2019 (1) TMI 1341 - AT - Income Tax

TPA - BLT method for proposing adjustment for AMP expenditure - Held that - In present facts of the case, substantive as well as protective assessment both has been made in the hands of same assessee for same year under consideration on AMP expenditure by learnt TPO. On objection being raised by assessee before DRP against the adjustment proposed, a direction was issued to AO/TPO to make adjustment to in respect of AMP expenditure by following intensity method, being the plausible method. DRP has followed view in case of CIT vs. Sony Ericson Mobile Communication India Pvt.Ltd., (2015 (9) TMI 483 - ITAT DELHI) to reject BLT method for proposing adjustment for AMP expenditure. Thus respectfully following Hon ble Delhi High Court, we hold that adjustment made on protective basis by following bright line test is not sustainable.

Issues Involved:
1. Transfer pricing adjustment of advertising and marketing expenses.
2. Validity of proceedings.
3. Treatment of advertising and marketing expenses as an international transaction.
4. Protective adjustment using Bright Line approach.
5. Selection of comparable companies for benchmarking.
6. Penalty proceedings under section 271(1)(c) of the Income Tax Act.

Transfer Pricing Adjustment of Advertising and Marketing Expenses:
The appellant filed an appeal against the assessment order by the Deputy Commissioner of Income Tax (DCIT) regarding transfer pricing adjustment of advertising and marketing expenses. The appellant challenged the adjustment made under section 92CA(3) of the Income-tax Act. The grounds of appeal included errors made by the Assessing Officer, Transfer Pricing Officer, and Dispute Resolution Panel in making the adjustment. The appellant argued against the transfer pricing adjustment of INR 8,25,69,766 on a protective basis to the total income.

Validity of Proceedings:
The appellant raised concerns regarding the validity of the proceedings, citing errors in the impugned order passed by the Assessing Officer and Transfer Pricing Officer. The appellant contended that the final assessment order was not in accordance with the provisions of the Income Tax Act. Issues related to the computation of total income and the directions of the Dispute Resolution Panel were highlighted as grounds for challenging the validity of the proceedings.

Treatment of Advertising and Marketing Expenses as an International Transaction:
The appellant disputed the classification of advertising and marketing expenses as an international transaction under section 92B of the Act. The appellant argued against the findings of the authorities, citing precedents from the Delhi High Court in various cases. The appellant contended that the expenses should not be considered an international transaction and raised objections to the recharacterization of the expenses as brand promotion services to overseas associated enterprises.

Protective Adjustment Using Bright Line Approach:
The appellant contested the protective adjustment made using the Bright Line Test (BLT) for computing adjustments on account of advertising and marketing expenses. The appellant argued against the application of BLT, referring to decisions of the Delhi High Court in relevant cases. The Tribunal held that the adjustment made on a protective basis using BLT was not sustainable, following the precedent set by the Delhi High Court.

Selection of Comparable Companies for Benchmarking:
The Tribunal considered the arguments presented by both sides regarding the selection of comparable companies for benchmarking purposes. The Tribunal observed that the Dispute Resolution Panel had followed the view of the Delhi High Court in rejecting the BLT method for proposing adjustments related to advertising and marketing expenses. Grounds 8-12 raised by the appellant were allowed, while Grounds 1-7 were dismissed as they were not argued by the appellant.

Penalty Proceedings under Section 271(1)(c) of the Income Tax Act:
The appellant challenged the initiation of penalty proceedings under section 271(1)(c) of the Act. The Tribunal noted that Ground No. 14, related to penalty proceedings, was consequential and did not require adjudication. The appeal filed by the appellant was partly allowed, with certain grounds being dismissed and others being upheld based on the arguments presented and the precedents cited.

In conclusion, the Tribunal's decision addressed various issues raised by the appellant regarding transfer pricing adjustments, the validity of proceedings, the classification of expenses as international transactions, the use of the Bright Line approach, the selection of comparable companies for benchmarking, and penalty proceedings. The Tribunal's decision was based on legal interpretations, precedents, and the specific facts and circumstances of the case.

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