TMI Blog2015 (11) TMI 1197X X X X Extracts X X X X X X X X Extracts X X X X ..... es below, needs to be deleted as have not been successfully replied by the department. Also since the recipient would have already discharged their tax liability on the amounts, the assessee cannot be treated as an assessee in default and that tax payment by the recipient ought to be regarded as sufficient compliance for the purposes of the provisions of section 40(a)(ia) of the Act and no disallowance is warranted in the hands of the assessee. The existence of a prima facie good case in its favour leads to the balance of convenience tilting in favour of the assessee. Therefore, finding that the assessee is likely to suffer substantial mischief, damage and injury otherwise the assessee’s request for stay for both the years i.e. the year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omic risks associated with the cost to create and maintain local market consumer appeal in relation to the licensed products and not for the benefit of AE. Thereby, the petitioner is the economic owner of the long-term distribution rights. iii) Further, in the event of termination of the distribution license, BDF AG and NIVEA India shall mutually evaluate and agree on the arm's length compensation that BDF AG shall pay NIVEA India towards the long-term distribution rights of NIVEA India. iv) The residual or entrepreneurial profits/losses from sale of goods in the Indian market are enjoyed by the Petitioner, and as a consequence, all expenses around AMP incurred for earning such entrepreneurial profits/losses would necessarily need ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the decision in the case of Sony Ericsson Mobile Communications India Private Limited and others (supra), the adjustment made on AMP expenses by the authorities below, needs to be deleted. Alternatively, it has been contended that the TPO has erroneously computed the assessee s AMP expenditure and that the comparables have wrongly been chosen. 5. Apropos the adjustment made on account of import of finished goods, it has been submitted that the TPO has disregarded the economic analysis conducted by the assessee and has determined the Arm s Length price of the transaction by selecting Transactional Net Margin Method (TNMM) and has thereby made the adjustment and that the DRP confirmed the adjustment leading to the adjustment made by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td V/s DCIT (115 TTJ-577) iv) Ranbaxy Laboratories Ltd V/s Addl.CIT (2012(345)ITR-0193-DEL. 6. It has been contended that the Bench Marking analysis justifies the ALP charged by the Manufacturing AEs on finished goods sold to the assessee; that the fact that the assessee was selected as a tested party in the earlier years should not preclude the selection of the Manufacturing AEs as the tested party so far as regards the assessment year 2010-11, for which, reliance has been placed on the following case laws: a) Quark Systems Private Limited (132 TTJ 1-Chandigarh Tribunal); b) CIT V/s Bharat General Reinsurance Co.Ltd 81 ITR 303 (Delhi High Court); c) R B Jessa Ram Fatesh Chand V/s CIT 81 ITR 409; d) CIT V/s C Parakh and Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ability to deduct tax thereon. Reliance in this regard has been placed on the following: a) CIT V/s Siemens Aktiongesellschaft, (310 ITR 320) (Bom); b) CIT V/s Industrial Engineering Projectrs Pvt. (202 ITR 1014)(Del); c) CIT V/s Dunlop Rubber Co. Ltd (142 ITR 493) Cal; d) DCIT V/s Lazard India Ltd (41 SOT 72) (Mum ITAT) e) CAIRN ENERGY INDIA PTY. LTD. V/s ACIT [2009] 126 TTJ 226 (ITAT[Chen]) f) BANGALORE INTERNATIONAL AIRPORT LTD. V/s ITO [2008] 307 ITR (A.T.) 295 (ITAT[Bang]) g) ACIT V/s Modicon Networks (P) Ltd Ltd (14 SOT 204) (Del) ITAT) h) ITO V/s Dr.Willmar Schwabe India (P) Ltd (95 TTJ 53) (Del) ITAT i) Circular No.1/2014 dated 13 January 2014 issued by the Central Board of Direct Taxes. 10. In the alte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cording the debit notes received from them. Such debit notes are paid through the accounting adjustment accounts, the amount recoverable from them for sale of goods by the assessee. It is contended that, therefore, there are no amounts of reimbursement to the super stockiest and distributor, which are outstanding /payable at the end of the year. 12. It has been further contended that for AY 2009-10, the assessee has already paid about 65% of the tax demanded and 40% of the total demand, including interest, whereas for AY 2010-11, 80% of the tax demanded and 50% out of the total demand including interest has been paid. 13. It has further been contended that for the Assessment year 2010- 11, the assessee had filed its return of income d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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