2017 (1) TMI 957 - HC - Income Tax

TPA - advertisement, marketing and sales promotion (AMP) expenses - (DRP) upholding the adjustments proposed by TPO holding that AMP spend of the Assessee answered the description of an international transaction as defined under Section 92B between the Assessee and its Associated Enterprise (AE) - Held that - TAT has not rendered any categorical finding one way or the other on the central issue raised before it by the Assessee viz., there exists an international transaction between the Assessee and its AE involving AMP expenses? In the event that the ITAT decides the question regarding the existence of an international transaction between the Assessee and its AE in the negative, then obviously no other question will survive as far as the Assessee is concerned. In the event it is answered in the affirmative, then in the further appeal that may be filed by the Assessee before this Court, it will be open to the Assessee to urge, apart from the other grounds it may have, the question concerning the jurisdiction and power of the TPO to determine the existence of an international transaction even though it is not reported by the Assessee and the further question regarding the retrospective application of Section 92CA(2B) of the Act. In the event the ITAT finds the existence of an international transactions, it will proceed to decide the further question concerning the ALP of such transaction in accordance with law. If the materials available for the said decision are inadequate, it will be open to the ITAT to remand the question further to the TPO. Accordingly, the the impugned order passed by the ITAT for the AY 2006-07 is set aside and the said appeal is restored to the file of the ITAT to first decide the question regarding the existence of an international transaction involving AMP expenses between the Assessee and its AE.

Summary

Issues involved:
1. Appeal against ITAT order on AMP expenses for AY 2006-07
2. Existence of international transaction between Assessee and AE regarding AMP expenses
3. Jurisdiction and power of TPO to determine international transaction not reported by Assessee

Analysis:

1. The appellant appealed against the ITAT order for the Assessment Year (AY) 2006-07, specifically challenging the adjustments made to the income related to advertisement, marketing, and sales promotion (AMP) expenses. The appellant contended that there was no international transaction between the Assessee and its Associated Enterprise (AE) concerning AMP expenses.

2. The Court referred to a previous judgment on AMP expenses involving multiple companies, including the present Assessee. It was noted that the "Bright Line Test" was deemed invalid for determining international transactions related to AMP expenses. The Court emphasized that controlled international transactions could be subject to transfer pricing adjustments under the Income Tax Act, rejecting the argument that AMP expenses were not international transactions.

3. The Assessee argued that the ITAT had remanded the matter to the Transfer Pricing Officer (TPO) for a fresh determination of the Arm's Length Price (ALP) of the international transaction concerning AMP expenses, following a previous judgment. The Assessee contended that the ITAT should have determined whether an international transaction existed between the Assessee and its AE regarding AMP expenses without remanding the matter.

4. The Court observed that the ITAT had not conclusively decided on the central issue of whether an international transaction existed between the Assessee and its AE regarding AMP expenses. It was noted that in a similar case, the Court had directed the ITAT to decide on the existence of an international transaction involving AMP expenses.

5. The Court directed the ITAT to determine the existence of an international transaction between the Assessee and its AE regarding AMP expenses without further remand. If such a transaction was found, the ITAT was instructed to decide on the Arm's Length Price (ALP) of the transaction. Additionally, the Court addressed the jurisdiction and power of the TPO to determine international transactions not reported by the Assessee, indicating that further questions would be addressed based on the outcome of the initial determination.

6. The appeal was disposed of with the direction to the ITAT to decide on the existence of the international transaction involving AMP expenses between the Assessee and its AE, ensuring that no other authority would be involved in the decision-making process, and subsequent issues would be resolved in accordance with the law.