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2017 (1) TMI 957 - HC - Income TaxTPA - advertisement, marketing and sales promotion (AMP) expenses - (DRP) upholding the adjustments proposed by TPO holding that AMP spend of the Assessee answered the description of an international transaction as defined under Section 92B between the Assessee and its Associated Enterprise (AE) - Held that:- TAT has not rendered any categorical finding one way or the other on the central issue raised before it by the Assessee viz., there exists an international transaction between the Assessee and its AE involving AMP expenses? In the event that the ITAT decides the question regarding the existence of an international transaction between the Assessee and its AE in the negative, then obviously no other question will survive as far as the Assessee is concerned. In the event it is answered in the affirmative, then in the further appeal that may be filed by the Assessee before this Court, it will be open to the Assessee to urge, apart from the other grounds it may have, the question concerning the jurisdiction and power of the TPO to determine the existence of an international transaction even though it is not reported by the Assessee and the further question regarding the retrospective application of Section 92CA(2B) of the Act. In the event the ITAT finds the existence of an international transactions, it will proceed to decide the further question concerning the ALP of such transaction in accordance with law. If the materials available for the said decision are inadequate, it will be open to the ITAT to remand the question further to the TPO. Accordingly, the the impugned order passed by the ITAT for the AY 2006-07 is set aside and the said appeal is restored to the file of the ITAT to first decide the question regarding the existence of an international transaction involving AMP expenses between the Assessee and its AE.
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