ITA Nos.6073/Mum/2014 & 2778/Mum/2011 CO.Nos.243/Mum/2014 & 126/Mum/2011 Colgate Palmolive (India) Limited
IN THE INCOME TAX APPELLATE TRIBUNAL
“K” BENCH, MUMBAI
ी महावीर िसं ह, ाियक सद एवं
ी मनोज कुमारअ वाल, लेखासद के सम ।
BEFORE SHRI MAHAVIR SINGH, JM AND
SHRI MANOJ KUMAR AGGARWAL, AM
आयकरअपीलसं./I.T.A. No. 6073/Mum/2014
Cross Objection No.243/Mum/2014
(िनधा रणवष / Assessment Year: 2007-08)
Assistant Commissioner of Colgate Palmolive (India) Limited
Income Tax 10(3) (OSD) Colga te Res earc h Centr e
th बनाम/ Ma in Stre et
Room No.403,4 Floor Hiranan dan i Garde ns , Powa i
Aaykar Bhavan Vs.
Mum bai – 400 076
Mumbai – 400 020
थायीले खासं . /जीआइआर सं . /PAN/GIR No. AACCC-4309-B
(अ पीलाथ!/Appellant) : (“#थ! / Respondent)
आयकरअ पीलसं./I.T.A. No. 2778/Mum/2011
Cross Objection No.126/Mum/2011
(िनधा रणवष / Assessment Year: 2005-06)
Assistant Commissioner of Co lg at e P a l mo li ve ( In dia ) L i mit e d
Income Tax 10(3) Colga te Res earc h Centr e
बनाम/ Ma in Stre et
Room No.451,4 t h Floor Hiranan dan i Garde ns , Powa i
Aaykar Bhavan, M.K.Road Vs.
Mum bai – 400 076
Mumbai – 400 020
थायीले खासं . /जीआइआर सं . /PAN/GIR No. AACCC-4309-B
(अ पीलाथ!/Appellant) : (“#थ! / Respondent)
Assessee by : Arvind V. Sonde, Ld. AR
ITA Nos.6073/Mum/2014 & 2778/Mum/2011
CO.Nos.243/Mum/2014 & 126/Mum/2011
Colgate Palmolive (India) Limited
Assessment Years : 2005-06 & 2007-08
Revenue by : V. Jenardhanan, Ld. DR
Date of Hearing
: 04 /05/2018
Date of Pronouncement
आदे श / O R D E R
Per Manoj Kumar Aggarwal (Accountant Member)
1. The captioned appeals by revenue for Assessment Years [AY]
2005-06 & 2007-08 contest separate orders of lower authorities. The
assessee has filed cross-objections against the same. Since common
issues are involved, the same are being disposed-off by way of this
common order for the sake of convenience and brevity.
Cross Appeals for AY 2005-06
2.1 The cross appeals for AT 2005-06 contest the order of Ld.
Commissioner of Income Tax (Appeals)-15, Mumbai [CIT(A)], Appeal
No. CIT(A)-15/IT-194/08-09 dated 25/01/2011. The revenue has raised
the following effective grounds of appeal:-
1(i) On the facts and in the circumstances of the case and in law, the Ld. CIT(A)
ought to have upheld the action of the Assessing Officer in taxing the
remission/ cessation of sales tax liability of Rs.7,63,289/- under section 41(1)
of the Income Tax Act,1961 or any other provisions of the Income Tax
1(ii) On the facts and in the circumstances of the case and in law, the Ld. CIT(A)
erred in holding that the differential amount of Rs.7,63,289/- representing the
actual loan amount and the present value of the future liability paid by the
assessee is on capital account and not taxable u/s 41(1) or any other
provision of the Income Tax Ac,1961.
2(i) On the facts and in the circumstances of the case and in law, the Ld. CIT(A)
erred in holding that no marketing intangibles were created by the assessee
on behalf of its associated enterprise in USA and the assessee’s advertising & marketing expenses are being incurred purely in respect of its own
operations in India.
2(ii) On the facts and in the circumstances of the case and in law, the Ld. CIT(A)
erred in deleting the adjustment of Rs.1,31,36,000/- made by the Transfer
Pricing Officer and Assessing Officer in respect of cost allocation to the
associated enterprise Colgate USA out of the advertising and marketing
expenses debited by the assessee in different years.
2(iii) On the facts and in the circumstances of the case and in law, the Ld. CIT(A)
failed to appreciate that the royalty payment to the associated enterprise has
been increasing along with the advertisement and marketing expenses and
as such, the apportionment of cost incurred by the assessee for the benefit
accruing to the overseas associated enterprise was required.
The cross objections raised by assessee reads as under:-
The Commissioner of Income Tax (Appeals)-15, Mumbai erred in considering that
the transactions relating to advertisement and marketing expense between Colgate-
Palmolive (India) Limited and third parties are outside the purview of Indian Transfer
The assessment for impugned AY was framed by Ld. Assistant
Commissioner of Income Tax-10(3), Mumbai [AO] u/s 143(3) on
2.2 Facts in brief are that the assessee being resident corporate assessee engaged in manufacturing & trading of diversified products was assessed at Rs.187.74 Crores after certain disallowances as against returned income of Rs.184.95 Crores filed by the assessee on 28/10/2004. The disallowance of Rs.7.63 Lacs representing gain on repayment of deferral loan and Adjustment of Rs.144.39 Lacs (part) made u/s 92CA(3) are the subject matter of this appeal. 2.3 Both the representative, at the outset, converge on the point that disallowance of Rs.7.63 Lacs made by Ld. AO u/s 41(1) representing gain on repayment of deferral Sales Tax Liability stood covered in assessee’s favor in assessee’s own case for AY 2003-04 by the order of Hon’ble Bombay High Court [370 ITR 728] and also by the order of this Tribunal for AY 2004-05 ITA No. 1855/Mum/2011 dated 08/05/2014, the copies of which has been placed on record. We find that Ld. AO has made the aforesaid disallowance relying on AY 2003-04 & 2004-05 and the same has been deleted by the Tribunal in AY 2004-05 by following the decision rendered by Mumbai Tribunal (Special Bench) in Sulzer India Limited Vs. DCIT [134 TTJ 385]. Further, the revenue’s appeal on this issue for AY 2003-04 has been dismissed by aforesaid order of Hon’ble Bombay High Court. Finally, the Hon’ble Apex Court in CIT Vs. Balkrishna Industries Ltd. [2017 88 Taxmann.com 273] has approved the view of Hon’ble Bombay High Court on merits rendered in CIT Vs. Sulzer India Ltd. [369 ITR 717]. In view of the admitted position, Ground No. 1 raised in revenue’s appeal stands dismissed.
3.1 Rest of the grounds raised in revenue’s appeal as well as in cross- objections of the assessee are related with certain Transfer Pricing [TP] adjustment against Advertising, Marketing & Sales Promotion Expenses [AMP] incurred by the assessee during impugned AY. Facts qua disallowance on account of Transfer Pricing Adjustment u/s 92CA are that during assessment proceedings, the international transactions reported by the assessee in Form No. 3CEB were referred by Ld. AO for determination of Arm Length Price [ALP] to Ld. Transfer Pricing Officer [TPO] on 05/01/2007 who proposed an adjustment of Rs.131.36 Lakhs on account of cost allocation of AMP expenses debited by the assessee. Incorporating the same, the assessee has been saddled with addition thereof by Ld. AO in assessment order dated 05/12/2008.
3.2 Ld. TPO noted that the assessee [CPIL] was 51% subsidiary of Colgate Palmolive Inc., USA and was engaged in manufacturing and marketing of diversified pharmaceutical products. It reflected turnover & Profit before tax at Rs.1075.76 crores & Rs.177.36 crores respectively. The assessee reflected various sale / purchase transactions with its 30 Associated Enterprises [AE] as extracted on Page numbers 2 & 3 of Ld. TPO’s order which were subjected to computation of ALP. 3.3. Besides above transactions, Ld. TPO upon perusal of financial accounts noticed that the assessee debited AMP expenses amounting to Rs.136.83 crores which constituted approx. 13% of the sales achieved by the assessee as against industry average rate of 6.39%. The Ld. TPO further noted that the royalty payment made by the assessee reflected steep growth from 0.15% in AY 1999-2000 to 0.96% in AY 2005-06 which, in absolute term increased from 1.50 Crores in AY 1999-2000 to 10.32 crores in AY 2005-06. The same led Ld. TPO to conclude that the relevant sales on which royalty was being paid by the assessee has recorded a faster growth and therefore, AE stood benefitted from working of the business of the assessee in a major way. In the light of the same, AMP expenses which were the driving force for enhancing the business were to be shared by overseas AE in proportion to benefit accruing to it. The assessee submitted that entire expenditure was related to business of the assessee and there was no agreement, whatsoever, with its AE in this regard and therefore, the provisions of Section 92(2)/92B were not applicable to the aforesaid transactions.
However, not convinced, Ld. TPO apportioned the AMP expenses in the Assessment Years : 2005-06 & 2007-08 ratio of royalty payment to total payment i.e. 0.96% and accordingly, proposed impugned disallowance of Rs.131.36 Lacs in its order u/s 92CA(3) dated 31/12/2007. Incorporating the same, quantum assessment dated 05/12/2008 was passed by Ld. AO which was subjected to appeal before Ld. first appellate authority. 3.4 Aggrieved, the assessee contested the same with success before Ld. CIT(A) vide impugned order dated 25/01/2011 where Ld. CIT(A) concurred with assessee’s stand by making following observations:-
6.9 I have perused the TPO’s order and the written submissions. The stand taken by the TPO is not tenable because of the following reasons:
a) The appellant is operating as a full fledged manufacturer who incurs advertisement expenses for its own business. The TPO has failed to analyze the status of the appellant in proper perspective. The AE Colgate USA is not being managed on a “global product line” basis as if it manufactures products which the Indian entity distributes. Rather Indian AE is a full fledged entrepreneur and so this attempt to allocate certain A&M costs to overseas AE is not correct. Had the Indian Entity been only a distributor, then this issue could have carried weight. In the present context, it has not relevance. The appellant plays the role of an entrepreneur and retains the profits emanating from its business enterprise. It not only manufactures but markets and distributes all its products for which it incurs A&M expenditure.
b) There are no direct benefits flowing from the appellant’s A&M expenses to its AEs since the expenses are incurred solely for the promotion of the appellant’s products in the Indian market. Incidental benefits flowing to the AE, if any, cannot change the character of the expenses incurred by the appellant.
c) Moreover, the appellant has not made any brand royalty payments to its AEs during the relevant assessment year.
Hence, based on the above reasoning, there does not appear to be any marketing intangibles being created by the appellant on behalf of the AE in USA and the appellant’s A&M expenses are being incurred purely in respect of its own operations in India. Accordingly, no adjustment is proposed to be made with respect to A&M expense. The addition of Rs.13,16,000/- so made is deleted.
Aggrieved, the revenue is in further appeal before us whereas the assessee, by way of cross objections, has contended that the aforesaid transactions are out of the purview of Transfer Pricing provisions as contained in Chapter-X.
4.1 The Ld. Departmental Representative [DR] drew our attention to the fact that the assessee was licensed manufacturer exposed to less than normal risks and it was responsible to carry out AMP functions which were the key drivers for a FMCG entity. The Ld. DR further submitted that overall brand value of the group reflected steep growth during the years 2000 to 2006 which were the result of heavy AMP expenses being incurred by the assessee during this period and therefore, since the benefit thereof has been derived by the group as a whole, the same has to be properly benchmarked / allocated. Our attention is drawn to Page No. 133 of Transfer Pricing [TP] study carried out by the assessee to submit that there were inter-company transactions relating to AMP expenditure within the meaning of Section 92B.
It was fairly submitted that since Ld. TPO has not segregated the routine and non-routine AMP expenditure and applied Bright Line Test [BLT] and therefore, the issue may be remitted back to the file of lower authorities for proper benchmarking thereof. Reliance has been placed on following judicial pronouncements for various submissions / contentions:-
No. Name Citation / Ref. No. Dated Authority
(i) Sony Ericsson Mobile ITA No. 16/2014 16/03/2015 Hon’ble Delhi High Court
Communications India Pvt. Ltd.
(ii) Maruti Suzuki India Ltd. 381 ITR 117 11/12/2015 Hon’ble Delhi High Court
(iii) CIT Vs. Cushman & Wakefield India ITA No. 475/2012 23/05/2014 Hon’ble Delhi High Court
(iv) BMW India Pvt. Ltd. Vs DCIT ITA No. 10/11/2017 ITAT, Delhi
(v) Perfetti Van Melle India Pvt. Ltd. Vs ITA No. 24/05/2017 ITAT, Delhi
4.2 Per Contra, Ld. Senior Counsel [AR], Sh. Arvind Sonde, submitted that there has to be an international transaction at the outset before any benchmarking thereof could be done by Ld. TPO. The Ld. AR relying on the observations of Ld. CIT(A) submitted that no agreement / arrangement whatsoever was entered into by the assessee with its AE in this regard and therefore, there was no question of any cost allocations or benchmarking thereof. Reliance has been placed on following judicial pronouncement to controvert the stand of revenue and to support his own submissions:-
No. Name Citation / Ref. No. Dated Authority
(i) Johnson & Johnson Ltd. Vs. CIT ITA No. 05/02/2014 ITAT, Mumbai as upheld
83/Mum/2011 by Hon’ble Bombay High
Court reported at 80
(ii) Maruti Suzuki India Ltd. 381 ITR 117 11/12/2015 Hon’ble Delhi High Court
5.1 We have carefully heard the rival contentions and perused relevant material on record. At the outset, some pertinent facts to be noted are that there exists no arrangement or agreement between the assessee and its AE which obliged the assessee to undertake any sort of brand building on behalf of its AE. Secondly, nothing has been brought on record to suggest that incurring of AMP expenditure has, in any manner, resulted into brand building exercise or creating marketing intangibles for the AE or AE stood benefitted by stated expenditure in any manner. The only argument advanced by the revenue is that the brand value of the Assessee Group, as a whole, has reflected healthy growth during the period 2000 to 2006. However, no evidence to demonstrate that there was any co-relation between the aforesaid growth vis-à-vis quantum of AMP expenditure incurred by the assessee has been placed on record. In our opinion, no addition could be made on mere assumption of certain facts.
5.2 So far as the reimbursement of AMP expenses as urged by the revenue is concerned, upon perusal of transactions as reported in Transfer Pricing [TP] study carried out by assessee, we find that these expenses are in mostly in the nature of meeting expenses, travelling expenses, hotel expenses which has been received as well as paid by the assessee on the same basis i.e. third party cost. The nature of these expenses, per-se, do not instill confidence in us to conclude that the incurring of said expenditure, has in any way, resulted into brand building or creating marketing intangibles for the assessee. 5.3 Proceeding further, the contention of the assessee that has incurred the said expenditure to promote its own products in the market has remained uncontroverted. It is also uncontroverted that the aforesaid payments were primarily made to independent third parties without rendering any services to its AE.
5.4 Further, we find that Ld. TPO has computed the said adjustment by applying Bright Line Test without carrying out any analysis of the impugned expenditure to corroborate his stand. The aforesaid methodology, as per settled legal position, is not a recognized methodology and not one of the prescribed methods as envisaged by Rule 10B.
5.4 Upon due consideration, we find that the facts of the above case are quite similar to facts in the decision of Mumbai Tribunal rendered in Johnson & Johnson Ltd. Vs. CIT [43 Taxmann.com 15] wherein it has held as under:-
37. Relevant facts are that the TPO has stated that the assessee incurred publicity and sales promotion expenses of Rs.163.27 crores during the relevant financial year. The TPO has stated that said expenses on publicity and sales promotion has resulted into higher sales on which correspondingly higher royalty has been paid to the parent company J&J US. Therefore, the benefit of higher publicity and sales promotion expenses are accrued to the parent company J&J US but the cost thereof is not apportioned to the parent company. The TPO sought explanation from the assessee as to why the cost of arrangement as emanating from the records, is resulting into the benefit to the parent AE, but not apportioned as per section 92(2) of the Act. The TPO stated that the assessee and the parent company J&J US should have shared sales promotion expenses in the ratio of royalty to sales or would have renegotiated a lower royalty rate. The assessee filed its reply stating inter-alia that assessee is engaged in the business of distributing the products in the Indian Market on its own account. It was also contended that the advertisement and marketing expenses are incurred in India only for promoting sales by assessee of its products in India and it is not in any way benefited to J&J US. That J&J US is not directly involved in the business of manufacturing or trading of said goods in India either of its own or through any of its subsidiary.
Hence, the entire advertisement and marketing expenses incurred are purely for assessee’s own benefit and there is no element of any service being rendered to J&J US. It was also stated that assessee-company is an independent risk bearing entity and any cost incurred towards advertisement and marketing would be for the sole benefit of assessee- company, as it enjoys the increased sales of products as a result of such marketing activities. The assessee also furnished details of publicity and sales promotion expenses before TPO. However, TPO did not accept the contention of the assessee and stated that the said growth in net sales so achieved through higher and higher publicity and sales promotion and expenses have resulted into higher payment of royalty which the assessee is paying at a fixed percentage of sales to its parent company. Thus, there is a co-relation between the royalty payment and sales on the one hand and publicity and sales promotion expenses on the other hand and it is not a matter of coincidence.
The TPO after considering the submissions of assessee has stated that J&J US, the parent company of the assessee is reaping the benefit of higher royalty year after year as a result of higher sales realized by assessee through higher and higher expenses by way of publicity and sales promotion undertaken by assessee without the overseas AE bearing any cost thereto He stated that it constitutes arrangement between the two entities wherein the entire cost is borne by assessee, whereas the parent company J&J US is getting its share of benefit from those increased sales.
The TPO worked out the cost at the rate of 4.22% of the publicity and sales promotion expenses which comes to Rs.6.88 crores. However, the TPO stated that the cost is restricted to 200.82 lakhs (being 1.23% of Rs.163.27 crores) in view of disallowance/adjustment in income made on account of royalty on technical know-how, the income tax, R&D cess and service tax paid thereon aggregating to Rs.41.27 crores out of total payment of Rs.58.37 crores.
Hence, TPO disallowed Rs.200.82 lakhs from the publicity and sales promotion expenses incurred towards cost allocable to parent company. DRP after considering the submissions of the assessee company confirmed the action of the TPO. Accordingly the AO disallowed a sum of Rs.200.82 lakhs while making assessment. Hence, assessee is in appeal before the Tribunal.
38. During the course of hearing, ld. AR submitted that it was an adhoc disallowance made by TPO and relied on the decision of Mumbai Bench of Tribunal in the case of Kodak India (P.) Ltd. v. Addl. CIT  37 taxmann.com 233 and submitted that the Tribunal deleted similar kind of adjustment suggested by TPO on the ground that TPO cannot make a disallowance which is not within the precinct of specific method prescribed under section 92C(1) of the Act. He submitted that no adhoc disallowance can be made under the Transfer Pricing provisions.
39. On the other hand, ld. DR supported the order of AO/TPO and submitted that to consider marketing expenses the cost plus method could be applied. Since TPO has not followed any specific method as 2006-07 is the first year, the matter could be restored to TPO to decide it afresh after considering the guidelines laid down by Special Bench (Delhi) in the case of L.G. Electronics India (P.) Ltd. v. Asstt. CIT 140 ITD 41/29 taxmann.com 300. He submitted that the AE, parent company of the assessee should reimburse the expenses as assessee company has created brand in India which is owned by parent company by incurring the expenditure.
40. We have considered the order of the TPO/AO and the submissions of ld. Representatives of the parties. We observe that the TPO has suggested disallowance on the ground that the AE of the assessee viz J&J US is reaping the benefit of higher royalty amount as a result of higher sales realized by assessee by incurring higher expenses by way of publicity and sales promotion undertaken by assessee and therefore the parent company of the assessee-company should share some of the expenses.
It is a fact that TPO while suggesting any disallowance/adjustment has to state that the transactions between the assessee- company and its AE is not at Arm’s Length. The TPO is to determine the Arm’s length by following one of the method and /or most appropriate method as prescribed in section 92C(1) of the Act. The TPO cannot suggest adjustment/disallowance on the basis of his assumptions that the payment is excessive though it is at arm’s length. Similar issue was also considered by ITAT Mumbai Bench in the case of Kodak India (P.) Ltd. (supra). Further, Rule 10B specifically provides the procedure to be followed for determining Arm’s Length Price.
We observe that the TPO while suggesting the disallowance of 200.82 Lakhs out of the expenses incurred by assessee on publicity and sales promotion has not followed any of the method and therefore the said adjustment/disallowance suggested by TPO is outside its jurisdiction. During the course of hearing, ld. DR submitted that the matter could be restored to TPO to decide afresh after considering the guidelines laid down by Special Bench (Delhi) in the case of L.G. Electronics India (P.) Ltd. (supra). Since no specific submissions were made and considering the fact that the assessee justified the payment of technical know-how royalty at the rate of 4% of net sales which is lower than Arm’s length rate of 4.84% and the said fact, we have also discussed herein above in para 33 of this order, that the payment of royalty by assessee to its parent company is at Arm’s Length, we do not find any justification to make the said disallowance of Rs.200.82 lakhs as suggested by TPO towards the shares to be contributed by AE of the assessee- company. Therefore, we delete the said disallowance made by AO by allowing ground No.18 of the appeal taken by assessee.
Upon further appeal by revenue [80 Taxmann.com 269], Hon’ble Bombay High Court has upheld the aforesaid view of the Tribunal by making the following observations:-
4. Re Question (l) :–
(i) The impugned order of the Tribunal allowed the Respondent- Assessee’s appeal before it by deleting the addition of Rs.200.82 lakhs being the transfer pricing adjustment on account of sales promotion and publicity expenses being payable by the Respondent- Assessee’ parent M/s. Johnson & Johnson, USA. This on the ground that the Transfer Pricing Officer (TPO) has, while holding that the parent company should share this expenditure on publicity and sales promotion as it benefits therefrom, as higher sales result in higher royalty, has not determined the Arms Length Price (ALP) by following any of the methods prescribed under Section 92C(1) of the Act read with Rule 10B of the Income Tax Rules, 1962.
(ii) The TPO is obliged under the law to determine the ALP by following any one of the prescribed methods of determining the ALP as detailed in Section 92C(1) of the Act. In this case, there is nothing on record to indicate that the TPO had applied any one of the prescribed methods in Section 92C(1) of the Act to determine the ALP before disallowing the payment of Rs.200.82 lakhs incurred by the Respondent on account of publicity and sales management as being excessive and/or payable by its parent, M/s. Johnson & Johnson, USA.
(iii) The impugned order holds that transfer pricing adjustment done by disallowing the payment, on the basis of an assumption that it is excessive, is an action completely dehors the provisions of transfer pricing adjustment found in chapter X of the Act. The determination of the ALP has to be done only by following one of the methods prescribed under the Act.
(iv) In view of the above, as the Revenue has not acted in accordance with the clear mandate of law, the questions as proposed does not give rise to any substantial question of law. Thus, not entertained.
5.5 Similar view has been taken by Hon’ble Delhi High Court in catena of subsequent decisions, few of which are as follows:-
(i) Maruti Suzuki India Ltd. v. CIT 2015 64 Taxmnn.com 150
(ii) CIT v. Whirlpool of India Ltd. 381 ITR 154
(iii) Bausch & Lomb Eyecare (India) (P.) Ltd. v. Addl.CIT 381 ITR 237 ITA Nos.6073/Mum/2014 & 2778/Mum/2011 CO.Nos.243/Mum/2014 & 126/Mum/2011 Colgate Palmolive (India) Limited Assessment Years : 2005-06 & 2007-08
(iv) Yum Restaurants (India) (P.) Ltd. v. ITO 380 ITR 637 In the above-mentioned decisions, it has categorically been held that in the absence of agreement between the assessee and its AE obliging the assessee to incur AMP expenditure on behalf of its AE, no international transaction can be presumed. Even if some indirect benefit has accrued to the AE by aforesaid expenditure, it could not be held that the same was incurred to promote the brand of foreign AE. Another aspect of the issue is absence of machinery provisions as observed by Hon’ble Delhi High Court, in Bausch & Lomb Eyecare (India) (P.) Ltd. [381 ITR 237] where Hon’ble Court after considering various judgments has elaborately discussed the issue in the following manner:-
51. The central issue concerning the existence of an international transaction regarding AMP expenses requires the interpretation of provisions of Chapter X of the Act, and to determine whether the Revenue has been able to show prima facie the existence of international transaction involving AMP between the Assessee and its AE.
52. At the outset, it must be pointed out that these cases were heard together with another batch of cases, two of which have already been decided by this Court. The two decisions are the judgement dated 11th December 2015 in ITA No. 110/2014 (Maruti Suzuki India Ltd. v. Commissioner of Income Tax) and the judgment dated 22nd December 2015 in ITA No. 610 of 2014 (The Commissioner of Income Tax-LTU v. Whirlpool of India Ltd.) and many of the points urged by the counsel in these appeals have been considered in these two judgments.
53. A reading of the heading of Chapter X [“Computation of income from international transactions having regard to arm’s length price”] and Section 92 (1) which states that any income arising from an international transaction shall be computed having regard to the ALP and Section 92C (1) which sets out the different methods of determining the ALP, makes it clear that the transfer pricing adjustment is made by substituting the ALP for the price of the transaction. To begin with there has to be an international transaction with a certain disclosed price. The transfer pricing adjustment envisages the substitution of the price of such international transaction with the ALP.
54. Under Sections 92B to 92F, the pre-requisite for commencing the TP exercise is to show the existence of an international transaction. The next step is to determine the price of such transaction. The third step would be to determine the ALP by applying one of the five price discovery methods specified in Section 92C. The fourth step would be to compare the price of the transaction that is shown to exist with that of the ALP and make the TP adjustment by substituting the ALP for the contract price.
55. Section 92B defines ‘international transaction’ as under: “Meaning of international transaction. 92B.(1) For the purposes of this section and sections 92, 92C , 92D and 92E , “international transaction” means a transaction between two or more associated enterprises, either or both of whom are non-residents, in the nature of purchase, sale or lease of tangible or intangible property, or provision of services, or lending or borrowing money, or any other transaction having a bearing on the profits, income, losses or assets of such enterprises, and shall include a mutual agreement or arrangement between two or more associated enterprises for the allocation or apportionment of, or any contribution to, any cost or expense incurred or to be incurred in connection with a benefit, service or facility provided or to be provided to any one or more of such enterprises. (2) A transaction entered into by an enterprise with a person other than an associated enterprise shall, for the purposes of sub- section (1), be deemed to be a transaction entered into between two associated enterprises, if there exists a prior agreement in relation to the relevant transaction between such other person and the associated enterprise, or the terms of the relevant transaction are determined in substance between such other person and the associated enterprise.”
56. Thus, under Section 92B(1) an ‘international transaction’ means- (a) a transaction between two or more AEs, either or both of whom are non-resident (b) the transaction is in the nature of purchase, sale or lease of tangible or intangible property or provision of service or lending or borrowing money or any other transaction having a bearing on the profits, incomes or losses of such enterprises, and (c) shall include a mutual agreement or arrangement between two or more AEs for allocation or apportionment or contribution to the any cost or expenses incurred or to be incurred in connection with the benefit, service or facility provided or to be provided to one or more of such enterprises.
57. Clauses (b) and (c) above cannot be read disjunctively. Even if resort is had to the residuary part of clause (b) to contend that the AMP spend of BLI is “any other transaction having a bearing” on its “profits, incomes or losses”, for a ‘transaction’ there has to be two parties. Therefore for the purposes of the ‘means’ part of clause (b) and the ‘includes’ part of clause (c), the Revenue has to show that there exists an ‘agreement’ or ‘arrangement’ or ‘understanding’ between BLI and B&L, USA whereby BLI is obliged to spend excessively on AMP in order to promote the brand of B&L, USA. As far as the legislative intent is concerned, it is seen that certain transactions listed in the Explanation under clauses (i) (a) to (e) to Section 92B are described as an ‘international transaction’. This might be only an illustrative list, but significantly it does not list AMP spending as one such transaction.
58. In Maruti Suzuki India Ltd. (supra) one of the submissions of the Revenue was: “The mere fact that the service or benefit has been provided by one party to the other would by itself constitute a transaction irrespective of whether the consideration for the same has been paid or remains payable or there is a mutual agreement to not charge any compensation for the service or benefit.” This was negatived by the Court by pointing out:
“Even if the word ‘transaction’ is given its widest connotation, and need not involve any transfer of money or a written agreement as suggested by the Revenue, and even if resort is had to Section 92F (v) which defines ‘transaction’ to include ‘arrangement’, ‘understanding’ or ‘action in concert’, ‘whether formal or in writing’, it ITA Nos.6073/Mum/2014 & 2778/Mum/2011 CO.Nos.243/Mum/2014 & 126/Mum/2011 Colgate Palmolive (India) Limited Assessment Years : 2005-06 & 2007-08 is still incumbent on the Revenue to show the existence of an ‘understanding’ or an ‘arrangement’ or ‘action in concert’ between MSIL and SMC as regards AMP spend for brand promotion. In other words, for both the ‘means’ part and the ‘includes’ part of Section 92B (1) what has to be definitely shown is the existence of transaction whereby MSIL has been obliged to incur AMP of a certain level for SMC for the purposes of promoting the brand of SMC.”
59. In Whirlpool of India Ltd. (supra), the Court interpreted the expression “acted in concert” and in that context referred to the decision of the Supreme Court in Daiichi Sankyo Company Ltd. v. Jayaram Chigurupati 2010(6) MANU/SC/0454/2010, which arose in the context of acquisition of shares of Zenotech Laboratory Ltd. by the Ranbaxy Group. The question that was examined was whether at the relevant time the Appellant, i.e., Daiichi Sankyo Company and Ranbaxy were “acting in concert” within the meaning of Regulation 20(4) (b) of the Securities and Exchange Board of India (Substantial Acquisition of Shares and Takeovers) Regulations, 1997. In para 44, it was observed as under:
“The other limb of the concept requires two or more persons joining together with the shared common objective and purpose of substantial acquisition of shares etc. of a certain target company. There can be no “persons acting in concert” unless there is a shared common objective or purpose between two or more persons of substantial acquisition of shares etc. of the target company. For, de hors the element of the shared common objective or purpose the idea of “person acting in concert” is as meaningless as criminal conspiracy without any agreement to commit a criminal offence. The idea of “persons acting in concert” is not about a fortuitous relationship coming into existence by accident or chance. The relationship can come into being only by design, by meeting of minds between two or more persons leading to the shared common objective or purpose of acquisition of substantial acquisition of shares etc. of the target company. It is another matter that the common objective or purpose may be in pursuance of an agreement or an understanding, formal or informal; the acquisition of shares etc. may be direct or indirect or the persons acting in concert may cooperate in actual acquisition of shares etc. or they may agree to cooperate in such acquisition. Nonetheless, the element of the shared common objective or purpose is the sine qua non for the relationship of “persons acting in concert” to come into being.”
60. The transfer pricing adjustment is not expected to be made by deducing from the difference between the ‘excessive’ AMP expenditure incurred by the Assessee and the AMP expenditure of a comparable entity that an international transaction exists and then proceeding to make the adjustment of the difference in order to determine the value of such AMP expenditure incurred for the AE. In any event, after the decision in Sony Ericsson (supra), the question of applying the BLT to determine the existence of an international transaction involving AMP expenditure does not arise.
61. There is merit in the contention of the Assessee that a distinction is required to be drawn between a ‘function’ and a ‘transaction’ and that every expenditure forming part of the function cannot be construed as a ‘transaction’. Further, the Revenue’s attempt at re-characterising the AMP expenditure incurred as a transaction by itself when it has neither been identified as such by the Assessee or legislatively recognised in the Explanation to Section 92 B runs counter to legal position explained in CIT v. EKL ITA Nos.6073/Mum/2014 & 2778/Mum/2011 CO.Nos.243/Mum/2014 & 126/Mum/2011 Colgate Palmolive (India) Limited Assessment Years : 2005-06 & 2007-08 Appliances Ltd. (supra) which required a TPO “to examine the ‘international transaction’ as he actually finds the same.”
62. In the present case, the mere fact that B&L, USA through B&L, South Asia, Inc holds 99.9% of the share of the Assessee will not ipso facto lead to the conclusion that the mere increasing of AMP expenditure by the Assessee involves an international transaction in that regard, with B&L, USA. A similar contention by the Revenue, namely, that even if there is no explicit arrangement, the fact that the benefit of such AMP expenses would also enure to the AE is itself sufficient to infer the existence of an international transaction has been negatived by the Court in Maruti Suzuki India Ltd. (supra) as under:
“68. The above submissions proceed purely on surmises and conjectures and if accepted as such will lead to sending the tax authorities themselves on a wild-goose chase of what can at best be described as a ‘mirage’.
First of all, there has to be a clear statutory mandate for such an exercise. The Court is unable to find one. To the question whether there is any ‘machinery’ provision for determining the existence of an international transaction involving AMP expenses, Mr. Srivastava only referred toSection 92F (ii) which defines ALP to mean a price “which is applied or proposed to be applied in a transaction between persons other than AEs in uncontrolled conditions”. Since the reference is to ‘price’ and to ‘uncontrolled conditions’ it implicitly brings into play the BLT.
In other words, it emphasises that where the price is something other than what would be paid or charged by one entity from another in uncontrolled situations then that would be the ALP. The Court does not see this as a machinery provision particularly in light of the fact that the BLT has been expressly negatived by the Court in Sony Ericsson. Therefore, the existence of an international transaction will have to be established de hors the BLT. …….
70. What is clear is that it is the ‘price’ of an international transaction which is required to be adjusted. The very existence of an international transaction cannot be presumed by assigning some price to it and then deducing that since it is not an ALP, an ‘adjustment’ has to be made. The burden is on the Revenue to first show the existence of an international transaction. Next, to ascertain the disclosed ‘price’ of such transaction and thereafter ask whether it is an ALP. If the answer to that is in the negative the TP adjustment should follow. The objective of Chapter X is to make adjustments to the price of an international transaction which the AEs involved may seek to shift from one jurisdiction to another. An ‘assumed’ price cannot form the reason for making an ALP adjustment.”
71. Since a quantitative adjustment is not permissible for the purposes of a TP adjustment under Chapter X, equally it cannot be permitted in respect of AMP expenses either. As already noticed hereinbefore, what the Revenue has sought to do in the present case is to resort to a quantitative adjustment by first determining whether the AMP spend of the Assessee on application of the BLT, is excessive, thereby evidencing the existence of an international transaction involving the AE. The quantitative determination forms the very basis for the entire TP exercise in the present case.
74. The problem with the Revenue’s approach is that it wants every instance of an AMP spend by an Indian entity which happens to use the brand of a foreign AE to ITA Nos.6073/Mum/2014 & 2778/Mum/2011 CO.Nos.243/Mum/2014 & 126/Mum/2011 Colgate Palmolive (India) Limited Assessment Years : 2005-06 & 2007-08 be presumed to involve an international transaction. And this, notwithstanding that this is not one of the deemed international transactions listed under the Explanation to Section 92B of the Act. The problem does not stop here. Even if a transaction involving an AMP spend for a foreign AE is able to be located in some agreement, written (for e.g., the sample agreements produced before the Court by the Revenue) or otherwise, how should a TPO proceed to benchmark the portion of such AMP spend that the Indian entity should be compensated for?
63. Further, in Maruti Suzuki India Ltd. (supra) the Court further explained the absence of a ‘machinery provision qua AMP expenses by the following analogy: “75. As an analogy, and for no other purpose, in the context of a domestic transaction involving two or more related parties, reference may be made to Section 40 A (2) (a) under which certain types of expenditure incurred by way of payment to related parties is not deductible where the AO “is of the opinion that such expenditure is excessive or unreasonable having regard to the fair market value of the goods.” In such event, “so much of the expenditure as is so considered by him to be excessive or unreasonable shall not be allowed as a deduction.” The AO in such an instance deploys the ‘best judgment’ assessment as a device to disallow what he considers to be an excessive expenditure.
There is no corresponding ‘machinery’ provision in Chapter X which enables an AO to determine what should be the fair ‘compensation’ an Indian entity would be entitled to if it is found that there is an international transaction in that regard. In practical terms, absent a clear statutory guidance, this may encounter further difficulties. The strength of a brand, which could be product specific, may be impacted by numerous other imponderables not limited to the nature of the industry, the geographical peculiarities, economic trends both international and domestic, the consumption patterns, market behaviour and so on. A simplistic approach using one of the modes similar to the ones contemplated by Section 92C may not only be legally impermissible but will lend itself to arbitrariness. What is then needed is a clear statutory scheme encapsulating the legislative policy and mandate which provides the necessary checks against arbitrariness while at the same time addressing the apprehension of tax avoidance.”
64. In the absence of any machinery provision, bringing an imagined transaction to tax is not possible. The decisions in CIT v. B.C. Srinivasa Setty (1981) 128 ITR 294 (SC) and PNB Finance Ltd. v. CIT(2008) 307 ITR 75 (SC) make this position explicit. Therefore, where the existence of an international transaction involving AMP expense with an ascertainable price is unable to be shown to exist, even if such price is nil, Chapter X provisions cannot be invoked to undertake a TP adjustment exercise.
65. As already mentioned, merely because there is an incidental benefit to the foreign AE, it cannot be said that the AMP expenses incurred by the Indian entity was for promoting the brand of the foreign AE. As mentioned in Sassoon J David (supra) “the fact that somebody other than the Assessee is also benefitted by the expenditure should not come in the way of an expenditure being allowed by way of a deduction under Section 10 (2) (xv) of the Act (Indian Income Tax Act, 1922) if it satisfies otherwise the tests laid down by the law”.’ ITA Nos.6073/Mum/2014 & 2778/Mum/2011 CO.Nos.243/Mum/2014 & 126/Mum/2011 Colgate Palmolive (India) Limited Assessment Years : 2005-06 & 2007-08 Although we are conscious of the fact that Special Leave Petition against the same has been admitted by Hon’ble Apex Court [77 Taxmann.com 54], however, we find that the operation of the said judgment has not been, in any manner, stayed by Hon’ble Court and therefore valid in the present context.
5.6 So far as the decisions relied upon by revenue are concerned, we find that the decision of Hon’ble Delhi High Court in Sony Ericsson Mobile Communications India (P.) Ltd. was rendered in the context where the assessees were distributors of products manufactured by the foreign AE. The said assessees themselves were not manufacturers. More over none of the said assesses appears to have questioned the very existence of international transaction with foreign AE. It was also not disputed that the said international transaction of incurring AMP expenditure could be subject matter of TP adjustments in terms of Sec.92 of the Act. Therefore, the same is distinguishable on facts.
Similarly, the decisions rendered in BMW India Private Limited and Perfetti Van Melle India Pvt. Ltd. has been rendered in a situation where there existed an agreement between the assessee and its AE to undertake Advertisement and Sales promotion. The case law of Cushman & Wakefied is not related with determination of ALP of AMP expenditure and further in that case the benchmarking of reimbursement of expenses was not done by the assessee. Hence, the cited case laws could not help the revenue on factual matrix.
The case law of Maruti Suzuki India Ltd., in fact, support the stand of the assessee which is evident from the fact that Ld. DRP, in AY 2011-12, following the ratio of ITA Nos.6073/Mum/2014 & 2778/Mum/2011 CO.Nos.243/Mum/2014 & 126/Mum/2011 Colgate Palmolive (India) Limited Assessment Years : 2005-06 & 2007-08 this decision deleted the impugned additions and allowed the appeal of the assessee.
5.7 To conclude, respectfully following the ratio of decision of Hon’ble Bombay High Court as cited above along with the cited decisions of Hon’ble Delhi High Court, we upheld the order of Ld. first appellate authority and dismiss this ground of revenue’s appeal. The assessee’s cross-objections become infructuous.
Cross Appeals for AY 2007-08 6.1 The grounds raised by the revenue reads as under:-
1. In the facts and circumstances of case, the Ld. CIT(A) erred in not appreciating the fact that the duty benefit or any export incentive cannot be directly attributed to the core R&D activity since income arises from ancillary activities.
2. In the facts and circumstances of case, the Ld. CIT(A) erred in not appreciating that the issue involved in the case is similar to that of Good Year India Ltd. VS, DCIT[ITA No.4360/Del/2010], wherein, the Hon’ble Delhi ITAT has held that export incentives do not form part of the invoice price of goods sold. In such a case, it cannot be reduced from the cost of goods sold.
3. In the facts and circumstances of the case, the Ld. CIT(A) erred in his findings that there are no direct benefits flowing from the appellant’s Advertisement and Marketing expenses to its Associated Enterprises, since the expenses are incurred solely for the promotion of appellant’s products in the Indian market.
4. In the facts and circumstances of the case, the Ld. CIT(A) erred in concluding that the AMP expenses do not benefit AE when the assessee itself admits that the brands under which it sells the goods is owned by the Associated Enterprise.
5. In the facts and circumstances of the case, the Ld. CIT(A) erred in not taking note of the fact that during the previous year, the assessee imported finished goods amounting to Rs.36,76,26,555/- (as per Appendix to Form 3CEB) from its Associated Enterprises which were sold in India under the brand name belonging to Colgate Palmolive, US and hence, the Associated Enterprise is directly benefitted on account of the brand promoted by the assessee in India.
6. In the facts and circumstances of the case, the Ld. CIT(A) erred in holding that the Transfer Pricing Officer had not adopted any prescribed method, as he failed to take note of the fact that the assessee had also not benchmarked AMP transaction by of the prescribed methods.
ITA Nos.6073/Mum/2014 & 2778/Mum/2011 CO.Nos.243/Mum/2014 & 126/Mum/2011 Colgate Palmolive (India) Limited Assessment Years : 2005-06 & 2007-08 6.2 The grounds raised by assessee in cross objections reads as under:-
1. On the facts and circumstances of the case and in law, the learned CIT(A) erred in not deleting the disallowance of Rs.61,31,140 made by the learned AO under section 14A of the Act.
The assessee company prays that the disallowance made by the learned AO under Section 14A of the Act merits to be deleted.
2. Without prejudice to the above, on the facts and circumstances of the case and in law, the Learned CIT(A) erred in not considering the alternative computation of disallowance under Section 14A of the Act submitted by the assessee company without providing justification for rejecting the same. The assessee company prays that the alternative computation of disallowance under Section 14A of the Act provided by the assessee company be considered for disallowance under Section 14A of the Act.
3. Without prejudice to the above, on the facts and circumstances of the case and in law, the learned CIT(A) erred in upholding the disallowance under Section 14A of the Act as per Rule 8D of the Income Tax Rules,1962 (‘the Rules’) without considering the fact that the provisions of Rule 8D of the Rules are applicable with effect from AY 2008-09 (i.e. subsequent year) and thereby not restricting the disallowance to Rs.5,38,740 s per the ‘Without Prejudice’ computation submitted during the appellate proceedings. The assessee company prays that the disallowance under Section 14A of the Act merits to be restricted to Rs.5,38,740.
4. Without prejudice to the above, on the facts and circumstances of the case and in law, the learned CIT(A), erred in not directing the learned AO to exclude a sum of Rs.34.20 lacs [(Rs.33 lacs+1.2 lacs) as mentioned on Page 3 of the learned CIT(A)’s order] while computing the disallowance as per Rule 8D(2)(ii) of the Rules.
The assessee company prays that a sum of Rs.34.2 lacs merits to be excluded while computing disallowance under Rule 8D(2)(ii) of the Rules.
7.1 Facts qua Ground numbers 1 & 2 of revenue’s appeal are that the assessee received an amount of Rs.5.20 Crores from its parent company for providing certain Research & Development Services [R & D services]. The said services were being charged at mark-up of 5%. The assessee was entitled for duty benefit of 10% of export value of R & D services from Government of Indian under ‘Served for India Scheme’. After considering the said duty benefit, the net margin (operating Profit / Total Cost) of the assessee worked out to 15.87% as against mean ITA Nos.6073/Mum/2014 & 2778/Mum/2011 CO.Nos.243/Mum/2014 & 126/Mum/2011 Colgate Palmolive (India) Limited Assessment Years : 2005-06 & 2007-08 margin of 15.60% of ten comparables as selected by the assessee. However, Ld. TPO opined that the benefit of said duty benefit could not be considered for the purpose of comparison. The another point of difference was inclusion of two comparables namely Rites & Water & Power Consultancy Services India Ltd. as selected by Ld. TPO by relying upon the order for AY 2006-07, which as per assessee’s submissions were functionally not comparable. In the final analysis, Ld. TPO has worked out mean margin of seven comparables including these two comparable as 14.82% and accordingly, considering assessee’s margin of 5%, worked out TP adjustment of Rs.5.69 crores against the same which was the subject matter of appeal before Ld first appellate authority.
7.2 Aggrieved, the assessee contested the same with success before Ld. CIT(A) vide impugned order dated 28/03/2014 where the aforesaid adjustment was deleted on the reasoning that the export benefit was directly related to provision of R & D services and secondly, DEPB benefit was part of operating income as per the judgment of Mumbai Tribunal rendered in Welspun Zucchi Textiles Ltd ITA No. 7371/Mum/2010. Aggrieved, the revenue is in further appeal before us. The Ld. DR has placed reliance on the stand of Ld. TPO whereas Ld. AR contended that the issue stood covered in assessee’s favor by the decision of the Tribunal and therefore, the decision of the Ld. CIT(A) was fair & reasonable in the circumstances.
7.3 Upon due consideration, we find that the export benefits were received by the assessee in connection with export of R & D services ITA Nos.6073/Mum/2014 & 2778/Mum/2011 CO.Nos.243/Mum/2014 & 126/Mum/2011 Colgate Palmolive (India) Limited Assessment Years : 2005-06 & 2007-08 and had direct and intimate connection with the said receipts and therefore, there was no reason to exclude the same for the purpose of computation of margins from R & D activities. Further, the said benefit arose from usual activities carried by the assessee and part & parcel of the same transaction and therefore, formed part of operating income only. The revenue has not controverted the stated fact or brought on record any contrary judgment to refute the findings of Ld. first appellate authority. Therefore, on factual matrix, we find to reason to interfere with the stand of Ld. first appellate authority in this regard. The grounds stands dismissed.
8. Ground Numbers 3 to 6 raised in revenue’s appeal are related with TP adjustment of Rs.5.06 crores as deleted by Ld. CIT(A) on account of AMP expenses. The material facts and circumstances being similar as in AY 2005-06, taking same stand, we concur with the decision of Ld. CIT(A). Accordingly, these grounds stands dismissed. 9.1 The sole ground raised in assessee’s cross objection pertains to disallowance u/s 14A. During assessment proceedings, it was noted that the assessee earned tax free interest income aggregating to Rs.6.68 Crores which called for disallowance u/s 14A read with rule 8D. The assessee contested the same by putting forth various submissions as extracted by Ld. AO in the quantum assessment order, where it inter-alia contended that in the absence of specific expenditure to earn the exempt income, disallowance was not called for. The attention was drawn to the fact that the investment was made out of surplus funds generated by the assessee. However, not convinced, Ld. AO computed aggregate ITA Nos.6073/Mum/2014 & 2778/Mum/2011 CO.Nos.243/Mum/2014 & 126/Mum/2011 Colgate Palmolive (India) Limited Assessment Years : 2005-06 & 2007-08 disallowance of Rs.83.54 Lacs u/r 8D(2) which comprised of interest disallowance u/r 8D(2)(ii) for Rs.34.39 Lacs and expense disallowance u/r 8D(2)(iii) for Rs.49.14 Lacs.
9.2 Upon further appeal, Ld. CIT(A) has allowed part relief against interest disallowance as stated in Para-4 of the impugned order but confirmed expenses disallowance u/r 8D(2)(iii). Aggrieved, the assessee is in further appeal before us.
9.3 The Ld. Sr. Counsel fairly submitted that the expenses disallowance u/s 14A may be restricted to Rs.5,37,840/- as per alternative computations submitted by the assessee before Ld. first appellate authority whereas interest disallowance was not called for in the circumstances. Both the representative pleaded that the issue may be remitted back to the file of Ld. AO for re-adjudication on factual matrix.
9.4 Upon due consideration, we deem it fit to restore the matter back to the file of Ld. AO to reconsider the assessee’s alternative submissions as raised before Ld. first appellate authority qua expense disallowance and also re-adjudicate the issue of interest disallowance in the light of assessee’s submissions. The assessee, in turn, is directed to substantiate his stand in this regard. Needless to add that the provisions of Rule 8D, as per settled judicial pronouncements, could be applied only from AY 2008-09 and were not applicable in the impugned AY. The assessee’s cross-objections stands allowed for statistical purposes.
ITA Nos.6073/Mum/2014 & 2778/Mum/2011 CO.Nos.243/Mum/2014 & 126/Mum/2011 Colgate Palmolive (India) Limited Assessment Years : 2005-06 & 2007-08 Conclusion
10. Resultantly, revenue’s appeals ITA Nos. 6073/Mum/2014 & 2778/Mum/2011 stands dismissed. CO No. 126/Mum/2011 stands dismissed as being infructuous. CO No. 243/Mum/2014 stand allowed for statistical purposes.
Order pronounced in the open court on 04th May, 2018
(Mahavir Singh) (Manoj Kumar Aggarwal)