2019 (1) TMI 1061 - AT - Income Tax

TPA - AMP expenses treated as international transaction by applying bright line test - Held that - Since basis on which adjustment has been made being bright line test itself has been rejected by Hon ble Delhi High Court in assessee s own case for Assessment Year 2008-09, no further interference can be called for at this stage. Further reliance placed by Ld.Sr.DR on BEPS guidelines and action plan 8-10 cannot be applied as the same is yet to be implemented. No purpose will be served by keeping present appeal pending, as issues raised by revenue in assessee s own case along with other cases, has not been listed before Hon ble Supreme Court. We are therefore inclined to follow view taken by this Tribunal in assessee s own case which has been upheld by Hon ble High Court for Assessment Year 2008-09. We therefore, reject prayer advanced by Ld.Sr.DR for adjournment. Mismatch in 26 A-S - Held that - Perusal of record it appears that differential amount reflected in form 26 A-S were not properly reconciled. As now assessee has all relevant information for the same, in the interest of natural Justice, we direct Ld. AO to tally database of revenue in light of details filed by assessee. Disallowance of expenses u/s 37 incurred by assessee on account of alleged AMP expenses - Held that - As the issue relating to nature of AMP expenses being international transaction or not has been set aside to Ld.AO in preceding paragraphs, the allowability of such expenses claimed by assessee under section 37 of the Act also deserves to be set-aside. The outcome of this ground raised depends upon decision of Hon ble Supreme Court in assessee s own case. Disallowance of expenses of tour packages given to dealers - onus to substantiate its claim with actual figures for such package tools undertaken by employees/dealers as a part of incentives - Held that - From the records we understand that no documents/evidences have been placed to establish the claim. We are therefore inclined to set aside this issue back to learn the AO/TPO for readjudication. Assessee shall file all requisite details in order to establish the claim. It shall give itemised details regarding the incentives that have been awarded to its employees or dealers as the case may be. Ld. AO/TPO shall then verify the same and if found in order shall allow the claim of assessee even though the expenses has been accounted for in subsequent financial year. - Ground raised by assessee stands allowed for statistical purposes. Claiming weighted deduction under section 35(2AB) in respect of expenses incurred by in-house research & development facility - Held that - Assessing Officer has not got an opportunity to verify claim in light of documents relied upon by assessee before us. In the interest of natural Justice, we set aside this issue to Ld.AO for due verification of documents and to consider claim of assessee in light of decision delivered by Hon ble Delhi High Court in case of Maruti Suzuki India Ltd 2017 (8) TMI 248 - DELHI HIGH COURT - Additional ground of assessee stands allowed for statistical purposes.

Summary

Issues Involved:
1. Legality of the assessment order.
2. Transfer Pricing adjustments related to AMP expenses.
3. Corporate tax additions and disallowances.

Detailed Analysis:

1. Legality of the Assessment Order:
The appellant argued that the assessment order framed by the officer under Section 143(3) read with Section 144C of the Income Tax Act, 1961, is "bad in law, violative of principles of natural justice and void ab-initio." The Tribunal dismissed this ground as it was general in nature and did not require adjudication.

2. Transfer Pricing Adjustments Related to AMP Expenses:
The appellant contested the addition of ?243.85 crores on account of alleged differences in the arm’s length price of international transactions related to AMP expenses.

- Application of Bright Line Test (BLT): The TPO had used the BLT to determine the excess AMP expenses, which was subsequently overruled by the Delhi High Court in the case of Sony Ericson India Pvt. Ltd. The Tribunal noted that the BLT is not an appropriate method for determining the existence of an international transaction for calculating the arm’s length price.

- International Transaction and AMP Expenses: The Delhi High Court in the appellant's own case for AY 2008-09 held that there was no international transaction involving AMP expenses between the appellant and its AE. Consequently, the Tribunal set aside the issue to the AO/TPO to pass a fresh order considering the decision of the Supreme Court, which is pending.

- Re-characterization of the Appellant: The TPO/DRP had re-characterized the appellant as a limited risk service provider, which was contested. The Tribunal noted that the appellant should be considered a full risk-bearing manufacturer/distributor.

- Economic Ownership of Intangibles: The Tribunal observed that the appellant, by performing critical decision-making functions, controls the intangible and should be considered the owner of such intangible.

The Tribunal allowed the grounds related to AMP expenses for statistical purposes, setting aside the issue to the AO/TPO for reconsideration in light of the Supreme Court's pending decision.

3. Corporate Tax Additions and Disallowances:
Several grounds were raised concerning corporate tax additions and disallowances:

- Mismatch in Form 26AS: Grounds related to cash deposits, sales tax differences, lease payments, club membership fees, and undisclosed income due to mismatches in Form 26AS were set aside to the AO for reconciliation based on the appellant's submissions.

- Disallowance of AMP Expenses under Section 37: The Tribunal set aside the issue of disallowance of AMP expenses under Section 37, linking it to the primary issue of AMP expenses as an international transaction, pending the Supreme Court's decision.

- Provision for Tour Packages: The Tribunal set aside the disallowance of ?3.25 crores for tour packages given to dealers, directing the AO to verify the claim with proper documentation and allow it if found in order.

- Interest and Penalty: Grounds related to the levy of interest under Sections 234B, 234C, and 234D were noted as consequential, and the initiation of penalty proceedings under Section 271(1)(c) was deemed premature.

For the subsequent assessment years 2011-12 and 2012-13, the Tribunal decided the grounds in a similar manner as for AY 2010-11. Additionally, for AY 2011-12, an additional ground was raised concerning the weighted deduction under Section 35(2AB) for R&D expenses, which was admitted and set aside to the AO for verification and consideration based on the Delhi High Court's decision in Maruti Suzuki India Ltd.

Conclusion:
The Tribunal allowed the appeals for statistical purposes, setting aside several issues to the AO/TPO for reconsideration and verification, particularly in light of pending decisions and additional documentation provided by the appellant. The appeals for AY 2011-12 and 2012-13 were decided similarly to AY 2010-11, with additional grounds for AY 2011-12 also set aside for verification.