TMI Blog2017 (1) TMI 957X X X X Extracts X X X X X X X X Extracts X X X X ..... nternational transaction between the Assessee and its AE in the negative, then obviously no other question will survive as far as the Assessee is concerned. In the event it is answered in the affirmative, then in the further appeal that may be filed by the Assessee before this Court, it will be open to the Assessee to urge, apart from the other grounds it may have, the question concerning the jurisdiction and power of the TPO to determine the existence of an international transaction even though it is not reported by the Assessee and the further question regarding the retrospective application of Section 92CA(2B) of the Act. In the event the ITAT finds the existence of an international transactions, it will proceed to decide the further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 92B of the Act between the Assessee and its Associated Enterprise (AE). The case of the assessee throughout in the proceedings has been that there does not exist any international transaction involving the Assessee and its AE in relation to AMP expenses. 3. During the pendency of the appeal before the ITAT, this Court in Sony Ericsson Mobile Communications India Pvt. Ltd. v CIT [2015] 374 ITR 118 (Del) delivered a comprehensive judgment on the issue of AMP expenses. The said decision of this Court was common to the appeals filed by Sony Ericsson Mobile Communications India Pvt. Ltd./Sony Mobile Communication India Pvt. Ltd.; Discovery Communications India, Haier Appliances Pvt. Ltd.; Reebok India Co.; Canon India Pvt. Ltd. and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of this Court in Sony Ericsson Mobile Communications India Pvt. Ltd. v CIT (supra) the Assessee has preferred an appeal before the Supreme Court of India and the said appeal is pending consideration. It is submitted that as far as the AY in question i.e., 2006-07 is concerned, the Assessee has questioned the decision of the AO/TPO that there exists an international transaction between the Assessee and its AE in relation to AMP expenses. The consistent stand of the Appellant- Assessee is that there is no such international transaction. In the impugned order the ITAT has, while purportedly following the decision of this Court in Sony Ericsson Mobile Communications India Pvt. Ltd. v CIT (supra) remanded the matter to the TPO for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the Assessee, that the ITAT might instead of deciding the above question itself, remand the matter further to the TPO or the DRP. He clarifies that all the materials necessary for determining the above question are already on record. If that is true, there should be no occasion for the ITAT to remand the determination of the above question to the DRP or the TPO or even the AO. Consequently, in the light of the above submissions, the Court directs that above question will be determined by the ITAT itself and not be remanded by it to any other authority. 9. Mr. Butani pointed out that there was another important question of law raised in the present appeal which would require determination depending on the decision of the ITAT on the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question concerning the ALP of such transaction in accordance with law. If the materials available for the said decision are inadequate, it will be open to the ITAT to remand the question further to the TPO. 12. Accordingly, the Court directs as under: (a) The impugned order dated 8th October, 2015 passed by the ITAT in ITA No. 5090/DEL/2010 for the AY 2006-07 is set aside and the said appeal is restored to the file of the ITAT; (b) The ITAT will first decide the question regarding the existence of an international transaction involving AMP expenses between the Assessee and its AE. This question will not be remanded by the ITAT to any other authority for decision. If the said question is answered in favour of the Assessee, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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