2018 (9) TMI 1460

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....,54,12,563 02. In this regard it was submitted that for AY 2012-13, principle component of adjustment is on account of addition made by the AO of Rs. 2,13,92,48,086/- towards AMP adjustment and the remaining amount with respect to the addition made on account of 40(a)(ia) of the Act. It was vehemently submitted that the issue of AMP though was decided by the TPO and confirmed by the authorities below is contrary to the various decisions passed by the Hon'ble Delhi High Court ion the following matters 1. Maruti Suzuki India Limited v CIT [2016] 381 ITR 117 (Delhi) 2. CIT(LTU) v Whirlpool of India Ltd [2016] 381 ITR 154 (Delhi) 3. Essilor India Private Limited (ITA No. ITA No.29/Bang/14 & 227/Bang/15) 4. DCIT v Nike India Private....

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....taxmann.com 45] had decided the issue and held that the amendment is retrospective in nature. Hence it was urged that same view be taken in this regard also and benefit should be endured in favour of the assessee. Finally it was submitted that in view of the provisions of DTAA between India and Malasia, the assessee should not be discriminated as a resident and non-resident and therefore the benefit in this amendment should be given to the assessee. The Ld. AR further relied upon the judgments of various High Courts in ACIT v. Epson India P. Ltd, [301 CTR 242] and Flipkart India P. Ltd v. ACIT [79 taxmann.com 159]. 03. Per contra, the Ld. DR has submitted that the issue raised by the assessee are factual in nature , on these facts it canno....

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....d whether the expenditure incurred by the assessee in the form of AMP has resulted in tangible benefit to its AEs or not are required to be examined, for which detailed hearing is required. It was also informed during the course of hearing that on earlier occasion the DRP has deleted the addition made on account of AMP for the earlier year 2011-12 and the Revenue is in appeal before the Tribunal. However for the purposes of stay, the assessee is required to prove prima facie case, financial hardship and prove balance of convenience lies in favour of the assessee and against the Revenue. 07. In our view the assessee was required to demonstrate the prima facie case and balance of convenience and financial hardship for the purposes of making ....