2018 (12) TMI 111 - AT - Income Tax

Taxpayer's Appeal on Transfer Pricing Adjustment for AMP Expenses Upheld, Emphasizes Need for Tangible Evidence

The Tribunal allowed the taxpayer's appeal regarding Transfer Pricing Adjustment on Advertisement, Marketing, and Promotion (AMP) Expenses, holding that ... TP Adjustment on account of Advertisement, Marketing and Promotion Expenses - BLT method adopted by the TPO incurring the AMP expenses - Held that:- When the BLT method adopted by the TPO incurring the AMP expenses by following the ratio of LG Electronics India Pvt. Ltd. [2013 (6) TMI 217 - ITAT DELHI] decided by Special Bench of the Tribunal, has been held to be not legally sustainable by the Hon’ble Delhi High Court in series of judgments, the entire exercise of determining AMP expenses as international transaction by the TPO is without any basis, hence not sustainable. We are of the considered opinion that the ALP of an international transaction involving AMP expenses, the adjustment made by the TPO/DRP/AO is not sustainable in the eyes of law. At the same time, we cannot ignore the submission of the learned DR that the matter is pending before Hon'ble Apex Court and the decision of Hon'ble Apex Court would be binding upon all the authorities. In view of the above, we set aside the orders of authorities below and restore the matter to the file of the Assessing Officer. We hold that as per the facts of the case and the legal position as of now and discussed above in this order, the adjustment made by the TPO/DRP/AO in respect of AMP expenses is not sustainable - Appeal filed by the assessee is allowed pro tanto. Issues Involved:1. Transfer Pricing Adjustment on Advertisement, Marketing, and Promotion (AMP) Expenses.2. Addition on account of difference in TDS credit.Detailed Analysis:1. Transfer Pricing Adjustment on Advertisement, Marketing, and Promotion (AMP) Expenses:- Background: The taxpayer, a subsidiary of a Japanese company, incurred AMP expenses and was compensated by its Associated Enterprise (AE). The Transfer Pricing Officer (TPO) used the Bright Line Test (BLT) to determine that the AMP expenses exceeded the arm's length limit and required compensation from the AE.- Taxpayer's Argument: The taxpayer argued that the AMP expenses were not international transactions as per Section 92B of the Income-tax Act, 1961, and that the BLT is not a legally sustainable method.- TPO's Analysis: The TPO compared the taxpayer's AMP/sales ratio (6.56%) with that of comparable companies (1.76%), concluding that the taxpayer's excess AMP expenses promoted the AE's brand, warranting a transfer pricing adjustment of Rs. 4,73,64,582.- Tribunal's Findings:- The Tribunal noted that the taxpayer is a manufacturing entity and that the AE had compensated the taxpayer for AMP expenses.- The Tribunal referenced the Delhi High Court's decisions in Maruti Suzuki India Ltd. v. CIT and other cases, which held that BLT has no statutory mandate and that the existence of an international transaction cannot be inferred merely based on BLT.- The Tribunal emphasized that the Revenue must provide tangible material evidence to prove the existence of an international transaction between the taxpayer and its AE.- In this case, there was no evidence beyond the application of BLT to prove that the AMP expenses were for the benefit of the AE.- The Tribunal concluded that the AMP expenses were incurred to enhance the taxpayer's sales and not for the AE's benefit.- The Tribunal held that the adjustment made by the TPO/DRP/AO based on BLT was not sustainable in law.2. Addition on account of difference in TDS credit:- Background: The assessing officer made an addition of Rs. 4,048 based on the statement in Form 26AS, which the taxpayer contended did not pertain to them.- Taxpayer's Argument: The taxpayer argued that the income reflected in Form 26AS did not belong to them.- Tribunal's Findings: The Tribunal did not provide a detailed analysis on this issue but included it in the overall decision to set aside the orders of the authorities below.Conclusion:- The Tribunal allowed the taxpayer's appeal to the extent that the adjustment made by the TPO/DRP/AO regarding AMP expenses was not sustainable. The Tribunal set aside the orders of the authorities and restored the matter to the Assessing Officer, with instructions to reconsider the case if the Supreme Court's pending decision on related matters modifies or reverses the current legal position.- The Tribunal emphasized the need for tangible evidence to prove the existence of an international transaction and rejected the sole reliance on the BLT method.Order:- The appeal filed by the taxpayer was allowed to the extent discussed, and the matter was restored to the file of the Assessing Officer for reconsideration based on future Supreme Court decisions.