TaxTMI 
TaxTMI 
2023 (8) TMI 1272
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....nd in law the orders passed by the Assessing Officer [hereinafter referred as the "AO"] 1 Dispute Resolution Panel [hereinafter referred as the "DRP"] / Transfer Pricing Officer [hereinafter referred as the "TPO"] are bad in law and void ab-initio. 2. That on facts and in law the TPO/DRP erred in not appreciating that in absence of a "transaction" as envisaged under section 92F of the Act between appellant and its AE for brand promotion or for establishing marketing intangible, the TPO had no jurisdiction to propose an adjustment on account AMP expenses. 3. That the Transfer Pricing adjustment of Rs 23,03,65,898/- on account of Advertisement, Marketing and Sales Promotion (AMP) expenses being the aggregate of: (i)....
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....ship of the marketing intangible would get transferred to the AE without any consideration on termination of the Distribution Agreement. (viii) Appellant has failed to furnish any material to demonstrate that it enjoyed economic ownership of brand. (ix) Appellant has failed to show that for excessive AMP expenditure it was compensated by the AE through a set-off. (x) Margins earned by the appellant (applying TNMM) is not significantly more than the margins of the comparable companies. 5. Without prejudice, that on facts and in law the AO/TPO/DRP erred in not appreciating that the alleged transactions of AMP were "closely linked" with the main activity carried on by the appellant and hence it cannot be seg....
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....h tantamount to "mistakes apparent from record":- (a) Making disallowance on account of Provision for Gratuity of Rs 93,42,368/- overlooking the facts that the said amount had already been added back in Return of Income (ROI). (b) Not excluding rental income of Rs 8,82,0001- from the Schedule BP (when the said income was already included in Schedule HP). (c) Making a disallowance on account of delay on deposit of PF of Rs 6,81,568/- and ESI of Rs 15,042/- without appreciating that PF/ESI were deposited by the appellant before due date of filling of ROI. (d) Erroneously charging interest u/s 115P when there was no delay in deposit of Dividend Distribution Tax. (e) Erroneously starting computation ....
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....ssessee incurred excessive advertisement, marketing and promotion expense. TPO has held that this expenditure was on a higher side. He was of the opinion that the advertisement, marketing and promotion expenditure incurred by the assessee had resulted in creation of marketing intangibles for which it should have been suitably compensated by the associated enterprise to the extent of excessive advertisement, marketing and promotion expenditure incurred vis-a-vis comparable companies. Details of AMP expenses noted by TPO are as under :- Particulars Amount (Rs.) Advertisement & Promotion 1,30,34,442 Incentives Paid 8,26,57,188 Total 9,56,91,630 After holding that there exist a transaction for AMP Brand Promotion, TPO....
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....sessee with Travel Agents in India. It is submitted that DRP has upheld the conclusions recorded by TPO on existence of an "international transaction" . It is submitted that the Jurisdictional Issue has been decided in favour of the assessee by Hon'ble ITAT in earlier years and decision of ITAT has also been upheld by the Hon'ble Delhi High Court Issue as to whether there exists a "transaction" for brand promotion in the instant case is now settled by appellate orders passed in case of assessee for earlier assessment years. Reference in this regard is invited to the decision of ITAT in for AY 2009-10 reported in 52 ITR(T) 83(Del). ITAT after considering the facts of the case has held that in absence of a "transaction" for b....