Case Law Details
PCIT Vs Avery Dennison (India) Pvt. Ltd. (Delhi High Court)
The Delhi High Court dismissed an appeal filed by the Revenue under Section 260A of the Income Tax Act, 1961, challenging an order of the Income Tax Appellate Tribunal dated 05.06.2023. The Tribunal’s order had decided appeals relating to Assessment Years 2012–13 and 2015–16 and had deleted transfer pricing additions concerning payments made for intra-group services. At the outset, the Court condoned delays of 593 days in filing and 146 days in refiling the appeal and disposed of the related applications.
The Court noted that a coordinate Bench had already examined the same Tribunal order in an earlier appeal concerning Assessment Year 2015–16 and had dismissed the Revenue’s challenge. In that earlier decision, the Court had considered multiple questions proposed by the Revenue, including whether the Tribunal was justified in deleting additions made by the Transfer Pricing Officer, whether the Tribunal erred in holding that the transactions were for commercial expediency, whether the Transfer Pricing Officer had re-characterised the intra-group services, and whether the Tribunal improperly relied on earlier years’ decisions involving the same assessee.
The Court observed that identical issues had been raised by the Revenue consistently from Assessment Year 2007–08 onwards. It referred to earlier judgments where similar disputes relating to determination of the arm’s length price of international transactions involving intra-group services had been decided against the Revenue and in favour of the assessee. The Court recalled that for some years, the Tribunal had remanded matters to the Transfer Pricing Officer, but in later years the Tribunal had given detailed reasons for not doing so. In particular, the Tribunal had noted that in certain years, the Dispute Resolution Panel had accepted the assessee’s determination of arm’s length price for specific intra-group services, while for others the arm’s length price was determined as nil by applying the comparable uncontrolled price method.
The Tribunal had also examined the nature of services rendered, including services provided through emails and electronic media, and had noted that such arrangements had existed since earlier years and had been accepted by the authorities. It had found that payments were made pursuant to written agreements supported by detailed evidence of receipt of services and that there was no change in the business profile of the assessee. On this basis, the Tribunal concluded that the payments were legitimate and commercially justified.
In the present appeal, the Revenue argued that the Transfer Pricing Officer had, for the relevant year, concluded that no services were rendered. The High Court noted, however, that apart from certain observations in a tabular statement, the Transfer Pricing Officer had not relied on cogent evidence or material to substantiate that conclusion. The Court further held that the matter was covered by principles of consistency, given the repeated findings in earlier years on the same issue.
Since the present appeal for Assessment Year 2012–13 arose from the same Tribunal order already upheld by the Court in relation to Assessment Year 2015–16, the Court found no reason to take a different view. It concluded that no substantial question of law arose for consideration and dismissed the appeal. The Court also recorded the Revenue’s submission that appeals on the same issue for other assessment years were pending, but held that this did not warrant interference in the present case.
FULL TEXT OF THE JUDGMENT/ORDER OF DELHI HIGH COURT
1. For the reasons stated in the applications, the delay of 593 days in filing and 146 days in re-filing the present appeal stands condoned.
2. The applications stand disposed of.
ITA 690/2025
3. The challenge in this appeal under Section 260A of the Income Tax Act, 1961 (“Act”), is to an order dated 05.06.2023 whereby the Income Tax Appellate Tribunal (“ITAT”) has primarily decided two appeals being ITA 7960/Del/2019 and ITA 7961/Del/2019. The same relate to Assessment Years (“AYs”) 2012-13 and 2015-16.
4. Mr. Vipul Agarwal, learned Senior Standing Counsel for the appellant
has filed a compilation of five documents, which also includes an order dated 05.09.2024 passed by this Court in ITA 430/2024 titled Pr. Commissioner of Income Tax-1 v. M/s Avery Dennison (India) Pvt. Ltd., which is an appeal arising from the same impugned order in ITA 7961/del/2020 relatable to the AY 2015-16 whereby the said appeal has been dismissed by this Court by stating in paragraphs 1 to 7 as under:-
“1. The Principal Commissioner impugns the order of the Income Tax Appellate Tribunal (Tribunal) dated 05 June 2023 and posits the following questions of law for our consideration:-
“A) Whether in the facts and circumstances of the case and in law the Hon’ble ITAT was justified in deleting the addition made by the TPO and holding that the payment made for Intra Group Services was for commercial expediency?
B. Whether in the facts and circumstances of the case and in law the Hon’ble ITAT was right in holding that the TPO has re-characterized the intra group services transaction?
C. Whether in the facts and circumstances of the case and in law the Hon’ble ITAT was right in not appreciating that TPO has not disallowed the intra group services merely on the issue of non-substantiation of commercial expediency by the assessee but on several factors?
D. Whether in the fact and circumstances of the case and in law the Hon’ble ITAT was justified in deciding the issue relying on the judgement in the case of assessee itself for AY 2007-08 & 2008- 09, without considering that in the case of assessee company for AY 2007-08 & 2008-09, the issue was not decided by the Hon’ble Apex Court due to low tax effect and the issue is yet to be decided on merits by the Apex Court thus not attained finality?
E) Whether in the fact and circumstances of the case and in law, the Hon’ble ITAT was right in dismissing the Revenue’s appeal holding that “huge details of intra-group services have been furnished by the assessee” without discussing details of the assessee’s submissions and not considering the TPO’s issues with these submissions despite being the highest fact-finding authority.”
2. We note that identical issues appear to have been sought to be urged and canvassed by the Revenue right from Assessment Year (AY) 2007-2008.
3. The Court while disposing of Pr. Commissioner of Income Tax-1 vs. M/s Avery Dension India Pvt. Ltd (ITA 662/2019 decided on 23 July 2019) had noticed the previous litigation in some detail and thus we deem it apposite to extract the order passed on that appeal hereinbelow:-
“2. This is the Revenue appeal against the order dated 29th October 2018 passed by the Income Tax Appellate Tribunal (‘ITAT’) in ITA No.5404/Del/2018 for the Assessment Year (AY) 2014-15.
3. The issue sought to be urged by the Revenue is whether the ITAT erred in deleting the addition made by the Assessing Officer (‘AO’) without considering the findings of the Transfer Pricing Officer (‘TPO’) on the issue of determining the Arm’s Length Price (‘ALP’) of international transactions involving the Assessee and its Associated Enterprises (AEs).
4. There is a long line of precedents involving the same Assessee concerning the earlier AYs. As far as AYs 2007-08, 2008-09 and 2010-11 are concerned the very same issue regarding determination of ALP of international transactions involving the Assessee was decided by this Court against the Revenue and in favour of the Assessee. The Special Leave Petitions filed by the Revenue there against are stated to be pending in the Supreme Court.
5. However, for AYs 2012-13 and 2013-14 the ITAT appears to have remanded the matter to the TPO for a fresh determination. As far as the ITAT‟s order for AY 2013-14 is concerned the Assessee came in appeal to this Court by filing ITA No.219 of 2019. While disposing of the Assessee’s appeal vide order dated 8th March 2019 this Court clarified that the TPO will pass a fresh order for AY 2013-14 uninfluenced by the observations made by the ITAT for the AY 201213.
6. It is accordingly pointed out by learned counsel for the Assessee appearing on advance notice that these two AYs i.e. 2012-13 and 2013-14 stood on a different footing and even there this Court was persuaded to clarify that the facts for one AY i.e. 2012-13 would not influence the decision in the subsequent AYs i.e. 2013-14.
7. Learned counsel for the Revenue made two submissions. One was to say that since for AYs 2012-13 and 2013-14 the matter had been remanded to the TPO, the ITAT should have, even for the present AY i.e. 2014-15 remanded the matter to the TPO for a fresh determination.
8. The Court finds that in the impugned order, the ITAT has given detailed reasons for not remanding the issue to the TPO. In particular, the ITAT noted that in AYs 2010-11 to 2012-13 the Dispute Resolution Panel (‘DRP’) accepted the Assessee’s determination of the ALP with regard to two intra group services received by the Assessee viz., Ticketing HUB and VIPFS. As regards the other intra group services, the ALP was ascertained to be NILby application of the CUP.
9. The ITAT has also discussed the avenues provided by the Assessee in respect of each and every service received by it. In Para 24, the ITAT has observed as under:
“24. In the present days, such businesses are mostly done through emails and service provider, who is providing service through emails and electronic media. None of the lower authorities have made any adverse comment in respect of services provided through emails. Moreover, such is the practice since AY 2007-08 and in earlier AYs, the same has been accepted. Above all, composite contract/ agreement is same and there is no change in the business profile of the assessee. The assessee has made payments in accordance with the written agreements which are supported by detailed evidence regarding receipt of services. Since the payments have been made in pursuance to written agreements, in our considered opinion, the same should be a reasonable basis to confirm that payments are legitimate.”
10. The Court finds that the ITAT has given detailed reasons for accepting the case put forward by the Assessee. The view taken is a plausible one and does not give rise to any substantial question of law.
11. The other submission made is that the ITAT in fact did not consider the materials placed before the TPO and the decision taken thereon by the TPO in relation to each of the intra group services received by the Assessee from its AEs. The Court finds that the ITAT has in fact applied its mind to the evidence on record and given factual findings which this Court does not find to be perverse.
12. No substantial question of law arises. The appeal is dismissed.”
4. Both the Dispute Resolution Panel as well as the Tribunal have ultimately come to hold that in the facts and circumstances which were apparent from the record, there existed no justification to take a contrary view.
5. Although Mr. Agarwal has taken us through the order passed by the Transfer Pricing Officer (TPO) and the tabular statement which forms part thereof to contend that in this particular year the TPO had found that no service has been rendered, we note that apart from certain stray observations which appear in that chart, the TPO does not rely upon any cogent evidence or material to support those observations. The issue in any case, would merit closure, bearing in mind the principles of consistency.
6. Consequently, and following the view which had been taken for previous years by this Court, we find no justification to interfere with the order impugned.
7. The appeal fails and shall stand dismissed.”
5. That being so, the present appeal relates to AY 2012-13 arising from the same impugned order. For parity of reasons, we find that as no substantial question of law arises for consideration, the appeal is dismissed.
6. We take on record the submission made by Mr. Agarwal that on an
identical issue, though related to the AYs 2010-11 and 2014-15, the Revenue has filed appeals against the order passed by this Court and the same are pending.
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