2019 (3) TMI 2002 - AT - Income Tax

TP Adjustment - marketing and marketing development function carried out for the AE - bench mark-ng is carried out on protective basis - AMP adjustment without applying BLT - HELD THAT - On identical set of facts the coordinate bench in A. Y. 2013-14 2017 (11) TMI 1783 - ITAT DELHI has deleted the addition made on protective basis. ALP adjustment, in respect of AMP expenses by applying the bright line test (BLT), which is now decided in favour of the assessee. While learned Departmental Representative did not really address on all these aspects, he fairly agreed to our suggestion that the matter is required to be examined afresh by the AO in the light of outcome of the appellate proceedings for the other assessment years as also by way of a speaking order dealing with the specific contentions of the assessee. In the light of this undisputed position within a narrow compass of material facts, we remit the matter to the file of the Assessing Officer for fresh adjudication in the light of our above observations. Adjustment on account of provision of coordination and other support services - adjustment is the absence of segmental data and satisfactorily allocation of expenses in the segment - HELD THAT - We have carefully perused the application under rule 29 and the audit certificate filed. In our considered view since now the audited segmental data are available the TPO must examine the same and decide the issue afresh after giving a reasonable opportunity of being heard to the assessee. We accordingly restored this issue to the files of the TPO with a direction to consider and examine the audited segmental data and decide the issue accordingly. The assessee is directed to furnish relevant data before the TPO. Ground No.4 is treated as allowed for statistical purpose.

Issues Involved:
1. Assessment of Returned Income
2. Transfer Pricing Issues
3. Alleged Excessive Advertising, Marketing, and Promotion (AMP) Expenses
4. Adjustment on Account of Provision of Coordination and Other Support Services
5. Set-off of Brought Forward Losses
6. Minimum Alternative Tax (MAT) Credit
7. Levying Interest Under Section 234A
8. Penalty Proceedings Under Section 271(1)(c)

Issue-wise Detailed Analysis:

1. Assessment of Returned Income:
The assessee contested the assessment of returned income at Rs. 639,855,300, which included brought forward losses of Rs. 84,705,565. The learned Assessing Officer (AO) followed the directions of the Dispute Resolution Panel (DRP).

2. Transfer Pricing Issues:
The assessee challenged the adjustment of Rs. 381,440,197 made in the impugned order. The AO, Transfer Pricing Officer (TPO), and DRP were alleged to have erred in law and facts. The issues included:
- Jurisdiction over AMP expenditure not satisfying requisites of being an international transaction.
- Misinterpretation of AMP expenses as a transaction between the assessee and its associated enterprise (AE).
- Incorrect application of the Bright Line Test (BLT) despite it being discarded by the Delhi High Court in the Sony Mobile Communications case.
- Misclassification of selling and distribution expenses within AMP expenses.

3. Alleged Excessive Advertising, Marketing, and Promotion (AMP) Expenses:
The AO/TPO/DRP enhanced the income by Rs. 271,284,352 due to alleged excessive AMP expenses. The assessee argued:
- AMP expenses were primarily for sales activity, not brand building.
- The pharmaceutical industry regulations prohibit advertising campaigns.
- AMP expenses were incurred voluntarily for the assessee's benefit, with any AE benefit being incidental.
- The application of BLT was against binding precedents and not a prescribed method under Section 92C of the Act.

4. Adjustment on Account of Provision of Coordination and Other Support Services:
The assessee contended that the AO/TPO/DRP erred in proposing a TP adjustment for coordination and support services, arguing:
- Ignoring the principle of consistency in tax proceedings.
- Incorrect computation of operating margin at the entity level.
- Use of functionally dissimilar companies for computing the Arm’s Length Price (ALP).
- Disregarding the use of multiple-year data in TP documentation.

5. Set-off of Brought Forward Losses:
The AO/DRP erred in not granting the set-off of brought forward losses amounting to Rs. 84,705,565 for AY 2012-13.

6. Minimum Alternative Tax (MAT) Credit:
The AO/DRP failed to grant MAT credit amounting to Rs. 18,081,414 while computing the tax liability, despite the assessee having paid taxes under Section 115JB in AY 2013-14.

7. Levying Interest Under Section 234A:
The AO erroneously levied interest under Section 234A without considering that the assessee filed its return within the prescribed due date under Section 139(1).

8. Penalty Proceedings Under Section 271(1)(c):
The AO/DRP initiated penalty proceedings for allegedly furnishing inaccurate particulars of income in respect of disallowances/additions.

Judgment Analysis:

Transfer Pricing and AMP Expenses:
The Tribunal noted that the issue of AMP expenses was previously decided in favor of the assessee in ITA No. 6565/Del/2017 for AY 2013-14, where the ALP adjustment based on BLT was deleted. The Tribunal reiterated that the BLT application was unsustainable in law as per the Delhi High Court's ruling in Sony Mobile Communications. Consequently, the Tribunal deleted the addition of Rs. 27,12,84,352 on a protective basis.

Coordination and Support Services:
The Tribunal observed that the root cause of the adjustment was the absence of segmental data. The assessee provided audited segmental data with an application under Rule 29. The Tribunal remanded the issue to the TPO to examine the audited segmental data and decide afresh, directing the assessee to furnish relevant data.

Set-off of Brought Forward Losses:
The Tribunal directed the AO to re-examine the set-off of brought forward losses in light of the appellate proceedings' outcomes for preceding assessment years.

MAT Credit:
The Tribunal did not specifically address MAT credit in the detailed analysis, implying that it might be reconsidered during the fresh adjudication by the AO.

Conclusion:
The appeal was partly allowed for statistical purposes, with specific directions to the TPO and AO for fresh examination and adjudication on the remanded issues. The Tribunal's decision focused on ensuring that the AO and TPO consider all relevant data and precedents while reassessing the disputed adjustments.

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