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Income Tax Appellate Tribunal, DELHI BENCH ‘I-2’, NEW DELHI
Before: MS. SUSHMA CHOWLA & SHRI PRASHANT MAHARISHI
आदेश/ORDER
PER SUSHMA CHOWLA, JM:
The present appeal is listed for hearing in order to adjudicate the ground of appeal no. 4 raised in the original ground of appeal.
The said ground of appeal reads as under:
“4. That the AO/DRP erred in facts and in law, in adding back an amount of Rs.952,719 to the returned income of the Appellant by in appropriately considering the same as an expense incurred by the Appellant, whereas the same was incurred by an ex- employee of the Appellant.” . 3. The learned AR for the assessee took us through the list of dates and events and pointed out that the said issue was decided by the Tribunal in the first round itself vide order dated 15th April, 2014.
Thereafter, various proceedings were initiated against the first issue of transfer pricing adjustment, but this issue was not challenged before the Hon’ble High Court and when the matter was remanded back to the Tribunal, then the issue which needed adjudication was transfer pricing adjustment with respect to AMP expenses. He stated that in the second round, the Tribunal vide order dated 24th March, 2017, has set aside the issue of AMP expenses to the file of the AO/TPO for de novo adjudication.
It was pointed out by the learned AR for the assessee that on 1st August, 2017, the Department filed Miscellaneous Application against the order dated 24.03.2017 (second round) on the ground that corporate issue was not adjudicated by the Tribunal. He further pointed out that the Tribunal vide order dated 24th March, 2019, allowed the Miscellaneous Application filed by the Revenue and recalled the Ground No. 4, against which, the assessee has filed the Miscellaneous Application.
On perusal of the record and after hearing both the Authorized Representatives, we find that the issue of corporate issue of disallowances of expenditure was decided by the Tribunal in the first round itself vide para 8 at page 5 of the order dated 15th April, 2014. The addition made in the hands of the assessee was deleted by the Tribunal. The said order has not been reversed by the higher forum. The department filed an appeal before the Hon’ble High Court and the only issue raised was in relation to AMP expenditure and its adjustment. The same is clear from the order of the Hon’ble High Court order dated 15th May, 2017, in wherein the issue of AMP expenditure has been remitted back to the AO/TPO to decide in light with the decision of the Hon’ble Delhi High Court in the case of Sony Ericsion Mobile Communication India Pvt. Ltd., [2015] 374 ITR 118 (Del.). It is the case of both the authorized representatives before us that the matter was adjudicated by the Tribunal vide order dated 15.04.2014. Once the issue have already been decided by the Tribunal vide order dated 15th April, 2014, there is no merit in raising the aforesaid issue again. Hence, we find no merit in the reposting of the appeal on the aforesaid issue before the Tribunal and the same is filed.
Order pronounced in the open court on 25th day of November, 2019.