2014 (4) TMI 112 - AT - Income Tax

Transfer pricing adjustments - AMP Expenses u/s 92CA(3) - Addition in relation to advertisement marketing and promotion ( AMP ) expenses under section 92CA(3) of Act Held that - ITAT Special Bench in case of LG Electronics India (P.) Ltd. 2013 (6)TMI 217 - ITAT DELHI has already dealt with legal issues raised in appeal - For quantification issue has been restored back to file of Assessing Officer - Therefore in interest of justice and equity find it appropriate to restore issues to file of Assessing Officer to be decided in view of decision of ITAT Special Bench in case of LG Electronics India (P )Ltd. 2013 (6) TMI 217 - ITAT DELHI Decided in favour of Assessee.

Summary

Issues:
Transfer pricing adjustment on Advertisement, Marketing and Promotion (AMP) expenses under section 92CA(3) of the Income Tax Act, 1961; Bright Line Limit as a statistical tool for determining routine and non-routine expenditure in respect of the AMP expenses; Comparable Uncontrolled Price (CUP) method for determining the arm's length price for alleged excessive AMP expenses; Treatment of alleged excessive expenses incurred in India for the promotion of AE's brand; Inclusion of distribution expenses as part of AMP expenses; Selection of inappropriate comparables by the TPO; Compensation for alleged excessive AMP expenses with a mark-up of 12.5%; Penalty proceedings under section 271(1)(c) of the Act; Interest levied under section 234B and 234D of the Act.

Transfer Pricing Adjustment on AMP Expenses:
The appeal pertains to the Transfer Pricing Officer (TPO) finding the AMP expenses excessive and suggesting adjustments based on the CUP method. The TPO compared the assessee's expenses with select companies and recommended an adjustment. The Dispute Resolution Panel (DRP) upheld the adjustment, leading to the current appeal.

Legal Issues Raised:
The appellant challenged the excessive AMP expenses addition, arguing that Indian Transfer Pricing Regulations do not cover such expenses as international transactions. They contended that the expenses did not result in strengthening brand value for the licensor. The appellant also disputed the use of the Bright Line Limit and the CUP method for determining arm's length price.

Arguments by the Appellant:
The appellant claimed that the AMP expenses were for product advertisements in local languages, not exclusive brand promotions. They highlighted being a risk-bearing manufacturer with no distribution role. The appellant argued against the comparables chosen by the TPO and emphasized the need to exclude sales-related expenses from AMP calculations.

Decision and Restoration:
After hearing both parties, the Tribunal decided to restore the issues to the Assessing Officer in line with a previous Special Bench decision. The matter was referred back for quantification, considering legal issues addressed in the LG Electronics India case. The appeal was allowed for statistical purposes.

This judgment addresses complex transfer pricing issues related to AMP expenses, method selection, comparables, and legal interpretations under the Income Tax Act. The restoration of the matter to the Assessing Officer ensures a thorough reconsideration in light of legal precedents.