2019 (3) TMI 459 - AT - Income Tax

TP adjustment - addition of Advertisement, Marketing and Promotion ('AMP') expenses - agreement of assessee with its AE descries about right of distribution of licensed product in the territory - HELD THAT - Though the AE has reserves its right for the zones of excluded areas. The contentions of the ld. AR for the assessee is that clause 8 of the agreement does not obligates the assessee to incur expenses on AMP so as to promote the brand owned by its AE s. And that the expenses are incurred by assessee in the normal course of its business. The perusal of the clause 7 and 8 reveals that there is no agreement between the assessee and the AE s for sharing the expenses and the payments made by the assessee for the expenses of AMP. TPO has also not brought any fact on record that there exist any agreement between the assessee and its AE to share or reimburse the AMP expenses. Moreover, we have seen that there is no material change in the facts for the year under consideration. Therefore, considering the above factual discussions and the decision of the coordinate bench of Tribunal for AY 2008-09 to 2010-11, 2016 (5) TMI 1379 - ITAT MUMBAI on the identical issue the ground No.2 to 21 of the appeal is allowed. Adjustment on account of payment of Royalty and technical knowhow - HELD THAT - Both the parties have made their exhaustive submission on the issues under consideration, however, on careful perusal of the order of Tribunal for Assessment Year 2011-12 we find that the identical issue has been restored to the file of DRP. Therefore, in all fairness we deem it appropriate to restore these grounds to the file of ld. DRP to decide the issue afresh. Needless to say that before deciding the issue afresh in accordance with law, the assessee shall be granted sufficient opportunity of hearing. The assessee is given liberty to raise all their submission before the DRP, including the argument that for assessment year 2015-16 the transfer pricing officer has accepted the payment of royalty on use of license trademark at 1.75% without making any adjustments.

Issues Involved:
1. Adjustment on account of Advertisement, Marketing, and Promotion (AMP) expenses.
2. Adjustment on account of payment of royalty for use of technical know-how and trademark.
3. Levy of interest and initiation of penalty proceedings.

Detailed Analysis:

1. Adjustment on account of Advertisement, Marketing, and Promotion (AMP) expenses:
The primary issue revolves around the adjustment of AMP expenses amounting to ?304.69 crores, which the Transfer Pricing Officer (TPO) alleged to be an international transaction under Section 92B. The appellant argued that these expenses were purely domestic and incurred in the normal course of business without any arrangement with its Associated Enterprises (AEs) for brand promotion. The appellant further contended that the TPO's application of the Bright Line Test (BLT) was not prescribed under the Income Tax Act and Rules.

The Tribunal noted that similar adjustments were made in previous assessment years (AY 2008-09 to 2010-11) and were deleted by the Tribunal, holding that the AMP expenses were not international transactions. The Tribunal reiterated that the AMP expenses were incurred for the appellant's business in India and there was no agreement or arrangement with the AE to incur these expenses. The Tribunal referred to the decisions of the Hon’ble Delhi High Court in CIT vs. Whirpool of India Ltd. and Bouch & Lomb Eyecure India Pvt. Ltd. vs. ACIT, which supported the appellant's stance. Consequently, the Tribunal allowed the grounds of appeal related to AMP expenses, holding that these were not international transactions and thus not subject to adjustment.

2. Adjustment on account of payment of royalty for use of technical know-how and trademark:
The TPO made an adjustment of ?47.91 crores (?29.48 crores for technical know-how and ?18.43 crores for trademark), arguing that the appellant should not have paid royalty as the brand value was generated by the appellant through AMP expenses. The appellant contended that the licensed trademarks were well-known globally and the royalty payments were justified and benchmarked using the Comparable Uncontrolled Price (CUP) method.

The Tribunal observed that the TPO determined the ALP for trademark royalty at nil without applying any prescribed method under Section 92C and without bringing any comparables on record. The Tribunal emphasized that the TPO has no jurisdiction to question the commercial expediency of the expenditure under Section 37(1) of the Act. The Tribunal also noted that the TPO's approach of estimating the rate for technical know-how royalty was not justified. The Tribunal referred to its decision in the appellant's own case for AY 2011-12, where similar issues were restored to the file of the Dispute Resolution Panel (DRP) for a fresh decision. Accordingly, the Tribunal restored the issues related to royalty payments to the DRP for a fresh decision, allowing the appellant to present all its submissions, including the acceptance of the royalty rate by the TPO in AY 2015-16.

3. Levy of interest and initiation of penalty proceedings:
The appellant challenged the levy of interest under Sections 234B, 234C, and 234D, and the initiation of penalty proceedings under Section 271(1)(c). The Tribunal noted that these grounds were consequential and did not require specific adjudication.

Conclusion:
The appeal was partly allowed. The Tribunal deleted the adjustments on account of AMP expenses, holding that they were not international transactions. The issues related to royalty payments were restored to the DRP for a fresh decision, and the grounds related to the levy of interest and initiation of penalty proceedings were deemed consequential.

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