TMI Blog2018 (7) TMI 2297X X X X Extracts X X X X X X X X Extracts X X X X ..... arties. Having regard to the actual conduct of the parties and the real economic substance of the transaction, it requires to be established whether there is any international transaction of AMP expenditure. Needless to mention, the Hon ble Delhi High Court in a series of judgments subsequent to decision of the Sony Ericsson Mobile Communications India P Ltd. vs. CIT [ 2015 (3) TMI 580 - DELHI HIGH COURT] AND Yum Restaurants (India) Pvt. Ltd. vs. ITO [ 2016 (1) TMI 582 - DELHI HIGH COURT] held that AMP expenditure is international transaction but determination of ALP was restored to the file of the AO for the purpose of detailed examination of the agreement between the assessee and its AE to ascertain whether any part of AMP expenditur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TANT MEMBER For the Appellant : Shri Padamchand Khincha, CA. For the Respondent : Smt. S.Uma Venkatesan, CIT(DR) ORDER Per INTURI RAMA RAO, AM : These are appeals filed by the assessee directed against the final assessment orders dated 29/12/2016 and 30/10/2017 for assessment year 2012-13 and 2013-14 respectively, passed u/s 143(3) r.w.s. 144(13) of the Income-tax Act,1961 ['the Act']. Since common issue is involved, both the appeals were heard together and are disposed of vide common order. For the sake of convenience, facts relevant to assessment year 2012-13 are stated hereunder: 2. Briefly the facts of the case are as under: The assessee is a company duly incorporated under the provisions of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Aggrieved by the draft assessment order, the assessee preferred objections before the Hon ble DRP objecting inference of international transaction to AMP expenditure and ALP adjustment thereon. The Hon ble DRP, after considering the submissions made, upheld the action of the TPO. However, granted relief to the assessee on the calculation of AMP expenditure by directing the AO/TPO to consider only revenue from product sales for the purpose of computing AMP ratio for comparable entities. In respect of TP adjustments made in relation to sale support services rendered by the assessee the Hon ble DRP directed the AO/TPO to exclude two comparables. After receipt of the above directions, the AO passed final assessment order. 5. Being aggriev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he transaction was not entered into between two or more AE either of them being non-resident entity. He further submitted that the revenue had not brought anything on record to demonstrate that the assessee had agreement or arrangement with its AE with respect to incurring of AMP expenditure. Thus it was submitted that the revenue had failed to prove existence of any international transaction and accordingly no adjustment under Chapter X can be made. He also placed reliance on the decision of the co-ordinate bench of this Tribunal in the case of M/s.Essilor India Pvt.Ltd. vs. DCIT (2016) 68 taxmann.com 311)(Bang). 7. On the other hand, ld.CIT(DR) vehemently submitted that the assessee-company had not furnished TP study giving FAR analysi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of judgments subsequent to decision of the Sony Ericsson Mobile Communications India P Ltd. vs. CIT (35 taxmann.com240) (Del) like Yum Restaurants (India) Pvt. Ltd. vs. ITO (380 ITR 637) held that AMP expenditure is international transaction but determination of ALP was restored to the file of the AO for the purpose of detailed examination of the agreement between the assessee and its AE to ascertain whether any part of AMP expenditure is for the purpose of creating marketing intangibles for AE of the assessee therein. If it is shown that AMP expenditure is an international transaction, then further question of determination of ALP of such international transaction would arise. In the present case also TPO had not brought anything on rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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