2016 (9) TMI 1397 - AT - Income Tax

Transfer pricing adjustment on account of AMP expenses - Held that - Revenue has not been able to show the existence of an international transaction involving AMP expenses between the Assessee and its AE. - Decided in favour of the assessee.

Summary

Issues Involved:
1. Transfer Pricing Adjustment on account of Advertising, Marketing, and Promotion (AMP) expenses.
2. Transfer Pricing Adjustment on account of intra-group services.
3. Consideration of tax credit.
4. Charging of interest under Sections 234B and 234C of the Income Tax Act.

Detailed Analysis:

1. Transfer Pricing Adjustment on account of AMP expenses:
The assessee contested the addition of ?7,67,36,387 made by the Transfer Pricing Officer (TPO) on account of alleged excessive AMP expenses. The assessee argued that the AMP expenditure incurred in India, being payments made to third parties, cannot be characterized as an 'international transaction' under the provisions of the Income Tax Act. The TPO/AO/DRP failed to show the existence of an 'understanding' or 'arrangement' between the assessee and its Associated Enterprises (AEs) regarding AMP spend for brand promotion. The assessee contended that the AMP expenses were wholly and exclusively focused on generating domestic sales and not for creating marketing intangibles for the AEs. The Hon'ble Jurisdictional High Court, in the assessee's own case for the preceding assessment years, ruled that the Revenue could not show the existence of an international transaction involving AMP expenses between the assessee and its AE, thereby deciding the issue in favor of the assessee.

2. Transfer Pricing Adjustment on account of intra-group services:
The assessee also challenged the addition of ?7,22,87,247 made by the TPO in respect of services availed from its AEs. The TPO determined the arm's length price for these intra-group services at nil, disregarding the detailed documentation and evidence submitted by the assessee. The assessee argued that the decision from whom to avail services is a commercial decision and cannot be questioned by the Revenue. The Hon'ble Jurisdictional High Court, in the assessee's own case, held that the recharacterization of the transaction involving its AE based on it not being for commercial expediency was beyond the powers of the TPO and contrary to legal precedents. Therefore, the issue was decided in favor of the assessee.

3. Consideration of tax credit:
The assessee raised an issue regarding the incorrect computation of the tax credit amount. The Tribunal directed the Assessing Officer (AO) to verify the records and allow the correct tax credit in accordance with the law.

4. Charging of interest under Sections 234B and 234C:
The assessee contended that the charging of interest under Sections 234B and 234C of the Income Tax Act was consequential in nature. The Tribunal acknowledged this contention and ordered accordingly.

Conclusion:
The appeal of the assessee was allowed, with the Tribunal setting aside the impugned order and deciding the issues in favor of the assessee by following the judgment of the Hon'ble Jurisdictional High Court in the assessee's own case for the preceding assessment years. The AO was directed to verify and allow the correct tax credit and to apply the consequential nature of interest under Sections 234B and 234C.