Facts of the
Case
MSD Pharmaceuticals Pvt. Ltd. and the Revenue both
preferred appeals against the order passed by the Income Tax Appellate Tribunal
(ITAT) for Assessment Year 2010–11. The dispute centered around the addition
made on account of transfer pricing adjustment concerning AMP expenditure.
The Tribunal had adjudicated the matter relying
upon earlier judicial precedents. However, the Delhi High Court observed that
before proceeding to compute ALP, it was essential to first determine the
existence of an international transaction between the assessee and its
Associated Enterprise. The Court noted that all relevant documents and records
necessary for such determination were already available before the ITAT.
Issues
Involved
- Whether AMP expenditure incurred by the assessee constituted an
international transaction with its Associated Enterprise?
- Whether transfer pricing adjustment could be made without first
establishing the existence of an international transaction?
- Whether the ITAT’s order required reconsideration in light of
settled judicial principles?
Petitioner’s
Arguments (Assessee’s Contentions)
- The assessee challenged the transfer pricing adjustment on AMP
expenditure.
- It contended that the adjustment could not be sustained unless the
Revenue established the existence of an international transaction.
- The assessee relied upon settled legal principles laid down by the
Delhi High Court in earlier transfer pricing jurisprudence.
Respondent’s
Arguments (Revenue’s Contentions)
- The Revenue supported the transfer pricing adjustment made in
relation to AMP expenditure.
- It argued that the expenditure incurred by the assessee had
implications for the Associated Enterprise and therefore required
benchmarking under transfer pricing regulations.
- The Revenue also sought adjudication based on the factual and
documentary material already on record.
Court
Findings / Order
The Delhi High Court held that in transfer pricing
matters, the foundational inquiry must be whether an international transaction
actually exists between the assessee and its Associated Enterprise. Only upon
an affirmative finding on this issue can the determination of Arm’s Length
Price be undertaken.
Accordingly, the Court:
- Set aside the ITAT’s order dated 22 November 2016.
- Restored the appeal back to the ITAT for fresh de novo
adjudication on merits.
- Allowed both parties to raise all contentions afresh before the
ITAT.
- Directed that the matter be listed before the ITAT for further
directions.
Important
Clarification
The Court clarified that mere incurring of AMP
expenditure does not automatically result in an international transaction for
transfer pricing purposes. The existence of such a transaction must be
independently established before any ALP computation can be initiated. This
principle reinforces procedural discipline in transfer pricing disputes.
Link to download the order -https://delhihighcourt.nic.in/app/case_number_pdf/2017:DHC:8737-DB/SMD19072017ITA5242017_143819.pdf
Disclaimer
0 Comments
Leave a Comment