IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: `E' NEW DELHI
BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER
AND
SHRI A.T.VARKEY, JUDICIAL MEMBER
I.T.A .No. 2139/Del/2012
(ASSESSMENT YEAR-2005-06)
Dy.CIT, Circle 6(1) M/s Messe Dusseldorf India
New Delhi P.Ltd.
vs 1, Commercial complex, 2nd
floor
Pocket HJ, Sarita vihar
New Delhi 110 076
(Appellant) (Respondent)
Appellant by Sh. Piyush Kaushik, Adv.
Respondent by Sh. Keyur Patel, Sr. DR
ORDER
PER J. SUDHAKAR REDDY, A.M.
This is an appeal by the Revenue directed against the order of the Ld.CIT(A)-XX,
New Delhi dated 27.2.2012 pertaining to the AY 2005-06.
2. Brief facts:- Assessee is a private limited company incorporated under the
provisions of Indian Companies Act, 1956. It is engaged in the business of event
management. The assessee company is a 50:50 joint venture of Messe Dusseldorf Gmbh
based in Dusseldorf in Germany and Koelnmesse International GmBH based in Koln in
Germany (hereinafter collective referred to as "promoters" or "shareholders".) As a part
of its business activities, the assessee organizes and performs trade fairs, trade
exhibitions, conventions etc. on industry related themes.
2
Vide submissions before the AO it was submitted that the assessee has received the
amount of Rs.34,511,880 to resurrect the financial position and to rejuvenate the
company. It was submitted that the said amount is in the nature of a capital receipt and is
classified under `capital reserve' in the accounts.
Vide another submission before the AO it was submitted that the said amount is received
by the company essentially for restoration of its capital structure i.e. net worth required
for the revival of company in future years. It was submitted that as is clearly evident
from the accounts, the assessee company is having a negative capital base (net worth), if
the effect of this capital receipt is excluded, as a result of which it would have not been
possible for the company to carry on its operations at all. It was submitted that the
purpose of this receipt from the promoters (shareholders) is to provide long term
enduring benefits by way of revival of the company and restoration of its capital base.
3. The A.O. for the reasons given in his order at page 3 and 4 held that the receipt in
question is in the Revenue field. He further made addition of transfer pricing adjustment
of Rs.1,10,55,815/-, based on the order of the TPO. Aggrieved the assessee carried the
matter in appeal. The First Appellate Authority granted part relief. Aggrieved, the
Revenue is in appeal before us on the following grounds.
"1. The order of Ld.CIT(A) is erroneous and contrary to facts of law.
2. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred
in deleting the addition of Rs.3,45,11,880/- on account of reserves and surplus treating
the same as capital receipt.
3. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) has erred
in deleting the addition of Rs.1,10,55,815/- on the basis of TPO's order u/s 92CA(3).
4. The appellant craves leave to add, alter, amend any grounds of appeal raised above at
the time of the hearing."
3
4. We have heard Mr.Keyur Patel, the Ld.Sr.D.R. on behalf of the Revenue and
Mr.Piyush Kaushik, the Ld.Counsel for the assessee.
5. The Ld.D.R. Mr.Keyur Patel relied on the order of the AO and submitted that
(a) the non refundable, non distributable and nonconvertible contribution by a
shareholder, was used for the purpose of its current business and hence a revenue
receipt.
(b) Copy of the letter addressed by the assessee to Reserve Bank of India which is at
pages 16 to 21 states that the said financial assistance was towards erosion of net
worth of the company whereas in the Minutes of the third AGM of the
shareholders which is given at pages 22 and 23 at para 8 it is stated that the
contribution was received for restoration of the net worth of the company, which
was required for revival of the same. He referred to page 25 of the paper book
which is a copy of the permission letter given by Reserve Bank of India dated 5th
November,2004 and pointed out that the amount was given only to meet the
accumulated losses of CIDEX and not for the erosion of net worth. He referred
to page 28 of the paper book and submitted that the assessee has reserves and
surplus. The sum and substance of his submission is that RBI permitted the
assessee to receive the amount in question for recoupment of accumulated losses.
He distinguished the judgments relied upon by the Ld.CIT(A).
6. The Ld.Counsel for the assessee on the other hand relied on the order of the
First Appellate Authority and supported the same. He referred to the various documents
in the paper book to demonstrate that the amount in question was received from parent
company on account of erosion of net worth. He relied on the following case laws:-
(i) CIT vs.Deutsche Post Home Finance Ltd. (2012) TIOL-545-HC-Del dt.
2.7.2012 for the proposition that contribution received towards erosion of net
worth is a capital receipt;
(ii) ACIT vs. Handicrafts and Handloom Export Corporation, 133 ITR 590 (Del);
(iii) Handicrafts and Handloom Export Corporation of India vs. CIT, 140 ITR
532(Del).
4
(iv) He relied on the various decisions referred to by the Ld.CIT(A). He also submitted
that the Jurisdictional High Court decisions in the case of Deutsche Post Bank Home
Finance Ltd. (supra), which was upheld by the Hon'ble Supreme Court in CC
no.4139/2013 jdugement dt. 22.2.2013.
7. On the issue of transfer pricing adjustment the Ld.D.R. relied on the order of the
TPO and the Ld.Counsel for the assessee relied on the order of the Ld.CIT(A).
8. Rival contentions heard. On a careful consideration of the facts and
circumstances of the case and the perusal of papers on record and the orders of the
authorities below, we hold as follows.
9. The Ld.D.R. argued that the amount in question was not received by the assessee
towards erosion of net worth. A perusal of copies of the documents suggest that the
amount was received essentially for restoration of the capital structure by recoupment of
net worth. The assessee company had incurred accumulated losses and this has resulted
in erosion of net worth. The parent company received non refundable financial assistance
of upto Euros 6 lakhs from its shareholder company. The proposal with RBI which is a
letter, a copy of which is placed at pages 16 to 21 of the paper book, states as follows.
"The sole purpose of providing the financial assistance, we reiterate, is:
- to restore the erosion in the capital of the company,
- to place at the disposal of CIDEX liquid resources that will
enable it to focus on its business operations
- not to burden CIDEX with additional costs and liabilities.
We would further reiterate that :
- the monies provided by both the shareholders are not refundable
and hence will form part of CIDEX funds
5
- the monies provided will bear no costs
- the monies provided will be used solely for purposes of the
business of CIDEX and for no other purpose."
9.1. The RBI approved the same vide its approval dt. 5th November,2004 with
subject matter given as "financial assistance towards erosion of net worth."
9.2. Hence we hold that the Ld.CIT(A) was right in his factual findings given at
para 3.5 to 3.7 of his order on the above issue. Thus, on facts we uphold the factual
finding of the Ld.CIT(A) that the amount was received towards erosion of net worth of
the company.
9.3. Coming to the legal position, the Hon'ble Delhi High Court in the case of
Deutsche Post Bank Home Finance Ltd. (supra) held as follows.
"Income Tax Section 2(24) "Subvention assistance", purposive test Whether
voluntary cash assistance received from parent company for recouping losses and
restoring negative net worth, is a capital receipt, exempt from tax whether only
assistance or voluntary payments received from government out of public funds and not
from private parties, is considered as capital receipt whether it is only the purpose of
the assistance and not the mechanism, is the conclusive test to determine the nature of
such receipts".
9.4. This decision has been upheld by the Hon'ble Supreme Court. The Hon'ble
Jurisdictional High Court had followed its own decision in the case of Handicrafts and
Handloom Export Corporation of India vs. CIT, 140 ITR 532.
6
9.5. Applying the binding decision we uphold the order of the First Appellate
Authority and dismiss these grounds of Revenue.
10. Ground no.3 is against deletion of transfer pricing adjustment. The Ld.CIT(A) in
his order had accepted the method adopted by the TPO as the most appropriate method.
Hence the Revenue has no grievance. The Ld.CIT(A) also accepted all the comparables
adopted by the TPO except in the case of one comparable i.e. Infomedia India Ltd. We
find that Infomedia India Ltd. is a company which is engaged in the business of printing
and publishing which is totally a different line of business vis a vis assessee's business of
trade fares and exhibitions. Hence the rejection of this comparable by the Ld.CIT(A) is
upheld. The only other relief given by the Ld.CIT(A) is that the TPO was directed to
exclude domestic transactions in computation while computing adjustement based on
ALP of international transactions. We find no infirmity in this finding as transfer
pricing adjustments are to be confined only to international transactions. Thus, we
uphold these findings of the Ld.CIT(A). In the result ground no.3 is dismissed.
11. In the result the appeal of the Revenue is dismissed.
The order is pronounced in the Open Court on 19th March, 2014.
Sd/- Sd/-
(A.T.VARKEY) (J. SUDHAKAR REDDY)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 19th March, 2014
* Manga
7
Copy forwarded to:
Appellant; Respondent; CIT; CIT(Appeals); DR: ITAT
ASSISTANT REGISTRAR
ITAT, NEW DELHI
|
