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2021 (2) TMI 135 - HC - Income TaxTP Adjustment - associated enterprise or not - participation of one or more persons in the management or control or capital - TPO treated the expenditure incurred on the advertisement and marketing and product promotion as an international transaction and determined the arms length price by applying bright line method - HELD THAT - From perusal of the Memorandum of Finance Bill, 2002, it is evident that sub Section (2) of Section 92A was amended with effect from 01.04.2002 to clarify that mere fact of participation by one enterprise in the management or control or capital of the other enterprise, or the participation of one or more persons in the management or control or capital of both the enterprises shall not make them associated enterprises, unless the criteria specified in sub-Section (2) are fulfilled. From perusal of the aforesaid provisions, it is evident that sub-Sections (1) and (2) of Section 92A of the Act are interlinked and have to be read together. In case the provisions of sub-Sections (1) and (2) are read independently, we are afraid that one of the provisions would be rendered otiose which is impermissible in law in view of the well settled rule of statutory limitation. Therefore, the requirement contained in sub-Sections (1) and (2) of Section 92A of the Act has to be complied with. It is also pertinent to mention here that the finding recorded by the Tribunal that the assessee has not complied with the provisions of sub Section (1) of Section 92A of the Act, has not been assailed by the revenue. - Decided in favour of assessee.
Issues:
1. Interpretation of Section 92A of the Income Tax Act, 1961 regarding associated enterprises. 2. Determination of international transactions and transfer pricing adjustments. 3. Disallowance under Section 14A, Section 80JJAA, and Section 80JJA of the Act. Analysis: Issue 1: Interpretation of Section 92A The case involved a dispute over whether the provisions of Section 92A of the Income Tax Act were applicable to the transactions entered into by the assessee. The Tribunal had partly allowed the appeal of the assessee on the grounds that the requirements of Section 92A(1) had not been fulfilled, thus rendering the provisions of Section 92A not applicable. However, the revenue contended that the provisions of Section 92A(1) and (2) had to be read independently, and since the case of the assessee fell within the purview of Section 92A(2)(g), the transaction should be treated as an international transaction. Issue 2: Determination of International Transactions The Assessing Officer found that the assessee had returned international transactions in Form 3CEB and paid royalty to Jockey International Inc. The Transfer Pricing Officer computed the transfer pricing adjustment, treating the expenditure on advertisement and marketing as an international transaction. The Dispute Resolution Panel upheld the Transfer Pricing Officer's order, proposing disallowances under various sections of the Act. The Tribunal, however, held that the provisions of Section 92A were not attracted to the case, leading to the revenue's appeal. Issue 3: Disallowance under Various Sections The revenue proposed disallowances under Section 14A, Section 80JJAA, and Section 80JJA of the Act. The Dispute Resolution Panel rejected the objections of the assessee, leading to an appeal before the Tribunal. The Tribunal allowed the appeal on the grounds that the requirements of Section 92A(1) were not fulfilled, thus impacting the disallowances proposed under different sections. The High Court analyzed the provisions of Section 92A and emphasized the interlinked nature of sub-Sections (1) and (2), ultimately ruling in favor of the assessee based on compliance requirements. In conclusion, the High Court dismissed the appeal of the revenue, emphasizing the need to comply with the requirements of Section 92A for determining associated enterprises and international transactions. The judgment highlighted the interlinked nature of sub-Sections (1) and (2) of Section 92A and the importance of statutory compliance in interpreting tax provisions.
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