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2018 (11) TMI 1106 - AT - Income TaxTPA - Adjustment made to the arm's length price of advertisement, marketing and promotional (AMP) expenditure incurred by the assessee in respect of consumer segment - whether AMP expenditure incurred in India gives rise to international transaction with the AEs? - Held that:- It is relevant to observe, the DRP has upheld the adjustment made by the Transfer Pricing Officer simply for the reason that the Department has no remedy available against an order of the DRP favourable to the assessee. As regards the decisions relied upon by the DR as noted herein before, on a careful analysis of each one of these decisions we are of the considered opinion that they will not be of any help to the Department, since, they were rendered prior to the decision of the Hon'ble Delhi High Court in Maruti Suzuki India Ltd. (2015 (12) TMI 634 - DELHI HIGH COURT) and all of them proceeded on the basis of the decision rendered in Sony Ericson Mobile Communications (2015 (3) TMI 580 - DELHI HIGH COURT). We hold that the AMP expenditure incurred by the assessee not being an international transaction as defined under section 92B of the Act, no transfer pricing adjustment could have been made by the Transfer Pricing Officer. More so, when the method adopted by the Transfer Pricing Officer for making such adjustment is not provided under the statute. Before parting, we must observe that all other international transactions entered into between the assessee and its AE were found to be at arm’s length. It is also not disputed, if the international transactions are considered as a whole, the margin shown by the assessee is more than the margin shown by the comparables selected by the Transfer Pricing Officer. Grounds raised are allowed. Short TDS credit granted to the assessee - Held that:- We are inclined to restore the issue to the Assessing Officer with a direction to verify assessee’s claim and grant credit for TDS as per supporting evidence to be furnished by the assessee. This ground is allowed for statistical purposes.
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