TMI Blog2017 (9) TMI 1282X X X X Extracts X X X X X X X X Extracts X X X X ..... For The ASSESSEE : Shri Vishal Kalra, Advocate For The REVENUE : Shri H.K. Choudhary, CIT DR ORDER PER KULDIP SINGH, JUDICIAL MEMBER : The Appellant, M/s. Nikon India Pvt. Ltd. (hereinafter referred to as the taxpayer ) by filing the present appeal sought to set aside the impugned order dated 27.06.2017, passed by the AO in consonance with the orders passed by the ld. DRP/TPO under section 143 (3) of the Income-tax Act, 1961 (for short the Act ) qua the assessment year 2010-11 on the grounds inter alia that :- 1. That on the facts and circumstances of the case and in law, the AO has erred in assessing the total income of the Appellant under section 143(3) of the Income-tax Act, 1961 ( the Act ), for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant was not engaged in rendition of value added (brand building) services to Associate Enterprise ('AE'), which mandated charging of mark-up on incurrence of such AMP expenditure. 7. That on the facts and circumstances of the case and in law, the AO / TPO have erred in not granting quantitative / economic adjustments (such as non-payment of royalty / expenses incurred on new product launches) while quantifying ALP of the alleged international transaction of AMP expenditure. 8. That on the facts and circumstances of the case and in law, the AO / TPO have erred in not providing the benefit of (+/-) 5% range as provided by the proviso to section 92C(2) of the Act. 9. That on the facts and circumstances of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RPM 1,59,06,94,5642 2 Purchase of fixed assets TNMM 3,09,931 3 Sales and service support income TNMM 1,19,11,847 4 Commission income TNMM 17,51,40,980 5 Purchase of fixed assets CUP 16,74,880 6 Cost of reimbursement received CUP 2,29,50,609 7 Cost of reimbursement paid CUP 28,54,154 6. Ld. TPO, after ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AMP adjustment protective basis on Rs.22,30,18,964 2 AMP adjustment substantive basis on Rs.8,67,88,051 8. AO on the basis of TP order dated 20.03.2017 made addition of ₹ 22,30,18,964/- to the taxable income/loss declared by the assessee company by losing sight of the fact that the TPO has proposed adjustment on protective basis to the tune of ₹ 22,30,18,964/- and of ₹ 8,67,88,051/- on substantive basis. 9. Feeling aggrieved, the assessee has come up before the Tribunal by way of filing the present appeal. 10. We have heard the ld. Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the range of +/- 5% of the average margins of comparables. Therefore, in view of the above, the 4earlier adjustment of ₹ 8,67,88,051/- is reduced to NIL. Sd/- ( Sandeep Rana) Deputy Commissioner of Income Tax, Transfer Pricing Officer -1(3)(2), New Delhi. 13. Since substantive adjustment to the tune of ₹ 8,67,88,051/- proposed by ld. TPO in his earlier order has been reduced to nil, both the grounds have since become infructuous and decided accordingly. GROUND NO.4 14. Ground No.4 is dismissed having not been pressed. GROUNDS NO.5 15. TPO by applying the Bright Line Test (BLT) proposed adjustment of ₹ 22,30,18,964/- on protective basis. The ld. AR for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny Ericsson Mobile Communications India (P.) Ltd. vs. CIT-III (2015) 55 taxmann.com 240 (Delhi) also determined the identical issue as to applying the BLT for determining ALP of the AMP in favour of the assessee and has categorically held that BLT has no statutory mandate and it is not obligatory to subject AMP expenses to BLT and considered non-routine AMP as separate transactions by making following observations :- III. Section 92C of the Income-tax Act, 1961 - Transfer pricing - Computation of arm's length price (Comparables and adjustments/Adjustments - AMP expenses) - Assessees were several Indian subsidiaries of Multi National Enterprises (MNEs) engaged in distribution and marketing of imported and branded products, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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