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2017 (7) TMI 1004 - ITAT DELHIAMP expenditure treated as international transaction Coming to the case at hand - Held that:- We are of the considered view that when the TPO has determined the AMP expenses to be international transaction, he had no occasion to follow the ratio of the judgments in Rayban Sun Optics India Ltd. vs. CIT [2016 (9) TMI 1293 - DELHI HIGH COURT], Pr. CIT vs. Toshiba India Pvt. Ltd. [2016 (8) TMI 1175 - DELHI HIGH COURT] and Pr. CIT vs. Bose Corporation (India) Pvt. Ltd. (2016 (8) TMI 1177 - DELHI HIGH COURT) rendered by Hon’ble jurisdictional High Court discussed in the preceding paras since those judgments were not available to him. Aforesaid decisions have consistently been followed by coordinate Benches of the Tribunal. In these circumstances, we are of the considered view that it would be in the interest of justice if the impugned order is set aside and the matter is restored to the file of TPO/AO for fresh determination of the question to determine, “as to whether AMP expenditure is international transaction”, in the light of the judgments rendered by Hon’ble Delhi High Court discussed in preceding paras. In case the existence of such an international transaction is not proved, there shall not be any transfer pricing addition, by the ld. AR for the assessee. However, in case the international transaction is proved to be existed, then the TPO will determine such international transaction in the light of the judgment rendered by Hon’ble jurisdictional High Court after providing an opportunity of being heard to the assessee. TPO/AO is also required to benchmark the distribution and marketing functions both being interconnected and intertwined on an aggregate basis in accordance with the decision rendered by coordinate Bench in assessee’s own case for AY 2011-12. However, so far as first part of the directions issued by the DRP qua legal issues are concerned, the assessee sought to reserve its right to argue the same before the competent forum. However, we are of the considered view that this remedy is otherwise always available to the assessee to argue on legal issues before the competent authority
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