Transfer pricing provisions not applicable to investment in foreign subsidiary

In a recent ruling in the case of Vijai Electricals Ltd. (“Taxpayer”), the Hyderabad Bench of the Income-tax Appellate Tribunal (“Tribunal”), has held that an investment made in a foreign subsidiary  is not an international transaction within the meaning of section 92B of the Income-tax Act, 1961 (“Act”) and accordingly, transfer pricing provisions are not applicable. 

 

Brief facts of Taxpayer’s case:

 

·         The Taxpayer had invested certain amounts in share capital of its overseas subsidiaries during the previous year relevant to Assessment Year (“AY”) 2007-08. The Taxpayer had not filed any report in Form 3CEB with the tax return. The regular assessment under section 143(3) of the Act for that year had been completed by the Assessing Officer (“AO”). 

 

·         The Commissioner of Income-tax (“CIT”) noted that, during the relevant year, the Taxpayer had invested around Rs 21 crores in its three subsidiaries situated outside India. The CIT held that the transaction of investing in foreign subsidiaries was an international transaction under Section 92B of the Act, and since the AO had completed the assessment without examining/ referring these transactions to Transfer Pricing Officer (“TPO”), the order was erroneous and prejudicial to the interests of the Revenue.  Therefore, invoking his powers for revision under section 263 of the Act, the CIT set aside the assessment order and directed the AO to do a fresh assessment, after referring the transactions to the TPO for determining the arm’s length price (“ALP”).

 

·         Aggrieved, the Taxpayer filed an appeal with the Tribunal against the order passed by the CIT under section 263 of the Act. 

 

Taxpayer’s key contentions:

 

·         The capital investment made in a foreign subsidiary is not an international transaction as per section 92B of the Act and, thus, there was no requirement of filing a report in Form 3CEB.

 

·         The transaction was not one of sale involving computation of income and giving rise to an international transaction contemplated under Chapter X of the Act.

 

·         Transfer pricing provisions are applicable only when there is income chargeable to tax arising from the transaction, which was not the case for the Taxpayer.  

 

·         Reliance was placed on Circular No. 14 dated November 22, 2001 and rulings of the Authority for Advance Rulings (“AAR”) in the case of Dana Corporation, In Re [321 ITR 178 (AAR)] and Amiantit International Holding Ltd, In Re [322 ITR 678 (AAR)].

 

Revenue’s contentions:

 

·         The main contention of the Department before the Tribunal was that the assessment order passed by the AO was erroneous and capable of being revised under Section 263 of the Act, as the AO had failed to examine and consider the factual and legal aspects of the case.

·                

Decision of the Tribunal:

 

The Tribunal, ruling in favour of the Taxpayer, set aside the order of the CIT and held as under:

 

·         there is no income element in transactions involving investment in the share capital of a foreign subsidiary;

 

·         the transaction of investment in share capital of a  foreign subsidiary is not in the nature of an international transaction referred to section 92B of the Act; and

 

·         transfer pricing provisions are not attracted  in the absence of income.