TMI Blog2019 (1) TMI 1341X X X X Extracts X X X X X X X X Extracts X X X X ..... d for proposing adjustment for AMP expenditure. Thus respectfully following Hon’ble Delhi High Court, we hold that adjustment made on protective basis by following bright line test is not sustainable. - ITA No. 8060/Del/2018 - - - Dated:- 24-1-2019 - SHRI R.K.PANDA, ACCOUNTANT MEMBER AND SMT. BEENA A PILLAI, JUDICIAL MEMBER For The Appellant : Sh. Nageswar Rao, Parth And Sandeep S. Karhail, Adv. For The Respondent : Sh. Sanjay I Bara, CIT (D.R.) ORDER PER BEENA A PILLAI, JUDICIAL MEMBER Present appeal has been filed by assessee against the final assessment order dated 30/10/18 passed by Ld. DCIT, circle 5 (2), New Delhi on following grounds of appeal: GROUNDS OF APPEAL Based on the facts and c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Ld. AO in computing the total income of the Appellant. While doing so, the Ld. AO has not followed the directions of Hon ble DRP mentioning that no demand to be computed on protective adjustment. 3. That on the facts and circumstances of the case and in law, the final assessment order passed under section 143(3) read with section 144C of the Income Tax Act, 1961 ( the Act ) by the Ld. AO is bad in law as the same is not in accordance with the provisions of the Act. Grounds in relation to treatment of AMP as an international transaction: 4. That on the facts and circumstances of the case, Ld. TPO/Ld. AO/Hon ble DRP have erred in holding the AMP expenditure incurred by the Appellant, as an international transaction' u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of marketing intangibles for the AE without providing any evidence in support of this contention. 5.4 That, on facts and in law, the Hon ble DRP/ Ld. TPO/ Ld. AO have erred in attributing additional revenues to the assesse from the Exploitation of the intangibles (without prejudice to appellant s contention that expenditure on AMP does not create any non-routine intangibles), without appreciating the fact that all the revenues from exploitation of the intangibles (sales in India) are earned by the assesse only, and that there is no further revenue from the intangibles, which could be attributed to the assesse. 6. That the Hon ble DRP/ Ld. TPO/ Ld. AO have erred in recharacterization of AMP expenditure incurred by Appellant as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AO have erred in quantifying AMP expenses by considering certain selling and distribution expenses while performing arm s length analysis without giving cogent reasons for the purpose of benchmarking alleged AMP expenditure, disregarding the principles and findings laid down by the Hon ble High Court in the case of Appellant. 11. The Hon ble DRP/ Ld. TPO/ Ld. AO have erred in levying a further mark-up of service providers on AMP expenses for determination of the arm s length price of the alleged brand-promotion services rendered by the Appellant to its AEs and Hon ble DRP erroneously upheld the approach of the Ld. TPO/Ld. AO. 12. The Hon ble DRP/ Ld. TPO/ Ld. AO have erred in making inappropriate selection of comparable compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides in the light of the records placed before us. In present facts of the case, substantive as well as protective assessment both has been made in the hands of same assessee for same year under consideration on AMP expenditure by learnt TPO. On objection being raised by assessee before DRP against the adjustment proposed, a direction was issued to Ld.AO/TPO to make adjustment to in respect of AMP expenditure by following intensity method, being the plausible method. 8. In our considered opinion, DRP has followed view of Hon ble Delhi High Court in case of CIT vs. Sony Ericson Mobile Communication India Pvt.Ltd., (supra), to reject BLT method for proposing adjustment for AMP expenditure. Thus respectfully following Hon ble Delhi High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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