TMI Blog2019 (9) TMI 1506X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-11.In the above view, the question (a) as proposed does not give rise to any substantial question of law. Thus, not entertained. Adjustments in respect of technical consultancy fees - HELD THAT:- It is an agreed position between the parties that in the respondent s own case for Assessment Year 2003-04, a similar issue had arisen viz. package of services being available under the agreement on as and when required basis. This Court by an order in Merck Ltd. [ 2016 (8) TMI 561 - BOMBAY HIGH COURT] held the fees paid for on bouquet of services as and when required, would be similar to retainer agreement. It is agreed by the Revenue that the above order dated 8th August, 2016 of this Court in the respondent s own case will equally apply to the present facts. Disallowance on share buyback expenditure without appreciating that it is a capital expenditure and not allowable u/s. 37 - HELD THAT:- Following the decision of Delhi High court in CIT Vs. Selan Exploration Technology Ltd. [ 2009 (9) TMI 989 - DELHI HIGH COURT] as held that share buyback expenditure incurred by the respondent did not result in a benefit of an enduring nature as after the buyback the capital employed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This appeal relates to Assessment Year 2010-11. 2. The Revenue urges only the following re-framed questions of law for our consideration :- (a) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in granting adjustment of 10% on account of quality difference and deleting the addition made by TPO / AO by applying CUP to arrive at ALP in respect of Bisoprolol Fumerate without giving adjustment for quality as claimed by the assessee ? (b) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in deleting adjustments in respect of technical consultancy fees ? (c) Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in deleting disallowance on share buyback expenditure without appreciating that it is a capital expenditure and not allowable u/s. 37 of the Income Tax Act, 1961? (d) Whether on the facts and in the circumstances of the case and in law, the Tribunal was right in confirming deletion of disallowance in respect of sales promotion and conference expenses incurred without appreciating that these expenses does not render any benefit to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a quality adjustment of 10% in respect of the API imported by the respondent from its AE in Switzerland. The impugned order has placed reliance upon Rule 10B(1)(a)(ii) which inter alia provides that the price of the comparable uncontrolled transaction is adjusted to account for difference, if any .. which could materially affect the price in the open market . It was on the above basis that the impugned order held that while determining the ALP of the imports done from its AE in Switzerland, there shall be an adjustment of the ALP on account of better quality of imported API to the extent of 10%. (c) We are unable to understand the Revenue s grievance with regard to the finding of the Tribunal. The application of CUP method was what was canvassed by the Revenue and accepted by the Tribunal. Thus, there could be no grievance with regard to the application of CUP method. Similarly, the adjustment on account of quality as claimed by the assessee was allowed. This adjustment was in terms of Rule 10B(1) (a)(ii) of the Income Tax Rules. It is a fact of which judicial note can be taken that wherever even two products are identical, yet on account of perception there could be differenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i High court in CIT Vs. Selan Exploration Technology Ltd. (2010) 188 Taxmann 1. In the above case, it was held that share buyback expenditure incurred by the respondent did not result in a benefit of an enduring nature as after the buyback the capital employed had gone down. Thus, the expenditure incurred has not resulted in bringing into existence any new asset, thus was not in the nature of the capital expenditure. On the aforesaid basis, the Delhi High Court held that once it is held that the expenditure is not capital in nature, then, the expenditure is allowable under Section 37 of the Act as a revenue expenditure as it was incurred for the benefit of existing shareholders in the ordinary course of business. (b) The learned Counsel appearing for the parties are agreed that the issue stands concluded by the decision of this Court in Commissioner of Income Tax Vs. Aditya Birla Novo Ltd. 79 Taxmann.com 210, and Commissioner of Income Tax Vs. Hindalco Industries Ltd. (Income Tax Appeal No.1846 of 2010) decided on 7th August, 2012 against the Revenue and in favour of the respondent. (c) In the above view, this question as proposed does not give rise to any substantial questio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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