2016 (10) TMI 1073 - HC - Income Tax

Determining ALP in its international transactions - AMP expenses determination - MAM - ITAT s observation to the effect that employing of the resale price method, would virtually cast the AMP outside the international transaction - Held that - In this court s opinion, ITAT s observation cannot be held as conclusive. Rather those observations are to be considered in the light of the Sony Ericsson Mobile Communications India P. Ltd. s case (2015 (3) TMI 580 - DELHI HIGH COURT), especially paras 163 to 167 and 193 of this judgment having regard to what was stated in preceding para i.e. that AMP in such cases is to be included as part of the ALP determination as component of the international transaction and also that whether the most appropriate method is resale price method or CUP method left for application by the TPO, having regard to the peculiarities of the business module adopted by the assessee. The remit by the ITAT shall be therefore decided in the light of this court s observations in the preceding paragraph.

Summary

Issues:
1. Delay in refiling the appeals.
2. Exemption application.
3. Grievance regarding observations made by ITAT in ALP determination.
4. Criteria for treating advertising, marketing, and sales promotion (AMP) expenses.
5. Appropriate method for ALP determination.
6. Interpretation of ITAT's observation on resale price method.

Delay in Refiling:
The High Court condoned the delay in refiling the appeals due to reasons mentioned in the applications. The applications were disposed of accordingly.

Exemption Application:
Exemption was allowed subject to just exceptions. The applications for exemption were disposed of by the court.

Grievance Regarding ITAT Observations:
The assessee had a grievance with the observations made by ITAT in the ALP determination of international transactions for AY 2006-2007 to 2008-2009. The court referred to its previous judgment in Sony Ericsson Mobile Communications India P. Ltd. vs. Commissioner of Income Tax, which outlined the criteria for treating AMP expenses in ALP determination. The court held that AMP expenses are to be included in ALP determination as part of international transactions and the appropriate method (RP or CUP method) is to be decided based on the business module adopted by the assessee. The ITAT's observation on the resale price method was to be considered in light of the court's previous judgment.

Criteria for Treating AMP Expenses:
The court reiterated that AMP expenses fall within the matrix of international transactions and are to be included in ALP determination. The judgment in Sony Ericsson Mobile Communications India P. Ltd.'s case specified that there is no hard and fast rule for the appropriate method to be adopted, whether RP method or CUP method.

Appropriate Method for ALP Determination:
The court emphasized that the most appropriate method for ALP determination, either RP method or CUP method, is to be decided by the TPO based on the peculiarities of the business module adopted by the assessee. The decision summarized that AMP expenses are to be included in ALP determination as part of international transactions.

Interpretation of ITAT's Observation:
The ITAT's observation on the resale price method was analyzed by the court in light of the previous judgment. The court held that the observations should be considered in conjunction with the criteria outlined in the Sony Ericsson Mobile Communications India P. Ltd.'s case for including AMP expenses in ALP determination. The appeals were disposed of based on these considerations.