2015 (6) TMI 596 - AT - Income Tax

Transfer pricing adjustment - determination of AMP - Held that - Hon ble Jurisdictional High Court IN COMMISSIONER OF INCOME TAX I Versus MIS AMADEUS INDIA PVT. LTD. AND AMADEUS INDIA PVT. LTD. 2015 (6) TMI 590 - DELHI HIGH COURT direct the AO to deduct the incentive expenses amounting to ₹ 51.19 crores from the total AMP expenses. As regards to the remaining expenses of ₹ 3.94 crores, the AO is directed to determine the AMP afresh in accordance with the terms and guidelines issued by the Hon ble Jurisdictional High Court in the case of M/s Sony Ericsson Mobile Communications India Pvt. Ltd. Vs CIT (2015 (3) TMI 580 - DELHI HIGH COURT). Denial of the claim of the assessee u/s 10A - non-receipt of foreign remittance within stipulated time - Held that - RBI Circular No. 25 dated 01.11.2004 which allow the eligible units to realize and repatriate the full value of export proceeds within a period of 12 months from the date of export subject to extension of the period for relaxation by the competent authority. In the present case, the assessee applied for extension and also claimed that the export remittances were realized within 12 months. We, therefore, considering the totality of the fact deem it appropriate to remand this issue back to the file of the AO to be adjudicated afresh in accordance with law after providing due and reasonable opportunity of being heard to the assessee.

Issues Involved:
1. Validity of the orders passed by the AO/DRP/TPO.
2. Jurisdiction of the AO/TPO to determine Arm's Length Price (ALP).
3. Addition to total income under Chapter X of the Income Tax Act.
4. Applicability of Transactional Net Margin Method (TNMM) and adjustments for Advertising, Marketing, and Promotional (AMP) expenditure.
5. Determination of AMP expenditure as an International Transaction.
6. Application of a markup on AMP expenses.
7. Adjustment of ALP by +/-5% as per Section 92C(2).
8. Deduction under Section 10A.
9. Charging of interest under Sections 234B & 234C.

Detailed Analysis:

1. Validity of Orders:
The assessee contended that the orders passed by the AO, DRP, and TPO were bad in law and void ab initio. The Tribunal did not find merit in this general objection.

2. Jurisdiction of AO/TPO:
The assessee argued that the AO/TPO's assumption of jurisdiction to determine ALP was void ab initio. The Tribunal did not specifically address this issue separately, indicating it was part of the broader discussion on the validity of the orders.

3. Addition to Total Income:
The AO made an addition of Rs. 5,06,86,319/- under Chapter X of the Income Tax Act based on the TPO's suggestion. The assessee objected, and the DRP upheld the addition. The Tribunal noted that this issue was similar to the preceding assessment year, where the High Court had upheld the ITAT's decision to exclude incentives from AMP expenses and remanded the remaining expenses for fresh determination.

4. Applicability of TNMM and AMP Adjustments:
The assessee argued that once the TNMM was applied, no further adjustment for AMP expenses was necessary. The Tribunal referred to the High Court's decision in the preceding year, which directed the exclusion of incentives from AMP expenses and a fresh determination of the remaining expenses.

5. Determination of AMP Expenditure as an International Transaction:
The TPO held that the AMP expenditure was an international transaction under Section 92B. The Tribunal, following the High Court's earlier ruling, directed the AO to exclude incentives from AMP expenses and reconsider the remaining expenses.

6. Application of Markup on AMP Expenses:
The TPO applied a markup of PLR+2.5% on AMP expenses. The Tribunal did not specifically address this issue separately but directed a fresh determination of AMP expenses following the High Court's guidelines.

7. Adjustment of ALP by +/-5%:
The assessee contended that the AO/DRP erred in not granting the benefit of +/-5% adjustment as per Section 92C(2). The Tribunal did not address this issue separately, indicating it was part of the broader discussion on the determination of AMP expenses.

8. Deduction under Section 10A:
The AO reduced the assessee's claim for deduction under Section 10A. The DRP upheld the AO's view regarding the foreign exchange fluctuation but allowed the assessee's claim regarding the unrealized export turnover. The Tribunal remanded the issue back to the AO for verification, considering the RBI Circular allowing realization of export proceeds within 12 months.

9. Charging of Interest under Sections 234B & 234C:
The Tribunal noted that the charging of interest under Sections 234B & 234C was consequential in nature and directed accordingly.

Conclusion:
The Tribunal partly allowed the appeal for statistical purposes, directing the AO to exclude incentives from AMP expenses and reconsider the remaining expenses in line with the High Court's guidelines. The issue of deduction under Section 10A was remanded for fresh adjudication, and the charging of interest was deemed consequential.

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