2017 (4) TMI 1281

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....estions of law for our consideration: "(a) Whether on the facts and in the circumstance of the case and in law, the Tribunal was justified in its decision on the issue of inclusion of Modvat in opening stock as rendered for A. Y. 199900 & 200102 in the light of section 145A and is consistent with its decisions deleting modvat from the valuation of closing stock rendered for preceding assessment years A/y 19971998 and A/Y 19981999? (b) Whether on the facts and in the circumstance of the case and in law, the Tribunal was right in deleting the addition on account of payment to persons referred to u/s. 40A(2)(b) though the assessee has not discharged its onus to prove the reasonableness? (c) Whether on the facts and in the circumstance....

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....stance of the case and in law, the Tribunal was justified in allowing the royalty payment @2% instead of 1% as done by the TPO? (j) Whether on the facts and in the circumstance of the case and in law, the Tribunal was justified in deleting the addition on account of tax and R & D cess paid on knowhow royalty on traded finished goods and manufactured products? (k) Whether on the facts and in the circumstance of the case and in law, the Tribunal was justified in deleting the addition on account of service tax paid by the assessee on knowhow royalty? (l) Whether on the facts and in the circumstance of the case and in law, the Tribunal was justified in deleting the addition of Rs. 200.82 lacs on account of publicity and sales promotion....

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.... sales promotion as it benefits therefrom, as higher sales result in higher royalty, has not determined the Arms Length Price (ALP) by following any of the methods prescribed underSection 92C(1) of the Act read with Rule 10B of the Income Tax Rules, 1962. (ii) The TPO is obliged under the law to determine the ALP by following any one of the prescribed methods of determining the ALP as detailed in Section 92C(1) of the Act. In this case, there is nothing on record to indicate that the TPO had applied any one of the prescribed methods in Section 92C(1) of the Act to determine the ALP before disallowing the payment of Rs. 200.82 lakhs incurred by the Respondent on account of publicity and sales management as being excessive and/or payable b....