Organon (India) Private Limited, Mumbai V. DCIT, Circle - 12(1), , Kolkata

ITA 2540/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6639 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2014-2015
• Appeal Filed On: 06-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Assessee Lawyers: J P KHAITAN
• Keywords: Transfer pricing; International transaction
• Section: 271(1)(c); 143(3); 92B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. VISWANETHRA RAVI, JUDICIAL MEMBER) I.T.A. NO. 2540/KOL/2018 ASSESSMENT YEAR: 2014-15 ORGANON (INDIA) PRIVATE LIMITED................................................APPELLANT PLOT NO. C-56, BLOCK-G, 8 TH FLOOR, PLATINA BUILDING, BANDRA-KURLA COMPLEX, BANDRA (EAST), MUMBAI 400 098 [PAN : AAACI 6949 R] VS. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-12(1), KOLKATA..........................................RESPONDENT APPEARANCES BY: SHRI J.P. KHAITAN., SR. ADV., APPEARED ON BEHALF OF THE ASSESSEE. DR. P.K. SRIHARI ,CIT(DR). , APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : JULY 10 TH , 2019 DATE OF PRONOUNCING THE ORDER : JULY 31 ST , 2019 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE ASSESSING OFFICER (HEREINAFTER THE AO), PASSED U/S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT) READ WITH SECTION 144(C) OF THE ACT ON THE FOLLOWING GROUNDS:- 1. DETERMINATION OF ARMS LENGTH PRICE FOR ADVERTISING, MARKETING & PROMOTION (AMP) EXPENSE I) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. TRANSFER PRICING OFFICER (LD. TPO) AND ACCORDINGLY THE LD. ASSESSING OFFICER (LD. AO) HAVE ERRED IN MAKING TRANSFER PRICING (TP) ADJUSTMENTS OF RS. 12,14,13,450/- AND DISPUTE RESOLUTION PANEL (HEREINAFTER REFERRED TO AS LD. PANEL) ERRED IN CONFIRMING THE SAME TOWARDS ALLEGED EXCESS AMP EXPENSES INCURRED BY THE ASSESSEE AND HOLDING THAT THE ASSESSEE SHOULD HAVE RECEIVED REIMBURSEMENT OF SUCH ALLEGED AMP EXPENSES FROM THE AE WITH A MARKUP; II) THE LD. TPO/LD. AO & LD. PANEL ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THAT EXPENDITURE ON AMP UNILATERALLY INCURRED BY THE ASSESSEE COULD NOT BE REGARDED AS AN INTERNATIONAL TRANSACTION AS PER SECTION 92B READ WITH SECTION 92F(V) OF THE ACT AND LD. PANEL ERRED IN CONFIRMING THE SAME AS AN INTERNATIONAL TRANSACTION WITHOUT APPRECIATING THE FACT THAT IT DOES NOT FALL WITHIN THE AMBIT OF 'INTERNATIONAL TRANSACTION U/S 92B OF THE ACT. III) THE LD. TPO/ LD. AO & LD. PANEL ERRED ON FACTS AND IN LAW IN IGNORING THE FACT THAT THE AMP EXPENSE INCURRED BY THE ASSESSEE W 7 ERE IN RESPECT OF ITS OWN BUSINESS PURPOSES AND REQUIREMENTS AND THAT ALL THE BENEFITS RESULTING FROM SUCH EXPENDITURE ARE TO ITS OWN ACCOUNT; IV) THE LD. TPO/ LD. AO ERRED ON FACTS AND IN LAW 7 IN MISINTERPRETING AND PLACING INCORRECT RELIANCE ON THE INTERNATIONAL GUIDANCE IN RELATION TO THE 2 I.T.A. NO. 2540/KOL/2018 ASSESSMENT YEAR: 2014-15 ORGANON (INDIA) PRIVATE LIMITED MARKETING INTANGIBLES AND THE BRIGHT LINE TEST (ALSO DISREGARDING THE DIRECTION OF THE LD. PANEL IN RELATION TO BRIGHT LINE TEST) AND ARRIVED AT ERRONEOUS CONCLUSIONS TO MAKE UNWARRANTED TP ADJUSTMENT; V) THE LD. TPO/ LD. AO & LD. PANEL HAS FAILED TO APPRECIATE THAT AMP EXPENSE SHOULD BE CONSTITUTED AS A FUNCTION PERFORMED BY THE ASSESSEE AND NOT A TRANSACTION UNDERTAKEN BY THE ASSESSEE; VI) WITHOUT PREJUDICE TO THE ABOVE ARGUMENTS - THE COMPARABLE CONSIDERED BY THE LD. TPO/AO AND SUBSEQUENTLY CONFIRMED BY LD. PANEL FOR APPLICATION OF BRIGHT LINE TEST (BLT) IS ERRONEOUS; THE MARKUP OF 5% AS PROVIDED BY THE LD. TPO/AO AND SUBSEQUENTLY CONFIRMED BY THE LD. PANEL IS ERRONEOUS; THE LD. TPO AND ACCORDINGLY THE LD. AO HAVE ERRED BY DISREGARDING THE DIRECTION OF LD. PANEL IN CONSIDERING SELLING AND DISTRIBUTION EXPENSES FOR COMPUTING THE AMP SPEND RATIO OF THE ASSESSEE; THE CALCULATION OF ADJUSTMENT PROPOSED BY THE LD. TPO/AO AND SUBSEQUENTLY CONFIRMED BY THE LD. PANEL IS ERRONEOUS. VII) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN INITIATING PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT EVEN THOUGH THERE IS NO FINDING THAT THE APPELLANT HAS CONCEALED ANY INCOME OR HAS PROVIDED INACCURATE PARTICULARS. 2. LEARNED SR. ADVOCATE SHRI J.P. KHAITAN ARGUING ON BEHALF OF THE ASSESSEE SUBMITTED THAT, A SIMILAR ISSUE HAS COME UP BEFORE THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, KOLKATA IN THE ASSESSEES OWN CASE, IN ITA NO. 633 & 2459/KOL/2017, FOR THE ASSESSMENT YEARS 2012-13 AND 2013-14 AND THAT THE TRIBUNAL IN ITS ORDER DATED 24.10.2018 HAD DEALT WITH THE MATTER IN DETAIL AND ALLOWED THE CLAIM OF THE ASSESSEE. HE TOOK THIS BENCH THROUGH THE ORDER OF THE TPO, DRP AS WELL AS THE ORDER OF THE ITAT ON THE ISSUE. HE SUBMITTED THAT THE ORDER OF THE TRIBUNAL ON THE VERY SAME ISSUE IN THE ASSESSEES OWN CASE FOR THE EARLIER ASSESSMENT YEAR MAY BE FOLLOWED. 3. THE LEARNED CIT(DR) SHRI P.K. SRIHARI, ON THE OTHER HAND, SUBMITTED THAT, THE ISSUE HAD BEEN CONSIDERED BY THE TRIBUNAL IN ITS EARLIER ORDER DATED 24.10.2018 AND THAT ONLY THE FIRST LIMB OF HIS ARGUMENT WAS CONSIDERED AND THAT THE SECOND LIMB OF HIS ARGUMENT WAS NOT CONSIDERED BY THE ITAT. HE ARGUED THAT, THE FIRST LIMB OF THE ARGUMENT WAS REJECTED BY THE TRIBUNAL ON THE GROUND THAT IT IS FOR THE DRUG AND NOT FOR BRANDING OF THE COMPANY FOR WHICH AMP EXPENDITURE IS INCURRED AND THAT THE SECOND PART OF HIS ARGUMENT THAT AMP EXPENDITURE INCURRED FOR BRANDING OF THE DRUG WAS NOT CONSIDERED. HE SUBMITTED THAT AMP EXPENDITURE WAS INCURRED IN THE DISTRIBUTION SEGMENT, BUT THAT THE SEGMENTAL DATE WAS NOT PROVIDED. 3 I.T.A. NO. 2540/KOL/2018 ASSESSMENT YEAR: 2014-15 ORGANON (INDIA) PRIVATE LIMITED 4. RIVAL CONTENTIONS HEARD. THIS BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEARS 2012-13 AND 2013-14 IN ORDER DATED 24.10.2018 FROM PARA-6 ONWARDS HELD AS FOLLOWS: 6. WE HAVE HEARD THE RIVAL SUBMISSIONS. AT THE OUTSET, THERE IS NO DISPUTE ON THE SELECTION OF COMPARABLES FOR DETERMINATION OF ALP OF AMP EXPENDITURE. WE FIND THAT THE ASSESSEE MADE PRELIMINARY OBJECTION THAT AMP EXPENSE SHOULD NOT BE CONSIDERED AS AN INTERNATIONAL TRANSACTION AT ALL AND HENCE THE SAME NEED NOT BE BENCHMARKED FOR THE PURPOSE OF DETERMINATION OF ALP. WE FIND THAT THE LD DR ARGUED THAT THE ASSESSEE IS ONLY A DISTRIBUTION COMPANY AND NOT A MANUFACTURING COMPANY AND HENCE THE DECISION OF THE HONBLE DELHI HIGH COURT RELIED UPON BY THE ID AR IN THE CASE OF MARUTI SUZUKI INDIA LTD VS CIT REPORTED IN 381 ITR 117 (DEL) DOES NOT SUPPORT THE CASE OF THE ASSESSEE. IN THIS REGARD, WE FIND THAT THE ASSESSEE IS ENGAGED IN BOTH MANUFACTURING AND DISTRIBUTION OF PHARMACEUTICAL FORMULATIONS. WE FIND THAT THE ASSESSEE COMPANY OUTSOURCES ITS ENTIRE PRODUCTION REQUIREMENTS TO TOLL MANUFACTURERS / CONTRACT MANUFACTURERS ON A LICENCE BASIS. THE ASSESSEE COMPANY SOURCES THE VARIOUS RAW MATERIALS REQUIRED TO MANUFACTURE THE FORMULATIONS AND GETS IT CONVERTED FROM THIRD PARTY TOLL-MANUFACTURERS. WE FIND FROM THE FINANCIAL STATEMENTS OF THE ASSESSEE COMPANY THAT IT HAD SHOWN MANUFACTURING DETAILS IN TERMS OF CONSUMPTION OF RAW MATERIALS, SALE OF FINISHED GOODS, INVENTORIES OF FINISHED GOODS ETC. WE ALSO FIND FROM THE SAID FINANCIALS, THAT THE PRODUCTS MANUFACTURED BY THE ASSESSEE EITHER ON ITS OWN OR THROUGH THE CONTRACT MANUFACTURER ARE SUBJECTED TO LEVY OF EXCISE DUTY AND THE CENTRAL EXCISE DEPARTMENT HAD DULY LEVIED AND COLLECTED EXCISE DUTY FROM THE ASSESSEE COMPANY. HENCE IT WOULD BE FACTUALLY INCORRECT TO STATE THAT THE ASSESSEE IS NOT A MANUFACTURER AT ALL AND ONLY DISTRIBUTOR SIMPLICITOR. ACCORDINGLY, THE ARGUMENT ADVANCED BY THE LD DR IN THIS REGARD REQUIRES TO BE DISMISSED. WE HOLD THAT THE AMP EXPENDITURE IS NOT AN INTERNATIONAL TRANSACTION AND HENCE THERE IS NO NEED TO DETERMINE THE ALP OF THE SAME. WE FIND THAT THE CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF PHILIPS INDIA LTD VS ACIT IN ITA NO. 2489/KOL/2017 DATED 4.4.2018 FOR ASST YEAR 2013-14 HAD HELD AS UNDER:- 11. WE HAVE HEARD THE RIVAL SUBMISSIONS. AT THE OUTSET, WE FIND THAT THE ID TPO, ID AO AND THE LD DRP HAD CATEGORICALLY ACCEPTED THE BASIC FACT THAT THE ASSESSEE IS A MANUFACTURER AND ALSO ENGAGED IN DISTRIBUTION OF PRODUCTS. WHILE THIS IS SO, WE ARE NOT ABLE TO COMPREHEND THE ARGUMENT ADVANCED BY THE LD DR THAT ASSESSEE IS ONLY A DISTRIBUTOR AND THEREBY THE DECISION OF SONY ERICSSON WOULD APPLY TO THE CASE. WE FIND THAT SINCE THE ASSESSEE IS A MANUFACTURER CUM DISTRIBUTOR AS ACCEPTED BY THE LOWER AUTHORITIES, THE DECISION RENDERED IN MARUTI SUZUKI SUPRA WOULD BE APPLICABLE TO THE ASSESSEES CASE, SINCE THE CONTENTION OF THE LD DR THAT ASSESSEE IS ONLY DISTRIBUTOR, IS NOT EMANATING FROM THE RECORDS OF THE LOWER AUTHORITIES. WE FIND THAT THE ISSUE UNDER DISPUTE BEFORE US IS SQUARELY ADDRESSED BY THIS TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASST YEAR 2011-12 SUPRA WHEREIN IT WAS HELD:- 43. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE PRELIMINARY ISSUE HERE ARISES WHETHER THE AMP EXPENSES CONSTITUTE THE INTERNATIONAL TRANSACTIONS SO AS TO ATTRACT THE PROVISIONS OF TRANSFER PRICING OF THE INCOME TAX ACT, 1961. THE CLAIM OF THE LD. AR IS THAT THE AMP TRANSACTION DOES NOT REPRESENT THE 4 I.T.A. NO. 2540/KOL/2018 ASSESSMENT YEAR: 2014-15 ORGANON (INDIA) PRIVATE LIMITED INTERNATIONAL TRANSACTION BETWEEN THE AES THEREFORE NO QUESTION OF DETERMINING THE ALP OF AMP TRANSACTIONS. WE FIND FORCE IN THE ARGUMENT OF THE LD. AR IN THE GIVEN FACTS AND CIRCUMSTANCES. THEREFORE, IN OUR CONSIDERED VIEW THE AMP CANNOT BE REGARDED AS INTERNATIONAL TRANSACTION. IN HOLDING SO WE FIND THE SUPPORT & GUIDANCE FROM THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF MARUTI SUZUKI INDIA LIMITED VS. CIT REPORTED IN 381ITR 117 WHEREIN IT WAS HELD AS UNDER: 51. THE RESULT OF THE ABOVE DISCUSSION IS THAT IN THE CONSIDERED VIEW OF THE COURT THE REVENUE HAS FAILED TO DEMONSTRATE THE EXISTENCE OF AN INTERNATIONAL TRANSACTION ONLY ON ACCOUNT OF THE QUANTUM OF AMP EXPENDITURE BY MSIL. SECONDLY, THE COURT IS OF THE VIEW THAT THE DECISION IN SONY ERICSSON MOBILE COMMUNICATIONS INDIA (P) LTD. CASE (SUPRA) HOLDING THAT THERE IS AN INTERNATIONAL TRANSACTION AS A RESULT OF THE AMP EXPENSES CANNOT BE HELD TO HAVE ANSWERED THE ISSUE AS FAR AS THE PRESENT ASSESSEE MSIL IS CONCERNED SINCE FINDING IN SONY ERICSSON TO THE ABOVE EFFECT IS IN THE CONTEXT OF THOSE ASSESSEES WHOSE CASES HAVE BEEN DISPOSED OF BY THAT JUDGMENT AND WHO DID NOT DISPUTE THE EXISTENCE OF AN INTERNATIONAL TRANSACTION REGARDING AMP EXPENSES.' IN VIEW OF WE NOTE THAT THE FACTS OF THE ABOVE CASES ARE IDENTICAL TO THE PRESENT ISSUE, THUS, THE PRINCIPLE LAID DOWN BY THE HONBLE DELHI HIGH COURT IN THE CASE OF MARUTI SUZUKI INDIA LIMITED (SUPRA) ARE APPLICABLE TO THE INSTANT CASE. RESPECTFULLY FOLLOWING THE SAME WE DISMISS THE GROUND OF APPEAL FILED BY THE REVENUE. RESPECTFULLY FOLLOWING THE SAME, THE UPWARD ADJUSTMENT MADE BY THE LD TPO AND UPHELD BY THE LD DRP IS HEREBY DIRECTED TO BE DELETED. ACCORDINGLY, THE GROUNDS 3,4.2 & 4.3. RAISED BY THE ASSESSEE ARE ALLOWED. RESPECTFULLY FOLLOWING THE SAME, WE HOLD THAT THE AMP EXPENDITURE IS NOT AN INTERNATIONAL TRANSACTION SO AS TO DETERMINE THE ALP OF THE SAME. 6.1. WE FIND THAT THE LD DR ARGUED THAT THE ASSESSEE NAME IN INDIA IS ORGANON INDIA PVT LTD AND THAT THE WORD ORGANON IS NOT AN INDIAN WORD AND IT IS THE NAME OF THE AE. HENCE IT IS THE NAME AND BRAND OF THE AE THAT IS GETTING SOLD IN INDIA AND ACCORDINGLY HE PLEADED THAT AMP EXPENDITURE IS AN INTERNATIONAL TRANSACTION. WITH REGARD TO THE USAGE OF THE WORD ORGANON AS NAME OF THE ASSESSEE IN INDIA, WE FIND THAT IT IS THE PRODUCTS MANUFACTURED BY ORGANON INDIA THAT REALLY MATTERS AND NOT THE COMPANY WHICH MANUFACTURES. IN ANY CASE, MERE USAGE OF A FOREIGN WORD DOES NOT MAKE IT AUTOMATIC TO FALL WITH IN THE AMBIT OF AN INTERNATIONAL TRANSACTION. FOR EXAMPLE, IN RESPECT OF USAGE OF THE PRODUCT SAVLON, WHICH COMES IN LIQUID FORM OR AS ANTISEPTIC CREAM ETC, WAS PREVIOUSLY MANUFACTURED BY JOHNSON & JOHNSON AND NOW MANUFACTURED BY ITC LTD. IT IS TO BE UNDERSTOOD THAT THE PRODUCT IS SOLD BECAUSE OF THE NAME SAVLON AND NOT BECAUSE IT IS MANUFACTURED BY JOHNSON & JOHNSON OR BY ITC LTD. HENCE THE USAGE OF THE FOREIGN WORD ORGANON IN THE NAME OF THE ASSESSEE COMPANY DOES NOT ENABLE ITS PRODUCTS TO BE SOLD IN THE OPEN MARKET. WE FIND THAT THE ASSESSEE HAD GIVEN THE DETAILS OF PRODUCTS MANUFACTURED BY IT BEFORE THE LD DRP WHICH WAS ALSO SUBJECT TO REMAND PROCEEDINGS AND FROM THE SAID PRODUCTS LIST THAT ARE ENCLOSED IN 412 TO 448 OF THE PAPER BOOK, WE FIND THAT THE PRODUCTS ARE SOLD ONLY BY ITS RELEVANT NAME IN THE OPEN MARKET AND NOT BY THE MANUFACTURERS OF IT. HENCE THE INCURRENCE OF AMP EXPENDITURE IN THE INSTANT 5 I.T.A. NO. 2540/KOL/2018 ASSESSMENT YEAR: 2014-15 ORGANON (INDIA) PRIVATE LIMITED CASE CANNOT BE ATTRIBUTED AS TOWARDS INCURRED FOR BRAND PROMOTION OF THE AE, THEREBY REQUIRING ANY COMPENSATION. 6.2. WE FIND THAT THE ENTIRE AMP EXPENDITURE HAS BEEN INCURRED AND PAID ONLY TO THIRD PARTIES AND NOT TO AES. THE ASSESSEE PLEADED THAT THE SAME HAD BEEN INCURRED FOR THE PURPOSE OF ITS BUSINESS AND FOR ITS PRODUCTS AND HENCE THE SAME ARE NOT ELIGIBLE TO BE COMPENSATED BY THE AES. IT WAS SUBMITTED THAT THERE WAS NO TRANSFER OF MARKETING INTANGIBLES. THE ASSESSEE ALSO PLEADED THAT IT WAS NOT PROMOTING ANY OF THE BRANDS OF THE AES IN INDIA IN ORDER TO BE ELIGIBLE TO BE COMPENSATED. WE FIND THAT THE REVENUE HAD ONLY ASSUMED THAT THE ASSESSEE HAD PROMOTED THE BRAND OF THE AE BY INCURRING AMP EXPENDITURE IN INDIA THEREBY WARRANTING ANY COMPENSATION. IN THIS REGARD, WE FIND LOT OF FORCE IN THE ARGUMENTS OF THE LD AR THAT THE ASSESSEE HAD NOT PAID ANY ROYALTY OR TRADEMARK FEE TO ITS AES AND HAD BEEN BENEFITTED BY THE EXCESS PREMIUM RETURN IN THE SALE PRICE OF GOODS. THE AMP EXPENDITURE IS DULY FACTORED INTO THE SAID PRICING FIXED BY THE AES. IN THE INSTANT CASE, WE FIND THAT THE INTERNATIONAL TRANSACTIONS WITH AES OF PURCHASE OF RAW MATERIALS, PURCHASE OF FINISHED GOODS, SALE OF FINISHED GOODS AND RECOVERY OF EXPENSES HAVE BEEN DULY ACCEPTED TO BE AT ARMS LENGTH. THEN THE AMP EXPENDITURE ALSO IS REQUIRED TO BE ACCEPTED AT ARMS LENGTH AS IT IS ALREADY FACTORED IN THE PRICING. 6.3. WE ALSO FIND THAT THE LD TPO AND LD DRP HAD SOUGHT TO INCLUDE THE SELLING EXPENSES INCURRED IN SLE REPS PROMO - PRINT OF RS 2,62,10,736/- AND EDUINFO- SPEAKER HO OF RS 69,53,430/- AS PART OF AMP EXPENDITURE AND THE SAME HAS BEEN INCLUDED TO BENCH MARK THE ALP OF AMP EXPENDITURE. IN THIS REGARD, WE FIND THAT THESE EXPENDITURES ARE PURELY RELATED TO PRODUCTS OF THE ASSESSEE AND NOT FOR ANY BRAND. WE ALSO FIND THAT THE ASSESSEE WHILE INCURRING THE TOTAL EXPENDITURE TOWARDS AMP AND SELLING EXPENSES, HAD DULY BIFURCATED THE SAME BY IDENTIFYING AT THE TIME OF INCURRENCE ITSELF WHETHER THE SAID EXPENDITURE CONSTITUTES AMP EXPENDITURE OR SELLING EXPENSES. THIS BIFURCATION OF EXPENDITURE HAD BEEN IGNORED BY THE REVENUE IN THE INSTANT CASE. WE FIND THAT IF THESE TWO ITEMS ARE EXCLUDED, THEN THE AMP EXPENDITURE INCURRED BY THE ASSESSEE IS AT ARMS LENGTH EVEN AFTER THE MARK UP OF 5%. HENCE NO SEPARATE DISCUSSION IS REQUIRED HEREIN WITH REGARD TO THE VALIDITY OF MARK UP OF 5%. HENCE IN ANY CASE, THERE CANNOT BE ANY ADJUSTMENT TO ALP OF AMP EXPENDITURE IN THE INSTANT CASE. 6.4. IN VIEW OF THE AFORESAID OBSERVATIONS IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND RESPECTFULLY FOLLOWING THE JUDICIAL PRECEDENTS RELIED UPON HEREINABOVE, WE ALLOW THE GROUNDS RAISED BY THE ASSESSEE IN THIS REGARD FOR THE ASST YEARS 2012-13 AND 2013-14. 5. IN OUR VIEW THIS DECISION COVERS THE ISSUE ON HAND. THE SUBMISSIONS OF THE LD.DR THAT THE SECOND LIMB OF HIS ARGUMENT WAS NOT CONSIDERED, IS NOT CORRECT. THE TRIBUNAL HAS GIVEN A CATEGORICAL FINDING THAT THE AMP EXPENDITURE IN THE INSTANT CASE CANNOT BE ATTRIBUTED OR WAS INCURRED FOR BRAND PROMOTION OF THE AE. THE FACTUAL FINDINGS GIVEN BY THE TRIBUNAL COULD NOT BE CONTROVERTED BY THE LD.DR. HENCE, 6 I.T.A. NO. 2540/KOL/2018 ASSESSMENT YEAR: 2014-15 ORGANON (INDIA) PRIVATE LIMITED RESPECTFULLY FOLLOWING THE SAME, WE ALLOW THE GROUND NOS. 1-1.6. GROUND NO. 1.7 IS DISMISSED AS PREMATURE. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART. KOLKATA, THE JULY 31 ST , 2019. SD/- SD/- [S.S. VISWANETHRA RAVI] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 31.07.2019 BIDHAN COPY OF THE ORDER FORWARDED TO: 1. ORGANON (INDIA) PRIVATE LIMITED PLOT NO. C-56, BLOCK-G, 8TH FLOOR, PLATINA BUILDING, BANDRA-KURLA COMPLEX, BANDRA (EAST), MUMBAI 400 098 2. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-12(1), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES