TaxTMI 
TaxTMI 
TaxTMI 
2014 (6) TMI 469
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....d: "1. On the facts and circumstances of the case the order passed by the learned AO under section 143(3) read with section 144C of the Act is bad, both in the eye of law and on facts. 2. On the facts and circumstances of the case, the learned AO has erred, both on facts and in law in assessing the loss of the appellant at Rs. 108,32,69,967/- as against loss of Rs. 130,56,81,684/- declared by the appellant. 3. i. On the facts and circumstances of the case, the learned AO has erred, both on facts and in law in making an addition of Rs. 22,23,28,349/- as difference in arm's length price determined by Transfer Pricing Officer (TPO) & the appellant. ii. On the facts and circumstances of the case, the learned AO has erred, both on fact....
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.... which is an Indian company. For A.Y. 2007-08 the assessee filed its return of income declaring loss of Rs. 1,30,56,81,684/-. During assessment proceedings the assessing officer noticed that assessee company had entered into international transactions with its parent company, M/s Yamaha Motor Company Ltd., Japan. Accordingly, the matter was referred to Transfer Pricing Officer ("TPO") for determination of arm's length price ("ALP"). 2.1. The TP issue is regarding addition of Rs.22,23,28,349/- made by the AO on account of adjustment of arm's length price in respect of expenditure incurred by the assessee on advertisement and publicity. During the year under consideration the assessee has incurred a total expenditure of Rs.49,68,34,848/- on ....
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....4.58 ii) Scooters India Ltd. 1.20 Total 5.78 Average 2.89 2.6. By applying this percentage of 2.89 on the total revenue of the assess of Rs.635,94,71,600, the eligible expenditure was held be Rs.18,37,88,712/- 2.7. Learned TPO, thus held that expenditure incurred for developing intangible was Rs. 59,58,19,532/-. To this he added a markup of 13.04% on the basis of the comparables of few advertising companies mentioned at page 8 of its order. By adding this markup of Rs.7,76,94,867/- being 13.04%, the total expenditure for development of intangible recoverable from Yamaha, Japan was worked out at Rs.67,85,14,399/-. Since the assessee has recovered a sum of Rs.45,11,86,050/- as reimbursement from Yamaha, Japan, the balance Rs.22,23,28,349/-....
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....ontends that apropos TP additions the main issue in question pertains to addition of Rs.22,23,28,349/- worked out by TPO. While doing so ld TPO has in effect partly applied the Special Bench of the ITAT in the case of L.G. Electronics India Pvt. Ltd. vs. ACIT 152 TTJ 273, 22 ITR (Trib.) 1 by deducting the amounts attributable to servicing cost and incentive to dealers. However ld TPO without giving any cogent reasons or justification did not deduct expenditure on account of discounts and incentives to the extent of Rs.34,43,94,922/- which are also deductible by L G Electronics judgment. Thus the ld. TPO's order suffers from this manifest inconsistency in applying the SB judgment which is otherwise accepted by the department. 3.1 The L.G. E....
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....t given to dealers on the sales made. Once it is held that a particular amount is discount and is not in the nature of direct advertisement expenses, the same stands expelled from the qualifying amount which undergoes the process of determination of ALP of the AMP expenses. Respectfully following the mandate of the Special Bench verdict in the case of LG Electronics (supra), we order for the exclusion of the amount of 'Pricing Adjustment' from the total AMP expenses for the purposes of determination of ALP in respect of AMP expenses." 3.2. The above judgment has also been followed in the case of M/s Amadens India Pvt. Ltd. vs. Addl. CIT, ITA No. 4584/Del-2011 by the Delhi Bench of the ITAT. 3.3. It is pleaded that by excluding the....
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....2004 dated 10-10-2006 which is placed on PB page 685. 3.6. The remaining corporate issue regarding addition of Rs.22,618/- by restricting depreciation on the Projector a computer peripheral item to 15% as against 60% allowable. It is pleaded that this issue also stands covered in favor of assessee by a catena of judgments by ITAT and Hon'ble Delhi High Court in the cases of : (i) BSES Rajdhani Powers Ltd. (Del) ITA No. 1266/2010, dated 31.3.2010 (ii) CIT Vs. Sony India Pvt. Ltd., ITA No. 1178/2011 (iii) CIT v. Datacraft India Ltd. [2010] 133 TTJ 377 (iv) Expeditors International (India) (P.) Ltd. v. Addl. CIT [2008] 13 DTR (Del.)(Trib.) 435 (v) Haworth (India) (P.) Ltd. v. DCIT [2011] 11 taxmann.com 76 (Delhi) (vi) Carlton Overseas (....