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Income Tax Appellate Tribunal, DELHI BENCH, ‘I’: NEW DELHI
Before: SHRI SHAMIM YAHYA & SHRI YOGESH KUMAR US
Date of Hearing 29.08.2023 Date of Pronouncement 31.08.2023 ORDER PER SHAMIM YAHYA, AM,
This appeal by the assessee is directed against the order of the Ld.
CIT(A)-1(1), New Delhi, dated 29.03.2022 pertaining to Assessment Year 2017-18.
2. The grounds of appeal
reads as under:- “1. That on facts and in law the order w/s 154 r. ws.143(3) dated 29-03-2022 passed by the Assistant Commissioner of Income Tax, Circle 1(1), New Delhi {hereinafter referred to as the "AO"} is bad in law and void ab-initio. 1.1 That on facts and in law the AO has erred in not granting a proper opportunity of being heard, thereby violating the principals of natural justice. 1.2. That on facts and in law the AO has erred in not granting adjournment requested on 23-03-2022.
2. That on facts and in law the AO has erred in making enhancing the Transfer Pricing Adjustment by a sum of Rs 1,35, 10,886/-
3. That on facts and in law the AO has erred in holding that expenditure incurred on "Agent Training, Entertainment and Communication" also form part of Advertisement, Marketing and Promotion (AMP) expenses on which Transfer Pricing Adjustment has been made by the TPO.”
3. At the outset, in this case, the ld. Counsel for the assessee, submitted as under:-
“Captioned appeal has been filed against order dated 29-03- 2022 passed by the AO u/s 154 r.w.s 143(3) of the Act for AY 2017-18. Since the original assessment order (which is subject matter of action u/s 154) has been passed pursuant to directions of DRP the present appeal is maintainable as per provisions of section 253(1)(d).
In the impugned order passed u/s 154 of the Act, AO has enhanced the component of AMP expenditure to a sum of Rs 10,65,96,300/- as against original computed sum of Rs 95,61,630/- in the assessment order. He has accordingly revised the Transfer Pricing Adjustment to a sum of Rs 13,20,72,816/-.
In this regard it is submitted that originally an order of assessment dated 24-01-2022 was passed by the AO u/s 143(3) r.w.s 144C(3) of the Act determining total income of the appellant at a sum of Rs.106, 19,78,110/-. In the order of assessment the AO made Transfer Pricing Adjustment on account of alleged AMP expenses as under: Substantive Adjustment Rs 11,85,61,930/- Protective Adjustment Rs 11,18,03,966/-
Being aggrieved by the order of assessment dated 24- 01-2022, appellant filed an appeal before Hon’ble ITAT in ITA 468/Del/2022. Hon’ble ITAT vide order dated 24-08-2023 has deleted the Transfer Pricing Adjustment directing as under: "8. Upon hearing both the parties and perusing the records, we find that the issue is covered in favour of the assessee by the aforesaid ITAT order and Hon'ble High Court order. Hence, we respectfully follow the same and decide the issue in favour of the assessee. Since the jurisdictional issue has been decided in favour of the assessee, other grounds of peace, have become infructuous"
5. Therefore the Transfer Pricing Adjustment has itself been deleted by Hon’ble ITAT on the jurisdictional ground that there is no "transaction" for incurring of alleged APM expenses on behalf of the AE. The grievances raised in the captioned appeal have therefore become infructuous as on date. It is therefore prayed that the captioned appeal may kindly be disposed off as having become infructuous. Liberty may however be given to approach this Hon'ble Bench if tomorrow the order dated 24-08-2023 is upset on TP Grounds by a process known to law.” 4. Per contra, Ld. DR have not any objection to the above proposition.
Accordingly, we treat this appeal as having become infructuous.
Liberty is granted to approach the Tribunal in terms of the submission as above.
In the result, this appeal of the assessee stands dismissed as infructuous.
Order pronounced in the open court on 31st August, 2023.