9911796707
TMI Blog2023 (3) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessing officer is barred by limitation and therefore, is liable to be quashed 3. That the assessing officer erred on facts and in law in making transfer pricing adjustment of Rs. 58,98,03,434 in relation to the advertisement, marketing and sales promotion expenses (hereinafter referred to as 'the AMP expenses') incurred by the appellant. 4. That the DRP/TPO erred on facts and in law in not appreciating that the AMP expenses, etc., unilaterally incurred by the appellant in India could not be characterized as an international transaction as per section 92B, in the absence of any proved understanding / arrangement between the appellant and the associated enterprise, so as to invoke the provisions of section 92 of the Act. 4.1. That the DRP/TPO erred on facts and in law in holding that there exists an international transaction in connection with incurring of AMP expenses without placing on record any tangible material or evidence to substantiate the existence of such transaction. 5. That the DRP/TPO erred on facts and in law in holding that valuable marketing intangible has been created by the appellant in India in favor of the associated enterprises. 6. That ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s gained economic ownership of the said brand. 13. That the DRP/TPO erred on facts and in law in not appreciating that adjustment on account of allegedly excess AMP expenses is not warranted in the case of the appellant, a full risk bearing entrepreneur. 14. That the TPO erred on facts and in law in holding that the associated enterprise is benefiting from the AMP expenses incurred by the appellant on account of royalty, sale of goods etc. not appreciating that such transactions have been separately benchmarked and accepted to be at arm's length 15. That the TPO erred on facts and in law in holding that the associated enterprise is benefiting from the AMP expenses on account of development of brand without appreciating that the associated enterprise is not selling any goods directly in the Indian market. 16. That assessing officer erred on facts and in law in not appreciating that the Transfer Pricing adjustment made by the TPO in the present case was a mere quantitative adjustment, on the footing that the appellant had incurred excessive amount of AMP expenditure and consequently that such Transfer Pricing adjustment was not at all permitted or authorized by Chapter X ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and therefore, is liable to be quashed 4. That the assessing officer erred on facts and in law in making transfer pricing adjustment of Rs. 59,73,53,904 in relation to the advertisement, marketing and sales promotion expenses (hereinafter referred to as 'the AMP expenses') incurred by the appellant. 5. That the TPO/DRP erred on facts and in law in holding that there exists an international transaction of incurring AMP expenses allegedly holding that the appellant has reported reimbursement received from associated enterprises on account of AMP expenses as an international transaction in Form 3CEB. 6. That the DRP /TPO factsand in law in not appreciating that such AMP expenses were reimbursed by the associated enterprise as gratis, i.e. without any quid pro quo. to support the operations of the appellant and not in pursuance of an} understanding, arrangement or action in concert to incur AMP expenses, and. therefore, do not constitute an international transaction. 7. That the DRP/TPO erred on facts and in lav. in allegedly holding that there exists an international transaction in connection with incurring of AMP expenses without bringing on record any tangible materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appreciating that use of bright line test for the purpose of undertaking benchmarking analysis has been jettisoned by the Hon'ble Delhi High Court in the case of Sony Ericsson Mobile Communications Pvt Ltd 374 ITR 118. 16. That the TPO/DRP erred on facts and in law in not following the decision of the Hon'ble Tribunal in the appellant's own case for AY 2010-11 on the basis that the Revenue is in the process of filing an appeal against the order of the Hon'ble Tribunal before the Hon'ble High Court. 17. Without prejudice that the assessing officer TPO erred on facts and in law. in not appreciating that the .AMP expenses incurred by the appellant was appropriately established to be at arm's length applying TNMM. 18. Without prejudice that the assessing officer erred on facts and in law in considering rebate amounting to Rs 207,68,364 and discount amounting to Rs 691,00,934 for the purpose of calculating alleged AMP expenditure of the assessee. 19. Without prejudice that the TPO/DRP erred on facts and in law in considering warranty claims amounting to Rs. 10,43,82,495/ as part of AMP expenses for the purpose of applying the bright line test 20. Without prejudice, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdingly the assessment order came to be passed on 30/10/2018 by making an addition of Rs. 58,98,03,434/- in relation to AMP expenses incurred by the assessee. 6. Aggrieved by the above addition the assessee has preferred the present appeal on the grounds mentioned above. The Ld. Counsel for the assessee submitted that the similar adjustment on account of AMP Expenses was made by the TPO in the case of the assessee for the Assessment Year 2010-11 which was called in question by the assessee before this Tribunal in ITA No. 476/Del/2015 on the identical grounds. The Co-ordinate Bench of the Tribunal vide order dated 26/11/2018, held that the there does not exist any international transaction between the assessee and the AE with regard to incurring of AMP expenses. The relevant portion of the order of the Coordinate Bench is as under:- "11. Hon'ble Delhi High Court in series of decisions inter alia Maruti Suzuki India Ltd.; Bausch & Lomb Eyecare (India) Pvt. Ltd. v. Additional CIT (2016) 381 ITR 227 (Del) and Honda Siel Power Products Ltd. v. Dy.CIT (2016) 237 Taxman 304 held that the Revenue is to discharge first the onus of proving the existence of an international transaction ..... X X X X Extracts X X X X X X X X Extracts X X X X
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