Firestone Diamond Pvt Ltd Mumbai – Deemed interest

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I.T.A. No.139/Mum/2014
Assessment year: 2008-09

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IN THE INCOME TAX APPELLATE TRIBUNAL
MUMBAI ‘K’ BENCH, MUMBAI

[Coram: Pramod Kumar AM and Pawan Singh JM]

I.T.A. No.139/Mum/2014
Assessment year: 200
8-09
deemed interest
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Firestone Diamond
(Now known as Firestar Diamond InternatiPvt. Ltd.
onal Pvt. Ltd…..………
.),.
………………….Appellant
C/o. Ka2A Kitab Mahal, 1rnavat & Co.,
192, Dr. D.N. Roadst
Floor,
Mumbai.[PAN: AA BCJ 7268 H]

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Vs.

I
Ward ncome Tax
– 8(1)(4), Officer,
Mumbai.
……….…..…………….…Respondent

Appearances by:

Sunil K. Hirawat, for the appellant
N
.K. Chant, for respondent
Date of concluding the hearingDate of pronouncing the order :: January March 3113st, th
201, 20166
ORDER

Per Pramod Kumar
, AM:
1. By way of this appeal, the assessee appellant has challenged correctness of the
order dated 08.11.2013 passed by the learned CIT(A) in the matter of assessment under
section 143(3) of the Income Tax Act, 1961 (‘the Act’ hereinafter) for the assessment
year 2008-09.

2. The only grievance raised by the assessee is as follows :-
“1. On facts and in law, the learned Commissioner of Income tax (Appeals) had
erred in confirming the addition of Rs.46,127/- made by the learned Assessing
———————Page 2———————

I.T.A. No.139/Mum/2014
Assessment year: 2008-09

Page 2 of 18

Officer/Transfer Pricing Officer being the deemed interest on delayed sale
proceeds. Under the facts and circumstances of the matter, he ought to have
deleted the said addition of Rs.46,127/-.”
3. To adjudicate on this appeal, only a few material facts need to be taken note of.
The assessee is engaged in the business of manufacturing and trading in diamond
studded jewellery. The exports made to the AE is benchmarked on the basis of the
transactional net margin method (TNMM) and the TPO has accepted the same.
However, an adjustment of Rs 46,127 is made in respect of delayed realization of debts,
as three export bills dated 26.3.2008, 7.3.2008 and 7.3.2008 on the AEs were realized in
196, 187 and 187 days respectively. It was in this backdrop that the interest for delay of
16, 7 and 7 days in respect of these delays (180 days was taken as the benchmark of
reasonable period for realization of debts) by computing interest @ 18.816%.
Aggrieved, assessee carried the matter in appeal before the CIT(A) but without any
success. The assessee is not satisfied and is in further appeal before us.

4. We have heard the rival contentions, perused the material on record and duly
considered facts of the case in the light of the applicable legal position.

5. We find that the issue is covered, in favour of the assessee, by our order of even
date in the case of Rusabh Diamonds Vs ACIT and vice versa (I.T.A. Nos. 2497 and
689/Mum/2010, Assessment year: 2009-10), wherein we have held this issue, in
general, in favour of the assessee, by observing as follows:
12. In our considered view, even if we proceed on the basis that Explanation to
Section 92B is indeed retrospective in effect and it does cover delay in realization
of debts, as long as sale is benchmarked on TNMM basis, as in this situation before
us, there cannot be any occasion to make a separate adjustment for delay in
realization of debts. The reason is that the interest income is an integral part of
the PBIT inasmuch as interest income, in cases other than finance companies, is
———————Page 3———————

I.T.A. No.139/Mum/2014
Assessment year: 2008-09

Page 3 of 18

required to be included in the ‘other income’ and thus affects the profit before
interest and taxes. While profit before interest and taxes does not take into
account ‘interest expenditure’, it does take into account ‘interest income’ because
the interest income is part of the ‘other income’, under pre amended as well as
post amended schedule VI to the Companies Act, which is duly taken into account
into computation of PBIT. In a way PBIT is a misnomer, as while PBIT does not
take into account interest expenditure, it does take into account interest income-
appearing in the other income. Once the profitability, as per PBIT, is found to be
comparable, there cannot be a separate adjustment for interest income on
delayed realization which is an integral part of the PBIT figure.

13. It is in this background that we may refer to the observations made by a
coordinate bench of this Tribunal, in the case of Micro Ink Ltd Vs ACIT (supra), as
follows:

7. We find that, as evident from audit report on form 3CEB (pages 39 to 52
of the paper-book), the arm’s length price of exports to the AEs, including
Micro USA, has been determined on the basis of the transactional net
margin method (TNMM). By way of a note at page 51, it is specifically
stated that “further, the said amount of Rs 2428.26 millions has also been
determined/ computed by the assessee having regard to the arm’s length
price on application of Transactional Net Margin Method (TNMM), on
aggregation of transactions, as prescribed under section 92C of the Income
Tax Act, 1961”. In this backdrop, we can usefully refer to the decision of
Hon’ble Delhi High Court, in the case of Sony Ericsson Mobile Corporation
Pvt Ltd Vs ACIT [(2015) 374 ITR 118(Del)] wherein Their Lordships had,
inter alia, observed as follows:

“Where the Assessing Officer/TPO accepts the comparables adopted by the
assessed, with or without making adjustments, as a bundled transaction, it
would be illogical and improper to treat AMP expenses as a separate
international transaction, for the simple reason that if the functions
performed by the tested parties and the comparables match, with or
without adjustments, AMP expenses are duly accounted for. It would be
incongruous to accept the comparables and determine or accept the
transfer price and still segregate AMP expenses as an international
transaction,”

8. By way of an example, this aspect of the matter was then explained by
Hon’ble Delhi High Court as follows:

“An example given below would make it clear:

Particulars Case 1 Case 2
Sales 1000 1,000
Purchase Price 600 500
Gross Margin 400 (40%) 500
Marketing Sale 50 150
promotion
———————Page 4———————

I.T.A. No.139/Mum/2014
Assessment year: 2008-09

Page 4 of 18

Overhead expense 300 300
Net profit 50 (5%) 50 (5%)

The above illustrations draw a distinction between two distributors having
different marketing functions. In case 2, a distributor having significant
marketing functions incurs substantial expenditure on AMP, three times
more than in case 1, but the purchase price being lower, the Indian AE gets
adequately compensated and, therefore, no transfer pricing adjustment is
required. In case we treat the AMP expenses in case 2 as Rs.501-, i.e.
identical as case 1 and AMP of Rs. 100 as a separate transaction, the
position in case 2 would be:

Particulars Case 2
Sales 1,000
Purchase Price 500
Gross Margin 500 (50%)
Overhead expenses 300
Marketing expenses 50
Net profit 150 (15%)

It is obvious that this would not be the correct way and method to compute
the arm’s length price. The purchase price adjustments/set off would be
mandated to arrive at the arm’s length price, if the AMP expenses are
segregated as an independent international transaction…..”

9. By the same logic, even making an adjustment for interest on excess
credit allowed on sales to AEs will vitiate the picture, inasmuch as what
has already been factored in the TNMM analysis, by taking operating
profit figure which incorporate financial impact of the excess credit period
allowed, will be adjusted again separately as well. Of course, in the
example used by Hon’ble Delhi High Court, the AMP expenses are
deductibles in computation of operating profit but that does not make any
material difference because the interest levy for late realization of debtors,
being inextricably connected with the sales, is also part of operating
income. In the case of Nirma Industries Limited Vs DCIT [(2006) 283 ITR
402 (Guj)], Hon’ble High Court has dealing with the nature of interest on
debtors, held it to be integral to business income. The same is the principle
for the transfer pricing cases to that extent interest is to be taken as
integral to sale proceeds, and, as such, includible in operating income.
When such an interest is includible in operating income and the operating
income itself has been accepted as reasonable under the TNMM, there
cannot be an occasion to make adjustment for notional interest on delayed
realization of debtors. One can understand separate adjustment for excess
credit period when the arm’s length price for exports has been
benchmarked on the CUP basis but not in a case when the arm’s length
price of the exports has been benchmarked on the basis of TNMM. The very
conceptual foundation, for separate adjustment for delayed realization of
———————Page 5———————

I.T.A. No.139/Mum/2014
Assessment year: 2008-09

Page 5 of 18

debtors and on the facts of this case, is thus devoid of legally sustainable
merits.

10. The other aspect of the matter is that a separate adjustment for
delayed realization of debtors can, even in a fit case, can only be made only
to the extent the credit period allowed to the associated enterprises is
more than the credit period allowed to independent enterprise in respect
of the same or materially similar transactions. In the present case, it is an
undisputed position that semi finished goods, as sold to Micro USA, is not
sold to any other independent enterprises. The assessee did have trading
transactions in respect of the finished goods with trading subsidiaries in
China and Hong Kong but it is not even the case of the TPO that excessive
credit period was allowed to these AEs vis-à-vis the credit period allowed
to independent enterprises, nor any ALP adjustment has been
recommended in connection with the same. This fact, if anything, shows
that the credit period allowed to the AEs is comparable with credit period
of non AEs in respect of similar goods. To compare credit period in respect
of finished goods with the credit period in respect of semi-finished goods,
is, therefore, somewhat fallacious in approach and untenable in law. In our
considered view, merely because there is a delay in realization of debts
cannot be reason enough to make an addition as long as such a delay is
peculiar to the transactions with AEs. The adjustment before us is an
adjustment to arrive at an arm’s length price and unless there is
something, more than sweeping generalizations as implicit in the
arguments before us, to at least indicate that such a delay in realization of
debts in similar transactions is absent in arm’s length transactions, these
adjustments cannot be made even when sales are benchmarked on CUP
basis. The delay in realization of debts, resulting in a continuing debit
balance, is not a standalone international transaction per se, but is a
result of the international transaction as it only reflects that the related
payment has not been made by the debtor. As for the learned Departmental
Representative’s stand that “the supplier is entitled to receipt of payment
immediately on delivery irrespective of whether the finished goods is sold
in the market, get spoiled in manufacturing or is damaged” would
probably be valid in the perfect market conditions which are more of a
myth than reality. The only other merit of this approach is its simplicity,
or, to put it more appropriately, naivety. The real life trade and commerce
is seldom so simple. It is not at all necessary that a payment is to be made
as soon as goods or services are delivered. A call is to be taken by the
vendor, in consultation with its client and based on the business exigencies,
as to what should be the terms on which payments for the supplies is to be
made. It is a harsh commercial reality that immediate payments are more
of exceptions rather than rule, and more so in a complex case in which the
assessee is sole vendor and the very existence of the buyer is to process the
semi- finished goods and sell it to the end buyers. Many factors, such
normal business practices and the commercial exigencies, influence the
fact of payment in respect of a commercial transaction. Whether a
payment is made immediately by the AE or is made after six months
cannot, therefore, be seen in isolation with what is the position is with
respect to similar payments due from non AEs. The whole exercise of ALP
adjustments is to neutralize the impact of inter se relationships between
the AEs and it is, therefore, not the delay simplictor in payment but delay
———————Page 6———————

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Assessment year: 2008-09

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in payment vis-à-vis similar situations with non AEs (i.e. independent
enterprises) which is of crucial consideration. Such a comparison cannot
be based on the hypothesis as to what would have, in the wisdom of the
TPO, happened if assessee was to have similar transactions with non- AEs.
The comparison has to be based on real transactions of similar nature, if
at all such transactions have taken place. When no such transactions have
taken place, as is the case before us, there is obviously no occasion of any
comparison. The stand taken by the learned Departmental Representative,
therefore, is not only quite detached from commercial reality but also
wholly untenable in law. In any case, what can be examined on the
touchstone of arm’s length principles is the commercial transaction itself,
as a result of which the debit balance has come into existence, and the
terms and conditions, including terms of payment, on which the said
commercial transaction has been entered into. In this view of the matter,
learned Departmental Representative’s reliance on Aztec decision (supra)
is of no assistance to the case of the revenue. The international transaction
is exports of goods which been benchmarked on TNMM basis and which is
duly accepted by the TPO. In view of these discussions, and respectfully
following the decision of the coordinate bench in assessee’s own case for
the earlier years, we uphold the grievance of the assessee and direct the
Assessing Officer to delete the impugned ALP adjustment of Rs 2,10,95,346.

14. As regards learned Departmental Representative’s contention that Sony
Ericsson Mobile Corporation decision (supra) will not apply in the case before us
in the context of interest on delayed realization of debts for the simple reason
that while AMP expenses, as in that case, are taken into account in the
computation of the PLI, interest on delayed realization of debts is not taken into
account in computation of the PLI, we can only say that it proceeds on the
fallacious assumption that interest income is not taken into account in
computation of profit before interest and taxes. The profit before tax and interest
(PBIT) so computed takes into account interest income because, on the given
facts, it is in the nature of ‘other income’ which is duly included in the PBIT figure.
It is only interest expenditure which is not taken into account in the PBIT
computation. There is no warrant for the proposition that interest expenditure
taken into account is net of interest income on account of delay in realization of
debts. We, therefore, reject this contention of the Departmental Representative.

15. As for learned Departmental Representative’s suggestion that it is to be
verified whether the comparables include interest income, if any, all we can say is
that the statutory provisions requires the interest income, unless it is an interest
income of the finance and banking companies, to be included in the other income
which is taken into account for computing PBIT (i.e. profit before interest and
taxes). The presumption therefore is that the accounts are drawn up as per the
statutory requirements, and the exclusions from ‘other income’ are specifically
discussed on the facts of each case, and as such constitute integral part of the
transfer pricing documentation. There is nothing on record to show these
exclusions.

16. As regards the contention that normally all interest incomes are excluded
in the computation of PBIT as such incomes rarely constitute operational income,
we see no need to be guided by such hypothesis and generalities. There is nothing
on the records, as we have noted earlier, such exclusions on the facts of this case.
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In any event, setting off of interest expenditure with interest on account of delay
in realization of debts, even if so, is not too common an occurrence and more of an
exceptions than the rule. The apprehensions of the learned DR are purely
hypothetical and, therefore, devoid of legally sustainable merits.

17. In view of these discussions, as also bearing in mind entirety of the case,
we are of the considered view that no ALP adjustments can be made, on the facts
of this case, in respect of delay in realization of sale proceeds. Such being our
conclusions, we also see no need to address ourselves to the specific factual
arguments advanced by the learned counsel. In effect thus, we uphold the
grievance of the assessee, and direct the Assessing Officer to delete the impugned
arm’s length price adjustment.

18. As we have upheld the grievance of the assessee, and thus deleted the
impugned ALP adjustment, grievance raised by the Assessing Officer, which was in
respect of the interest rate on the basis of which ALP adjustment was required to
be made, is rendered academic and it does not call for any adjudication at this
stage.

19. There is, however, one more aspect of the matter for which the impugned
ALP adjustment may be deleted.

20. In order to explain this line of reasoning, a few material factual
developments and the legal analysis will have to be taken note of. We have noted
that everything hinges on application of Explanation to Section 92B, vide Finance
Act 2012, though with retrospective effect from 1 st April 2002. This Explanation
provides as follows:
Explanation*: – For the removal of doubts, it is hereby clarified that —
(*inserted by the Finance Act 2012, though with retrospective effect from
1st April 2002)

(i) the expression “international transaction” shall include —

(a) the purchase, sale, transfer, lease or use of tangible property including
building, transportation vehicle, machinery, equipment, tools, plant,
furniture, commodity or any other article, product or thing;

(b) the purchase, sale, transfer, lease or use of intangible property,
including the transfer of ownership or the provision of use of rights
regarding land use, copyrights, patents, trademarks, licences, franchises,
customer list, marketing channel, brand, commercial secret, know -how,
industrial property right, exterior design or practical and new design or
any other business or commercial rights of similar nature;

(c) capital financing, including any type of long -term or short -term
borrowing, lending or guarantee, purchase or sale of marketable securities
or any type of advance, payments or deferred payment or receivable or any
other debt arising during the course of business;

(d) provision of services, including provision of market research, market
development, marketing management, administration, technical service,
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repairs, design, consultation, agency, scientific research, legal or
accounting service;

(e) a transaction of business restructuring or reorganisation, entered into
by an enterprise with an associated enterprise, irrespective of the fact that
it has bearing on the profit, income, losses or assets of such enterprises at
the time of the transaction or at any future date;

(ii) the expression “intangible property” shall include —

(a) marketing related intangible assets, such as, trademarks, trade names,
brand names, logos;

(b) technology related intangible assets, such as, process patents, patent
applications, technical documentation such as laboratory notebooks,
technical know -how;

(c) artistic related intangible assets, such as, literary works and
copyrights, musical compositions, copyrights, maps , engravings;

(d) data processing related intangible assets, such as, proprietary
computer software, software copyrights, automated databases, and
integrated circuit masks and masters;

(e) engineering related intangible assets, such as, industrial design ,
product patents, trade secrets, engineering drawing and schematics,
blueprints, proprietary documentation;

(f) customer related intangible assets, such as, customer lists, customer
contracts, customer relationship, open purchase orders;

(g) contract related intangible assets, such as, favourable supplier,
contracts, licence agreements, franchise agreements, non -compete
agreements;

(h) human capital related intangible assets, such as, trained and organised
work force, employment agreements, union contracts;

(i) location related intangible assets, such as, leasehold interest, mineral
exploitation rights, easements, air rights, water rights;

(j) goodwill related intangible assets, such as, institutional goodwill,
professional practice goodwill, personal goodwill of professional, celebrity
goodwill, general business going concern value;

(k) methods, programmes, systems, procedures, campaigns, surveys,
studies, forecasts, estimates, customer lists, or technical data;

(l) any other similar item that derives its value from its intellectual
content rather than its physical attributes.’.

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21. Shortly before the 2012 amendments were brought, a coordinate bench of
this Tribunal, in the case of Nimbus Communications Ltd Vs ACIT [(2011) 139
TTJ 214 (Bom)] and speaking through one of us, had observed as follows:

4. It is only elementary, in terms of the provisions of Section 92,
any income arising from an international transaction has to be
computed having regard to the arm’s length price (ALP), and that this
exercise includes the allowance for any expense or interest arising
from an international transaction as well. That is the only provisions
under which ALP adjustments can be made. In other words, therefore,
arm’s length price adjustments can only be made in respect of an
‘international transactions’. The expression ‘international
transaction’, on the other hand, is defined under section 92 B as a
transaction between two or more associated enterprises, either or
both of them are non-residents, “in the nature of purchase, sale or
lease of tangible or intangible property, or provision of services, or
lending or borrowing of money, or any other transaction having a
bearing on the profits, incomes, losses or assets of such enterprises”
as also transaction in the nature of cost or expense sharing
arrangement. The question that we must address ourselves to is
whether a continuing debit balance constitutes a ‘transaction’ in
terms of the provisions of Section 92 B.

5. A continuing debit balance, in our humble understanding, is not an
international transaction per se, but is a result of the international
transaction. In plain words, a continuing debit balance only reflects
that the payment, even though due, has not been made by the debtor.
It is not, however, necessary that a payment is to be made as soon as
it becomes due. Many factors, including terms of payment and normal
business practices, influence the fact of payment in respect of a
commercial transaction. Unlike a loan or borrowing, it is not an
independent transaction which can be viewed on standalone basis.
What can be examined on the touchstone of arm’s length principles is
the commercial transaction itself, as a result of which the debit
balance has come into existence, and the terms and conditions,
including terms of payment, on which the said commercial
transaction has been entered into. The payment terms are an integral
part of any commercial transaction, and the transaction value takes
into account the terms of payment, such as permissible credit period,
as well. The residuary clause in the definition of ‘international
transaction’, i.e. any other transaction having a bearing on the
profits, incomes, losses or assets of such enterprises, does not apply
to a continuing debit balance, on the given facts of the case, for the
elementary reason that there is nothing on record to show that as a
result of not realizing the debts from associated enterprises, there
has been any impact on profits, incomes, losses or assets of the
assessee. In view of these discussions, in our considered view, a
continuing debit balance per se, in the account of the associated
enterprises, does not amount to an international transaction under
section 92 B in respect of which ALP adjustments can be made. The
factum of payment has to be considered vis-a-vis terms of payment set
out in the transaction arrangement, and not in isolation with the
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commercial terms on which transaction in respect of which payment
is, according to the revenue authorities, delayed.

22. We have noted the learned Departmental Representative’s contention that
the above decision is no longer good in law since a coordinate bench of this
Tribunal, in the case of i-Gate Computer Systems Ltd Vs ACIT and vice versa
(ITA No. 2504/PN/2012 has, inter alia, stated that “the Hon’ble Bombay High
Court, in assessee’s own case relating to the assessment year 2002-03 in
Income Tax Appeal No. 1148/2012, vide judgment dated 28.2.2013, has held
that in view of the amendment by the Finance Act 2012 with retrospective
effect from 1 st April 2002, the said transaction of charging of interest from
the AEs is covered under the amended provision of Section 92B(1) of the Act”.

23. However, when we perused Hon’ble Bombay High Court’s judgment
referred to in this coordinate bench’s order, we found the factual position to be
slightly, but very materially, different.

24. The relevant question before Their Lordships, in the said case and as set
out at page 2 of this judgment, was “(c) whether, on the facts and
circumstances of the case and in law, the Tribunal did not err in holding
that the loss suffered by the assessee by allowing excess period of credit to
the associated enterprises without charging any interest during such period
would not amount to international transaction whereas Section 92B(1) of
the Income Tax Act, 1961, refers to ‘any other transaction having a bearing
on the profits, income, losses or assets of such enterprise’ ”. Rather than
answering this question on merits, and with the consent of both the parties, Their
Lordships sent the matter back for fresh consideration of the Tribunal. While
doing so, at page 3-4 of the judgment, Their Lordships observed as follows:

2. So far as question (c) is concerned, counsel for the parties state
that in view of the amendment to Section 92B(1) of the Income Tax Act,
1961 (‘Act’ for short) by Finance Act, 2012 with retrospective effect from
1st April 2002, the question as framed may be restored to the file of the
Tribunal for fresh decision in light on the amendment. Accordingly, this
issue is remitted to the file of the Tribunal for fresh decision on merits

25. The observations so made by Hon’ble jurisdictional High Court, in our
limited understanding, cannot be construed as holding that “in view of the
amendment by the Finance Act 2012 with retrospective effect from 1 st April
2002, the said transaction of charging of interest from the AEs is covered
under the amended provision of Section 92B(1) of the Act”. As it appears from
the plain words of the statute- as extracted earlier, the issue is left open for
adjudication by this Tribunal.

26. In any event, to this extent, this judgment does not involve an adjudication
on a legal issue as it is a result of consensus of the parties. When both the parties
before Their Lordships agreed, and so ‘stated’ before Their Lordships, to let the
matter be restored to the file of the Tribunal, there could not have been, and there
was no, adjudication on any legal issue.

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27. It is for this reason that the said decision of the Pune bench of the
Tribunal, relied upon by the learned Departmental Representative, is per
incurium and does not bind the coordinate benches.

28. The question then is as to what is the impact of amendment in section 92B,
by the virtue of Finance Act 2012, on the definition of ‘international transaction’
so far as the interest on delayed realization of debt is concerned.

29. The amendment so made by the Finance Act 2012, stated to be with
retrospective effect 1st April 2002, inserts an Explanation to Section 92 B which,
inter alia, that “For the removal of doubts, it is hereby clarified that (c) capital
financing, including any type of long -term or short -term borrowing,
lending or guarantee, purchase or sale of marketable securities or any type
of advance, payments or deferred payment or receivable or any other debt
arising during the course of business”. In plain words, this amendment inter
alia implies that capital financing of any type, including by way of “deferred
payment or receivable or any other debt arising during the course of business”
will constitute an international transaction under section 92B. Going by this
definition “any debts arising during the course of business” will constitute an
international transaction. A trade debt is, accordingly, covered by this definition.
However, since the assessment year that we are dealing with is prior to the
assessment year 2012-13, the next important question is whether this amendment
could be held to be applicable in the assessment year before us as well.
Undoubtedly, the amendment is said to be retrospective but then the question
really is whether just stating the law to be retrospective will make it retrospective
in effect.

30. The fact that judicial precedents, prior to the insertion of Explanation to
Section 92B, held that a continuing debit balance, on a standalone basis, does not
constitute an international transaction required to be benchmarked assumes
considerable significance in the light of a new judicial development that we will
deal with in a short while now. In the present case, we are dealing with a
situation in which the amendment was made with retrospective effect and it
covered certain issues which were already subjected to a judicial interpretation in
a particular manner. The judicial interpretation so given was certainly not the
end of the road. The matter could have been carried in appeal before higher
judicial forums. If the decision of a judicial body does not satisfy the tax
administration, nothing prevents them from going to the higher judicial forum or
from so amending the law, with prospective effect, that there is no ambiguity
about the intent of legislature and it is conveyed in unambiguous words.

31. Nullifying a judicial interpretation though legislative amendment, much as
many of us may abhor it, is not too uncommon an occurrence. Of course, when
legislature has to take an extreme measure to nullifying the impact of a judicial
ruling in taxation, it is the time for, at least on a theoretical note, introspection
for the draftsman as to what went so wrong that fundamental intent of law of law
could not be conveyed by the words of the statute, or, perhaps for the judicial
forums, as to what went so wrong that the interpretation was so off the mark vis-
à-vis fundamental principles of taxation or the sound policy considerations.
However, amendment so made are generally prospective, and there is a sound
conceptual foundation, as has been highlighted in the binding judicial precedents
that we will deal with in a short while, for that approach. There is no dearth of
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examples on this aspect of the matter. Take for example, the amendment to
Section 263 by the Finance Act, 1961. In many judicial precedents, [such as in the
case of CIT Vs Sunbeam Auto Limited (332 ITR 167) wherein it was held that
“Learned counsel for the assessee is right in his submission that one has to keep in
mind the distinction between “lack of inquiry” and “inadequate inquiry”. If there
was any inquiry, even inadequate that would not by itself give occasion to the CIT
to pass orders under s. 263 of the Act, merely because he has different opinion in
the matter. It is only in cases of “lack of inquiry” that such a course of action
would be open”], it was reiterated that it was only the lack, not the adequacy, of
inquiry which could confer jurisdiction under section 263 on the Commissioner.
By inserting Explanation 2 to Section 263(1), which inter alia provided that
powers under section 263 could also be invoked in the cases where “the order is
passed without making inquiries or verification which should have been made”,
all ratio of all these decisions was nullified. That, however, is done with
prospective effect, i.e. with effect from 1st June 2015. As a matter of fact, it is a
laudable policy of the present tax administration to stay away from making the
retrospective amendments, and thus contribute to greater certainty and congenial
business climate. Nothing evidences it better than this subtle, but easily
discernible, paradigm shift in the underlying approach to the amendments made
in Section 263 in the very first full budget of the present Government.

32. What has, however, been done in the case before us is to amend the law
with retrospective effect. Of course, it happened much before the current
awareness about the evils of retrospective taxation having been translated into
action.

33. Dealing with such a situation, Hon’ble Delhi High Court has, in the case of
DIT vs New Skies Satellite BV [TS-64- HC -DEL (2016)], observed as follows:

30. Undoubtedly, the legislature is competent to amend a
provision that operates retrospectively or prospectively. Nonetheless,
when disputes as to their applicability arise in court, it is the actual
substance of the amendment that determines its ultimate operation
and not the bare language in which such amendment is couched……..

36. A clarificatory amendment presumes the existence of a
provision the language of which is obscure, ambiguous, may have
made an obvious omission, or is capable of more than one meaning.
In such case, a subsequent provision dealing with the same subject
may throw light upon it. Yet, it is not every time that the legislature
characterizes an amendment as retrospective that the Court will give
such effect to it. This is not in derogation of the express words of the
law in question, (which as a matter of course must be the first to be
given effect to), but because the law which was intended to be given
retrospective effect to as a clarificatory amendment, is in its true
nature one that expands the scope of the section it seeks to clarify,
and resultantly introduces new principles, upon which liabilities
might arise. Such amendments though framed as clarificatory, are in
fact transformative substantive amendments, and incapable of being
given retrospective effect. ………………….

37. An important question, which arises in this context, is
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whether a “clarificatory” amendment remains true to its nature
when it purports to annul, or has the undeniable effect of annulling,
an interpretation given by the courts to the term sought to be
clarified. In other words, does the rule against clarificatory
amendments laying down new principles of law extend to situations
where law had been judicially interpreted and the legislature seeks
to overcome it by declaring that the law in question was never meant
to have the import given to it by the Court? The general position of
the courts in this regard is where the purpose of a special
interpretive statute is to correct a judicial interpretation of a prior
law, which the legislature considers inaccurate, the effect is
prospective. Any other result would make the legislature a court of
last resort. United States v. Gilmore 8 Wall [(75 US) 330, 19L Ed 396 (1869)]
Peony Park v. O’Malley [223 F2d 668 (8th Cir 1955)]. It does not mean that the
legislature does not have the power to override judicial decisions
which in its opinion it deems as incorrect, however to respect the
separation of legal powers and to avoid making a legislature a court
of last resort, the amendments can be made prospective only [Ref County
of Sacramento v State (134 Cal App 3d 428) and In re Marriage of Davies (105 III App 3d 66)]
(Emphasis, by underlining, supplied by us)

34. Quite clearly, in view of the law so laid down by Their Lordships also, just
because a provision is stated to be clarificatory, it does not become entitled to be
treated as ‘clarificatory’ by the judicial forums as well. The view taken by Hon’ble
Delhi High Court support this line of reasoning. Even without the benefit of
guidance of Their Lordships, the views articulated by a coordinate bench of this
Tribunal, in the case of Bharti Airtel (supra) were of a somewhat similar opinion
when it was observed that, “Undoubtedly, the scope of a charging provision
can be enlarged with retrospective effect, but an anti-avoidance measure,
that the transfer pricing legislation inherently is, is not primarily a source
of revenue as it mainly seeks compliant behaviour from the assessee vis-à-
vis certain norms, and these norms cannot be given effect from a date
earlier than the date norms are being introduced”. We may add that right now
we are only concerned with the question of retrospective amendment in the
transfer pricing legislation, which has, as we will see, its own peculiarities and
significant distinction with normal tax laws which simply impose tax on an
income.
35. Legislature may describe an amendment as ‘clarificatory’ in nature, but a
call will have to be taken by the judiciary whether it is indeed clarificatory or not.
This determination, i.e. whether the amendment in indeed clarificatory or is the
amendment to overcome a judicial precedent, assumes great significance because
when it is found that the purpose of such interpretive statute, or clarificatory
amendment, is “correct a judicial interpretation of prior law, which the
legislature considers inaccurate, the effect is prospective” and, as in this case, it
deals with transfer pricing legislation which essentially seeks a degree of
compliant behavior from the assessee vis-à-vis certain norms- the norms the
assessee should know at the time of entering into the transactions rather than at
the time of scrutiny of his affairs at a much later stage.

36. It is very important to bear in mind the fact that right now we are dealing
with amendment of a transfer pricing related provision which is in the nature of a
SAAR (specific anti abuse rule), and that every anti abuse legislation, whether
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SAAR (specific anti abuse rule) or GAAR (general anti abuse rule), is a legislation
seeking the taxpayers to organize their affairs in a manner compliant with the
norms set out in such anti abuse legislation. An anti-abuse legislation does not
trigger the levy of taxes; it only tells you what behavior is acceptable or what is
not acceptable. What triggers levy of taxes is non-compliance with the manner in
which the anti-abuse regulations require the taxpayers to conduct their affairs. In
that sense, all anti abuse legislations seek a certain degree of compliance with the
norms set out therein. It is, therefore, only elementary that amendments in the
anti-abuse legislations can only be prospective. It does not make sense that
someone tells you today as to how you should have behaved yesterday, and then
goes on to levy a tax because you did not behave in that manner yesterday.

37. When this is put to the learned Departmental Representative that as to
how the transfer pricing legislation can be expected to have a retrospective
amendment, which is almost like telling people how they should have
benchmarked their international transactions in past and thus expecting them to
do the impossible, his stock reply is that the amendment only clarifies the law, it
does not expand the law.

38. Well, if the 2012 amendment does not add anything or expand the scope of
international transaction defined under section 92B, assuming that it indeed does
not- as learned Departmental Representative contends, this provision has already
been judicially interpreted, and the matter rests there unless it is reversed by a
higher judicial forum. However, if the 2012 amendment does increase the scope of
international transaction under section 92B, as is our considered view, there is no
way it could be implemented for the period prior to this law coming on the statute
i.e. 28th May 2012. The law is well settled. It does not expect anyone to perform an
impossibility. Reiterating this settled legal position, Hon’ble Supreme Court has,
in the case of Krishnaswamy S Pd Vs Union of India [(2006) 281 ITR 305
(SC)], observed as follows:

The other relevant maxim is, lex non cogit ad impossibilia—the law
does not compel a man to do what he cannot possibly perform. The
law itself and its administration is understood to disclaim as it does
in its general aphorisms, all intention of compelling impossibilities,
and the administration of law must adopt that general exception in
the consideration of particular cases. [See : U.P.S.R.T.C. vs. Imtiaz
Hussain 2006 (1) SCC 380, Shaikh Salim Haji Abdul Khayumsab vs.
Kumar & Ors. 2006 (1) SCC 46, Mohammod Gazi vs. State of M.P. & Ors.
2000 (4) SCC 342 and Gursharan Singh vs. New Delhi Municipal
Committee 1996 (2) SCC 459].

39. It is for this reason that the Explanation to Section 92 B, though stated to
be clarificatory and stated to be effective from 1st April 2002, has to be
necessarily treated as effective from at best the assessment year 2013-14. In
addition to this reason, in the light of Hon’ble Delhi High Court’s guidance in the
case of New Skies Satellite BV (supra) also, the amendment in the definition of
international transaction under Section 92B, to the extent it pertains to the
issuance of delayed realization of debtors being outside the scope of
‘international transaction’, cannot be said to be retrospective in effect. The fact
that it is stated to be retrospective, in the light of the aforesaid guidance of
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Hon’ble Delhi High Court, would not alter the situation, and it can only be treated
as prospective in effect i.e. with effect from 1st April 2012 onwards.

40. As we deal with this question, it is also relevant to consider whether this
Tribunal can, while adjudicating on the appeals, tinker with the date, as set out in
the statute, from which an amendment is effective. In our humble understanding,
as a judicial forum, we are bound not only by the law as legislated by the
legislature, but by the judge made law as well. We are a part of the judicial
hierarchy in this system. We are bound by the law laid down by Hon’ble Courts
above, and all that we are expected to do, and we do, is to decide the issues before
us in accordance with the provisions of the statute, in accordance with the law
laid down by Hon’ble Courts above and in the light of binding judicial precedents.
When a binding judicial precedent requires us to deviate from the specific words
of the provisions of the statute in a particular manner, we have to do so. There is
no escape from this call of duty. Of course, whatever we do is, and shall always
remain, subject to the approval by Hon’ble Courts above.

41. There are a number of decisions in which our so tinkering with the specific
words in the statute have been upheld, as long as this has been so done in
accordance with the judicial principles and guidance in the judge made law. In
the case of Rajeev Kumar Agarwal Vs ACIT [(2014) 249 ITD 363 (Agra)],
insertion of second proviso to Section 40(a)(ia), though specifically stated to be
with effect from 1st April 2013, was read to be effective from 1st April 2005. The
reasoning adopted by the bench, speaking through one of us, was as follows:

8. With the benefit of this guidance from Hon’ble Delhi High Court, in view
of legislative amendments made from time to time, which throw light on
what was actually sought to be achieved by this legal provision, and in the
light of the above analysis of the scheme of the law, we are of the
considered view that section 40(a)(ia) cannot be seen as intended to be a
penal provision to punish the lapses of non deduction of tax at source from
payments for expenditure- particularly when the recipients have taken
into account income embedded in these payments, paid due taxes thereon
and filed income tax returns in accordance with the law. As a corollary to
this proposition, in our considered view, declining deduction in respect of
expenditure relating to the payments of this nature cannot be treated as
an “intended consequence” of Section 40(a)(ia). If it is not an intended
consequence i.e. if it is an unintended consequence, even going by Bharti
Shipyard decision (supra), “removing unintended consequences to make
the provisions workable has to be treated as retrospective notwithstanding
the fact that the amendment has been given effect prospectively”. Revenue,
thus, does not derive any advantage from special bench decision in the case
Bharti Shipyard (supra).

9. On a conceptual note, primary justification for such a disallowance is
that such a denial of deduction is to compensate for the loss of revenue by
corresponding income not being taken into account in computation of
taxable income in the hands of the recipients of the payments. Such a
policy motivated deduction restrictions should, therefore, not come into
play when an assessee is able to establish that there is no actual loss of
revenue. This disallowance does deincentivize not deducting tax at source,
when such tax deductions are due, but, so far as the legal framework is
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concerned, this provision is not for the purpose of penalizing for the tax
deduction at source lapses. There are separate penal provisions to that
effect. Deincentivizing a lapse and punishing a lapse are two different
things and have distinctly different, and sometimes mutually exclusive,
connotations. When we appreciate the object of scheme of section
40(a)(ia), as on the statute, and to examine whether or not, on a “fair, just
and equitable” interpretation of law- as is the guidance from Hon’ble Delhi
Hig

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Ashni Shah is pursuing Chartered Accountancy and is currently engaged as Article Assistant at Rasesh Shah and Associates and can be reached at ashnishah2017@gmail.com. She loves Dancing and Gyming.

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