Aurionpro Solutions Ltd v. ACIT (Mum). (Trib.)

S.92C:Avoidance of tax-Transfer pricing-Business advances- Even business advances have to be

benchmarked on Libor ALP.

The assessee, an Indian company, gave loans of Rs. 15.65 crores to its AEs in USA, Singapore and

Bahrain. It claimed that the said loans were “working capital advances” given for commercial

consideration to secure business and that no interest was recoverable on it. The TPO applied the CUP

method and determined the ALP of the advances at LIBOR plus 3% mark up. The DRP held that only

inbound loans (ECBs) taken by the Indian entities from outside India could be benchmarked with

LIBOR and that outbound loans had to be benchmarked on the interest rate prevailing in India on

corporate bonds. It treated the advance as an unrated bond having very high risk and enhanced the

assessment by directing the TPO to adopt 14% as the ALP rate. On appeal by the assessee, HELD

reversing the DRP:

The assessee’s argument that the non-charging of interest on the working capital advances to AEs from

whom the assessee was getting good business was justified by commercial considerations and that no

transfer pricing adjustment is warranted is not acceptable because the existence or non-existence of

commercial consideration between the assessee and the AEs is not a required condition for applicability

of the TP regulations Further, the advance was not the credit period extended to the AEs in respect of

business transactions but was a transaction of advancing loans to the AEs which falls under the ambit of

“international transaction” u/s 92B. In principle, the DRP is justified in its view that the ALP should be

determined on the basis of the interest rate that would have been earned by the assessee by advancing

loans to an unrelated third party (in India) such as a Fixed Deposit with the Bank. However, since

LIBOR has been accepted by the Tribunal in other cases, the ALP should be determined on the basis of

LIBOR + 2% (Siva Industries & Holding Ltd.v. ACIT (2011) 59 DTR 182 (Che), Dy. CIT Tech

Mahindra Ltd. (2011) 46 SOT 141 (Mum) &Tata Autocomp Systems 73 DTR 220 (Mum) referred). (A. Y.

2007-08)