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10-01-2019, Wrigley India, Section 144C(4), 92B, 92F(v), Tribunal Delhi

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5 months 1 week ago #8337 by amit
Section - 144C(4), 92B, 92F(v), 92BA, 234A, 234B, 234C
Order Date - 10-01-2019
Favouring - Assessee
Court - Tribunal Delhi
Appellant - Wrigley India Pvt. Ltd.
Respondent - DCIT
Justice - BHAVNESH SAINI, J.M. & L.P. SAHU, A.M.
Citation - 119Taxpundit133
Appeal No. - ITA.No.1536/Del./2016
Asstt. Year - 2011-2012

Order

PER : BHAVNESH SAINI, J.M.

ITA.No.1536/Del./2016 by the assessee has been filed against the Order of the DCIT, Circle-27(2), New Delhi, Dated 28.01.2016, for the A.Y. 2011-2012 under section 143(3) r.w.s. 144C(4) of the I.T. Act, 1961, on the following grounds :

1. That on the facts and in the circumstances of the case and in law, the order passed by the Learned Assessing Officer (‘Ld. AO’) under section 143(3) read with section 144C of the Act is bad in law.

2. On the in law, and in the circumstances of the case, the Ld. AO/Transfer Pricing Officer (‘Ld. TPO’) and the Dispute Resolution Panel (‘Ld. Panel’) erred in
making an addition of INR 18,02,86,000/- by allegedly assuming the expenditure on account of Advertisement, Marketing and Promotional (“AMP”) incurred by the Appellant results in international transaction and consequently benchmarked the same separately in the present case.

3. On the facts, in law and in the circumstances of the case, the Ld. AO/ Ld. TPO and Ld. Panel erred in alleging that the Appellant is rendering a service to its Associated Enterprise (‘AE’) for creation of marketing intangibles in India and proceeded to make an adjustment completely disregarding the binding decisions of the Jurisdictional High Court in the case of Maruti Suzuki India Ltd. v. CIT [(2016) 237 Taxmann 256 (Delhi), thereby not following the judicial discipline as mandated by law.

4. On the facts, in law and in the circumstances of the case, the Ld. AO/ Ld. TPO and Ld. Panel erred in not appreciating the characterisation of Wrigley India and in not appreciating that;

4.1. key decisions making functions with espect to Marketing function are performed by the Appellant;

4.2. by testing each of the "international transactions" (including import of raw materials and sale of finished goods) separately, it has been clearly demonstrated that the residual/entrepreneurial profits, inter-alia relating to AMP functions, are lying in the hands of Appellant in India and thus, the AE should not reimburse the AMP expenses incur ed by the appellant;

4.3. all expenses with respect to the aforesaid activities and the related risks and reward consistent with the Appellant’s characterisation, are to be borne by the Appellant;

5. On the facts, in law, and in the circumstances of the case, the Ld. AO/Ld. TPO and the Ld. Panel erred in not appreciating the AMP expenses could not be regarded as a 'international transaction',

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