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2019 (2) TMI 1643 - DELHI HIGH COURTTP Adjustment - case was referred to TPO u/s 92CA for computation of the Arm’s Length - AMP expenses - as alleged revenue was not given sufficient opportunity - Revenue’s only argument is that for determining the comparables, ITAT relied on the TP analysis conducted by the TPO and that such an exercise was based on application of the “bright line” test, which has since been discarded and ITAT should have remitted the entire matter for fresh consideration by the TPO - HELD THAT:- Having gone through the entire record, the court is of the opinion that the revenue’s arguments are insubstantial and unmerited. There is no per se rule that in every case, the ITAT had to necessarily remit each matter. Given that the materials in the form of reports and documents were available with the ITAT, that the tribunal itself carried out the analysis, based on the record, of the facts which were disclosed before the TPO, does not result in any credence to the revenue’s complaint that it was not given sufficient opportunity. This court notices that the matters were required to be re-examined by the ITAT itself in Sony Ericsson [2015 (9) TMI 483 - ITAT DELHI] and in view of the further circumstance that the remit was pending for 3 years, the revenue’s arguments have no force. AMP exercise as flawed - this court again feels that the analysis carried out by the ITAT, having regard to the details pertaining to the comparable entities, is fairly exhaustive and reasonable; the findings are in Paras 39-49 of the impugned order. The ITAT’s findings, consequently that since the brand under which the assessee’s products were marketed were relatively unknown in India, the advertisement expenditure could not have been said to inure to the benefit of the AE, which was otherwise a well known brand overseas - the nature of its marketing and business expenditure was considered. The revenue’s grouse that the TPO had treated the AMP expenditure as a bundled one, is not also tenable. Sony Ericsson itself indicates that there cannot be a dogmatic approach as to whether bundled transactions of the kind ought to be segregated and that the entire issue is a fact dependent exercise. TPO treated the transactions as a bundled one; this court holds that as such that is not a question of law. Lastly, both on the credit notes as well as the fact that in the case of comparables, the margins were in fact lower; the ITAT therefore, correctly, in the opinion of this court recorded its findings that the assessee had been suitably compensated by its AEs. - Decided against revenue
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