9911796707
TMI Blog2017 (11) TMI 386X X X X Extracts X X X X X X X X Extracts X X X X ..... case and in law, the AO has erred in assessing the total income of the Appellant under section 143(3) of the Act, for the relevant assessment year at INR 46,73,05,373 as against the returned income of INR 3,82,78,270. 2. That on the facts and circumstances of the case and in law, the orders passed by the AO/TPO were bad in law as the pre-requisite for applying Chapter-X, i.e., existence of an international transaction between two Associated Enterprises ("AE") under section 92B of the Act, was not satisfied or existed as there was no agreement, understanding or arrangement between the Appellant and the AE for incurrence of such expenditure by the Appellant and the Dispute Resolution Panel ("DRP") erred in upholding the same. 2.1 That on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction related to AMP expenditure without their being any order or reference from the AO in relation thereto. Notwithstanding and without prejudice to the above grounds that the AMP expenditure incurred by the Appellant does not constitute an international transaction under Chapter X of the Act, the Appellant craves to raise following grounds on merits: 5. That on facts and circumstances of the case and in law, the AO/DRP/TPO have erred in making an adjustment in respect of alleged international transaction of AMP expenditure, without appreciating that adjusted gross profit margin as well as operating margin of the Appellant was better than the comparables. 6. That on the facts and circumstances of the case and in law, the AO/DR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quantifying arm's length price of the alleged international transaction of AMP expenditure. 9. That on the facts and circumstances of the case and in law, the AO have erred in levying / charging interest under sections 234B of the Act. Each of the above grounds are independent and without prejudice to the other grounds of appeal preferred by the Appellant. The Appellant prays for leave to add, alter, vary, omit, substitute or amend the above grounds of appeal, at any time before, or at, the time of hearing of the appeal." 2. The briefly stated facts of the case are that, assessee is a whollyowned subsidiary of "Nickon Corporations, Japan". It was engaged in business of import, distribution and sales for 'Nikon Imaging Products' in In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The assessee filed objections against the draft assessment order before the Ld. DRP. After taking into consideration the objections of the assessee, the Ld. DRP issued directions to reduce the AMP adjustment on substantive basis to nil against the addition proposed of Rs. 33,08,51,870/- by the Assessing Officer. The Ld. DRP, however, upheld the proposal of the Assessing Officer to make an adjustment for AMP on protective basis amounting to Rs. 42,90,27,103/-. In view of the directions of the Ld. DRP, the Assessing Officer passed final assessment order on 28/09/2017 in terms of section 143(3) r.w.s. 144C of the Act, in which he made AMP adjustment amounting to Rs. 42,90,27,103/- on protective basis. Aggrieved with the order of the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l/2017 TAXMANN.COM 518 (Delhi-Trib, ITO vs. M/s. Fussy Financial Services Pvt. Ltd. in ITA No.4227/Del/2014 dated 05.06.2017, Perfetti Van Melle India Pvt. Ltd. vs. DCIT in ITA No.1073/Del/2017 dated 24.05.2017, decision rendered by Hon'ble Delhi High Court in Sony Ericsson Mobile Communications India (P.) Ltd. vs. CIT-III - (2015) 55 taxmann.com 240 (Delhi) and decision rendered by Hon'ble Gujarat High Court in Veer Gems vs. ACIT - (2011) 15 taxmann.com 355 (Gujarat) contended that TP adjustment on protective basis is not sustainable and order is itself void ab initio. The ld. AR for the assessee further contended that BLT could have been applied at the first stage. 16. The coordinate Bench of the Tribunal in case cited as Perfetti Van M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... promotion of brand in India, however, no reimbursement of expenses was made from AEs - Hence, he used bright line test by segregating non- routine expenses and by deducting amount representing bright line from value of gross sales and determined excess AMP incurred by assessee and added same to income of assessee :- Whether where comparables adopted by assessee, with or without making adjustments as a bundled transaction had been accepted by TPO, it would be illogical and improper to treat AMP expenses as a separate transaction - Held, yes- Whether bright line test has no statutory mandate and it is not obligatory to subject AMP expenses as a bright line test and consider non-routine AMP as a separate transaction - Held, yes" 7. We find th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
