2017 (9) TMI 1282 - AT - Income Tax

TPA - determination of ALP - TPO by applying the Bright Line Test (BLT) proposed adjustment on protective basis - Held that - Following the decision rendered in case of Sony Ericsson Mobile Communications India (P.) Ltd. (2015 (3) TMI 580 - DELHI HIGH COURT) and Perfetti Van Melle India Pvt. Ltd. (2017 (5) TMI 1305 - ITAT DELHI), TP adjustment amounting to ₹ 22,30,18,964/- by applying BLT is not sustainable on protective basis having no statutory mandate. So, ground is determined in favour of the assessee.

Summary

Issues:
1. Assessment of total income under section 143(3) of the Income-tax Act, 1961.
2. Conformity of final assessment order with the draft assessment order.
3. Validity of the order passed by the AO under section 92CA(4) of the Act.
4. Validity of the Transfer Pricing Officer's computation of Arm's Length Price.
5. Application of Bright Line Test for transfer pricing adjustment.
6. Brand building services and mark-up on AMP expenditure.
7. Quantitative/economic adjustments for ALP calculation.
8. Benefit of (+/-) 5% range as per section 92C(2) not provided.
9. Levying/computing interest under sections 234B and 234C of the Act.

Analysis:
1. The appellant, a subsidiary of a Japanese company, challenged the assessment of its total income under section 143(3) of the Income-tax Act, 1961, for the assessment year 2010-11, disputing the discrepancy between the assessed income and the returned loss.
2. The issue of conformity between the final assessment order and the draft assessment order arose due to discrepancies, leading to the appellant seeking to set aside the impugned order passed by the AO.
3. The validity of the AO's order under section 92CA(4) was questioned, alleging non-conformity with statutory provisions, rendering the order void ab-initio and legally flawed.
4. Concerns were raised regarding the Transfer Pricing Officer's computation of Arm's Length Price for Advertising, Marketing, and Promotional (AMP) expenditure, alleging simultaneous computation on substantive and protective bases against transfer pricing norms.
5. The application of the Bright Line Test for transfer pricing adjustment was challenged, with the appellant contending that the test was rejected by the Tribunal previously, rendering the adjustment void ab-initio.
6. The appellant argued that it was not engaged in providing value-added services to the Associate Enterprise, questioning the necessity of a mark-up on incurred AMP expenditure.
7. Quantitative/economic adjustments were not granted by the AO/TPO while calculating the ALP of the alleged international transaction involving AMP expenditure, raising concerns about the fairness of the assessment.
8. The appellant contended that the AO/TPO failed to provide the benefit of the (+/-) 5% range as mandated by the proviso to section 92C(2) of the Act, impacting the accuracy of the transfer pricing assessment.
9. Lastly, the appellant disputed the levy/computation of interest under sections 234B and 234C of the Act, alleging errors in the AO's approach.

This detailed analysis covers the various issues raised in the legal judgment, highlighting the complexities and challenges faced by the appellant in contesting the tax assessment and transfer pricing adjustments.