2019 (3) TMI 459 - AT - Income Tax

TP adjustment - addition of Advertisement, Marketing and Promotion ('AMP') expenses - agreement of assessee with its AE descries about right of distribution of licensed product in the territory - HELD THAT:- Though the AE has reserves its right for the zones of excluded areas. The contentions of the ld. AR for the assessee is that clause 8 of the agreement does not obligates the assessee to incur expenses on AMP so as to promote the brand owned by its AE’s. And that the expenses are incurred by assessee in the normal course of its business. The perusal of the clause 7 and 8 reveals that there is no agreement between the assessee and the AE’s for sharing the expenses and the payments made by the assessee for the expenses of AMP. TPO has also not brought any fact on record that there exist any agreement between the assessee and its AE to share or reimburse the AMP expenses. Moreover, we have seen that there is no material change in the facts for the year under consideration. Therefore, considering the above factual discussions and the decision of the coordinate bench of Tribunal for AY 2008-09 to 2010-11,[2016 (5) TMI 1379 - ITAT MUMBAI] on the identical issue the ground No.2 to 21 of the appeal is allowed.

Adjustment on account of payment of Royalty and technical knowhow - HELD THAT:- Both the parties have made their exhaustive submission on the issues under consideration, however, on careful perusal of the order of Tribunal for Assessment Year 2011-12 we find that the identical issue has been restored to the file of DRP. Therefore, in all fairness we deem it appropriate to restore these grounds to the file of ld. DRP to decide the issue afresh. Needless to say that before deciding the issue afresh in accordance with law, the assessee shall be granted sufficient opportunity of hearing. The assessee is given liberty to raise all their submission before the DRP, including the argument that for assessment year 2015-16 the transfer pricing officer has accepted the payment of royalty on use of license trademark at 1.75% without making any adjustments.