2020 (3) TMI 721 - HC - Income Tax

TP Adjustment - ALP of international transaction involving AMP expenses - HELD THAT - This Court has in similar circumstances in a series of decisions including Maruti Suzuki Ltd. 2015 (12) TMI 634 - DELHI HIGH COURT Bausch Lomb Eye care (India) Pvt. Ltd. v. Additional CIT 2015 (12) TMI 1332 - DELHI HIGH COURT and Honda Siel Power Products Ltd. v. Dy. CIT 2015 (12) TMI 1333 - DELHI HIGH COURT emphasized the importance of the Revenue having to first discharge the initial burden upon it with regard to showing the existence of an international transaction between the Assessee and the AE. This Court is of the view that the ITAT was not justified in remanding the matter to the AO/TPO for determining the ALP of the alleged international transaction involving AMP expenses when in fact the Revenue was unable to show that there existed an international transaction between the Assessee and its AE in the first place. The question framed by this Court is accordingly answered in the negative i.e. in favour of the Assessee

Summary

Issues:
1. Appeal filed by the revenue under Section 260A of the Income Tax Act, 1961 challenging an order passed by the Income Tax Appellate Tribunal.
2. Whether the decision of the Tribunal to remand the matter to the Assessing Officer/Transfer Pricing Officer for determining the arms length price of advertising, marketing, and publicity (AMP) expenses was justified.
3. Application for condonation of delay in re-filing the appeal.

Issue 1:
The appeal was filed by the revenue challenging an order passed by the Income Tax Appellate Tribunal for the Assessment Year 2011-12. The case was found to be covered by the Assessee's own case decided by a coordinate Bench of the Court for the Assessment Year 2010-2011. The Tribunal had remanded the matter to the Assessing Officer/Transfer Pricing Officer for determining the arms length price of AMP expenses. However, the Court held that the Tribunal was not justified in remanding the matter as the Revenue failed to show the existence of an international transaction between the Assessee and its Associated Enterprise regarding the AMP expenses. The Court emphasized the importance of the Revenue first discharging the initial burden of proving the existence of such a transaction before proceeding to determine the arms length price.

Issue 2:
The Tribunal's decision to remand the matter for determining the arms length price of AMP expenses was based on the Assessee's request due to the unavailability of facts and figures. The Assessee argued that the matter should be sent back to the Transfer Pricing Officer for a fresh determination. However, the Court found that the Tribunal's decision to remand the matter was not justified as the material on record was sufficient to arrive at a conclusion. The Court highlighted that the Tribunal's reliance on the Bright Line Test (BLT) was unwarranted based on previous judgments declaring the BLT as an inappropriate yardstick for determining the existence of an international transaction or calculating the arms length price.

Issue 3:
The Court allowed the application for condonation of delay in re-filing the appeal, stating that the delay stands condoned. The Court dismissed the appeal filed by the revenue under Section 260A of the Income Tax Act, 1961, as no substantial question of law arose for consideration in light of the Division Bench's judgment for the Assessment Year 2010-2011. The appeal was dismissed accordingly.

This detailed analysis of the judgment provides a comprehensive overview of the issues involved and the Court's findings on each issue, emphasizing the legal principles and precedents applied in reaching the decision.