2023 (3) TMI 676

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..... h, Kolkata (the Tribunal) in ITA Nos. 633 & 2459/Kol/2017 for the assessment years 2012-13 and 2013-14. The revenue has raised the following substantial question of law for consideration: (i) Whether the ITAT erred in law in deleting the addition of Rs.7,07,55,565/- of AY 2012-13 and Rs.15,60,70,670/- for AY 2013-14 made upward adjustment on account of ALP of marketing intangible created by the assessee for the associate enterprises ? We have heard Ms. Smita Das De, learned standing counsel for the appellant/revenue and Mr. Paras S. Salva, learned senior counsel assisted by Mr. Pratik Poddar and Mr. A. K. Dey, learned advocates for the respondent/assessee. The Dispute Resolution Panel (DRP) had affirmed the decision taken by the Transf .....

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..... materials, sales of finished goods, inventory of finished goods etc. were shown. Further, the Tribunal found that from the said financials produced by the assessee, it was seen that the products manufactured by the assessee are either of its own or through contract manufacturers and they are subjected to levy of Central Excise Duty which has been collected from the assessee company. Therefore, on facts, the Tribunal held that the revenue has taken an incorrect stand that the assessee is not a manufacturer at all and only a distributor simplicitor. Taking note of this factual position, the contention raised by the revenue before the Tribunal was rejected. The learned Tribunal referred to the decision of its co-ordinate bench in the case of P .....

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..... any of the brands of AE in India. After examining the facts, the Tribunal found that the revenue had only assumed that the assessee had promoted the brand of the AE by incurring AMP expenditure in India thereby warranting any compensation. On facts, it was found that the assessee had not paid any royalty or trade-mark fee to its Associated Enterprises and had been benefited by the excess premium return in the same price of goods. Furthermore, the Tribunal found that AMP expenditure is duly factored into the said pricing fixed by the Associated Enterprises. Furthermore, the Tribunal found that the international transactions with the Associated Enterprises of purchase of raw materials, purchase of finished goods, sale of finished goods and re .....

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