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.
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."
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).
(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
- 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.
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.