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2021 (3) TMI 1037 - HC - Income TaxTP adjustment - Addition of advertising, marketing and promotion expenditure (“AMP expenditure”) - Tribunal deleted the addition - HELD THAT:- As per tribunal ALP of an international transaction involving AMP expenses, the adjustment made by the TPO/DRP/ AO is not sustainable in the eyes of law. At the same time, we cannot ignore the submission of the learned DR that the matter is pending before Hon'ble Apex Court and the decision of Hon'ble Apex Court would be binding upon all the authorities. We set aside the orders of authorities below and restore the matter to the file of the Assessing Officer. We hold that as per the facts of the case and the legal position as of now and discussed above in this order, the adjustment made by the TPO/DRP/AO in respect of AMP expenses is not sustainable. Revenue, says that the impugned order has been passed to protect the interest of the respondent/revenue in the event it were to succeed in the civil appeals pending adjudication before the Supreme Court. Senior Advocate, on the other hand, says that TPO was only required to give effect to the order passed by the tribunal and therefore ought not to have passed the impugned order. Does not deny that if the respondent/revenue were to succeed before the Supreme Court, then, consequences would follow and, perhaps, the adjustment made by the TPO in the transfer pricing qua AMP would have to be factored in. Having regard to the aforesaid facts and contentions of the learned counsel for the parties, in our view, the best way forward would be to stay the operation of the impugned order and give liberty to TPO to take next steps in the matter, albeit, in accordance with the law once a decision is rendered by the Supreme Court in the pending civil appeals.
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