Principal Commissioner of Income Tax Delhi 7 v. M/S Timex Group India Ltd.

1. Allowed, subject to just exceptions.

2. This appeal concerns Assessment Year (AY) 2010-11.

3. Via the instant appeal, the appellant/revenue seeks to assail the order dated 27.03.2023 passed by the Income Tax Appellate Tribunal [in short “Tribunal”].

4. Mr Sunil Aggarwal, learned senior standing counsel who appears on behalf of the appellant/revenue, says that the only issue which arises for consideration is: whether the adjustment made by the Transfer Pricing Officer (TPO), concerning Advertising, Marketing and Promotion (AMP expenses) by applying the Bright Line Test was sustainable. 4.[1] It is, however, not disputed by Mr Sunil Agarwal that in Assessment Year (AY) 2008-09, the Tribunal via order dated 16.11.2021 has ruled in favour of the respondent/assessee.

5. As a matter of fact, the order impugned in the instant appeal, to which we have made a reference above, extracts the relevant parts of the Tribunal’s order dated 16.11.2021. For convenience, a part of the order dated 16.11.2021 which is embedded in the impugned order and concerns the respondent/assessee is extracted hereafter:

6. A perusal of the aforesaid extract would show that the Tribunal ruled in AY 2008-09 that the excessive AMP expenditure did not fall in the category of an international transaction and, therefore, the adjustment made qua the same was unsustainable in the eyes of law. This conclusion was based on a finding of fact that the respondent/assessee was primarily engaged in manufacturing operations and that AMP expenditure had been incurred to benefit its own operation, and not for promoting an associated enterprise (AE).

7. We may note that the Tribunal also disapproved the TPO’s approach of applying the Bright Line Test in benchmarking the AMP expenses. This view was based on a judgment rendered by a coordinate bench of this court in Sony Ericsson India Pvt. Ltd.

V. CIT (2015) 374 ITR 118 (Del.) and Maruti Suzuki India Ltd. v. CIT (2016) 381 ITR 117.

8. The Tribunal also highlighted the fact that before ascertaining the arms’ length price on an international transaction concerning AMP expenditure, the appellant/revenue would have to discharge the onus that an international transaction had occurred between the assessee and the associated enterprise. This view was also founded on the decision of the coordinate benches of this court rendered in Bausch & Lamb Eye Care (India) Pvt. Ltd. viz Additional CIT (2016) 351 ITR 227 (Del.) and Honda Siel Power Products Ltd. v. Dy. CIT (2016) 237 Taxman 304. 8.[1] Mr Sunil Aggarwal, learned senior standing counsel, has not been able to demonstrate that the position which obtained in the period in issue i.e., AY 2010-11, was any different from that which obtained in AY 2008- 09, both in terms of facts and in law.

9. We may, however, note that the Tribunal both in the period in issue i.e., AYs 2010-11, and in 2008-09, has remitted the matter to the file of the Assessing Officer (AO).

10. We are also informed that the appellant/revenue has lodged an appeal against the decision rendered by this court in Sony Ericsson.

10.1. Therefore, this appeal is closed as according to us, a substantial question of law arises for consideration by this court.

11. It is, however, made clear that if the appellant/revenue were to succeed in the pending SLP preferred qua Sony Ericsson, then it would have liberty to revive the instant appeal.

12. The Registry will, therefore, dispatch a copy of the order passed today to the respondent/assessee via all modes. CM APPL. 61977/2023 [Application filed on behalf of the appellant seeking condonation of delay of 42 days in filing the appeal]