M/S. LUXOTTICA INDIA EYEWEAR PVT. LTD.,GURGAON vs. DCIT, NEW DELHI

In the above cross appeals, the assessee has raised the issue pertaining to adjustment made on account of advertisement, marketing and sales promotion expense (AMP Expenses). The Revenue on the other hand has raised the issue of adoption of TNMM as the most appropriate method to benchmark transaction pertaining to import of goods, prior period expenses,

The assessee was incorporated in India on 15.11.2007 and commenced it actual operations from February 2008. It is primarily engaged in the business of trading of sunglasses and spectacles frames.

The issue involved in the grounds of the appeal preferred by the assessee is regarding adjustment made on account of advertisement, marketing and sales promotion expense (AMP expenses). The Learned AR pointed out that first time the appeal came up for hearing before the ITAT in the year 2014, wherein the ITAT vide its order dated 5.11.2014 disposed off the issue by setting aside the matter to the file of the TPO to decide the issue in accordance with the guidelines laid down by the Delhi Special Bench in the case of LG Electronics India Pvt. Ltd. (2013) – 152 TTJ 273 (SB) (Delhi). Aggrieved by the decision of the ITAT, the assessee had preferred an appeal before the Hon'ble Delhi High Court vide and the Hon'ble High Court vide its order dated 20.5.2015 remanded the matter

Regarding the appeal preferred by the Revenue, the Learned AR pointed out that against the order dated 5.11.2014 of the ITAT, the Revenue had also preferred appeal before the Hon'ble Delhi High Court challenging the above issues and the Hon'ble High Court vide its order dated 6.11.2015 in has been pleased to dismiss the appeal of the Revenue and uphold the findings of the ITAT.

The Learned CIT(DR) did not dispute the above submissions made by the Learned AR.

In view of the above developments, we find that the only issue pending adjudication before us in the above cross appeals is in respect of AMP expenses. We thus respectfully following the above order dated 20.5.2015 of the Hon'ble jurisdictional High Court of Delhi in the appeal preferred by the assessee (ITA No. 336/2015), while setting aside the matter to the file of the learned TPO direct him to decide the issue of adjustment

So far as appeal preferred by the Revenue is concerned, we find that the issues raised in the grounds regarding adoption of TNMM as the most appropriate method to benchmark transaction pertaining to import of goods, prior period expenses, provisions for warranty expenses and non-deduction of TDS under sec. 40(a)(ia) of the Act have reached finality by the order dated 6.11.20015 of Hon'ble Delhi High Court in as the Hon'ble High Court has been pleased to uphold the findings of the ITAT on the issues on earlier occasion vide order dated 5.11.2014, against which the Revenue was in appeal before the Hon'ble High Court. The appeal preferred by the department is thus dismissed.