9911796707
TMI Blog2024 (2) TMI 1492X X X X Extracts X X X X X X X X Extracts X X X X ..... of a miscellaneous application seeking to invoke its powers conferred by Section 254(2) of the Income Tax Act, 1961 ['Act']. That miscellaneous application came to be rejected by the ITAT by its order of 10 August 2022. It is that order which stands impugned in writ petition - W.P.(C) 261/2023. 2. In the appeal, the following questions of law as proposed by the assessee had been admitted by us in terms of the order dated January 10, 2023: "(i) Whether in the facts and in the circumstances of the case, the impugned order dated 21.09.2020 passed by the Tribunal is perverse / self-contradictory inasmuch as, on the one hand, the Tribunal following the decision of this Hon'ble Court in appellant's own case in ITA No. 713/2016 specifically all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss Profit („GP‟) C=A-B 574,130,846 456,666,575 GP/Sales 25.22% 12.57% AMP Expenses D 273,602,101 161,113,130 Less selling and Distribution Expenses 101,850,415 24,150,350 Less: Grant received from AE E 151,210,838 Net AMP Expense F=D-E 20,540,848 136,962,780 Adjusted Gross profit G=C-F 553,589,998 319,703,795 Adjusted GP/Sales G/A 24.32% 8.80% 4. However, in the very next paragraph, it has proceeded to undertake the quantification of arm's length price in relation to AMP expenditure and held as under:- "8. .... This is not disputed by the Revenue as the TPO in order dated 21.10.2011 considered Vivek Limited as appropriate comparable for benchmarking AMP expenses, app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration to the submissions made by the Counsel and have carefully perused the order of this Tribunal (supra). It is true that the Tribunal has recorded a conclusive finding that application of RPM is appropriate in the instant case. However, thereafter the Tribunal proceeded to determine the arms length price of AMP expenses and directed the TPO to restrict the adjustment to Rs. 28510127/." 6. The ITAT appears to have felt constrained to not attempt to rectify the apparent inconsistency bearing in mind, and in its estimation, the limited extent and scope of power that stands vested upon it by virtue of Section 254(2) of the Act. 7. However, and since the inconsistency is apparent on the face of the record, we allow ITA No. 9/2023 a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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