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2019 (1) TMI 1838 - AT - Income TaxTP Adjustment - upward adjustment on account of reimbursement of marketing, advertisement and brand promotion - HELD THAT:- We find identical issue had come up before the Tribunal in assessee’s own case in the immediately preceding assessment year, after considering the rival arguments made by both the sides had restored the issue to the file of the AO/TPO for fresh determination of the issue as held TPO did not have the benefit of the Special Bench order in the case of LG Electronics [2013 (6) TMI 217 - ITAT DELHI] and the DRP failed to apply it correctly to the facts of the case, by making sweeping observations generally without considering the effect of relevant factors laid down by the special bench. In such circumstances, we are of the considered opinion that the ends of justice would meet adequately if the impugned order on this issue is set aside and the matter is restored to the file of the AO/TPO for a fresh determination of disallowance, if any, on account of Transfer pricing adjustment for AMP expenses. Addition of the ‘Provision of support services in area countries’ - Comparable election - submission of the assessee that certain companies which were included by the assessee should not have been rejected by the TPO/DRP since the Tribunal in assessee’s own case in the preceding years has accepted those companies as comparables - HELD THAT:- We find the order of the DRP is not a speaking order especially when in assessee’s own case, certain comparables were held to be accepted as comparables. Although the decision of the Tribunal was available for the assessment year 2006-07 and 2009-10 when the order of the DRP was passed, however, it appears that no cognizance has been taken by the DRP of the order of the Tribunal. Considering the totality of the facts of the case and in the interest of justice, we deem it proper to restore the issue to the file of the ld. DRP to pass a speaking order relating to the various comparables which the assessee is challenging in its application under Rule 27 of the ITAT Rules and which have been reproduced in the preceding paragraphs. DRP should also pass a speaking order on the issue relating to foreign exchange fluctuation/loss to be considered as operating item while computing the ALP of the international transaction. The ground raised by the Revenue is accordingly allowed for statistical purposes.
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