9911796707
TMI Blog2018 (12) TMI 2006X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee as well as Revenue both had filed appeals against the assessment order dated 16th January, 2014. The ITAT disposed of both the appeals by a common order dated 8th September, 2016 whereby the issues raised in the assessee's appeal vide ITA No. 1515/Del/2014 was set aside to the file of the Assessing Officer for examination afresh in the light of the decision of Hon'ble Delhi High Court in the case of Sony Ericsson Mobile Communications Vs. CIT-[2015] 374 ITR 118 (Del). The Revenue's appeal vide ITA No. 1582/Del/2014 was dismissed. The assessee, aggrieved with the order of the ITAT, filed appeal before Hon'ble Jurisdictional High Court, which, by order dated 1st September, 2007, set aside the order of the ITAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of the ITAT and restores the assessee's appeal, ITA No. 1515/Del/2014 for AY 2009-10, to the file of ITAT. 10. Mr. Vohra submitted a chart indicating that the subsidy/grant received by the Assessee from its AE during the AY in question exceeded the net AMP expense incurred by the Assessee thereby obviating any TP adjustment on that score as proposed by the TPO. The said details will be taken into consideration by the ITAT while dealing with the appeal on merits. This Court is not inclined to express any opinion on the merits one way or the other. 11. The ITAT will decide the Assessee's appeal afresh without being influenced by anything said in this order on merits or in the previous order of the ITAT that has been set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making any TP adjustment, it has to be first established that there is an international transaction. After making this observation in paragraph 6, the Hon'ble High Court has noted the assessee's contention in paragraph 10 that the grant received by the assessee exceeded the net AMP expenses incurred by the assessee and therefore, there would not be any requirement of any TP adjustment. He submitted that since the facts are so clear, the appeal can be decided on the factual matrix i.e., the grant received by the assessee exceeded the net AMP expenses. In that case, so far as the year under consideration is concerned, there would be no requirement of deciding whether the incurring of AMP expenses is an international transaction. 5. Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e mark up on the provision of services from 15% to 9%. Giving effect to the order of the DRP, the TPO, vide order dated 24th February, 2014, recomputed the transfer pricing adjustment on account of AMP at Rs.11,46,01,751/-. The assessee has claimed that in the above working, the TPO has considered the rebate and discount of Rs.22,64,61,618/- which is evident from paragraph 4 of the TPO's order. Hon'ble Jurisdictional High Court in the case of Sony Ericsson Mobile Communications (supra) held as under :- "176. The aforesaid argument, when AMP expenses are segregated from the composite transaction including distribution and marketing function, is flawed and has to be rejected. The respondent-appellants are engaged in distribution and mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cessions would not form part of AMP expenses. Admittedly, the TPO has considered the rebate and discount of Rs.22.64 crores as part of AMP expenses which is to be excluded from AMP expenses as per the above decision of Hon'ble Jurisdictional High Court. After excluding the same, the net AMP expenses work out to Rs.24.14 crores as under :- Particulars Amount (Rs.) Total AMP expenses determined by the TPO 46,78,74,750 Less : Rebate & Discount 22,64,61,618 Net AMP expense incurred by the appellant 24,14,13,132 9. When, on the above figure, the mark up of 9% as upheld by the DRP is applied, then the arm's length price of AMP would be worked out to Rs.26,31,40,313/-. The grant received by the assessee from its AE is Rs.27,23,46,104/ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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