TMI Blog2017 (5) TMI 1352X X X X Extracts X X X X X X X X Extracts X X X X ..... units of Manessar (Haryana) & Chennai (Tamilnadu) and there is a net profit in Rudrapur Unit. The TPO has only disallowed this claim as the assessee was not involved in manufacture of any item covered by Schedule XIV, where as the assessee has referred Schedule XIII and submitted that it is not considered by the TPO. After verifying Schedule XIII & XIV it is pertinent to note that the assessee’s location at Rudrapur is coming under the scope of 80IC but the address was not properly verified by the TPO. Therefore, this needs to be verified. We therefore, remit this issue back to the file of the TPO to examine the same as relates to the applicability of the Schedule XIII. - ITA No.892/Del/2017 - - - Dated:- 16-5-2017 - SHRI S.V. MEHROTRA, VICE PRESIDENT, AND SHRI KULDIP SINGH, JUDICIAL MEMBER For The Assessee : Shri Nageswar Rao, Advocate For The Department : Shri Amrendra Kumar, CIT, DR Shri Neeraj Kumar, Sr. DR ORDER PER S . V . MEHROTRA, VP : This appeal filed by the assessee is directed against the final assessment order passed by the AO u/s 143(3) read with section 144C of the Income-tax Act, 1961 (hereinafter also called the Act ) on 24. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination of ALP of AMP expenses. The Assessing Officer also denied the deduction u/s 80IC in view of the direction contained in the order of ld. Principal CIT, passed u/s 263 of the Act, dated 14.12.2016 u/s 143(3) read with section 263. Being aggrieved, the assessee is in appeal before us and has taken the following grounds of appeal:- Without prejudice to the appeal filed by the appellant before Punjab Haryana High Court in relation to the assessment year under consideration, the appellant submits the following grounds of appeal which are mutually exclusive of and without prejudice to each other . 1 . That Assessing Officer ( Ld . AO ) / Transfer Pricing Officer ( Ld . TPO )/ Dispute Resolution Panel ( Ld . DRP ) erred in assessing the income of the Appellant at INR 2,66,44,84,9001 - as against returned income of INR 13,19,79,440 . 3 . That the impugned orders passed by AO pursuant to DRP directions making an addition of INR 2,05,31,96,324 /- to the total income of the Appellant on account of adjustment in relation to Advertising, Marketing Promotion Expenses ( ,AMP' ) using Bright Line Test ( 'BL T ) are contrary to catena of decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in the facts and circumstances of the case DRP / TPO / AO erred in failing to appreciate that AMP was benchmarked as function by Appellant being closely linked to overall business activities and it would be unjustified to segregate the same, without prejudice impugned order completely misinterpreted the decisions of Hon'ble Courts / Tribunal . 10 . That Ld . AO erred in including issues arising from separate proceedings u / s 263, which are distinct and different proceedings, resulting in duplicative and unlawful demand . 11 . That on facts of the case and in law, the Ld . AO erred in initiating penalty proceedings under section 274 read with section 271 of the Act . Appellant craves leave to add, alter, modify, substitute or withdraw any of the above ground and to submit such further grounds at or before the hearing of the appeal, so as to enable decision in accordance with law . 3. At the outset, the ld. counsel for the assessee submitted that both the issues are covered by the decision of the Tribunal in the assessee s own case for assessment year 2011-12 vide ITA No.789/Del/2016, wherein the Tribunal has remanded both the issues to the file of As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ht of the judgment in Sony Ericsson Mobile Communications ( India ) Pvt . Ltd . Vs . CIT ( 2015 ) 374 ITR 118 ( Del ) , in which the AMP expenses as an international transaction has been accepted . In another judgment dated 28 . 1 . 2016 of the Hon ble Delhi High Court in Sony Ericson Mobile Communications ( India ) Pvt . Ltd . ( for A . Y . 2010 - 11 ) , the question as to whether AMP expenses is an international transaction, has been restored for a fresh determination . There are three recent judgments of the Hon ble Delhi High Court, viz . , Rayban Sun Optics India Ltd . Vs . CIT ( dt . 14 . 9 . 2016 ) , Pr . CIT Vs . Toshiba India Pvt . Ltd . ( dt . 16 . 8 . 2016 ) and Pr . CIT vs . Bose Corporation ( India ) Pvt . Ltd . ( dt . 23 . 8 . 2016 ) in all of which similar issue has been restored for fresh determination in the light of the earlier judgment in Sony Ericsson Mobile Communications India Pvt . Ltd . ( supra ). Respectfully following the predominant view of the Hon ble High Court, we are of the considered opinion that it would be in the fitness of things if the impugned order is set aside and the matter is restored to file of TPO / AO ..... X X X X Extracts X X X X X X X X Extracts X X X X
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