DCIT 14(1)(2), MUMBAI V. GENERAL MILLS INDIA P.LTD, MUMBAI

ITA 126/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 8553 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2020
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: K
• Assessment Year: 2013-2014
• Appeal Filed On: 05-01-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Transfer pricing; International transaction; Wholly owned subsidiary; Corroborative evidences
• Section: 92B; 13

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL K BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY , JUDICIAL MEMBERAND SHRI S. RIFAUR RAHMAN , ACCOUNTANT MEMBER ITA NO. 126 /MUM. /2018 ( ASSESSMENT YEAR : 20 13 14 ) JT. COMMISSIONER OF INCOME TAX CIRCLE 14(1)(2), MUMBAI . APPELLANT V/S GENERAL MILLS INDIA PVT. LTD. 905, VENTURA, HIRANANDANI BUSINESS PARK HIRANANDANI GARDEN, POWAI MUMBAI 400 076 PAN AACCK8747P . RESPONDENT REVENUE BY : SHRI ANAND MOHAN ASSESSEE BY : SHRI M.P. LOHIA DATE OF HEARING 06.07.2020 DATE OF ORDER 14.07.2020 O R D E R PER SAKTIJIT DEY. J.M. THE AFORESAID APPEAL HAS BEEN FILED BY THE REVENUE CHALLENGING THE ORDER DATED 30 TH JANUARY 2017, PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 56, MUMBAI, FOR THE ASSESSMENT YEAR 2013 14. 2. THE EFFECTIVE GROUNDS RAISED BY THE REVENUE RELATE TO THE SOLE ISSUE OF DELETION OF ADJUSTMENT MADE ON ACCOUNT OF ADVERTISEMENT, MARKETING AND PROMOTION (AMP) EXPENSES. 2 GENERAL MILLS INDIA PVT. LTD. 3. BRIEF FACTS ARE, THE ASSESSEE , A COMPANY INCORPORATED IN INDIA , IS ENGAGED IN THE BUSINESS OF ATTA, SEMIYA (VERMICELLI), PIZZA KITS, DRY CAKE MIX AND INDIAN FROZEN BREADS VIZ. ROTIS, PARATHAS & NANS AND TRADING IN C ANNED CORN NIBLETS, CREAM STYLE SWEET CORN AND ASPARAGUS SPEARS WHICH ARE SOLD UNDER THE BRAND NAME GREEN GIANT . THE ASSESSEE ALSO PROVIDES SOFTWARE DEVELOPMENT SERVICE, BUSINESS PROCESS SERVICE AND PROCUREMENT SUPPORT SERVICE TO ITS ASSOCIATED ENTERPRIS E S (AES). IT IS ALSO EVIDENT THAT THE ASSESSEE IS A 100% SUBSIDIARY OF GENERAL MILLS MAURITIUS INC. IN THE AUDIT REPORT SUBMITTED IN FORM NO.3CEB, THE ASSESSEE FURNISHED THE DETAILS OF THE INTERNATIONAL TRANSACTIONS UNDERTAKEN WITH THE AES AND ALSO THE DET AILS OF BENCHMARKING OF SUCH TRANSACTIONS. AS PER THE TRANSFER PRICING STUDY REPORT, THE ASSESSEE BENCHMARKED THE IMPORT OF FOOD PRODUCTS FROM AES FOR RESALE BY APPLYING TNMM AS THE MOST APPROPRIATE METHOD AND THE TRANSACTIONS WITH THE AES WERE CLAIMED TO BE AT ARMS LENGTH PRICE. IN THE COURSE OF PROCEEDINGS BEFORE HIM, THE TRANSFER PRICING OFFICER NOTICED THAT THE ASSESSEE HAD INCURRED CERTAIN EXPENSES FOR PROMOTION AND MARKETING OF THE PRODUCTS. THEREFORE, HE CALLED UPON THE ASSESSEE TO SHOW CAUSE AS TO WHY THE AMP EXPENDITURE INCURRED BY THE ASSESSEE SHOULD NOT BE TREATED AS INTERNATIONAL TRANSACTION AND WHY AN ADJUSTMENT ON ACCOUNT OF EXCESSIVE AMP EXPENSES LEADING TO BRAND BUILDING FOR THE AES SHOULD NOT BE MADE. THOUGH, THE ASSESSEE OBJECTED TO THE PR OPOSED ADJUSTMENT BY SUBMITTING THAT SUCH EXPENSES 3 GENERAL MILLS INDIA PVT. LTD. WERE INCURRED ON PROMOTION AND MARKETING OF CERTAIN NEW PRODUCTS MARKETED BY THE ASSESSEE , SUCH AS , NATURAL VALLEY GRANULE BAR, HAAGEN DAZ ICE CREAM, CORN NIBLETS, SWEET CORN SOUP, ASPARAGUS, SPEARS, ETC. HOWEVER, THE TRANSFER PRICING OFFICER WAS NOT CONVINCED WITH SUCH SUBMISSIONS OF THE ASSESSEE. ULTIMATELY, HE CONCLUDED THAT BY INCURRING SUCH EXPENSES, THE ASSESSEE HAS HELPED IN BUILDING THE BRAND OF THE AE. THEREAFTER, RELYING UPON THE DECISIONS OF THE SPECIAL BENCH OF THE TRIBUNAL IN LG ELECTRONICS INDIA PVT. LTD. V/S ACIT, THE TRANSFER PRICING OFFICER PROCEEDED TO DETERMINE THE ARMS LENGTH PRICE BY APPLYING BRIGHT LINE TEST (BLT) AND MADE AN ADJUSTMENT OF ` 2,53,48,648. IN TUNE WITH THE ADJUSTMENT MAD E BY THE TRANSFER PRICING OFFICER, THE ASSESSING OFFICER MADE THE ADDITION WHILE FRAMING THE ASSESSMENT ORDER. THE ASSESSEE CHALLENGED THE AFORESAID ADDITION BEFORE LEARNED COMMISSIONER (APPEALS). 4. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE IN THE C ONTEXT OF THE FACTS AND MATERIAL ON RECORD, LEARNED COMMISSIONER (APPEALS) FOUND THAT IDENTICAL ISSUE HAD BEEN DECIDED BY THE FIRST APPELLATE AUTHORITY IN FAVOUR OF THE ASSESSEE IN ASSESSMENT YEAR 2011 12 AND 2012 13. FACTS BEING IDENTICAL, FOLLOWING THE E ARLIER ORDER PASSED BY HIM, HE DELETED THE ADDITION MADE ON ACCOUNT OF T RANSFER P RICING ADJUSTMENT . AGAINST THE AFORESAID DECISION OF THE FIRST APPELLATE AUTHORITY, THE REVENUE IS IN APPEAL BEFORE THE TRIBUNAL. 4 GENERAL MILLS INDIA PVT. LTD. 5. AT THE VERY OUTSET, SHRI M.P. LOHIA, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT WHILE DECIDING IDENTICAL ISSUE IN ASSESSEES OWN CASE IN ASSESSMENT YEAR S 2011 12 AND 2012 13, THE TRIBUNAL IN IT(TP)A NO.249/MUM./2017 AND ITA NO.5668/MUM./2017, DATED 14 TH FEBRUARY 2020, HAS UPHELD THE DECISION OF LEARNED COMMISSIONER (APPEALS) IN DELETING THE ADDITION MADE ON ACCOUNT OF ADJUSTMENT TO AMP EXPENSES. 6. SHRI ANAND MOHAN, THE LEARNED DEPARTMENTAL REPRESENTATIVE , THOUGH , FAIRLY SUBMITTED THAT IDENTICAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE IN ASSESSMENT YEAR 2011 12 AND 2012 13, HOWEVER, HE SUBMITTED THAT THE ASSESSEE BEING A DISTRIBUTOR, THE AMP EXPENSES INCURRED BY HIM FOR BUILDING THE BRAND OF AES COMES WITHIN THE DEFINITION OF INTERNATIONAL TRANSACTION . FURTHER, HE SUBMITTED THAT SINCE THE REVENUE HAS FILED A SPECIAL LEAVE PETITION BEFORE THE HON'BLE SUPREME COURT CHALLENGING SOME OF THE DECISION S OF THE HON'BLE HIGH COURT S HOLDING THAT THE AMP EXPENSE IS NOT INTERNATIONAL TRANSACTION AND THE HON'BLE SUPREME COURTS DECISION ON SUCH SLP IS Y ET TO COME, THE MATTER MAY BE RESTORED BACK TO THE ASSESSING OFFICER WITH A DIRECTION TO DECIDE THE ISSUE AFTER THE DECISION OF THE HON'BLE SUPREME COURT. 5 GENERAL MILLS INDIA PVT. LTD. 7. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. AFTER CAREFULLY EXAMINING THE ORDER S PASSED BY THE TRANSFER PRICING OFFICER, LEARNED COMMISSIONER (APPEALS) AS WELL AS OTHER FACTS AND MATERIALS ON RECORD, WE ARE OF THE VIEW THAT THE FACT S ON THE BASIS OF WHICH SIMILAR ADJUSTMENT TO AMP EXPENSES INCURRED BY THE ASSESSEE IN ASSESSM ENT YEAR S 2011 12 AND 2012 13 WERE MADE BY THE TRANSFER PRICING OFFICER ARE IDENTICAL TO THE FACTS INVOLVED IN THE IMPUGNED ASSESSMENT YEAR. IN FACT, LEARNED COMMISSIONER (APPEALS) HAVING FOUND THE FACTUAL POSITION TO BE IDENTICAL HAS FOLLOWED HIS EARLIER ORDERS WHILE DELETING THE ADDITION MADE ON ACCOUNT OF TRANSFER PRICING ADJUSTMENT TO AMP EXPENSES. NOTABLY, WHILE DECIDING REVENUES APPEALS AGAINST THE DECISION OF THE LEARNED COMMISSIONER (APPEALS) IN ASSESSMENT YEAR 2011 12, IN THE ORDER REFERRED TO ABO VE, THE TRIBUNAL HAS UPHELD THE DECISION OF LEARNED COMMISSIONER (APPEALS) OBSERVING AS UNDER: 11. WE HAVE CONSIDERED RIVAL SUBMISSIONS IN THE LIGHT OF THE DECISIONS RELIED UPON AND PERUSED THE MATERIAL ON RECORD. ON A PERUSAL OF THE ORDER PASSED UNDER SECTION 92CA(3) OF THE ACT BY THE TRANSFER PRICING OFFICER, IT IS EVIDENT, HE HAS TREATED THE AMP EXPENDITURE INCURRED BY THE ASSESSEE AS A PART OF INTERNATIONAL TRANSACTIONS WITH THE AES PRIMARILY ON THE REASONING THAT BY INCURRING SUCH EXPENDITURE, THE A SSESSEE HAS PROMOTED THE BRAND OF THE AES. FOR ADOPTING SUCH LINE OF ACTION, THE TRANSFER PRICING OFFICER HAS HEAVILY RELIED UPON THE SPECIAL BENCH DECISION OF THE TRIBUNAL IN LG ELECTRONICS INDIA PVT. LTD. (SUPRA). FURTHER, FOLLOWING THE SAID DECISION, TH E TRANSFER PRICING OFFICER HAS HELD THAT THE ARM'S LENGTH PRICE OF AMP EXPENDITURE HAS TO BE DETERMINED BY APPLYING BLT METHOD. ON A CAREFUL PERUSAL OF THE ORDER PASSED BY THE TRANSFER PRICING OFFICER, WE HAVE NOT FOUND ANY FACTUAL FINDING BY HIM THAT THER E IS ANY 6 GENERAL MILLS INDIA PVT. LTD. ARRANGEMENT/AGREEMENT BETWEEN THE ASSESSEE AND ITS AES FOR INCURRING AMP EXPENDITURE TO PROMOTE THE BRAND OF AES. AS REVEALED FROM THE FACTS ON RECORD, THE ASSESSEE HAS IMPORTED CERTAIN PRODUCTS FROM THE AES FOR RESELLING TO THIRD PARTIES IN INDIA . IT IS ALSO NOT DISPUTED THAT THE ENTIRE AMP EXPENDITURE HAS BEEN INCURRED IN INDIA BY MAKING PAYMENT TO UNRELATED PARTIES. IT IS THE CLAIM OF THE ASSESSEE THAT THE PRODUCTS IMPORTED BY THE ASSESSEE FOR RE SALE IN INDIA IS COMPARATIVELY NEW PRODUCTS IN TH EIR INITIAL LIFECYCLE AND FOR PROMOTING SUCH PRODUCTS, THE ASSESSEE HAD TO ADOPT AGGRESSIVE MARKETING STRATEGY TO PENETRATE THE TARGETED MARKET SEGMENT, HENCE, HAS TO INCUR HUGE EXPENDITURE. IT IS THE CLAIM OF THE ASSESSEE THAT IT IS THE SOLE BENEFICIARY O F THE ENTIRE AMP EXPENDITURE INCURRED BY IT AND IF THERE IS ANY BENEFIT TO AES, IT IS ONLY INCIDENTAL. IT IS ALSO THE CLAIM OF THE ASSESSEE THAT THE ENTIRE PURPOSE OF INCURRING EXPENDITURE IS TO INCREASE THE SALE AND NOT TO CREATE ANY MARKETING INTANGIBLE OF THE AES. FURTHER, IT IS EVIDENT, THE ASSESSEE HAS ALSO EXPLAINED THE NATURE OF EXPENDITURE INCURRED BY FURNISHING SUPPORTING EVIDENCES. ON A PERUSAL OF THE FACTS ON RECORD, IT IS NOTICED THAT THE AMP EXPENDITURE WAS INCURRED FOR GIVING INCENTIVES, FREE SAMPLES, ETC. THUS, FROM THE AFORESAID FACTS, IT IS VERY MUCH CLEAR THAT THE AMP EXPENDITURE WAS INCURRED FOR PENETRATING THE MARKET AND INCREASING THE SALES. IN ANY CASE OF THE MATTER, NO MATERIAL HAS BEEN BROUGHT ON RECORD BY THE TRANSFER PRICING OFFICER TO DEMONSTRATE THAT THERE IS AN AGREEMENT/ARRANGEMENT WITH THE AES FOR INCURRING AMP EXPENDITURE TO PROMOTE THE BRAND OF THE AES. FURTHER, THE ENTIRE AMP EXPENDITURE HAS BEEN INCURRED IN INDIA AND PAID TO THIRD PARTIES IN INDIA. THUS, KEEPING IN PERSPECTI VE THE AFORESAID FACTUAL POSITION, WE HAVE TO HOLD THAT THE AMP EXPENDITURE INCURRED BY THE ASSESSEE CANNOT COME WITHIN THE PURVIEW OF INTERNATIONAL TRANSACTION. 12. FURTHER, IT IS EVIDENT, THE TRANSFER PRICING OFFICER HAS TREATED THE AMP EXPENDITURE AS PART OF INTERNATIONAL TRANSACTION FOLLOWING THE SPECIAL BENCH DECISION OF THE TRIBUNAL IN LG ELECTRONICS INDIA PVT. LTD. (SUPRA) AND HAS ALSO APPLIED BLT METHOD FOR COMPUTING ARM'S LENGTH PRICE. IT IS RELEVANT TO OBSERVE, THE AFORESAID SPECIAL BENCH DECISI ON OF THE TRIBUNAL IN LG ELECTRONICS INDIA PVT. LTD. (SUPRA) HAS BEEN DISAPPROVED BY THE HONBLE DELHI HIGH COURT IN MARUTI SUZUKI INDIA LTD. (SUPRA). THE HONBLE HIGH COURT HAS HELD THAT THE BLT METHOD IS INVALID AS IT IS NOT PRESCRIBED IN THE STATUTE. VA RIOUS BENCHES OF THE TRIBUNAL FOLLOWING THE DECISION OF THE HONBLE DELHI HIGH COURT IN MARUTI SUZUKI INDIA LTD. (SUPRA), HAVE CONSISTENTLY HELD THAT AMP EXPENDITURE INCURRED BY THE ASSESSEE IN INDIA CANNOT COME WITHIN THE PURVIEW OF INTERNATIONAL TRANSACT ION. IN THIS CONTEXT, WE MAY REFER TO THE DECISIONS CITED BY THE LEARNED AUTHORISED REPRESENTATIVE. IN FACT, THE CO ORDINATE BENCH IN KELLOGG INDIA 7 GENERAL MILLS INDIA PVT. LTD. PVT. LTD. (SUPRA) WHILE DECIDING IDENTICAL ISSUE HAS HELD AS UNDER: 6. WE HAVE CONSIDERED RIVAL SUBMISSIO NS AND PERUSED MATERIAL ON RECORD. WE HAVE ALSO APPLIED OUR MIND TO THE DECISIONS RELIED UPON. UNDISPUTED FACTS ARE, THE ASSESSEE IS NOT MERELY A DISTRIBUTOR OF THE PRODUCTS MANUFACTURED BY THE AE BUT THE ASSESSEE ITSELF MANUFACTURES ITS OWN PRODUCTS IN IN DIA UNDER LICENSE FROM THE AE. IT IS ALSO A FACT THAT FOR MARKETING AND PROMOTION OF ITS MANUFACTURED PRODUCTS IN INDIA, ASSESSEE HAS INCURRED AMP EXPENDITURE BY MAKING PAYMENTS TO THIRD PARTIES IN INDIA. THEREFORE, THE BASIC ISSUE WHICH ARISES FOR CONSIDE RATION IS, WHETHER THE AMP EXPENDITURE INCURRED BY THE ASSESSEE IN INDIA CAN COME WITHIN THE PURVIEW OF INTERNATIONAL TRANSACTION AS DEFINED UNDER SECTION 92B OF THE ACT. IN THIS REGARD, THE CONTENTION OF THE ASSESSEE BEFORE THE TRANSFER PRICING OFFICER WA S, SINCE THE ASSESSEE HAS INCURRED THE AMP EXPENDITURE FOR PRODUCTS MANUFACTURED AND SOLD BY IT IN INDIA, IT DOES NOT COME WITHIN THE PURVIEW OF INTERNATIONAL TRANSACTION. FURTHER, THE ASSESSEE HAS ALSO SUBMITTED THAT SINCE THERE IS NO ARRANGEMENT/AGREEMEN T BETWEEN THE ASSESSEE AND THE AE FOR INCURRING SUCH EXPENDITURE TO PROMOTE THE BRAND OF THE AE, IT CANNOT BE SAID THAT THERE IS AN INTERNATIONAL TRANSACTION RELATING TO AMP EXPENDITURE. IT IS WORTH MENTIONING, THE TRANSFER PRICING OFFICER HAS ALSO AGREED WITH THE ASSESSEE THAT THE AMP EXPENDITURE WAS INCURRED WITH THE THIRD PARTIES IN INDIA, HENCE, DO NOT CONSTITUTE INTERNATIONAL TRANSACTION. HAVING HELD SO, THE TRANSFER PRICING OFFICER HAS STILL PROCEEDED TO DETERMINE THE ARM'S LENGTH PRICE OF THE AMP EXP ENDITURE ON THE REASONING THAT THE COMPENSATION REQUIRED IN THE ARRANGEMENT BETWEEN THE ASSESSEE AND THE AE FOR IMPROVING THE BRAND INTANGIBLE OF THE OWNER HAS TO BE DETERMINED. FURTHER, HE HAS OBSERVED THAT THE AMP EXPENDITURE INCURRED BY THE ASSESSEE NOT ONLY BENEFITS THE ASSESSEE BUT ALSO THE AE IN TERMS OF INCREASE IN THE BRAND VALUE OF KELLOGG. THUS, THE TRANSFER PRICING OFFICER HAS INFERRED THAT THERE IS AN ARRANGEMENT BETWEEN THE ASSESSEE AND THE AE WITH REGARD TO PROMOTION OF THE BRAND OF THE AE BY INCURRING AMP EXPENDITURE. HOWEVER, HE HAS NOT PROVIDED ANY FACTUAL BASIS ON WHICH HE HAS DRAWN SUCH INFERENCE. BY MERELY STATING THAT THERE IS AN ARRANGEMENT BETWEEN THE ASSESSEE AND THE AE, THE TRANSFER PRICING OFFICER CANNOT BRING THE AMP EXPENDITURE WI THIN THE PURVIEW OF INTERNATIONAL TRANSACTION. IF THE TRANSFER PRICING OFFICER ALLEGES THAT THE AMP EXPENDITURE COMES WITHIN THE PURVIEW OF INTERNATIONAL TRANSACTION BY VIRTUE OF AN ARRANGEMENT BETWEEN THE RELATED PARTIES, THE BURDEN IS ENTIRELY UPON THE T RANSFER PRICING OFFICER TO DEMONSTRATE THE EXISTENCE OF SUCH ARRANGEMENT. A CAREFUL READING OF THE IMPUGNED ORDER OF THE TRANSFER PRICING OFFICER DOES NOT REVEAL ANY SUCH FACTUAL BASIS WHICH CAN 8 GENERAL MILLS INDIA PVT. LTD. DEMONSTRATE THE EXISTENCE OF AN ARRANGEMENT BETWEEN THE ASSES SEE AND THE AE FOR INCURRING AMP EXPENDITURE TO PROMOTE THE BRAND OF THE AE. THAT BEING THE CASE, THE ENTIRE APPROACH OF THE TRANSFER PRICING OFFICER IN DETERMINING THE ARM'S LENGTH PRICE OF AMP EXPENDITURE IS FALLACIOUS. 7. MOREOVER, THERE IS NO DOUBT THAT THE TRANSFER PRICING OFFICER HAS DETERMINED THE ARM'S LENGTH PRICE OF AMP EXPENDITURE BY APPLYING BLT METHOD. WHILE DOING SO, HE HAS HEAVILY RELIED UPON THE SPECIAL BENCH DECISION OF THE TRIBUNAL, IN L G ELECTRONICS INDIA PVT. LTD. (SUPRA). NOW, IT IS FAIRLY WELL ESTABLISHED THAT DETERMINATION OF ARM'S LENGTH PRICE OF AMP EXPENDITURE BY APPLYING BLT METHOD IS NOT VALID.IN A CATENA OF DECISIONS, THE HON'BLE DELHI HIGH COURT WHILE DISAPPROVING THE DECISION OF THE TRIBUNAL IN L. G. ELECTRONICS INDIA PVT. LT D. (SUPRA) HAVE HELD THAT BLT METHOD IS INVALID AS IT IS NOT PRESCRIBED IN THE STATUTE. IN THIS CONTEXT, WE MAY REFER TO THE DECISION OF THE HON'BLE DELHI HIGH COURT IN MARUTI SUZUKI INDIA LTD. (SUPRA). FOLLOWING THE DECISION OF THE HON'BLE DELHI HIGH COUR T IN MARUTI SUZUKI INDIA LTD. (SUPRA) AND VARIOUS OTHER DECISIONS, DIFFERENT BENCHES OF THE TRIBUNAL HAVE ALSO HELD THAT IN ABSENCE OF AN EXPRESS ARRANGEMENT/AGREEMENT BETWEEN THE ASSESSEE AND THE AE FOR INCURRING AMP EXPENDITURE TO PROMOTE THE BRAND OF TH E AE, AMP EXPENDITURE INCURRED BY MAKING PAYMENT TO THIRD PARTIES FOR PROMOTING AND MARKETING THE PRODUCT MANUFACTURED BY THE ASSESSEE, DOES NOT COME WITHIN THE PURVIEW OF INTERNATIONAL TRANSACTION. 8. AT THIS STAGE, IT IS RELEVANT TO OBSERVE, WHILE DECIDING IDENTICAL NATURE OF DISPUTE IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2011 12, LEARNED DRP IN DIRECTION DATED 28 TH DECEMBER 2015, HAVE DELETED THE ADJUSTMENT MADE BY THE TRANSFER PRICING OFFICER ON ACCOUNT OF AMP EXPENDITURE BY RECORDING A FACTUAL FINDING THAT THE TRANSFER PRICING OFFICER HAS FAILED TO DEMONSTRATE THAT THERE IS AN AGREEMENT/ARRANGEMENT BETWEEN THE ASS ESSEE AND THE AE FOR INCURRING AMP EXPENDITURE. WHILE DOING SO, LEARNED DRP HAS RELIED UPON THE DECISION OF THE HON'BLE DELHI HIGH COURT IN MARUTI SUZUKI INDIA LTD. (SUPRA). THUS, VIEWED IN THE LIGHT OF THE RATIO LAID DOWN IN THE DECISIONS CITED BY THE LEA RNED AUTHORISED REPRESENTATIVE, INCLUDING THE DECISION OF THE HON'BLE DELHI HIGH COURT IN MARTUTI SUZUKI INDIA LTD. (SUPRA), IT HAS TO BE CONCLUDED THAT THE AMP EXPENDITURE INCURRED BY THE ASSESSEE IN INDIA CANNOT COME WITHIN THE PURVIEW OF THE INTERNATION AL TRANSACTION. HENCE, THE TRANSFER PRICING OFFICER HAS NO JURISDICTION TO DETERMINE THE ARM'S LENGTH PRICE OF AMP EXPENDITURE. 13. 9. HAVING HELD SO, IT IS NOW NECESSARY TO DEAL WITH THE CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTA 9 GENERAL MILLS INDIA PVT. LTD. TIVE TO RESTORE T HE ISSUE TO THE ASSESSING OFFICER FOR KEEPING IT PENDING TILL THE ISSUE IS SETTLED BY THE HON'BLE SUPREME COURT. IN OUR VIEW, THE AFORESAID CONTENTION OF THE LEARNED DEPARTMENTAL REPRESENTATIVE IS NOT ACCEPTABLE. AS PER THE PREVAILING LEGAL POSITION, THE A MP EXPENDITURE INCURRED BY THE ASSESSEE IN INDIA CANNOT COME WITHIN THE PURVIEW OF INTERNATIONAL TRANSACTION. THAT BEING THE CASE, THE ADJUSTMENT MADE BY THE TRANSFER PRICING OFFICER CANNOT SURVIVE. THEREFORE, WE DO NOT FIND ANY NECESSITY TO RESTORE THE IS SUE TO THE ASSESSING OFFICER. GROUNDS ARE ALLOWED. 14. THUS, KEEPING IN VIEW THE RATIO LAID DOWN IN THE DECISIONS REFERRED TO ABOVE, WE HAVE TO AGREE WITH THE CONCLUSION ARRIVED AT BY LEARNED COMMISSIONER (APPEALS) WITH REGARD TO THE TAXABILITY OF AMP EX PENDITURE. ACCORDINGLY, WE UPHOLD THE DECISION OF LEARNED COMMISSIONER (APPEALS) BY DISMISSING THE GROUND RAISED. 8. THERE BEING NO MATERIAL DIFFERENCE IN FACTS IN THE IMPUGNED ASSESSMENT YEAR, RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE, WE UPHOLD THE ORDER OF LEARNED COMMISSIONER (APPEALS) ON THE DISPUTED ISSUE BY DISMISSING THE GROUNDS RAISED. 9. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED UNDER RULE 34(4) OF THE INCOME TAX (APPELLATE TRIBUNAL) R ULES, 196 3 ON 14.07.2020 SD/ - S. RIFAUR RAHMAN ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMB AI, DATED: 14.07.2020 10 GENERAL MILLS INDIA PVT. LTD. COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, MUMBAI CITY CONCERNED; (5) THE DR, ITAT, MUMBAI; (6) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ASSISTANT REGISTRAR ITAT, MUMBAI