHIN THE SCOPE 28 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 28 OF DTAA BETWEEN INDIA AND FRANCE. ACCORDINGLY WITHH OLDING TAX IS NOT APPLICABLE FOR THE SERVICES PERTAINING TO ADVERTISEMENTS. RELIANCE IN .THIS CONNECTION IS PLACED ON THE DECIS ION OF MUMBAI ITAT IN THE CASE OF DDIT VS IATA BSP INDIA REPORTED IN TS-367-ITAT-2014 (MUM). THE HON'BLE TRIBUNAL HELD AS FOLLOWS: AS PER CLAUSE 7 OF THE PROTOCOL IN THE INDIA-FRAN CE TAX TREATY, IF UNDER ANY CONVENTION, AGREEMENT OR PROTOCOL SIGNED AFTER 1ST SEPTEMBER 1989 BETWEEN INDIA AND A THIRD STATE WHICH IS A MEMBER OF THE OECD, INDIA LIMITS ITS TAXATION AT SOURCE INTER ALIA ON FTS TO A RATE LOWER OR A SCOPE MORE RESTRIC TED THAN THE RATE OR SCOPE PROVIDED FOR IN THE INDIA-FRANCE TAX TREATY, THE SAME SCOPE AS PROVIDED FOR IN THAT CONVENTION, AGREEMENT OR PROTOCOL ON THE SAID ITEMS OF INCOME S HALL ALSO APPLY UNDER THE INDIA- FRANCE TAX TREATY. ON 12 SEPTEMBER 1989, INDIA HAS ENTERED INTO A TA X TREATY WITH USA, WHICH IS A MEMBER OF OECD AND AS PER ARTICLE 12(4)(B) THEREO F, THE SCOPE OF FIS IS RESTRICTED. INDIA HAS ALSO ENTERED INTO TAX TREATY WITH PORTUGU ESE REPUBLIC ON 11 SEPTEMBER 1998 AND AS PER ARTICLE 12(4)(B) THEREOF, THE CONCEPT OF FIS IS FURTHER RESTRICTED TO MEAN THE SERVICES WHICH MAKE AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL, KNOW-HOW OR PROCESSES OR CONSIST OF THE DEVELOPMENT AND TRANSFE R OF A TECHNICAL PLAN OR TECHNICAL DESIGN WHICH ENABLES THE PERSON ACQUIRING THE SERVI CES TO APPLY THE TECHNOLOGY THEREIN. THIS RESTRICTED SCOPE PROVIDED IN THE INDIA-USA T AX TREATY AND INDIA- PORTUGUESE TAX TREATY IS APPLICABLE TO THE INDIA-FR ANCE TAX TREATY, AS PER CLAUSE 7 OF THE PROTOCOL. IN THIS REGARD, FURTHER RELIANCE IS MADE ON THE DEC ISION OF KOLKATA TRIBUNAL IN CASE OF DCIT VS. ITC REPORTED IN (2002) 82 ITD 239. J) GERMANY-ARTICLE 12 K) IRELAND- ARTICLE 12 L) ITALY- ARTICLE-13 SAME TREATMENT AS PER INCOME TAX ACT. INSPECTION FEE: TO ENSURE QUALITY ASSURANCES, INSPECTION FEES HAS B EEN PAID TO LEADING QUALITY ASSURANCE LTD BASED OUT OF UK. THIS SERVICE IS BEIN G AVAILED FROM THE SAME SERVICE PROVIDER IN EACH YEAR THE VENDOR CARRIES ON INDEPEN DENT AUDIT ABOUT THE QUALITY STANDARD OF THE HOTELS PERTAINING TO THE ASSESSEE. THE ABOVEMENTIONED SERVICE IS ARE NOT COVERED WITHI N THE SCOPE OF 'FEES FOR TECHNICAL SERVICES' AS DEFINED IN THE ARTICLE 13(5) FOR THE F OLLOWING REASONS: 29 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 29 SUCH SERVICES DO NOT INVOLVE RENDERING OF ANY TECHN ICAL OR CONSULTANCY SERVICES WHICH: ARE ANCILLARY AND SUBSIDIARY TO THE APPLICATION O R ENJOYMENT OF THE RIGHT, PROPERTY OR INFORMATION FOR WHICH A PAYMENT IS RECE IVED BY THE VENDOR. IT IS UNDERSTOOD THAT, IN ORDER FOR A SERVICE TO BE CONSI DERED 'ANCILLARY AND SUBSIDIARY' TO THE APPLICATION OR ENJOYMENT OF SOME RIGHT, PROPERTY, OR INFORMATION FOR WHICH A PAYMENT IS RECEIVED, THE SE RVICE MUST BE RELATED TO THE APPLICATION OR ENJOYMENT OF THE RIGHT, PROPERTY, OR INFORMATION. ARE ANCILLARY AND SUBSIDIARY TO THE ENJOYMENT OF ANY PROPERTY; MAKE AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE, SKI LL KNOW-HOW OR PROCESSES OR CONSIST OF THE DEVELOPMENT AND TRANSFER OF TECHNICA L PLAN OR TECHNICAL DESIGN. THE CONCEPT OF 'MAKE AVAILABLE' HAS BEEN ELABORATEL Y EXPLAINED HEREIN ABOVE. BROADLY SPEAKING, THE TERM 'MAKE AVAILABLE' MEANS T HAT THE PERSON ACQUIRING THE TECHNICAL SERVICE IS ENABLED TO INDEPENDENTLY APPLY THE TECHNOLOGY. THE WORD 'ENABLE' IS USED IN THE SENSE THAT THE TECHNICAL SE RVICES SHOULD BE SUCH THAT THEY MAKE THE RECIPIENT ABLE OR WISER IN THE SUBJECT MAT TER. THUS, WHERE THE RECIPIENT OF TECHNICAL SERVICES DOES NOT GET EQUIPPED WITH TH E KNOWLEDGE OR EXPERTISE AND THE RECIPIENT WOULD NOT BE ABLE TO APPLY IT IN FUTU RE INDEPENDENTLY WITHOUT SUPPORT FROM THE SERVICE PROVIDER, IT WILL NOT BE A CASE OF TECHNICAL SERVICE HAVING BEEN 'MADE AVAILABLE'. AND IN SUCH CASES THE CONCERNED TRANSACTION WOULD NOT BE TAXABLE IN INDIA AND SUBJECT TO WITHHO LDING TAX IN INDIA. IN SUCH CASES, THE INCOME OF THE RECIPIENT SHALL BE TREATED AS BUSINESS INCOME UNDER THE ARTICLE 7. SINCE THE ENTIRE OPERATION OF THE SERVIC E PROVIDER IS CARRIED OUTSIDE INDIA, THERE IS NO EXISTENCE OF ANY PE IN INDIA AND IN SUCH CASES THE CONCERNED TRANSACTION WOULD NOT BE TAXABLE IN INDIA AND SUBJE CT TO WITHHOLDING TAX IN INDIA. RELIANCE IN THIS CONNECTION IS PLACED ON DECISION O F IT AT DELHI IN CASE 01 SHERATON INTERNATIONAL INC VS. DEPUTY DIRECTOR OF I NCOME-TAX REPORTED IN (2007) 293 ITR (A.T.) 68 (ITAT) (DEL) MARKETING AND DEVELOPMENT EXPENSES DURING THE CONCERNED ASSESSMENT YEAR VARIOUS FOREIG N REMITTANCES HAVE BEEN MADE TO FOREIGN VENDORS TOWARDS MARKETING AND DEVEL OPMENT SERVICES. THE EXACT NATURE OF SERVICE PROVIDED BY EACH VENDOR IS EXPLAINED AS FOLLOWS. A) CORNELL UNIVERSITY SCHOOL OF H. ITHACA NEW YORK, 14 850, USA THE VENDOR IS AN EDUCATION INSTITUTION AND PROVI DES LEARNING MATERIAL TO THE ASSESSEE FOR DISTANT LEARNING PROGRAMME. 30 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 30 THE EDUCATION INSTITUTION IS SPECIFICALLY EXEMPTED AS PER ARTICLE 12(5)(C) OF THE INDIA- USA DTAA. ACCORDINGLY, THE SERVICES RENDERED BY VENDOR IS NOT TAXABLE IN INDIA AND NOT SUBJECT TO WITHHOLDING TAX. B) BLUE LINK - THE PAYMENT TO THE VENDOR HAS BEEN PAID TOWARDS REDEMPTION OF AIRLINE MILES. THE SAME BEING MARKETING AND DEVELOP MENT EXPENSES DOES NOT INVOLVE ANY TECHNICAL SKILL, KNOW HOW ETC. ACCORDIN GLY, THE SAME IS NOT TAXABLE UNDER THE DOMESTIC LAW AS WELL AS INDIA - FRANCE TA X TREATY. FOR DETAILED EXPLANATION, ANNEXURE 8 OF THE SUBMISSION MAY BE RE FERRED. C) ISLAND RESORT LIMITED - PAYMENT TO THIS VENDOR HAS BEEN MADE TOWARDS STA Y OF GUEST UNDER THE ARRANGEMENT WITH THE ASSESSEE IN ORDER TO PROMOTE THE SALES OF THE ASSESSEE. UNDER THIS SCHEME, WHEN A GUEST ST AYS IN THE HOTELS OF THE ASSESSEE, HE GETS COMPLEMENTARY STAY IN OTHER HOTEL S AGAINST WHICH THE PAYMENT IS CLAIMED FROM THE ASSESSEE BY THAT HOTEL. THIS WA Y IT PROMOTE THE BUSINESS OF THE ASSESSEE AS A WHOLE. THE PAYMENT .IS TOWARDS STAY CHARGES CANNOT BE COVE RED UNDER THE SCOPE OF FEES FOR TECHNICAL SERVICES UNDER SECTION 9(1)(VII) OF T HE ACT. SINCE THE ENTIRE OPERATION OF THE VENDOR IS CARRIED OUTSIDE INDIA, I T IS NOT TAXABLE UNDER THE INCOME TAX ACT AS BUSINESS INCOME AS WELL. SINCE TAX TREATY BETWEEN INDIA AND MAURITIUS DOES N OT HAVE ANY FEES FOR TECHNICAL SERVICE CLAUSE, IN ABSENCE OF 'PERMANENT ESTABLISHMENT, THE CONCERNED SERVICE IS NOT TAXABLE IN INDIA. RECRUITMENT CHARGES TAXABILITY UNDER THE INCOME TAX ACT THE ASSESSEE HAD TO TAKE THE SERVICES OF VARIOUS FO REIGN RECRUITMENT AGENTS (SPECIALLY FOR SPAS, CHEFS ETC.). THE SERVICES ARE NORMALLY RENDERED OUTSIDE INDIA AND THE PAYMENTS ARE MADE OUTSIDE INDIA AS WE LL. FURTHER, SINCE THIS DOES NOT INVOLVE ANY KNOW HOW OR TECHNICAL EXPERTISE, TH E SAME IS NOT COVERED WITHIN THE SCOPE OF SECTION 9(1)(VII) OF THE INCOME TAX AC T. THEREFORE UNDER THE DOMESTIC LAW, THE REMUNERATION FOR SUCH SERVICES IS NOT TAXABLE IN INDIA. TAXABILITY UNDER DTAA WITH INDONESIA AND THAILAND DURING THE YEAR UNDER CONSIDERATION, RECRUITMENT SE RVICE HAS BEEN AVAILED FROM THESE VENDORS BASED OUT OF INDONESIA AND THAILAND. BOTH THE TREATIES DOES NOT CONTAIN ANY FTS CLAUSE. THUS IT IS EVIDENT THAT THE FEE FOR TECHNICAL SERVICES DOES NOT FALL WITHIN THE PURVIEW OF ARTICLE 12. OBVIOUSL Y, THE APPLICATION OF ARTICLE 12 IS RULED OUT. IN THAT VIEW OF THE MATTER, SUCH INCO ME WOULD REMAIN INCLUDED UNDER ARTICLE 7. THE AMOUNT FALLS UNDER ARTICLE 7 A S 'BUSINESS PROFITS' AND IS HENCE NOT CHARGEABLE TO TAX BECAUSE OF THE ABSENCE OF ANY PE IN INDIA. IN THIS 31 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 31 CONNECTION, RELIANCE IS PLACED ON THE DECISION OF H ON'BLE MUMBAI ITAT IN CASE OF MCKINSEY & COMPANY (THAILAND) CO. LTD VS DEPUTY DIRECTOR OF INCOME-TAX (INTERNATIONAL TAXATION) 4(1), MUMBAI IN IT APPEAL NO. 7624 (MUM.) OF 2010. MANAGEMENT FEES PAID TO BANYAN TREE RESORTS &SPAS(T HAILAND CO. LTD.) MANAGEMENT FEES HAS BEEN PAID TO THE THAI SPA MANAG EMENT FIRM. THE TAX TREATIES BETWEEN INDIA AND THAILAND DOES NOT CONTAI N ANY FTS CLAUSE. THUS IT IS EVIDENT THAT THE FEE FOR TECHNICAL SERVICES DOES NO T FALL WITHIN THE PURVIEW OF ARTICLE 12. OBVIOUSLY, THE APPLICATION OF ARTICLE 1 2 IS RULED OUT. IN THAT VIEW OF THE MATTER, SUCH INCOME WOULD REMAIN INCLUDED UNDER ARTICLE 7. THE AMOUNT FALLS UNDER ARTICLE 7 AS 'BUSINESS PROFITS' AND IS HENCE NOT CHARGEABLE TO TAX BECAUSE OF THE ABSENCE OF ANY PE IN INDIA. IN THIS CONNECTION, RELIANCE IS PLACED ON THE DECISION OF HON'BLE MUMBAI ITAT IN CASE OF M CKINSEY & COMPANY (THAILAND) CO. LTD VS DEPUTY DIRECTOR OF INCOME-TAX (INTERNATIONAL TAXATION) 4(1), MUMBAI IN IT APPEAL NO:7624 (MUM.) OF 2010 PROFESSIONAL AND CONSULTANCY SERVICES DURING THE UNDER CONSIDERATION, PAYMENT HAS BEEN MA DE TO VARIOUS FOREIGN VENDORS BASED OUT OF UK USA, EGYPT, AUSTRALIA TOWAR DS PROFESSIONAL/ CONSULTANCY SERVICES. THE ASSESSEE HAS DULY DEDUCTE D TAX FORM THE PAYMENT MADE TO ZAKI HASEM &T PARTERNERS. A COPY OF CHALLAN IS ATTACHED AS ANNEXURE 14/1 AND 14/2. FOR THE OTHER VENDORS/PERTAINING TO USA, UK AND AUS TRALIA, THE CONCERNED SERVICES ARE NOT TAXABLE IN INDIA AS THE SERVICE DO ES NOT MAKE AVAILABLE TECHNICAL KNOWLEDGE, EXPERIENCE, SKILL, KNOW-HOW OR PROCESSES OR CONSIST OF THE DEVELOPMENT AND TRANSFER OF TECHNICAL PLAN OR DESIG N. FOR DETAILED EXPLANATION, REFERENCE MAY BE MADE TO ANNEXURE 2,4 AND 5. 6.10. APART FROM THIS, THE ASSESSEE HAD EVEN PROVID E THE CERTIFICATE OF TAX RESIDENCY OF THE PARTIES TO WHOM PAYMENTS WERE MADE IN FOREIGN C URRENCY AND DECLARATION FORM THEM THAT NO PE EXISTED FOR THEM IN INDIA. THE ASSESSE E HAD EVEN FURSNIEHD THE COPIES OF AGREEMENTS ENTERED INTO WITH THOSE PARTIES , COPY O F ADVERTISEMENTS, COPY OF INVOICE, SUBSCRIPTION RENEWAL FORMS ETC. ALL THESE DOCUMENT S ARE ENCLOSED IN PAGES 822 TO 930 OF THE PAPER BOOK. 32 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 32 6.11. WE FIND THAT IN THE EARLIER YEARS IN ASSESSEE S OWN CASE, THE LD CITA HAD GRANTED RELIEF TO THE ASSESSEE BY PLACING RELIANCE ON MAKE AVAILABLE CLAUSE PREVAILING IN VARIOUS TAX TREATIES , BUT THE SAME IS NOT DONE BY THE LD AO AND LD DRP IN THE INSTANT CASE. WE FIND THAT THE ASSESSEE HAD FILED VARIOUS DOCUMENTS WITH DETAILED FACTUAL AND LEGAL SUBMISSIONS WITH SUPPORTING EVIDENCES BEFORE THE LD AO , WHICH HAD NOT BEEN APPRECIATED BY THE LD AO AND LD DRP IN THE PROPER P ERSPECTIVE. HENCE WE DEEM IT FIT AND APPROPRIATE, TO REMAND THIS ENTIRE ISSUE TO THE FILE OF THE LD AO , FOR DENOVO ADJUDICATION OF THIS ISSUE AFRESH IN ACCORDANCE WIT H LAW. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE WITH THE LD AO BY PRODUCING THE NECES SARY EVIDENCES IN SUPPORT OF ITS CONTENTIONS. ACCORDINGLY, THE GROUND NOS. 6.1. & 6.2 RAISED BY T HE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 7. SHORT GRANT OF CREDIT FOR TDS AND TCS GROUND NO. 7 OF ASSESSEES APPEAL THIS IS AN ISSUE OF FACTUAL VERIFICATION OF THE FAC TS AS TO WHETHER THE RELATED INCOME HAS BEEN DULY OFFERED BY THE ASSESSEE IN THE YEAR UNDER CONSIDERATION. IF IT IS SO, THE ASSESSEE IS ENTITLED FOR DUE CREDIT FOR TCS AND TDS SUBJECT TO FILING OF NECESSARY PROOF IN THIS REGARD. ACCORDINGLY, THE GROUND NO. 7 RAISED BY THE ASSESS EE IS ALLOWED FOR STATISTICAL PURPOSES. 8. LEVY OF INTEREST U/S 115P OF THE ACT GROUND NO. 8 OF ASSESSEES APPEAL THIS IS A GROUND CHALLENGING THE VALIDITY OF LEVY O F INTEREST U/ 115P OF THE ACT FOR DELAYED PAYMENT OF DIVIDEND DISTRIBUTION TAX BY THE ASSESSEE. THE ASSESSEE STATED THAT THE DIVIDEND DISTRIBUTION TAX HAD BEEN DULY PAID WI THIN THE TIME PRESCRIBED. HOWEVER , 33 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 33 HE FAIRLY AGREED FOR THIS MATTER TO BE VERIFIED BY THE LD AO. THE LD DR ALSO AGREED FOR THE SAME. ACCORDINGLY, WE DEEM IT FIT AND APPROPRI ATE TO REMAND THIS ISSUE TO THE FILE OF THE LD AO WITH A DIRECTION TO VERIFY THE DATE OF RE MITTANCE OF DIVIDEND DISTRIBUTION TAX WITH SUPPORTING EVIDENCE AND THEN DECIDE WHETHER TO LEVY INTEREST U/S 115P OF THE ACT IN ACCORDANCE WITH LAW. ACCORDINGLY, THE GROUND NO. 8 RAISED BY THE ASSESS EE IS ALLOWED FOR STATISTICAL PURPOSES. 9. THE GROUND NOS. 9 & 10 RAISED BY THE ASSESSEE AR E GENERAL IN NATURE AND DOES NOT REQUIRE ANY SPECIFIC ADJUDICATION. 10. COMMISSION & SITTING FEES PAID TO DIRECTORS WI THOUT DEDUCTION OF TAX AT SOURCE DISALLOWED U/S 40(A)(IA) READ WITH SECTION 194J OF THE ACT GROUND NO. 2 OF REVENUES APPEAL THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESSEE CLAIMED EXPENDITURE OF RS. 3,82,22,285/- TOWARDS COMMISSION TO DIRECTORS AS BELOW:- SHRI P.R.S.OBEROI RS 1,73,73,765/- SHRI S.S.MUKHERJI RS 1,04,24,260/- SHRI VIKRAMJIT S.OBEROI RS 52,12,130/- SHRI ARJUN S.OBEROI RS 52,12,130/- ------------------------RS 3,82,22,285/- THE ASSESSEE DEBITED SITTING FEES TO NON-EXECUTIVE DIRECTORS IN THE SUM OF RS 8,00,000/- . THE ASSESSEE CLAIMED THE TDS PROVISIONS ARE NOT APP LICABLE IN RESPECT OF THE AFORESAID PAYMENTS. THE LD AO OBSERVED THAT THE AFORESAID P AYMENTS SQUARELY FALLS UNDER SECTION 34 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 34 194J OF THE ACT IN AS MUCH AS THESE DIRECTORS HAD N OT OFFERED THE COMMISSION AND SITTING FEES INCOME UNDER THE HEAD INCOME FROM SALARY IN THEIR RETURNS OF INCOME AND INSTEAD THEY ARE OFFERED TO TAX BY THEM UNDER THE HEAD INC OME FROM OTHER SOURCES. HENCE THIS GOES TO PROVE THAT THEY ARE NOT EMPLOYEES OF THE CO MPANY AND HENCE HAD RENDERED ONLY PROFESSIONAL SERVICES TO THE COMPANY ENABLING THEM TO RECEIVE THIS CONSIDERATION AND ACCORDINGLY THE PROVISIONS OF SECTION 194J OF THE A CT ARE ATTRACTED. THE LD AO IN THE DRAFT ASSESSMENT ORDER PROPOSED TO DISALLOW THE ENT IRE SUM OF RS 3,90,22,285/- U/S 40(A)(IA) OF THE ACT FOR VIOLATION OF PROVISIONS OF SECTION 194J OF THE ACT. 10.1. IT WAS SUBMITTED THAT THE SCOPE OF SECTION 19 4J OF THE ACT AFTER THE FINANCE ACT 2012 W.E.F. 1.7.2012 HAD BEEN EXTENDED TO INCLUDE ANY REMUNERATION OR FEES OR COMMISSION BY WHATEVER NAME CALLED, OTHER THAN THOS E ON WHICH TAX IS DEDUCTIBLE U/S 192 OF THE ACT TO A DIRECTOR OF THE COMPANY . THI S AMENDMENT IS ONLY PROSPECTIVE IN NATURE AND CANNOT BE MADE APPLICABLE FOR THE YEAR U NDER CONSIDERATION. THE ASSESSEE PLACED RELIANCE DECISION OF THIS TRIBUNAL IN THE CA SE OF JAHANGIR BIRI FACTORY (P) LTD VS DCIT REPORTED IN (2009) 126 TTJ 567 (KOLKATA TRIB)W HEREIN THE TRIBUNAL ON IDENTICAL FACTS HELD THAT COMMISSION TO DIRECTORS IS NOT IN T HE NATURE OF COMMISSION OR BROKERAGE AS ENVISAGED U/S 194H OF THE ACT NOR AS FEES FOR PR OFESSIONAL OR TECHNICAL SERVICES U/S 194J OF THE ACT. THE LD DRP DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE . AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUND:- 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. DRP ERRED IN DELETING THE DISALLOWANCE U/S 40(A)(IA)PAID AS C OMMISSION TO THE DIRECTORS AND PAID AS SITTING FEES TO THE NON-EXECUTIVE DIRECTORS WITHOUT DEDUCTING TAX AT SOURCE U/S 194I OF THE ACT. 10.2. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIND THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THIS TRIBUNAL IN THE CASE OF JAHANGIR BIRI FACTORY (P) LTD VS DCIT REPORTED IN (2009) 126 TTJ 567 (KOLKATA TRIB) WHEREIN IT WAS HELD :- 12. AFTER HEARING THE RIVAL SUBMISSIONS AND ON CAR EFUL PERUSAL OF THE MATERIALS AVAILABLE ON RECORD AND TAKING INTO CONSIDERATION T HAT THE ASSESSEE COMPANY 35 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 35 PAID THIS COMMISSION TO THE DIRECTORS AS PER THEIR TERMS OF EMPLOYMENT FOR THE WORK DONE IN THEIR CAPACITY AS WHOLE TIME DIRECTOR S, THIS COMMISSION SHOULD HAVE BEEN TREATED AS AN INCENTIVE IN ADDITION TO SA LARY, BONUS AND OTHER PERQUISITIES. THEREFORE, IN OUR CONSIDERED OPINION , THE LD CITA IS JUSTIFIED IN RECORDING THE SAME AS NOT COMING WITHIN THE PURVIEW OF COMMISSION OR BROKERAGE AS DEFINED IN S.194H NOR A FEE FOR PROFES SIONAL OR TECHNICAL SERVICES AS DEFINED IN S.194J OF THE IT ACT. THEREFORE, WE FIN D NO INFIRMITY IN THE ORDERS OF THE LEARNED CIT(A) ON THIS ISSUE. THEREFORE, THIS GROUND OF THE REVENUE IS DISMISSED. RESPECTFULLY FOLLOWING THE AFORESAID DECISION , WE FIND NO INFIRMITY IN THE ORDER OF THE LD DRP IN THIS REGARD. ACCORDINGLY, THE GROUND NO. 2 RAISED BY THE REVENUE IS DISMISSED. 11. DISALLOWANCE OF PRINCIPAL REPAYMENT OF FINANCE LEASE GROUND NO. 4 OF REVENUES APPEAL THE BRIEF FACTS OF THIS ISSUE IS THAT THE LD AO OBS ERVED THAT THE ASSESSEE CLAIMED AN AMOUNT OF RS 7,60,21,803/- TOWARDS PRINCIPAL PAYMEN T OF LEASE RENTAL FOR MACHINERY AND VEHICLES TAKEN ON FINANCE LEASE. AS PER ACCOUNTING STANDARD 19 (AS-19) ISSUED BY ICAI, THE SAID MOTOR CARS TAKEN IN FINANCE LEASE HA S BEEN CAPITALIZED AT NET PRESENT VALUE AND DEPRECIATION AND INTEREST COST ON THE SAME HAS BEEN DEBITED TO PROFIT AND LOSS ACCOUNT. BUT UNDER THE INCOME TAX AT, AN ASSESSEE IS ENTITLED TO DEPRECIATION U/S 32 OF THE ACT IF THE ASSET IS OWNED BY THE ASSESSEE AND I S PUT TO USE FOR THE PURPOSE OF ITS BUSINESS. SINCE THE ASSESSEE IS NOT THE LEGAL OWNE R OF THE ASSETS, IT CLAIMED ACTUAL LEASE RENTAL PAID OF RS 7,60,21,803/- BEIGN THE PRINCIPAL AMOUNT AS A DEDUCTION IN THE RETURN OF INCOME. THE LD AO PROPOSED TO DISALLOW THE SAME ON THE CONTENTION THAT UNDER FINANCE LEASE, THE LESSEE IS THE OWNER OF THE LEASED ASSETS AND PRINCIPAL REPAYMENT COMPONENT OF LEASE RENTAL REPRESENTS PAYMENT FOR PURCHASE OF LEA SED ASSETS AND THUS SHOULD BE TREATED AS CAPITAL EXPENDITURE. THE LD DRP AFTER CONSIDERI NG THE FACTS IN DETAIL AND APPLYING THE RATIO LAID DOWN BY THE HONBLE SUPREME COURT IN THE CASE OF ICDS LTD VS CI T REPORTED 36 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 36 IN 350 ITR 527 (SC) ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEE. AG GRIEVED, THE REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GRO UND:- 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. DRP ERRED IN DELETING THE ADDITION REGARDING PRINCIPAL REPAYM ENT OF FINANCE FEE. 11.1. WE HAVE HEARD THE RIVAL SUBMISSIONS. WE FIN D THAT THE ISSUE UNDER DISPUTE IS SETTLED BY THE ORDER OF THIS TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASST YEAR 2008-09 IN ITA NO. 529/KOL/2013 DATED 19.2.2016 IN FAVOUR OF T HE ASSESSEE. THOUGH THIS DECISION WAS RENDERED IN THE CONTEXT OF VALIDITY OF SECTION 263 PROCEEDINGS OF THE LD CIT, THIS TRIBUNAL HAD ADJUDICATED THE ISSUE ON MERITS ALSO A ND HENCE THE RELIANCE PLACED ON THE SAME IS WELL FOUNDED. THE OPERATIVE PORTION OF THE SAID JUDGEMENT IS AS UNDER:- 4.4.1. ON MERITS OF THE ISSUE, ON PERUSAL OF THE VARIOUS CLAUSES IN THE LEASE DEED ( WHICH ARE NOT REPRODUCED HEREIN FOR THE SAKE OF B REVITY) FORMING PART OF THE PAPER BOOK VIDE PAGES 87 TO 98 , WE FIND THAT THE O WNERSHIP / TITLE ON THE VEHICLES ALWAYS LIES WITH M/S ORIX AUTO INFRASTRUCTURE SERVI CES LIMITED (LESSOR) DURING THE SUBSISTENCE OF THE LEASE VIDE CLAUSE 8 OF THE LEASE DEED. WE FIND THAT DURING THE SUBSISTENCE OF THIS LEASE ARRANGEMENT AND TILL THE VEHICLES ARE DELIVERED BACK TO THE LESSOR, THE LESSEE SHALL INSURE THE VEHICLES WI TH THE LESSORS NAME AS THE OWNER VIDE CLAUSE 11 OF THE LEASE DEED. CLAUSE 15 OF TH E LEASE DEED CLEARLY SPECIFIES THAT UPON EXPIRATION OR EARLIER TERMINATION OF THE LEASE, THE LESSEE SHALL DELIVER TO THE LESSOR THE SAID VEHICLES AT A PLACE DESIGNATED BY THE LESSOR. WE HOLD THAT SINCE THE OWNERSHIP DOES NOT VEST WITH THE ASSESSEE AT AN Y POINT OF TIME DURING THE SUBSISTENCE OF THE LEASE, THE CLAIM OF ALLOWABILITY OF DEPRECIATION U/S 32 OF THE ACT AS OWNER OF THE VEHICLES, DOES NOT ARISE. WE HOLD THAT THE LEASE ARRANGEMENT CANNOT BE CONSIDERED AS ONE OF HIRE PURCHASE AS PER CIRCULAR NO. 9/1943 NO. 9 [R.DIS.NO. 27(4)-IT/43] DATED 23.3.1943, SINCE THE TERMS OF THE AGREEMENT DOES NOT PROVIDE THAT THE EQUIPMENTS SHALL EVENTUALLY BE COME THE PROPERTY OF THE HIRER OR CONFER ON THE HIRER AN OPTION TO PURCHASE THE EQ UIPMENTS. WE HOLD THAT MERELY BECAUSE THE LEASE ARRANGEMENT HAS BEEN CONSIDERED A S FINANCE LEASE FOR THE PURPOSE OF AS 19 , THAT ITSELF DOES NOT RENDER THE LESSEE (ASSESSEE HEREIN) AS THE OWNER OF ASSET FOR IT ACT FOR CLAIMING DEPRECIATION . WE FIND THAT AS 19 PROVIDES FOR VARIOUS SITUATIONS IN ORDER TO DECIDE AS TO WHE THER THE LEASE CAN BE CONSIDERED AS FINANCE LEASE OR OPERATING LEASE FOR THE LIMITED PURPOSE OF SUCH AS 19. WE FIND THAT THE ASSESSEE HAD DULY COMPLIED WITH THE CIRCUL ARS LAID DOWN IN THIS REGARD MORE SO WHEN THE CBDT HAS ITSELF CLARIFIED VIDE CI RCULAR NO. 2/2001 DATED 9.2.2001 THAT THE AS 19 WILL HAVE NO IMPLICATION ON THE ALLOWANCE OF DEPRECIATION ON ASSETS UNDER THE PROVISIONS OF IT ACT. IT IS WE LL SETTLED THAT THE CBDT CIRCULARS ARE BINDING ON THE REVENUE. AS PER THIS CIRCULAR N O. 2/2001 DATED 9.2.2001, IN A LEASE TRANSACTION, THE OWNER OF THE ASSETS IS ENTIT LED TO DEPRECIATION. IN THE INSTANT CASE, THE LESSOR (ORIX AUTO) BEING THE OWNER HAD TH E RIGHT TO CLAIM DEPRECIATION 37 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 37 AND THE ASSESSEE HAS NOT CLAIMED ANY DEPRECIATION A S PER THE PROVISIONS OF THE IT ACT AND INSTEAD HAD CLAIMED THE ENTIRE LEASE RENTA L AS REVENUE EXPENDITURE. WE FIND THAT THE ISSUE IS SQUARELY COVERED BY THE D ECISION OF THE HONBLE SUPREME COURT IN THE CASE OF I.C.D.S. LTD VS CIT REPORTED I N (2013) 350 ITR 527 (SC) WHEREIN IT WAS HELD THAT :- HELD, AFFIRMING THE DECISION OF THE TRIBUNAL, (I) THAT THE ASSESSEE WAS A LEASING COMPANY WHICH LEASED OUT THE TRUCKS THAT IT PURCHASED. THEREFORE, ON A COMBINED READING OF SECTION 2(13) AND (24) OF THE ACT THE INCOME DERIVED FROM LEASING OF THE TRUCKS WOULD BE BUSIN ESS INCOME, OR INCOME DERIVED IN THE COURSE OF BUSINESS, AND HAD BEEN SO ASSESSED. HENCE, IT FULFILLED THE REQUIREMENT OF SECTION 32 OF THE ACT , THAT THE ASSET MUST BE USED IN THE COURSE OF BUSINESS. THE ASSESSEE DID US E THE VEHICLES IN THE COURSE OF ITS LEASING BUSINESS. THE FACT THAT THE TRUCKS THEMSELVES WERE NOT USED BY THE ASSESSEE WAS IRRELEVANT FOR THE PURPOS E OF SECTION. (II) THAT A SCRUTINY OF THE MATERIAL FACTS AT HAND RAISED A PRESUMPTION OF OWNERSHIP IN FAVOUR OF THE ASSESSEE. THE VEHICLE, A LONG WITH ITS KEYS, WAS DELIVERED TO THE ASSESSEE UPON WHICH, THE LEASE AGR EEMENT WAS ENTERED INTO BY THE ASSESSEE WITH THE CUSTOMER. THE FACT THAT AT THE END OF THE LEASE PERIOD, THE OWNERSHIP OF THE VEHICLE WAS TRANSFERRE D TO THE LESSEE AT A NOMINAL VALUE DID NOT MAKE THE ASSESSEE IN EFFECT A FINANCIER. NO INFERENCE COULD BE DRAWN FROM THE REGISTRATION CERTIFICATE AS TO OWNERSHIP OF THE LEGAL TITLE OF THE VEHICLE. IF THE LESSEE WAS IN FA CT THE OWNER, HE WOULD HAVE CLAIMED DEPRECIATION ON THE VEHICLES, WHICH, AS SPE CIFICALLY RECORDED IN THE ORDER OF THE TRIBUNAL, WAS NOT THE CASE. (III) THAT THE ENTIRE LEASE RENT RECEIVED BY THE AS SESSEE WAS ASSESSED AS BUSINESS INCOME IN ITS HANDS AND THE ENTIRE LEASE R ENT PAID BY THE LESSEE BEEN TREATED AS DEDUCTIBLE REVENUE EXPENDITURE IN T HE HANDS OF THE LESSEE. THIS REAFFIRMED THE POSITION THAT THE ASSESSEE WAS IN FACT THE OWNER OF THE VEHICLE, IN SO FAR AS SECTION 32 OF THE ACT IS CONC ERNED. (IV) THAT, THEREFORE, THE ASSESSEE WAS THE OWNER OF THE VEHICLES. AS THE OWNER, IT USED THE ASSETS IN THE COURSE OF ITS BUSI NESS, SATISFYING BOTH REQUIREMENTS OF SECTION 32 OF THE ACT AND, HENCE, W AS ENTITLED TO CLAIM DEPRECIATION IN RESPECT OF ADDITIONS MADE TO THE TR UCKS, WHICH WERE LEASED OUT. (V) THAT FOR PURPOSES OF THE ASSESSEE'S CLAIM TO TH E HIGHER RATE OF DEPRECIATION, THE INTERPRETATION OF THE TERM 'PURPO SES OF BUSINESS', USED IN SECOND PROVISO TO SECTION 32(1) OF THE ACT WOULD NO T BE ANY DIFFERENT FROM THAT ASCRIBED TO IT UNDER SECTION 32(1) OF THE ACT. THEREFORE, THE ASSESSEE FULFILLED EVEN THE REQUIREMENTS FOR A CLAIM OF A HI GHER RATE OF DEPRECIATION AND WAS ENTITLED THERETO. 38 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 38 THOUGH THIS DECISION HAS BEEN RENDERED ON THE ALLOW ABILITY OF DEPRECIATION ON LEASED ASSETS FROM THE ANGLE OF THE LESSOR, THE PRI NCIPLE LAID DOWN COULD BE MADE VERY MUCH APPLICABLE TO THE FACTS OF THE INSTANT CA SE FOR ALLOWABILITY OF LEASE RENTALS IN THE HANDS OF THE ASSESSEE (LESSEE). WE ALSO FIND THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE HONBLE RAJASTHAN HIGH COURT (JAIPUR BENCH) IN THE CASE OF RAJSHREE ROADWAYS VS UNION OF INDIA & ORS REPORTED IN (2003) 263 ITR 206 (RAJ) WHEREIN IT WAS HELD THAT :- HELD, THAT UNDER THE AGREEMENT THERE WAS A CLAUSE THAT AFTER COMPLETION OF LEASE PERIOD, IF ONE PER CENT. OF THE TOTAL CONSIDE RATION OF THE TRUCKS WAS PAID, THE LESSEE WOULD BE THE OWNER OF THOSE TRUC KS. HOWEVER, THE AGREEMENT DEALT WITH THE OWNERSHIP OF THE TRUCKS UNDER THE AGREEMENT. THERE WAS A CLEAR PROVISION THAT THE SAID MACHINER Y SHALL AT ALL TIMES REMAIN SOLE AND EXCLUSIVE PROPERTY OF THE LESSOR A ND THE LESSEE SHALL HAVE NO RIGHT, TITLE OR INTEREST THEREON. IT FURTHER TH AT IRRECOVERABLE UNDERTAKING OF THE LESSEE THAT AT NO TIME DURING TH E CURRENCY OF THE LEASE AGREEMENT, WHICH SHALL BE NON-CANCELLABLE, WOULD T HE LESSEE ATTEMPT TO CAPITALISE THE LEASED ASSETS IN ITS BALANCE-SHEET. AS PER CLAUSE 8, IT HAD BEEN AGREED THAT THE OWNERSHIP OF THE SAID ASSETS DURING THE TENURE OF THE LEASE AND INCLUSIVE OF ANY RENEWAL OPTIONS THAT T HE LESSOR MAY CONCUR INDISPUTABLY RESTED WITH THE LESSOR. SO IN CLEAR TERMS, THE AGREEMENT PROVIDED THAT DURING THE LEASE PERIOD, ONLY THE LES SOR SHALL BE TREATED AS OWNER OF THE TRUCKS AND NOT THE LESSEE. MOREOVER, THE LESSOR HAD BEEN ALLOWED DEPRECIATION ON THE TRUCKS. THEREFORE, CONS IDERING THE TERMS AND CONDITIONS OF THE LEASE AGREEMENT AND THE FACT THA T DEPRECIATION ON THESE TRUCKS HAD BEEN ALLOWED TO THE LESSOR, THE LEASE RENT WAS DEDUCTIBLE AS REVENUE EXPENDITURE- IN THE AFORESAID CASE, THERE WAS A CLAUSE IN THE LE ASE AGREEMENT GIVING AN OPTION TO THE LESSEE TO BUY BACK THE ASSET ON TERMINATION OF THE LEASE AGREEMENT. IN THE INSTANT CASE, THE ASSESSEE (LESSEE) FALLS IN A BETT ER FOOTING , IN AS MUCH AS THERE IS NO CLAUSE IN THE LEASE AGREEMENT, ENABLING THE LESS EE TO BUY BACK THE ASSETS ON TERMINATION OF THE LEASE ARRANGEMENT. WE FIND THAT THE CASE LAW RELIED UPON BY THE LEARNE D DR ON THE DECISION OF DELHI TRIBUNAL NEED NOT BE DISCUSSED AS THE ISSUE IS SQUA RELY COVERED BY THE HIGH COURT AND SUPREME COURT IN FAVOUR OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS, WE FIND NO INFIRMITY IN THE ORDER OF THE LD CITA IN THIS REGARD. ACCORDINGLY, THE GROUND NO. 4 RAISED BY THE REVENUE IS DISMISSED. 39 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 39 12. DETERMINATION OF ARMS LENGTH PRICE FOR CORPOR ATE GUARANTEE FEES GROUND 1.1 TO 1.4 OF ASSESSEES APPEAL THIS GROUND OF THE ASSESSEE IS IN RESPECT OF BENCH MARKING CORPORATE GUARANTEE AS AN INTERNATIONAL TRANSACTION. FACTS OF THE CASE ARE TH AT THE ASSESSEE COMPANY HAD INCORPORATED A 100% SUBSIDIARY CALLED M/S. EIH FLIG HT IN MAURITIUS IN THE FINANCIAL YEAR 2007-08 BY INVESTING US $1.1 MILLION FOR THE PURPOS E OF SETTING UP OFF-SHORE FLIGHT CATERING UNIT. THE BUSINESS OBJECTIVE OF M/S. EIH F LIGHT WAS TO PROVIDE IN-FLIGHT CATERING SERVICES TO AIRLINE COMPANIES OPERATING IN AND OUT OF MAURITIUS. ACCORDING TO ASSESSEE, I.E. M/S. EIH HAS BEEN IN THE INDUSTRY OF CATERING FACILITIES FOR OVER 50 YEARS, AND HAS BEEN PRODUCING 50,000 MEALS PER DAY FOR SOME OF THE BIGGEST NAMES IN AVIATION INDUSTRY INCLUDING AIR FRANCE, AIR MAURITIUS, BRITISH AIRWAY S, JET AIRWAYS, ETIHAD AIRWAYS, LUFTHANSA ETC., FOR THE PURPOSE OF SETTING UP ITS C ATERING UNIT AT MAURITIUS, THE AIRPORT AUTHORITY OF MAURITIUS PROVIDED EIH FLIGHT (100% SU BSIDIARY COMPANY OF ASSESSEE) A PLOT OF LAND MEASURING 14,000 SQ. METERS ON A RENEW ABLE LEASE FOR 20 YEARS. THE FACILITY WAS TO HAVE A SERVING CAPACITY OF 10,000 MEALS PER DAY INVOLVING STATE-OF-THE-ART KITCHEN WITH BEST EQUIPMENT, LATEST TECHNOLOGICAL I NNOVATIONS, PRACTICING SYSTEMS AND PROCEDURES. FOR THE PURPOSE OF SETTING UP CATERING, THE BUDGETED COST BY AN EXTERNAL CONSULTANT WHICH WAS ESTIMATED TO BE AROUND US$24.3 MILLION AS DETAILED BELOW :- PARTICULARS AMOUNT (US$ MN) KITCHEN EQUIPMENT, FURNITURE & FIXTURES, COMPUTERS ETC. 5.3 BUILDING/PLANT/MEP 15.0 PRE - OPERATIVE EXPENSES 1.65 HI-LIFT/CAR 0.60 ARCHITECT/PROJECT MANAGERS FEES 0.75 CONTINGENCIES 1.00 TOTAL 24.3 40 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 40 ACCORDING TO THE ASSESSEE, ITS 100% SUBSIDIARY (EIH FLIGHT) WAS INCORPORATED WITH A MINIMAL EQUITY CAPITAL OF US$1.1 MILLION I.E. WHICH WAS ONLY 4% OF THE TOTAL PROJECT COST AND IT WAS A PROMOTERS/SHAREHOLDERS STRATEGY , TO FUND THE START-UP COMPANY THROUGH THIRD PARTY BORROWINGS MADE AVAILABLE TO IT WITH THE HELP OF THE PARENT COMPANYS CORPORATE GUARANTEE. ACCORDINGLY, THE PRO JECT WAS PLANNED TO START-OFF IN THE YEAR 2009 AND REMAINING BALANCE OF US$ 23.2 MILLION WAS PLANNED BY THE SHARE HOLDER TO BE FUNDED IN THE FOLLOWING MANNER :- PARTICULARS SOURCE OF FUNDS AMOUNT SUBSEQUENT EQUITY FUNDING EIH LIMITED US$ 4.2 MILLI ON EXTERNAL LOAN FUNDING WITH THE HELP OF SHAREHOLDERS GUARANTEE TO BE PROVIDED BY THIRD PARTY BANKERS WITH THE HELP OF SHAREHOLDER GUARANTEE US$ 19 MILLION IT WAS SUBMITTED BEFORE THE LD TPO THAT THE PROVISI ON OF THE SAID FUNDS WAS FOR INITIAL ESTABLISHMENT FACILITIES AND IT WAS THE RESPONSIBIL ITY OF SHAREHOLDERS. ACCORDING TO THE ASSESSEE, THE SHAREHOLDERS ARE THE ONLY SOURCE OF R EQUISITE FUNDS FOR THE NEWLY INCORPORATED COMPANY TO SET UP ITS PRIMARY FACILITY . SINCE ASSESSEES 100% SUBSIDIARY M/S. EIH FLIGHT WAS A NEW COMPANY, THE LENDERS WOUL D NOT RISK GRANTING LOANS UNLESS CORPORATE GUARANTEE IS GIVEN BY THE PARENT COMPANY I.E. THE ASSESSEE. THUS, THE ASSESSEE COMPANY BEING THE PARENT COMPANY GAVE CORPORATE GUA RANTEE TO THE LENDER BANK, SO THAT LOAN COULD BE DISBURSED TO ITS 100% SUBSIDIARY I.E. M/S. EIH FLIGHT MAURITIUS. IT WAS BROUGHT TO THE NOTICE OF LD TPO THAT THE ASSESSEE H AD NOT CHARGED ANY FEE FOR PROVIDING SUCH GUARANTEE SINCE IT WAS THE OBLIGATION OF THE B USINESS. ACCORDING TO THE ASSESSEE, SINCE THERE WERE NO FEES CHARGED BY THE ASSESSEE CO MPANY FROM ITS 100% SUBSIDIARY FOR PROVIDING CORPORATE GUARANTEE, IT WAS NOT REPORTED AS AN INTERNATIONAL TRANSACTION. THE AFORESAID CONTENTION WAS NOT ACCEPTED BY THE LD TPO AND ACCORDING TO THE LD TPO, THE ARRANGEMENT BETWEEN THE COMPANY AND ITS SUBSIDIARY WAS IN THE NATURE OF PROVIDING SERVICES TO AE AND, THEREFORE, HAS TO BE CATEGORIZE D AS INTERNATIONAL TRANSACTION. 41 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 41 THEREAFTER, THE LD TPO APPLIED THE CUP METHOD AS TH E MOST APPROPRIATE METHOD (MAM) FOR BENCHMARKING THE GUARANTEE FEE AND HELD THAT TH E GUARANTEE FEE RATE OF 3% TO BE THE ARMS LENGTH FOR BENCH MARKING THE TRANSACTIONS OF R ECEIPT OF CORPORATE GUARANTEE FROM THE SUBSIDIARY AND THUS MADE AN ADDITION OF RS.2,62 ,09,659/-. 12.1. THE ASSESSEE FILED OBJECTIONS BEFORE THE L D DRP. THE LD. DRP UPHELD THE TRANSFER PRICING ADJUSTMENT PERTAINING TO THE RECEI PT OF CORPORATE GUARANTEE FEE. AGGRIEVED BY THE DECISION OF THE LD. DRP AND THE FI NAL ORDER OF THE AO, THE ASSESSEE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS:- 1.1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. ASSESSING OFFICER (AO) / TRANSFER PRICING OFFICER (TPO) ERRED IN TREATING THE CORPORATE GUARANTEE EXTENDED BY THE APPELLANT TO IT S AE AS INTERNATIONAL TRANSACTION AND DISPUTE RESOLUTION PANEL (HEREINAFT ER REFERRED TO AS LD. PANEL) ERRED IN CONFIRMING AS THE SAME AS AN INTER NATIONAL TRANSACTION WITHOUT APPRECIATING THE FACT THAT IT DOES NOT FALL WITHIN THE AMBIT OF INTERNATIONAL TRANSACTION U/S 92B OF THE ACT. 1.2 THE LD. AO/TPO AND THE LD. PANEL FAILED TO APPR ECIATE THE FACT THAT CORPORATE GUARANTEE HAS BEEN ADVANCED BY THE APPELL ANT AS A MATTER OF COMMERCIAL PRUDENCE TO PROTECT THE BUSINESS INTERES T OF THE GROUP BY FULFILLING THE SHAREHOLDERS OBLIGATION AS ANY FINANCIAL INCAPACIT ATION WOULD JEOPARDIZE THE INVESTMENT OF THE APPELLANT. 1.3 WITHOUT PREJUDICE TO THE ABOVE, THE LD. AO/TPO AND LD. PANEL FAILED TO APPRECIATE THE CORPORATE GUARANTEE EXTENDED BY THE APPELLANT IS PART AND PARCEL OF THE MANAGEMENT AGREEMENT ENTERED INTO WITH THE A E AND SAID AGREEMENT TAKE DUE CARE TOWARDS APPROPRIATE REMUNERATION FOR CORPO RATE GUARANTEE. 1.4 WITHOUT PREJUDICE TO THE ABOVE, THE LD. PANEL E RRED IN ARBITRARILY CONFIRMING THE ARMS LENGTH GUARANTEE COMMISSION RATE OF 3%, W HEN A NOMINAL GUARANTEE COMMISSION RATE OF 0.3% - 0.5% HAS BEEN ACCEPTED IN VARIOUS LEGAL JURISPRUDENCE. 12.2. THE LD. AR CONTENDED THAT THE CORPORATE GUAR ANTEE WAS GIVEN BY THE ASSESSEE TO THE SUBSIDIARY AE M/S. EIH MAURITIUS HEREIN (EIH FL IGHT) TO FUND THE SET UP OF THE SAID SUBSIDIARY COMPANY IN ITS YEAR OF OPERATION. ACCORD ING TO THE LD. AR, SINCE M/S. EIH 42 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 42 FLIGHT IS A START UP COMPANY, IT REQUIRED FUNDS PRI MARILY FOR ACQUISITION OF CAPITAL ASSETS FOR SETTING UP ITS OPERATION AND GUARANTEE FACILITI ES GIVEN BY THE ASSESSEE COMPANY TO THE LENDER BANK IS NORMAL BUSINESS PRACTICE. ACCORDING TO THE LD. AR, THE PROVISION OF THE SAID FUNDS FOR INITIAL ESTABLISHMENT WAS THE RESPON SIBILITY OF SHAREHOLDERS OF M/S. EIH FLIGHT I.E. THE ASSESSEE IN THIS CASE AND IT WAS DI SCHARGING THAT RESPONSIBILITY TO ITS SUBSIDIARY AS SHAREHOLDER. AS SAID BEFORE, SINCE TH E AE WAS A START UP COMPANY, THE ASSESSEE EXTENDED CORPORATE GUARANTEE TO THE THIRD PARTY BORROWERS AS A MATTER OF COMMERCIAL PRUDENCE TO PROTECT THE INTEREST BY FULF ILLING THE SHAREHOLDERS OBLIGATION. ACCORDING TO THE LD AR, THE CORPORATE GUARANTEE AS PROVIDED BY THE ASSESSEE WAS A MATTER OF COMMERCIAL PRUDENCE TO PROTECT BY FULFILL ING THE SHAREHOLDER OBLIGATION AS ANY FINANCIAL INCAPACITATION OF THE SUBSIDIARY WOULD JE OPARDIZE THE INVESTMENT OF THE ASSESSEE. HE RELIED ON THE ORDER OF THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF TEGA INDUSTRIES LTD. VS DCIT (ITA NO.1912/KOL/2012) WHEREIN IT WAS HELD THAT THE PROVISION OF CORPORATE GUARANTEE IS IN THE NATURE O F SHAREHOLDER ACTIVITY AND HENCE, NO TP ADJUSTMENT ON ACCOUNT OF CORPORATE GUARANTEE IS REQUIRED. OUR ATTENTION WAS DRAWN TO THAT CASE WHEREIN THE TRIBUNAL AFTER EXAMINING T HE FACTS OF THAT CASE OBSERVED THAT THE ASSESSEES EXPECTATION FROM PROVISION OF GUARA NTEE WAS NOT THAT OF A GUARANTOR I.E. TO EARN A GUARANTEE FEE, RATHER, THE EXPECTATION WA S OF A SHAREHOLDER TO PROTECT ITS INVESTMENT INTEREST, TO HELP IT ACHIEVE THE ASSESSE ES BUSINESS OBJECTIVE. THUS, ACCORDING TO THE LD. AR, THE OBJECTIVE OF THE ASSES SEE FOR PROVIDING GUARANTEE WAS NOT TO EARN GUARANTEE FEE BUT TO EARN RETURNS IN THE FORM OF APPRECIATION IN INVESTMENT VALUE AND RECEIVE DIVIDENDS. THEREFORE HE PRAYED THAT THE ADJUSTMENT MADE BY THE LD TPO MAY BE DELETED. 12.3. ALTERNATIVELY, THE LD AR ALSO CONTENDED THAT THE CORPORATE GUARANTEE IS NOT AN INTERNATIONAL TRANSACTION U/S 92B OF THE ACT. THE A SSESSEE ACCORDING TO HIM HAS NOT INCURRED ANY COST IN PROVIDING CORPORATE GUARANTEE TO ITS SUBSIDIARY COMPANY AT MAURITIUS. ACCORDING TO HIM, SINCE THE ISSUANCE OF CORPORATE GUARANTEE DOES NOT HAVE 43 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 43 ANY IMPACT ON PROFITS, INCOME, LOSSES OR ASSETS OF THE GUARANTOR AS THERE IS NO COST ASSOCIATED WITH IT, AND WHEN THE TRANSACTION IN QUE STION HAS NO BEARING ON PROFITS, INCOMES, LOSSES OR ASSETS OF SUCH ENTERPRISE, IT WI LL BE OUTSIDE THE AMBIT OF EXPRESSION INTERNATIONAL TRANSACTIONS UNDER SECTION 92B OF T HE ACT. FOR THE AFORESAID PROPOSITION, THE LD. AR RELIED ON THE CO-ORDINATE BENCH DECISION OF DELHI TRIBUNAL IN THE CASE OF BHARTI AIRTEL LIMITED IN ITA NO.5816/DEL/2012. ACCO RDING TO THE LD AR, THIS PROPOSITION HAS BEEN FOLLOWED BY THE CO-ORDINATE BE NCH OF AHMEDABAD TRIBUNAL IN THE CASE OF MICRO INK LIMITED VS ACIT IN ITA NO.2873/AH D/2010 AND REFERRED TO VARIOUS OTHER CASE LAWS I) REDINGTON INDIA LIMITED VS ACIT [ITA NO.513/MDS/201 4] II) VIDEOCON INDUSTRIES LIMITED VS ACIT RANGE 3(3), MUM BAI [ITA NO.6145/MUM/2012, 1728/MUM/2014, 1729/MUM/2014]; III) MANUGRAPH INDIA LIMITED VS DY. COMMISSIONER OF INCO ME TAX (I.T.A.NO.2631/MUM/2015) IV) SIRO CLIMPHARM PRIVATE LIMITED VS DCIT, MUMBAI (I.T.A.NO.1269/MUM/2015); V) SIRO CLINPHARM PRIVATE LIMITED VS DCIT, MUMBAI (I.T .A.2618/MUM/2014). 12.4. IN RESPONSE, THE LD. CIT,DR BROUGHT TO OUR NO TICE THE DECISION OF CO-ORDINATE BENCH OF HYDERABAD TRIBUNAL IN THE CASE OF PROLIFIC S CORPORATION LTD VS DCIT REPORTED IN (2015) 55 TAXMANN.COM 226 (HYDERABAD-TRIB.) DATE D 31.12.2014 FOR ASST YEAR 2009- 10, WHEREIN THE TRIBUNAL HAS ACCEPTED THE ARGUMENT S OF THE REVENUE THAT AFTER THE INSERTION OF THE EXPLANATION BY FINANCE ACT 2012 WI TH RETROSPECTIVE EFFECT FROM 2002, THE CORPORATE GUARANTEE ALSO IS AN INTERNATIONAL T AXATION. THE LD. DR ALSO CONTENDED THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS EVEREST KANTO CYLINDERS LTD. IN ITA NO.1165 OF 2013 WHERE THE GUARANTEE FEE TRANSAC TION WAS BENCH MARKED AND ARMS LENGTH PRICE ALP WAS MADE BY TPO AND WAS UPHELD BY THE TRIBUNAL AS WELL AS BY THE HONBLE BOMBAY HIGH COURT IN FAVOUR OF THE DEPARTME NT. ACCORDING TO THE LD. CIT DR , 44 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 44 SUBSEQUENT AMENDMENT BY THE INSERTION OF EXPLANATIO N BY FINANCE ACT, 2012 WITH RETROSPECTIVE EFFECT FROM 2002 IN SECTION 92B(1) OF THE ACT, THE TRANSACTION IN RESPECT OF LENDING OR BORROWING MONEY HAS BEEN EXPANDED TO INC LUDE CAPITAL FINANCING INCLUDING ANY TYPE OF LONG TERM OR SHORT TERM BORROWING, LEND ING OR GUARANTEE, PURCHASE OR SALE OF MARKETABLE SECURITIES OR ANY TIME OF ADVANCE, PAYME NTS OR DEFERRED PAYMENTS OR RECEIVABLE OR ANY OTHER DEBT ARISING DURING THE COU RSE OF BUSINESS. SO, ACCORDING TO THE LD. CIT,DR, SINCE THE EXPLANATION GIVES RETROSPECTI VE EFFECT FROM 01.04.2002 IT IS ABUNDANTLY CLEAR THAT THE ACT OF GRANTING CORPORATE GUARANTEE BY THE ASSESSEE TO THE AE IS IN FACT AN INTERNATIONAL TRANSACTION AND THEREFORE THE TPO WAS RIGHT TO HOLD IT ACCORDINGLY. THE LD. CIT,DR DREW OUR ATTENTION TO THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE CIT VS. EVEREST KANTO CYLIND ERS LTD., ITA NO. 1165 OF 2013 WHEREIN THE HONBLE HIGH COURT UPHELD THE ADJUSTMEN T OF 0.50% MADE BY THE TPO IN RESPECT OF GUARANTEE FEE IN A SIMILAR CASE AS THAT OF ASSESSEE, AND, THEREFORE, ACCORDING TO HIM, THE TRIBUNAL DECISION OF BHARTI AIRTEL LTD OF DELHI BENCH IS NOT GOOD LAW. 12.5. ACCORDING TO THE LD. DR, THE TRANSACTION MENT IONED IN SECTION 92B OF THE ACT I.E. PURCHASE, SALE OR LEASE OF TANGIBLE OR INTANGIBLE P ROPERTY, OR PROVISION OF SERVICES OR LENDING OR BORROWING MONEY HAS TO BE TREATED AS AN INTERNATIONAL TRANSACTION AND THE ARGUMENTS OF THE LD. AR IS NOT CORRECT TO SAY THAT THE TRANSACTION SHOULD HAVE A BEARING ON THE PROFITS, INCOMES LOSSES OR ASSETS OF SUCH EN TERPRISES,. ACCORDING TO HIM, ONLY IN OTHER TRANSACTION I.E. IN SEC. 92B [NOT FALLING IN (A) TO (D)] WHICH IS NOT SPECIFICALLY STATED THAT IS PURCHASE, SALE OR LEASE OF TANGIBLE OR INTA NGIBLE PROPERTY OR PROVISION OF SERVICES OR LENDING OR BORROWING MONEY THERE IS A REQUIREMEN T OF BEARING ON PROFIT, INCOMES, ASSETS OF SUCH ENTERPRISES. ACCORDING TO THE LD. D R, EXPLANATION BELOW SEC. 92B OF THE ACT, CLEARLY INCLUDES THE CORPORATE GUARANTEE AS AN INTERNATIONAL TRANSACTION AND A READING OF RESIDUAL CLAUSE (E) MAKES IT ABUNDANTLY CLEAR THAT IN CASE OF OTHER TRANSACTIONS WHICH FALL IN (A) TO (D) THERE IS NO REQUIREMENT O F BEARING ON THE PROFITS, INCOMES, LOSSES OR ASSETS OF SUCH ENTERPRISES; AND ONLY IN RESPECT OF TRANSACTION SPECIFIED IN (E) THIS 45 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 45 REQUIREMENT CAN BE READ INTO AND IN ALL OTHER TRANS ACTIONS SPECIFIED IN (A) TO (D) NO SUCH REQUIREMENT OF PROFIT/LOSS CAN BE READ INTO AND, TH EREFORE, THE TRANSACTION OF CORPORATE GUARANTEE WILL BE CONSIDERED AS AN INTERNATIONAL TR ANSACTION. THEREFORE, ACCORDING TO THE LD. DR, THE LD TPO WAS CORRECT IN NOT ACCEPTING THE ARGUMENTS OF THE ASSESSEE THAT TRANSACTIONS OF GIVING CORPORATE GUARANTEE TO THE A E WAS NOT AN INTERNATIONAL TRANSACTION. 12.6. THE LD. AR IN HIS REJOINDER EXPLAINED THA T THE CASE CITED IN FAVOUR OF REVENUE ON THIS ISSUE BY THE HONBLE BOMBAY HIGH COURT IN T HE CASE OF EVEREST KANTO CYLINDER LIMITED (SUPRA) WAS WHEN THE PARENT COMPANY CHARGED A FEE OF 0.5% ON THE AE FOR RENDERING THIS SERVICE. ON THIS FACTUAL ASPECT, THE TRIBUNAL AS WELL AS THE HONBLE HIGH COURT HELD THAT IT IS AN INTERNATIONAL TRANSACTION. SINCE IN THE CASE IN HAND, THE ASSESSEE HAS NOT CHARGED A PENNY FROM THE AE, THE FACTS OF T HE CASE IS DIFFERENT AND CASE LAW IS DISTINGUISHABLE AND, THEREFORE, THE HONBLE HIGH CO URTS ORDER CANNOT COME TO THE RESCUE OF THE REVENUE. THE LD. AR POINTED OUT THAT IN THE SAID CASE, THE HONBLE BOMBAY HIGH COURT DID NOT ANSWER THE SPECIFIC QUEST ION AS TO WHETHER THE ISSUANCE OF CORPORATE GUARANTEE IS INHERENTLY WITHIN THE AMBIT OF DEFINITION OF INTERNATIONAL TRANSACTION IRRESPECTIVE OF WHETHER OR NOT SUCH TR ANSACTIONS HAVE ANY BEARING ON PROFITS, INCOME, LOSSESS OR ASSETS OF SUCH ENTERPR ISES U/S. 92 B OF THE ACT. ACCORDING TO LD. COUNSEL, THE HONBLE HIGH COURT WAS EXAMINI NG WHETHER THE ADJUSTMENT MADE BY THE TPO WHEN THE ASSESSEE IN THAT CASE IN FACT H AD CHARGED 0.5% ON THE AE AS CORPORATE GUARANTEE COMMISSION AND THAT WAS THE QUE STION BEFORE THE HONBLE COURT AND THE HONBLE HIGH COURT DID NOT ANSWER AS TO WHETHER THE CORPORATE GUARANTEE GIVEN WITHOUT ANY FINANCIAL LIABILITY ON THE AE IS AN INT ERNATIONAL TRANSACTION. THUS, ACCORDING TO LD. AR, THE DECISION IN THE CASE OF EV EREST KANTO CYLINDER LIMITED (SUPRA) CANNOT COME TO THE RESCUE OF THE REVENUE. THE LD. A R CITED THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF PADMASUNDARA RAO (DECD .) & ORS VS STATE OF TAMIL NADU & ORS REPORTED IN 255 ITR 147 (SC) AT PAGE 148 TO B RING TO OUR NOTICE THAT A CHANGE 46 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 46 EVEN ON A SINGLE FACT MAY CHANGE THE RATIO OF THE E NTIRE DECISION AND SO THE HONBLE BOMBAY HIGH COURT DECISION IS DISTINGUISHABLE AND CANNOT BE TAKEN AS A PRECEDENT TO ADJUDICATE THE ISSUE BEFORE US. 12.7. ACCORDING TO THE LD. AR, THE HYDERABAD TRIBU NAL IN THE CASE OF PROLIFICS CORPORATION LTD (SUPRA) DOES NOT DISCUSS AS TO WHE THER CORPORATE GUARANTEE IS A SERVICE OR NOT AND HAS NOT EXPRESSLY DEALT WITH THE QUESTIO N AS TO WHETHER THE EXPLANATION INSERTED BY FINANCE ACT 2012 IS RETROSPECTIVE OR NO T. ACCORDING TO THE LD. AR, THE DELHI TRIBUNAL IN THE CASE OF BHARTI AIRTEL LTD. HAS GONE IN DEPTH TO DECIDE THE ISSUE WHICH WAS FRAMED BEFORE IT ON THIS ISSUE. SO, ACCORDING T O HIM, THE DECISION OF BHARTI AIRTEL LTD IS LEGALLY SUSTAINABLE. FOR A QUESTION FROM THE BENCH THAT SINCE THERE IS A CONTRADICTORY DECISION ON THE ISSUE IN HAND, WHETHE R THE QUESTION NEEDS TO BE REFERRED TO THE SPECIAL BENCH OF THE TRIBUNAL, THE LD. COUNSEL DREW OUR ATTENTION TO THE FACT THAT THE QUESTION OF LAW ARISING FROM THE TRIBUNALS DECISIO N IN BHARTI AIRTEL LTD HAS ALREADY BEEN ADMITTED BY THE HONBLE DELHI HIGH COURT, THER EFORE REFERRING THE QUESTION AND CONVENING OF THE SPECIAL BENCH WOULD BE A FUTILE EX ERCISE. 12.8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED T HE RECORDS. WE NOTE THAT THE ASSESSEE COMPANY HAD INCORPORATED A 100% SUBSIDIARY CALLED M/S. EIH FLIGHT AT MAURITIUS FOR THE FINANCIAL YEAR 2007-08 BY INVESTI NG US $1.1 MILLION FOR THE PURPOSE OF SETTING UP ITS OFF-SHORE FLIGHT CATERING UNIT THERE (MAURITIUS). THE BUSINESS OBJECTIVE OF M/S. EIH FLIGHT WAS TO PROVIDE IN-FLIGHT CATERING S ERVICES TO AIRLINE COMPANIES OPERATING IN AND OUT OF MAURITIUS. ACCORDING TO ASSESSEE, I.E . M/S. EIH HAS BEEN IN THE INDUSTRY OF CATERING FACILITIES FOR OVER 50 YEARS, AND HAS BEEN PRODUCING 50,000 MEALS PER DAY FOR SOME OF THE BIGGEST NAMES IN AVIATION INDUSTRY INCL UDING AIR FRANCE, AIR MAURITIUS, BRITISH AIRWAYS, JET AIRWAYS, ETIHAD AIRWAYS, LUFTH ANSA ETC., FOR THE PURPOSE OF SETTING UP ITS CATERING UNIT AT MAURITIUS, THE AIRPORT AUTH ORITY OF MAURITIUS PROVIDED EIH FLIGHT (100% SUBSIDIARY COMPANY OF ASSESSEE) A PLOT OF LAN D MEASURING 14,000 SQ. METERS ON A 47 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 47 RENEWABLE LEASE FOR 20 YEARS. THE FACILITY WAS TO H AVE A SERVING CAPACITY OF 10,000 MEALS PER DAY INVOLVING STATE-OF-THE-ART KITCHEN WI TH BEST EQUIPMENT, LATEST TECHNOLOGICAL INNOVATIONS, PRACTICING SYSTEMS AND P ROCEDURES. FOR THE PURPOSE OF SETTING UP CATERING, THE BUDGETED COST BY AN EXTERNAL CONSU LTANT WHICH WAS ESTIMATED TO BE AROUND US$24.3 MILLION. WE FURTHER NOTE THAT ACCORD ING TO THE ASSESSEE, ITS 100% SUBSIDIARY (EIH FLIGHT) WAS INCORPORATED WITH A MIN IMAL EQUITY CAPITAL OF US$1.1 MILLION I.E. WHICH WAS ONLY 4% OF THE TOTAL PROJECT COST AND IT WAS A PROMOTERS/SHAREHOLDERS STRATEGY TO FUND, THE STAR T-UP COMPANY THROUGH THIRD PARTY BORROWINGS MADE AVAILABLE TO IT WITH THE HELP OF TH E PARENT COMPANYS CORPORATE GUARANTEE. ACCORDINGLY, THE PROJECT WAS PLANNED TO START-OFF IN THE YEAR 2009 AND REMAINING BALANCE OF US$ 23.2 MILLION WAS PLANNED B Y THE SHARE HOLDER TO BE FUNDED IN THE FOLLOWING MANNER :- PARTICULARS SOURCE OF FUNDS AMOUNT SUBSEQUENT EQUITY FUNDING EIH LIMITED US$ 4.2 MILLI ON EXTERNAL LOAN FUNDING WITH THE HELP OF SHAREHOLDERS GUARANTEE TO BE PROVIDED BY THIRD PARTY BANKERS WITH THE HELP OF SHAREHOLDER GUARANTEE US$ 19 MILLION 12.9. WE NOTE THAT SINCE ASSESSEES 100% SUBSIDIARY M/S. EIH FLIGHT WAS A NEW COMPANY, THE LENDERS WOULD NOT RISK GRANTING LOANS UNLESS CORPORATE GUARANTEE IS GIVEN BY THE PARENT COMPANY I.E. THE ASSESSEE. THUS, THE ASSESSEE COMPANY BEING THE PARENT COMPANY GAVE CORPORATE GUARANTEE TO THE LENDER BANK , SO THAT LOAN COULD BE DISBURSED TO ITS 100% SUBSIDIARY I.E. M/S. EIH FLIGHT MAURITIUS. IT WAS BROUGHT TO THE NOTICE OF LD TPO THAT THE ASSESSEE HAD NOT CHARGED ANY FEE FOR PROVIDING SUCH GUARANTEE SINCE IT WAS THE OBLIGATION OF THE ASSESSEE TOWARDS ITS SUBSIDIA RY. ACCORDING TO THE ASSESSEE, SINCE THERE WAS NO FEES CHARGED BY THE ASSESSEE COMPANY F ROM ITS 100% SUBSIDIARY FOR PROVIDING CORPORATE GUARANTEE, THIS FACT WAS NOT RE PORTED AS AN INTERNATIONAL TRANSACTION. THE AFORESAID CONTENTION WAS NOT ACCEPTED BY THE LD TPO AND ACCORDING TO THE LD TPO, THE ARRANGEMENT BETWEEN THE COMPANY AND ITS SUBSIDI ARY WAS IN THE NATURE OF PROVIDING 48 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 48 SERVICES TO AE AND, THEREFORE, HAD TO BE CATEGORIZE D AS AN INTERNATIONAL TRANSACTION. THEREAFTER THE LD TPO APPLIED THE CUP METHOD AS THE MAM FOR BENCHMARKING THE GUARANTEE FEE AND HELD THAT THE GUARANTEE FEE RATE OF 3% TO BE THE ARMS LENGTH FOR BENCH MARKING THE TRANSACTIONS OF RECEIPT OF CORPORATE GU ARANTEE FROM THE SUBSIDIARY AND THUS MADE AN ADDITION OF RS.2,62,09,659/-. THE LD DRP U PHELD THE SAID ADJUSTMENT PERTAINING TO THE RECEIPT OF CORPORATE GUARANTEE FE E. AGGRIEVED BY THE DECISION OF THE LD. DRP AND THE FINAL ORDER OF THE AO, THE ASSESSEE IS IN APPEAL BEFORE US. 12.10. WE NOTE THAT M/S. EIH FLIGHT IS A STARTUP CO MPANY, IT REQUIRED FUNDS PRIMARILY FOR ACQUISITION OF CAPITAL ASSETS FOR SETTING UP ITS OP ERATION AND GUARANTEE FACILITIES GIVEN BY THE ASSESSEE/ASSESSEE COMPANY TO THE LENDER BANK IS NORMAL BUSINESS PRACTICE AND OBLIGATION TOWARDS A SUBSIDIARY. SINCE THE AE WAS A STARTUP COMPANY, THE ASSESSEE EXTENDED CORPORATE GUARANTEE TO THE THIRD PARTY BOR ROWERS AS A MATTER OF COMMERCIAL PRUDENCE TO PROTECT ITS INTEREST BY FULFILLING THE SHAREHOLDERS OBLIGATION. WE AGREE WITH THE CONTENTION OF THE LD AR THAT THE CORPORATE GUAR ANTEE AS PROVIDED BY THE ASSESSEE WAS A MATTER OF COMMERCIAL PRUDENCE TO PROTECT AND BY F ULFILLING THE SHAREHOLDER OBLIGATION, AS ANY FINANCIAL INCAPACITATION OF THE SUBSIDIARY W OULD JEOPARDIZE THE INVESTMENT OF THE ASSESSEE. FOR THAT WE RELY ON THE ORDER OF THE COOR DINATE BENCH OF THIS TRIBUNAL IN THE CASE OF TEGA INDUSTRIES LTD. VS DCIT (ITA NO.1912/K OL/2012 WHEREIN IT WAS HELD THAT THE PROVISION OF CORPORATE GUARANTEE IS IN THE NATU RE OF SHAREHOLDER ACTIVITY AND HENCE, NO TP ADJUSTMENT ON ACCOUNT OF CORPORATE GUARANTEE IS REQUIRED. IN THE SAID CASE, THIS TRIBUNAL HAD HELD THAT THE ASSESSEES EXPECTATION FROM PROVISION OF GUARAN TEE WAS NOT THAT OF A GUARANTOR I.E. TO EARN A GUARANTEE FEE, R ATHER, THE EXPECTATION WAS OF A SHAREHOLDER TO PROTECT ITS INVESTMENT INTEREST, TO HELP IT ACHIEVE THE ASSESSEES BUSINESS OBJECTIVE . THUS, WE AGREE WITH THE CONTENTION OF THE ASSESS EE THAT THE OBJECTIVE OF THE ASSESSEE FOR PROVIDING GUARANTEE WAS NOT TO EARN GU ARANTEE FEE BUT TO EARN RETURNS IN THE FORM OF APPRECIATION IN INVESTMENT VALUE AND RECEIV E DIVIDENDS AND, THEREFORE, NO TP ADJUSTMENT OUGHT TO HAVE BEEN MADE IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 49 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 49 12.11. COMING TO THE ALTERNATE PLEA OF THE ASSESSEE THAT, IN THE FACTS AND CIRCUMSTANCES THE CORPORATE GUARANTEE IS NOT AN INTERNATIONAL TRA NSACTION U/S. 92B OF THE ACT, WE NOTE THAT TERM ' GUARANTEE ' WAS INSERTED IN THE DEFINITION OF 'INTERNATIONAL TRANSACTION' IN SECTION 92B BY INSERTING AN EXPLANATION IN THE FINA NCE ACT, 2012 WITH RETROSPECTIVE EFFECT FROM 01/04/2002. THE EXPLANATION STATES THAT - 'FOR THE REMOVAL OF DOUBTS, IT IS HEREBY CLARIFIED THAT (I) THE EXPRESSION 'INTERNATIONAL TRANSACTION' SHALL INCLUDE .... (C) CAPITAL FINANCING, INCLUDING ANY TYPE OF LONG-T ERM OR SHORT-TERM BORROWING, LENDING OR GUARANTEE, PURCHASE OR SALE OF MARKETABL E SECURITIES OR ANY TYPE OF ADVANCE, PAYMENTS OR DEFERRED PAYMENT OR RECEIVABLE OR ANY OTHER DEBT ARISING DURING THE COURSE OF BUSINESS.' THE EXPLANATION STATES THAT IT IS CLARIFICATORY IN NATURE AND IS 'FOR THE REMOVAL OF DOUBTS' . THUS, IT DOES NOT ALTER THE BASIC CHARACTER OF DE FINITION OF 'INTERNATIONAL TRANSACTION' UNDER THE MAIN SECTION 92B. UNDER THIS EXPLANATION, FIVE CATEGORIES OF TRANSACTIONS HAVE BEEN CLARIFIED TO HAVE BEEN INCLU DED IN THE DEFINITION OF 'INTERNATIONAL TRANSACTIONS'. CLAUSES (A) (B) AND (D) DO NOT COVER GUARANTEE, LENDING OR LOANS. OTHER TWO, (C) AND (E) DEAL WITH (I) CAPITAL FINANCING, A ND (II) BUSINESS RESTRUCTURING OR REORGANIZATION. CLAUSE (C ) REFERS TO LENDING OR GU ARANTEE. BUT THE EXPLANATION WHICH IS FOR REMOVAL OF DOUBTS OR IS CLARIFICATORY, CANNOT B E READ INDEPENDENT OF SECTION 92B(1). SECTION 92B(1), PROVIDES THOSE TRANSACTIONS AS INTE RNATIONAL TRANSACTIONS WHICH ARE IN THE NATURE OF PURCHASE, SALE OR LEASE OF TANGIBLE O R INTANGIBLE PROPERTY (EXPLAINED BY CLAUSES (A) AND (B) OF THE EXPLANATION), OR PROVISI ON OF SERVICES, (EXPLAINED BY CLAUSE (D) OF THE EXPLANATION), OR LENDING OR BORROWING MONEY (EXPLAINED BY CLAUSE (C) OF EXPLANATION). THE PLAIN READING OF PROVISIONS OF S EC. 92B(1) OF THE ACT INDICATE THAT THE VARIOUS TRANSACTIONS MENTIONED IN SECTION 92B(1) OF THE ACT, (I.E. PURCHASES, SALES, PROVISION FOR SERVICES, LENDING OR BORROWING OR ANY OTHER TRANSACTION) SHOULD HAVE BEARING ON THE PROFITS, INCOMES, LOSSES OR ASSETS O F SUCH ENTERPRISES. IN OUR OPINION, THE 50 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 50 CONDITION PRECEDENT OF A TRANSACTION HAVING A BEARI NG ON PROFITS, INCOMES, LOSSES, OR ASSETS WOULD APPLY TO EACH OF THE AFORESAID TRANSAC TIONS NAMELY PURCHASE, SALE, OR LEASE OF TANGIBLE OR INTANGIBLE PROPERTY OR PROVISION OF SERVICES, OR LENDING OR BORROWING MONEY OR ANY SUCH TRANSACTION. THIS UNDERSTANDING O F OURS GETS FURTHER CLARIFIED BY WAY OF INSERTION OF EXPLANATION IN SECTION 92B(1) BY TH E FINANCE ACT 2012 WITH RETROSPECTIVE EFFECT FROM 01.04.2002 VIDE CLAUSE (A ) TO (D). WE FIND THAT IN THE SAID EXPLANATION, CLAUSE (E) ALONE HAS BEEN CARVED OUT AS AN EXCEPTION WHEREIN, THE TRANSACTION THEREON HAS BEEN SPECIFICALLY MANDATED TO BE AN INTERNATIONAL TRANSACTION WHERE A TRANSACTION OF BUSINESS RESTRUCTURING OR RE ORGANIZATION, ENTERED INTO BY AN ENTERPRISE WITH AN AE IRRESPECTIVE OF THE FACT THAT IT HAS BEARING ON THE PROFITS, INCOMES, LOSSES, OR ASSETS OF SUCH ENTERPRISES AT THE TIME O F TRANSACTION OR AT ANY FUTURE DATE. 12.12. THUS, WE HOLD THAT WHEN A PARENT COMPANY EXT ENDS AN ASSISTANCE TO THE SUBSIDIARY, BEING ASSOCIATED ENTERPRISE, SUCH AS CO RPORATE GUARANTEE TO A FINANCIAL INSTITUTION FOR LENDING MONEY TO THE SUBSIDIARY, WH ICH DOES NOT COST ANYTHING TO THE PARENT COMPANY, AND WHICH DOES NOT HAVE ANY BEARING ON ITS PROFITS, INCOME, LOSSES OR ASSETS, IT WILL BE OUTSIDE THE AMBIT OF INTERNATION AL TRANSACTION UNDER SECTION 92B(1) OF THE ACT. IN THIS REGARD, WE WOULD LIKE TO HOLD TH AT ISSUANCE OF CORPORATE GUARANTEE BY THE ASSESSEE TO ITS AE WOULD HAVE INFLUENCE ON THE PROFITS , INCOMES, LOSSES OR ASSETS OF ENTERPRISE BUT NOT NECESSARILY HAVE ANY IMPACT O N THE PROFITS, INCOMES, LOSSES OR ASSETS AS ADMITTEDLY NO CONSIDERATION WAS RECEIVED BY THE ASSESSEE IN RESPECT OF THIS CORPORATE GUARANTEE FROM ITS AE. WE FIND THAT TH E AHMEDABAD TRIBUNAL IN THE CASE OF MICRO INK IN ITA NO. 2873/AHD/2010 HAD OBSERVED THA T IF A SUBSIDIARY (AE IN THE INSTANT CASE) COULD NOT BORROW MONEY FROM THIRD PAR TY SOURCES ON ITS OWN STANDING AND THE GUARANTEE PROVIDED BY THE PARENT (ASSESSEE IN T HE INSTANT CASE) ENABLES IT TO MAKE SUCH BORROWING, THEN THE GUARANTEE COULD BE SAID TO BE A SHAREHOLDER FUNCTION, NOT WARRANTING A GUARANTEE FEE. THIS RATIO WOULD SQUAR ELY BE APPLICABLE TO THE FACTS OF THE INSTANT CASE BEFORE US. 51 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 51 12.13. THE LD. CIT, DRS RELIANCE IN THE CASE OF EV EREST KANTO CYLINDER LTD. (SUPRA) WOULD NOT COME TO THE RESCUE OF REVENUE BECAUSE IN THAT CASE, THE PARENT COMPANY CHARGED A FEE OF 0.5% ON THE AE FOR RENDERING THIS SERVICE. ON THIS FACTUAL ASPECT, THE TRIBUNAL AS WELL AS THE HONBLE HIGH COURT HELD THA T IT IS AN INTERNATIONAL TRANSACTION. SINCE IN THE CASE IN HAND, THE ASSESSEE HAS NOT CHA RGED A PENNY FROM THE AE, SO THE FACTS OF THE CASE ARE DIFFERENT AND CASE LAW IS DISTINGUI SHABLE AND, THEREFORE, THE HONBLE HIGH COURTS ORDER CANNOT COME TO THE RESCUE OF THE REVE NUE. WE FIND THAT THE LD. AR POINTED OUT THAT IN THE SAID CASE, THE HONBLE BOMBAY HIGH COURT DID NOT ANSWER THE SPECIFIC QUESTION AS TO WHETHER THE ISSUANCE OF CORPORATE GU ARANTEE IS INHERENTLY WITHIN THE AMBIT OF DEFINITION OF INTERNATIONAL TRANSACTION IRRESPECTIVE OF WHETHER OR NOT SUCH TRANSACTIONS HAVE ANY BEARING ON PROFITS, INCOME, LOSSESS OR ASSETS OF SUCH ENTERPRISES U/S. 92 B OF THE ACT. WE ALSO NOTE THAT THE AHMEDA BAD BENCH OF THIS TRIBUNAL SUPRA AFTER CONSIDERING THE DECISION OF THE HONBLE BOMBA Y HIGH COURT IN EVEREST KANTO CYLINDER LTD. (SUPRA) OBSERVED AS UNDER: WE ARE UNABLE TO SEE, IN THE JUDGMENT OF HONBLE BOMBAY HIGH COURT, ANY SUPPORT TO THE PROPOSITION THAT ISSUANCE OF COR PORATE GUARANTEE IS INHERENTLY WITHIN THE AMBIT OF DEFINITION OF INTER NATIONAL TRANSACTION UNDER SECTION 92B IRRESPECTIVE OF WHETHER OR NOT SUCH TRA NSACTIONS HAVE ANY BEARING ON PROFITS INCOMES, LOSSES, OR ASSETS OF SUCH ENTERPRISES. REVENUE, THEREFORE, DOES NOT DERIVE ANY HELP FROM T HE SAID DECISION. 12.14. THE LD CIT DR WOULD HAVE HAD A CASE WHERE A FEE HAS BEEN CHARGED FOR THE INTRA SERVICE WHICH HAS BEEN RENDERED (IN THE CONTEXT OF CORPORATE GUARANTEE), AND, THEREFORE, THE ASSESSEE OR THE COURT HAS TREATED IT AS AN INTE RNATIONAL TRANSACTION, THEN THE CHARGE OF CORPORATE GUARANTEE HAS TO BE IN ACCORDANCE WITH AR M'S LENGTH PRINCIPLE. THIS MEANS THAT THE PRICE FOR CORPORATE GUARANTEE SHOULD BE TH AT WHICH WOULD HAVE BEEN PAID AND ACCEPTED BY INDEPENDENT ENTERPRISES IN COMPARABLE C IRCUMSTANCES. IN THAT CASE TRANSFER PRICING ADJUSTMENTS ARE REQUIRED. IN THAT CASE, IT HAS TO BE DETERMINED WHAT WILL BE THE 52 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 52 ALP OF CORPORATE GUARANTEE COMMISSION PAID BY ASSOC IATE ENTERPRISE TO THE PARENT COMPANY PROVIDING CORPORATE GUARANTEE. SINCE THAT IS NOT THE CASE BEFORE US, WE NEED NOT GO INTO IT. 12.15. WE ALSO FIND THAT THIS VERY SAME ISSUE CAME UP FOR ADJUDICATION BY THIS TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASST YEAR 2010-11 IN IT A NO. 530/KOL/2015 DATED 9.6.2017 , WHEREIN BY PLACING RELIANCE ON THE DECISION OF CO -ORDINATE BENCH OF MUMBAI TRIBUNAL IN THE CASE OF A) MARICO LTD VS ACIT REPORTED IN (2016) 70 TAXMANN .COM 214 (MUMBAI TRIB) WHEREIN IT WAS HELD THAT CORPORATE GUARANTEE WAS NOT AN INT ERNATIONAL TRANSACTION ; AND B) SIRO CLINPHARM P LTD VS DCIT IN ITA NO. 2618/MUM /2014 DATED 31.3.2016 , WHEREIN IT WAS HELD THAT THE EXPLANATION INTRODUCED BY FINANCE ACT 2012 CAN BE MADE APPLICABLE ONLY FROM ASST YEAR 2013-14 ONWARDS. 12.16. MOREOVER, WE FIND THAT THOUGH THE EXPLANATIO N WAS INTRODUCED BY FINANCE ACT 2012, THE RULES WERE NOTIFIED ONLY ON 10.6.2013. HENCE THE ASSESSEE CANNOT BE EXPECTED TO REPORT THIS TRANSACTION ALSO AS AN INTE RNATIONAL TRANSACTION IN ITS TRANSFER PRICING STUDY AND THE AUDIT REPORT THEREON . 12.17. IN VIEW OF THE AFORESAID FINDINGS AND RESPEC TFULLY FOLLOWING THE VARIOUS JUDICIAL PRECEDENTS, WE ALLOW THE GROUNDS 1.1. TO 1.4 RAISED BY THE ASSE SSEE. 13. DETERMINATION OF ARMS LENGTH PRICE TOWARDS INT EREST RATE FOR LOAN PROVIDED TO AE GROUNDS 2.1 & 2.2. OF ASSESSEES APPEAL GROUND 1 OF REVENUES APPEAL 53 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 53 BRIEF FACTS OF THIS ISSUE ARE THAT THE ASSESSEE ADV ANCED A LOAN TO ITS AE M/S. EIH FLIGHT, MAURITITS TO HELP FUND THE START-UP COMPANY IN ITS INITIAL YEAR OF OPERATION. M/S. EIH I.E. THE ASSESSEE DID NOT CHARGE ANY INTEREST ON THE LOA N, AS IT WAS ADVANCED IN THE CAPACITY OF SHAREHOLDER TO PROTECT THE INVESTMENT OF ITS AE. THE LD TPO REJECTED THE CONTENTION OF ASSESSEE AND CONSIDERED THE TRANSACTION ENTERED INT O BY ASSESSEE AND EIH FLIGHT AS AN INTERNATIONAL TRANSACTION. 13.1. THE LD TPO, VIDE HIS ORDER DATED 30 JANUARY 2 015, REJECTED THE CONTENTION OF THE ASSESSEE THAT THE LOAN WAS IN THE NATURE OF SHAREHO LDER SERVICE; CONSIDERED THE TRANSACTION ENTERED INTO BY THE ASSESSEE AND EIH FL IGHT AS AN INTERNATIONAL TRANSACTIONS AND ACCORDING TO HIM, THE ASSESSEE SHOULD HAVE EARN ED AN ARM'S LENGTH INTEREST RATE FROM ITS AE FOR THIS TRANSACTION; THE LD TPO DIVIDED THE COMPONENT OF INTEREST INTO TWO PARTS I.E. BASE RATE (BEING RISK FREE RATE) AND CREDIT SP READ. THE LD TPO CONSIDERED THE AVERAGE INDIAN PRIME LENDING RATE AS THE RISK FREE RATE (14 %). FURTHER, THE TPO DETERMINED THE CREDIT SPREAD OF BY ANALYSING THE CREDIT RATING OF BOTH THE ASSESSEE AND EIH FLIGHT BASED ON COUNTRY WIDE REPORT PUBLISHED BY THE CREDIT RATI NG AGENCY STANDARD & POOR ('S&P') AND ACCORDINGLY, THE LD TPO ARRIVED AT THE CREDIT S PREAD OF 350 BPS AND ARM'S LENGTH RATE OF 17.5%. BASED ON THE ABOVE, THE TPO COMPUTED TRAN SFER PRICING ADJUSTMENT AMOUNTING TO INR 4,081,503/- . AGGRIEVED BY THE ORD ER OF THE LD TPO, THE ASSESSEE FILED OBJECTIONS BEFORE THE LD. DRP. THE LD DRP UPHELD TH E DECISION OF THE LD TPO RELATING TO INTEREST FREE LOAN GIVEN TO ITS AE WAS NOT IN TH E NATURE OF SHAREHOLDER ACTIVITY AND THE ASSESSEE SHOULD HAVE BEEN COMPENSATED FOR ADVANCING OF LOAN TO ITS AE. HOWEVER, THE LD DRP DID PROVIDE RELIEF AND DIRECTED THE LD. AO/T PO TO COMPUTE THE ARM'S LENGTH INTEREST USING LIBOR INSTEAD OF PRIME LENDING RATE OF THE BANKS. BASED ON DIRECTION OF THE LD DRP, THE LD AO PASSED THE FINAL ORDER REDUCI NG THE ADJUSTMENT TO INR 10,40,026. AGGRIEVED BY THE FINAL ORDER OF THE AO, THE ASSESSE E IS BEFORE US. 54 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 54 13.2. THE LD. AR SUBMITTED THAT THE LOAN WAS ADVANC ED BY THE ASSESSEE IN THE CAPACITY OF A SHAREHOLDER/PROMOTER AND WAS ADVANCED OUT OF I TS OWN FUNDS AND SINCE IT HAS NOT INCURRED ANY COST IN GRANTING THE LOANS TO ITS AE, NO ADJUSTMENT SHOULD BE MADE ON THIS BEHALF. THE LD. AR DREW OUR ATTENTION TO PAGES 986 TO 1047 OF THE PAPER BOOK WHICH IS THE FINANCIAL PROJECTION REPORT PREPARED BY EXTERNA L CONSULTANT WHEREIN IT WAS FORECASTED THAT M/S. EIH FLIGHT WOULD START EARNING POSITIVE C ASH FLOW FROM ITS BUSINESS ACTIVITIES (AFTER THE FIRST YEAR OF OPERATION I.E. FY 2010-11 ONWARDS). HE ALSO DREW OUR ATTENTION TO THE FACT THAT SINCE EIH FLIGHT IS A START-UP COM PANY AFTER CONSIDERING THE EXTERNAL PROJECT REPORT, THE BANKER ALSO PROVIDED A REPAYMEN T MORATORIUM OF ONE YEAR TO EIH FLIGHTS AS IT WOULD NOT HAVE GENERATED ADEQUATE FUN DS TO REPAY THE LOANS FROM THE FIRST DAY ITSELF. THE LD. AR BROUGHT TO OUR KNOWLEDGE TH E FACT THAT THE BUSINESS OF EIH FLIGHT DID NOT TAKE OF AS EXPECTED, HOWEVER THE REP AYMENT OF BANK LOAN STARTED AND, THEREFORE, THE ASSESSEE HAD TO CONTINUE FUNDING THE STRUGGLING COMPANY IN FY 2011-12 AND 2012-13. THUS, IT WAS POINTED OUT BY THE LD. A R THAT THE PROVISION OF FUNDS BY THE ASSESSEE TO EIH FLIGHT WAS PURELY FOR COMMERCIAL PU RPOSE AND THE ACTION OF THE ASSESSEE WAS PRIMARILY TO PROTECT ITS INVESTMENT AND WAS IN THE NATURE OF SHAREHOLDING ACTIVITY AND HE RELIED ON THE FOLLOWING DECISIONS OF HONBLE HIGH COURTS. DELHI HIGH COURT IN THE CASE OF CIT VS. COTTON NA TURALS (I) PUT LTD (REFER PAGE 12 OF VOL. II OF THE COMPENDIUM AND PARA 17 OF THE RULING) CIT US EKL APPLIANCES LTD (345 ITR 241) (REFER PA GE 53-57 OF VOL 11 OF THE COMPENDIUM AND PARA 17-21 OF THE RULING) 13.3. WITHOUT PREJUDICE TO THE AFORESAID SUBMISSION , THE LD. AR MADE AN ALTERNATE PLEA THAT SINCE LOAN WAS ADVANCED IN THE CAPACITY OF THE SHAREHOLDER, THE ASSESSEE CONTENDED THAT SINCE LD DRP ACCEPTED THAT LIBOR SHOULD BE USE D AS THE RATE OF INTEREST TO DETERMINE THE ARM'S LENGTH INTEREST RATE FOR THE LO AN. THE LD AO/TPO COMPUTED NOTIONAL INTEREST ON LOAN BY TAKING 400 BASIS POINTS AS MARK UP FOR RISK PREMIUM I.E. CREDIT 55 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 55 SPREAD, WHEREAS THE SPREAD BASED ON THE RULINGS SUC H AS SOMA TEXTILE & INDUSTRIES LIMITED VS ACIT (I.T.A. NO.: 262 (AHD) OF 2012) SHO ULD BE LIBOR + 200BPS. THE LD AR THUS CONTENDED THAT THE CORRECT COMPUTATION OF T HE INTEREST ON LOAN ON THE BASIS OF LIBOR + 200BPS CREDIT SPREAD. 13.4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ARE O F THE OPINION THAT THE LIBOR AND BASIS POINTS SHOULD BE THE CRITERIA FOR MEETING THE COST OF INTEREST ON THE INTERNATIONAL TRANSACTION IN RESPECT OF INTEREST TO BE CHARGED ON THE LOAN ADVANCED TO AE. FOR THIS PURPOSE THE CREDIT RATING OF THE ASSESSEE AS WELL A S THE CREDIT RATING OF THE AE SHOULD BE TAKEN INTO ACCOUNT. ACCORDINGLY WE DEEM IT FIT TO R EMAND THE ISSUE TO THE LD. TPO TO DETERMINE THE BASIS POINTS ON THE BASIS OF THE AFOR ESAID PARAMETERS AND SUCH OTHER RELEVANT PARAMETER IN ACCORDANCE TO LAW. THEREFORE , WE REMAND THIS ISSUE FOR THIS LIMITED PURPOSE BACK TO THE LD TPO / LD AO AND TO D ETERMINE THE ISSUE AS DIRECTED BY US. ACCORDINGLY, THE GROUNDS 2.1. & 2.2. RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES AND GROUND 1 RAISED BY THE REV ENUE IS DISMISSED. 14. THE GROUND NO. 5 RAISED BY THE REVENUE IS GENER AL IN NATURE AND DOES NOT REQUIRE ANY SPECIFIC ADJUDICATION. 15. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS P ARTLY ALLOWED FOR STATISTICAL PURPOSES AND THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 12.01.2018 SD/- SD/- [A.T. VARKEY] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 12.01.2018 SB, SR. PS 56 ITA NOS.153 & 110/KOL/2016 M/S EIH LIMTED A.YRS.2011-12 56 COPY OF THE ORDER FORWARDED TO: 1. DCIT, CIRCLE-8(1), KOLKATA, AAYAKAR BHAWAN, 5 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069. 2. M/S EIH LIMITED, 4, MANGOE LANE, KOLKATA-700001 3. C.I.T(A)- 4. C.I.T.- KOLKAT A. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S