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2018 (9) TMI 1232 - AT - Income TaxTPA - ALP adjustment in respect of alleged international transaction on account of AMP expenses - bonafide business expenditure - Held that - The inconsistency in the approach of the AO/TPO with respect to the AMP expenditure being in the nature of an international transaction as expenditure incurred on behalf of the assessee, including the quantum and nature of expenditure and including lack of any material to suggest that there was an arrangement, understanding or action in concert with respect of the expenditure incurred by the assessee and including the fact that, in our considered view, the expenditure incurred by the assessee was in nature of bonafide business expenditure in furtherance of its legitimate business interests, we are of the considered view that there is no legally sustainable basis for the TPO coming to the conclusion that there was an international transaction, under section 92B, on the facts of this case. It was only on the basis of bright line test that the impugned ALP adjustment was made but that approach has already been negatived by various Hon ble Courts above. We see no reasons to remit the matter to the file of the TPO, as is prayed for by the learned Departmental Representative. A remand to the assessment stage cannot be a matter of routine; it has to be so done only when there is anything in the facts and circumstances to so warrant or justify. In any case, there are direct judicial precedents from Hon ble jurisdictional High Court which clearly suggest that the matter regarding existence of international transaction under section 92B, as far as possible, should be decided at the level of Tribunal itself. - Decided in favour of assessee
Issues Involved:
1. Arm's length price (ALP) adjustment related to Advertising, Marketing, and Promotion (AMP) expenses. 2. Non-adherence to jurisdictional Tribunal's decision. 3. Consideration of premium profits and transfer pricing policy. 4. Misinterpretation of international guidelines and reliance on erroneous statements. 5. Incorrect determination of excessive AMP expenses and application of bright line test. 6. Unjustified mark-up on AMP expenses. 7. Inapplicability of the Special Bench decision in the context of a distributor. 8. Inclusion of certain expenses in AMP spend ratio. Issue-wise Detailed Analysis: 1. Arm's Length Price Adjustment of AMP Expenses: The primary grievance of the assessee was against the ALP adjustment of ?6,64,70,841 for AMP expenses incurred allegedly on behalf of its parent company. The TPO observed that the AMP expenses were significantly higher than the average norm and concluded that these expenses were for the benefit of the AE's brand, thus warranting an ALP adjustment. However, the Tribunal found no material evidence to suggest an international transaction and noted that the approach of using the bright line test for such an adjustment had been rejected by the Delhi High Court in Sony Ericsson Mobile Communications Vs CIT. 2. Non-adherence to Jurisdictional Tribunal's Decision: The assessee argued that the AO/TPO/DRP did not follow the binding decision in the case of BMW India Pvt. Ltd. vs. Addl. CIT, which was pertinent to the matter at hand. The Tribunal acknowledged this contention and noted the inconsistency in the revenue authorities' approach in subsequent assessment years, where no such ALP adjustment was made. 3. Consideration of Premium Profits and Transfer Pricing Policy: The assessee contended that the premium profits earned compensated for the allegedly excessive AMP expenses and that the Moet Group's transfer pricing policy indicated that AMP expenses were funded through the import price. The Tribunal considered these arguments and found that the revenue authorities had not adequately addressed them. 4. Misinterpretation of International Guidelines: The AO/TPO/DRP were criticized for misinterpreting international guidelines on 'marketing intangibles' and the 'bright line test,' relying on incorrect and irrelevant statements to justify the TP adjustment. The Tribunal agreed that this approach was flawed and not applicable to the specifics of the case. 5. Incorrect Determination of Excessive AMP Expenses: The TPO had determined the AMP expenses to be excessive based on a distorted set of comparable companies, leading to an unjustified ALP adjustment. The Tribunal found this approach to be incorrect, noting that higher AMP expenses alone could not infer an international transaction without additional evidence. 6. Unjustified Mark-up on AMP Expenses: The TPO had applied a 15% mark-up on the alleged excessive AMP expenses without any basis. The Tribunal found no justification for this mark-up and deemed it inappropriate. 7. Inapplicability of Special Bench Decision: The revenue authorities relied on the Special Bench decision in the case of LG Electronics, which was rendered in the context of a licensed manufacturer, not a distributor. The Tribunal agreed with the assessee that this decision was not applicable to their case. 8. Inclusion of Certain Expenses in AMP Spend Ratio: The AO/TPO/DRP considered expenses like discounts, rebates, and trade incentives in computing the AMP spend ratio, which the assessee argued was incorrect. The Tribunal found merit in this argument, noting that such expenses should not have been included in the AMP spend ratio. Conclusion: The Tribunal concluded that there was no legally sustainable basis for the TPO's conclusion of an international transaction under section 92B. The approach of using the bright line test for the impugned ALP adjustment was rejected, and the Tribunal found no reason to remit the matter back to the TPO. Consequently, the impugned ALP adjustment of ?6,64,70,841 was deleted, and the appeal of the assessee was allowed.
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