TMI Blog2016 (11) TMI 1653X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction has been accepted. Respectfully following the predominant view of the Hon ble High Court, we are of the considered opinion that it would be in the fitness of things if the impugned order is set aside and the matter is restored to the file of TPO/AO for a fresh determination of the question as to whether there exists an international transaction of AMP expenses. If the existence of such an international transaction is not proved, the matter would end there and then, calling for no transfer pricing addition. If, on the other hand, the international transaction is found to be existing, then the TPO would determine the ALP of such an international transaction in the light of the relevant judgments of the Hon ble High Court, afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ernational transaction and, hence, there can be no question of determining the arm s length price of this transaction or making any addition thereon. She relied on some of the judgments of the Hon ble Delhi High Court including CIT vs. Whirlpool of India Ltd. (2015) 94 CCH 156 DEL-HC to contend that the AMP expenses could not be considered as an international transaction. In the light of these judgments, it was submitted that there was no international transaction of AMP expenses on the basis of principles laid down in these judgments and, hence, the entire exercise of determining its ALP and, consequently, the making transfer pricing adjustment, be set aside. 5. Au contraire, the ld. DR relied on the judgment of the Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Ericsson Mobile Communications India Pvt. Ltd. (supra). The ld. DR argued that the Hon ble Delhi High Court in its earlier decision in Sony Ericson Mobile Communications (India) Pvt. Ltd. vs. CIT (2015) 374 ITR 118 (Del) has held AMP expenses to be an international transaction. It was argued the matter should be restored for a fresh determination. 6. We have heard the rival submissions and perused the relevant material on record. We are not inclined to accept the primary contention that the assessee did not incur any AMP expenses simply on the basis of the provisions of The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954 and The Drugs and Magic Remedies (Objectionable Advertisements) Rules, 1955, debarring not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction has been accepted. Respectfully following the predominant view of the Hon ble High Court, we are of the considered opinion that it would be in the fitness of things if the impugned order is set aside and the matter is restored to the file of TPO/AO for a fresh determination of the question as to whether there exists an international transaction of AMP expenses. If the existence of such an international transaction is not proved, the matter would end there and then, calling for no transfer pricing addition. If, on the other hand, the international transaction is found to be existing, then the TPO would determine the ALP of such an international transaction in the light of the relevant judgments of the Hon ble High Court, after allowing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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