FULL TEXT OF THE ORDER OF ITAT DELHI
This appeal by the assessee is preferred against the order dated 29.10.2018 framed u/s 143(3) r.w.s 144C(13) of the Income tax Act, 1961 [hereinafter referred to as ‘The Act’ for short] pertaining to A.Y 2014-15.
2. The grievance of the assessee can be summarised as under:
1) The assessee is aggrieved by the transfer pricing adjustment on account of Advertisement, Marketing and Sales Promotion [AMP] expenses on:
(i) Protective adjustment – 15,897,37,475/-
(ii) Substantive adjustment – 84,65,771/-
2) The assessee is aggrieved by the disallowance of Rs. 38,31,472/- made u/s 14A of the Act.
3. The representatives of both the sides were heard at length, the case records carefully perused and with the assistance of the ld. Counsel, we have considered the judicial decisions brought on record to our notice during the course of arguments.
4. Briefly stated, the facts of the case are that Amadeus India Private Limited [AIPL] is a joint venture between Ms. Radha Bhatia and family and Bird Travels Private Limited in which the former holds 95% of its equity capital and the remaining share capital of 5% is held by the latter.
5. During the year under consideration, the assessee has reported the following international transactions:
|Nature of transaction
|Provision of Information Technology
Enables Services [ITes]
|Receiving of IT enabled services
|Reimbursement of expenses received/ receivable from AE$s
6. During the course of transfer pricing assessment proceedings, show cause notice dated 29.09.2017 was sent to the assessee which reads as under:
“Agreement, with the AE: It is seen from the Distribution Agreement entered into between Amadeus Global and Amadeus India, dated 01.10.2004, that all the Proprietary Marks are owned by the Amadeus Global which has granted the assessee the license to use the same, as long as the agreement remains in force. It is further provided that upon the termination of the agreement, the use of Proprietary Marks shall be discontinued by Amadeus India and that the assessee will even have to change its name, removing “Amadeus”. The Proprietary Marks have been defined to be Trade Marks, Trade Names and Service Marks and related words slogans, letter and symbols used in connection with the marketing and operation of the Amadeus system and other Amadeus products. The agreement remains valid.
1.2 Expenditure on AMP: Expenditure ofRs.202141620/- has been incurred for promoting brand and creating marketing intangible of Amadeus Global by the taxpayer. The aforesaid expenditure includes expenditure incurred by the taxpayer on Advertisement & promotion, Incentives, Agent training and entertainment. It is seen from the records that there is no cost sharing agreement between Amadeus India and Amadeus Global for incurring Advertisement and Selling expenses.
2. The transfer pricing regulations require that it is not the form’ but the overall arrangement/ substance of the transactions that must be kept in mind.
Section 92F(v) of the Income-tax Act states:
“transaction includes an arrangement, understanding or action in concert, whether or not such arrangement, understanding or action is formal or in writing;”
Similarly, Rule 10B(2)(c) states:
“the contractual terms (whether or not such terms are formal or in writing) of the transactions which lay down explicitly or implicitly how the responsibilities, risks and benefits are to be divided between the respective parties to the transactions.
Above provisions read with the well established doctrine of‘substance over form’ (applied by the Courts in numerous judicial decisions) indicate that transfer pricing regulations are to he applied keeping in mind the overall scheme of the taxpayer’s business arrangement.
3. In view of the discussions in the foregoing paragraphs I am of the considered view that the expenditure incurred on AMP by the assessee and thereby promoting the brand/trade name owned by the AEs, is an international transaction and the same has neither been reported in Form 3CEB nor has it been benchmarked in transfer pricing study. I am of the considered view that the onus which was on the assessee to benchmark the international transaction relating to the expenditure incurred on AMP has not been discharged. I therefore propose to benchmark the transactions relating to “AMP”.
4. The basic objective of making comparability analysis is to determine bright line limit i.e., routine Advertisement, Marketing and Promotional expenditure including trade discount and volume rebate (AMP Expenditure) which a no risk distributor (which is not the owner of brand name or intangible) is expected to spend; to exploit the items of intangible property which it has been provided. Indian Transfer Pricing provisions stipulate the determination of arm’s length price of each transaction. Accordingly, arm’s length price of the international transaction of promoting the brand name by the assessee and the advantage obtained by the AE in the form of brand building and increased awareness of its brand in the domestic market, should be determined separately using TNMM.
5. The comparable selected as mentioned in Para 3 above discussed from the view point of benchmarking AMP expenditure
|COSMIC Global Ltd.
|Caliber Point Business Solutions
|E4e Healthcare Business Services pvt. Ltd.
|Informed Technologies india Ltd.
|R Systems International Limited
|Datamatics Financial services Ltd.
|Jeevan Scientific Technology Ltd.
|Jindal Intellicom Limited
|Omega Healthcare Management
In order to benchmark the transactions, I propose to compare AMP expenditure of the tested party with AMP expenditure of the final comparables as selected above for the purpose of comparability, I propose to use the current year’s data (March, 2012) of the comparables already selected by you for the distribution function. The AMP by sales expenditure of the comparables is as under:
|Name of the company
|COSMIC Global Ltd.
|Caliber Point Business Solutions
|LtdE4e Healthcare Business Services pvt. Ltd.
|Informed Technologies india Ltd.
|R Systems International Limited
|Datamatics Financial services Ltd.
|Jeevan Scientific Technology Ltd.
|Jindal Intellicom Limited
|Omega Healthcare Management services
6. It may further be mentioned that for benchmarking AMP/Sales expenditure for AY 2013-14 the comparable of Galileo India was considered which has a business which is more in akin to that of the assessee. However as the information for the aforesaid comparable is not available in public domain, therefore it has not been considered as a comparable.
7. The ratio ofAMP/Sales in the case of the tested party has been computed as under
|Expenditure on AMP
|Value of Gross Sales
8. The mean of the “expenditure incurred on AMP/sales” of such independent companies is the “bright line”. Any expenditure in excess of the bright line is for the promotion of brand/trade name (which is owned by the AE) that needs to be suitably compensated by the AE. The amount which represents the bright line and the amount that should have been compensated to the assessee company are computed hereunder:
|Value of Gross Sales
|AMP/Sales of the Comparables
|Amount that represen t bright line
|Expenditure on AMP by assessee
|Expenditure in excess of bright line
9. On the basis of above it can be seen that the expenditure on AMP incurred by you exceeds the bright line limit. Such excess expenditure of Rs. 18,77,31,720should have been compensated by the AE. However the AE has not at all compensated the assessee company. I therefore propose to determine the arm’s length price of the international transaction of promoting the brand name by the assessee and the advantage obtained by the AE in the form of brand building and increased awareness of its brand in the domestic market.
10. Since the amount of Rs. 18,77,31,720was spent by the assessee company over and above the bright line limit for provision of services related to AMP purely for the AE, an independent entity under similar circumstances would have charged a mark up on this amount, for the money spent and for the service element. For the purpose of the mark up on this expenditure borne by the assessee, I propose to use OP/OC margin. This is as per the direction of Hon’ble DRP in the assessee own case AY 2013-14. Therefore, the assessee company should have been compensated by the AE at Rs. 18,77,3l,720plus mark up @ 41.00% for undertaking advertisement, marketing and publicity activities purely for AE and most importantly creating a marketing intangible for the AE. The mark up on this amount works out to Rs. 26,47,01,725.
In view of the discussions in the foregoing paragraphs, I propose to make an adjustment of Rs. 26,47,01,725
11 Examination of the balance sheet reveals receivables thereby implying that the payment for the invoices raised by you have not been received within the stipulated time as provided in your service agreement with your AE. In this regard, you are requested to furnish the time period for payment as per your service agreement with your AE. However, to be reasonable and fair to the assessee, instead of charging penal interest, the delayed payments are being treated as unsecured loans advanced to the AEs and it is proposed to charge a normal rate as per the annual avemgeyield of corporate bonds pertaining to credit rating of your AE for the period of delay in receipt of payment beyond the time stipulated in the services agreement. The interest rate has been charged on the basis of prevailing average SBI base rate during the year. You are requested to furnished credit rating of all the AEs for the FY 2012-13 with whom you have under taken aforesaid transactions You are requested to furnished invoice wise details along with with the period of delay in receipt of payment as per details below:
|Date of Invoice
|Date of receipt of payment (INR)
|Period of delay
|Interest @ of 12.87%
p.a. for the
You are also requested to give similar details of receivable outstanding as on 01.04.2012. In case no payment terms is specified in the service agreement / invoice raised to the AE, you are requested to give average receivable period for third party transactions. In case there are no such third party transactions, the details of average payable period for AE transactions should be mentioned.
7. Replying to the afore-stated notice, the assessee contended that in order to cover a transaction within the ambit of Chapter X, the transaction must be an international transaction and the definition of the international transaction has been defined u/s 92B of the Act. Referring to the relevant provisions, the assessee stated that nothing has been brought on record to suggest that there exists certain arrangement, understanding or action.
8. Further, in its reply, the assessee strongly objected to any adjustment on account of AMP expenditure.
9. The reply of the assessee was duly considered by the TPO but did not find any favour. The TPO was of the strong belief that the assessee has entered into loyalty agreement with various subscribers i.e., travel agents. Three of such agreements have been enclosed with letter dated 30.10.2013 with Vice Regal Travels and Resorts Limited, Linbert Travels Pvt Ltd, Air Paradise Tours and Travels Pvt Ltd.
10. The TPO, after considering the agreements extensively extracted at page 20 of the TPO’s order, was of the opinion that the entire burden of AMP expenditure of Rs. 70.83 crores in the year was on the assessee and further observed that the assessee was promoting brand of the AE in India and was developing marketing intangibles for the products of the AEs and accordingly, the assessee had developed marketing intangibles for its AE in India at its own cost and risk by investing huge sums in marketing and other selling activities. The TPO further observed that the Assessing Officer has made NIL contribution to total AMP expenditure incurred by the tax payer on development of brand and marketing intangible for the AEs in India in the year under consideration and the AE assumed no responsibility for developing and defending its trade mark and marketing intangible in India.
11. The TPO thereafter proceeded to determine the quantum of AMP expenditure incurred by the assessee on the promotion of the brand of AE and on development of marketing intangible for the AE in India in addition to routine AMP expenditure which the taxpayer, as distributor, was expected to spend for its normal routine distribution business.
12. According to the TPO, sales promotion expenses go a long way in creating marketing intangible. Details of AMP expenditure, as taken by the TPO are as under:
The amount which represents the bright line and the amount that should have been compensated to the taxpayer company are computed hereunder:
|Value of Gross Sales
|AMP/Sales of the Comparables
|Amount that represent bright line
|Expenditure on AMP by assessee
|Expenditure over and above similar .expenses by the accepted comparable entities which constitutes the component of international transaction attributed to the AE towards build-up of intangibles that needs to be suitably compensated by the AE
13. In light of the above, the TPO was of the opinion that the expenditure on AMP incurred by the assessee exceeds bright line limit and, therefore, expenditure of Rs. 13,07,51,463/- should have been compensated by the AE. Since the AE has not at all compensated the assessee, the TPO proposed to determine ALP of international transaction of AMP. Taking a mark up at 19.65% for undertaking AMP expenditure and applying mark up of Rs. 2,60,69,297/- to Rs. 1,30,75,51,464/- determined cumulative addition of Rs. 15,87,37,475/-and accordingly made protective adjustment of the same.
14. Objections were raised before the DRP and following the decision of the DRP and on verification of details of AMP expenses, the TPO excluded the following expenses from the purview of AMP incentive charge of Rs. 13,07,51,463/- and determined net AMP expenses at Rs. 70,75,446/- and applying mark up @ 74.80% which comes to Rs. 52,92,434/-, total adjustment u/s 92CA was determined at Rs. 1,23,67,880/- which was added on substantive basis in addition to the protective adjustment of Rs. 15,87,37,475/-.
15. Objections were raised before the DRP and after considering the facts and detailed submissions of the assessee, the DRP observed as under:
“We find that AMP adjustment is a legacy issue in the assessee’s case and SLP has been filed before the Hon’ble Supreme Court by. the department.
|Hon’ble High Court decided against u«_ _ ITA No 535/2014 order dated 15-04-2015
|[TAT Delhi deleted the TP adjustment in ITA 1804/DEL/2014 dated 21-09-2016
Department has been filed SLP.
|Revenue appeal before the High Court rejected vide order dated 26-04-2017.
|The DRP vide order dated 20-12-201.6 has
upheld TP Adjustment using the cost plus method on substantive Basis and under bright line method on protective basis.
|Pending before IT AT
|The DRP has upheld TP Adjustment using the cost method on substantive Basis an under bright line methoi protective basis.
|Pending before ITAT
2, The assessee has argued that the AMI? adjustment is not valid as this is not an international transaction. The submissions of the assessee and the facts have been carefully considered. The TPO has discussed this issue in detail drawing reference to international guidance available on the AMP matter. This discussion is not being repeated here for the sake of brevity. The TPO has analysed the agreement between the assessee and its AE and TP report of the assessee.”
16. Before us, the ld. counsel for the assessee vehemently stated that the entire quarrel has now been settled in favour of the assessee and against the Revenue by the decision of the Hon’ble High Court of Delhi and the Tribunal in assessee’s own case in A.Y 2007-08 and 200910. Copies of the relevant judgments were supplied.
17. The ld. DR strongly supported the findings of the DRP and the TPO and read the relevant observations of the DRP from para 2.2 to 2.42 of the order and stated that computation of AMP adjustment has been correctly done by the TPO.
18. We have given thoughtful consideration to the orders of the authorities below and have carefully considered the decision of the Hon’ble High Court and the Tribunal. We find force in the contention of the ld. counsel for the assessee. Similar quarrel was there before the Tribunal in ITA No. 1811 and 7691/DEL/2017 A.Y 2012-13 and 201314. We find that the Tribunal had the benefit of considering all the agreements relied upon by the TPO in his order. Relevant findings read as under:
“2.5 The assessee entered into an agreement with M/s Amadeus Spain on 1st October, 2004. The main activity of the assessee is to provide connectivity to the subscribers in India to the host the CRS system by creation/ modification/up-gradation of computer programmes online. The assessee has a data processing centre, which provides the above services to the deemed AE. In the Transfer Pricing (TP) Study, the assessee has declared the following international transactions with its deemed AE:
|Nature of Transaction Provision of Information Technology Enabled Services (ITeS)
|Method Value TNMM
|Receipt of Data Processing Services
2.6 In the Transfer Pricing study, the assessee had followed the Transaction Net Margin Method (TNMM) to substantiate the Arm’s Length Price (ALP) of above disclosed international transaction/s pertaining to provision of ITES Services with its deemed AE and accordingly it compared the net operating profit/total cost (OP/TC) earned by it with the mean OP/TC of the comparable companies selected by it and concluded that since the OP/TC of the assessee is higher than the mean OP/TC of comparable companies, the disclosed international transaction are at Arms’ Length Price. In order to verify this, the AO made a reference to the Transfer Pricing Officer (TPO). The TPO has accepted the benchmarking of the above declared international transactions. In this regard after a detailed benchmarking of the disclosed international transaction/s, the TPO has, at page 69 of order dated 20th January, 2015, held that “from above it can be seen that the international transaction of taxpayer in respect of ITES is within + / – 5% of arms length price”.
2.7 The TPO, however, observed that the assessee had incurred more than normal AMP expenses to build “Amadeus” brand in India which is legally owned by M/s Amadeus Spain. The TPO held that the assessee should have been reimbursed with appropriate markup on such excessive AMP expenditure identified by him by applying the Bright Line Test (BLT). In his order, the TPO has identified the said abnormal AMP expenses by applying the bright line method i.e., by comparing the AMP as a percentage to sales of the assessee with average AMP as a percentage of the comparable companies finally selected by him for benchmarking the main functions of the assessee. Thereafter, by applying a mark-up of 11.69%, the TPO has computed the final adjustment for the alleged transaction of brand promotion as under:-
|TPO Order dated 20-01-2015 effect to DRP
|TPO order dated 28.02.2016 giving
|Value of Gross Sales
|AMP/Sales of the Comparables
|Amount that represent bright line
|Expenditure on AMP by assessee
|Expenditure in excess of bright line
2.8 Being aggrieved by the above proposed transfer pricing adjustment, the assessee filed detailed objections before the Ld. DRP. The Ld. DRP, while referring to decision of the Hon’ble Delhi High Court in the case of Sony Ericsson Mobile Communications reported in 374 ITR 118(Del), has examined the contentions put forth by the assessee before it as under:-
|Sub Grounds of Appeal summarized as per issue from Form 35A
|Sony Ericsson High Court order dt. 16 March, 2015
|Re-characterization of expenses incurred for own business as a service to AE is not justified
|Upheld at Para 64 page 48 of 142 para 147, page 111 The burden is on the assessed to select and justify the method adopted and the arm’s length price declared under sub-section (3) to section 92C, the Assessing Officer can proceed to determine the arm’s length price in accordance with Section 92C(1) and (2) on the basis of material, Information or documents in his possession, if any of the circumstances mentioned in clauses (a) to (d) are satisfied –
|The AMP expenses incurred by the assessee, qua independent parties, are domestic transaction and not international transaction as defined in
section 92B of the Act.
|AMP expense is an international transaction. (Paras 52 & 53 of the judgment)
The TPO has jurisdiction to determine the ALP of the international transaction of AMP expenses (para 50 of the judgment); Discussion under the heading C para 51-57, the substantial question of law answered in favor of Revenue.
AO/TPO can segregate AMP expenses as an independent international transaction, but only after elucidating the grounds a reasons for not accepting the bunching adopted by the assessed and examining and giving benefit of set off under 92(3).
|Assessee is already remunerated for the activities performed by it.
|Owner of the marketing intangible should adequately compensate the domestic AE incurring costs towards marketing activities by Revenue reimbursement of expenses or by sufficient and appropriate return.
|Bright Line Test, applied by the Ld. TPO/LD. AO, is not permitted by the transfer pricing regulations
|Para 194, sno X, page 139 Bright Line Test has no statutory mandate. Bright Line test cannot be applied to work out non-routine AMP expenses for benchmarking [Para 194 (x)];
|The AMP expenses incurred by the assessee already benchmarked by applying TNMM so separate benchmarking
|Page 140 AO for good and sufficient reasons can de-bundle interconnected not required transactions, is segregated distribution, marketing or AMP transactions when bundled transactions cannot be adequately compared on an aggregate basis. ALP of AMP expenses should be determined preferably in a bundled manner with the distribution activity (Paras 91,121 & others);
|Value of alleged international transaction has been determined incorrectly
|Page. 137 The assessed, i.e., the domestic AE must be compensated for the AMP expenses by the foreign AE. Such compensation may be included or
|subsumed in low purchase price or by not charging or charging lower royalty. Direct compensation can also be paid. The method selected and comparability analysis should be appropriate and reliable so as to include the AMP functions and costs.
|AMP is a separate function. An external comparable should perform similar AMP functions. [Paras 165 & 166];
For determining the ALP of these transactions in a bundled manner, suitable comparables having undertaken similar activities of distribution of the products and also incurring of AMP expenses, should be chosen (Paras 194(i), (ii), (viii) & others);
The AO/TPO can reject a method selected by the assessed for several reasons including want of reliability in the factual matrix or lack / nonavailability of comparables (see Section 92C(3) of the Act). Page 138 When the AO/TPO rejects method adopted by assessed, he is entitled to select MAM, and undertake comparability analysis. Selection of method and comparables should be as per the command and directive of the Act and Rules and justified by giving reasons.
The choice of comparables cannot be restricted only to domestic companies using any foreign brand (para 120);If no comparables having performed both the functions in a similar manner are available, then, suitable adjustment should be made to bring international transactions and comparable transactions at par [para] 194(iii)]; If adjustment is not possible or comparable is not available, then, the TNMM on entity level should not be applied [Paras 100, 121, 194(iii) & (vi)] For determining the ALP of these transactions in a bundled manner, suitable comparables having undertaken similar activities of distribution of the products and also incurring of AMP expenses, should be chosen [Paras 194(i), (ii), (viii) & others]; The choice of comparables cannot be restricted only to domestic companies using any foreign brand [Para 120];
|Arbitrary Mark up
|PLR cannot be the basis for computing markup on AMP expenses as an international transaction. Mark-up as per sub- clause (ii) to rule 10B(1)© would be comparable gross profit on the cost or expenses incurred as AMP.
The mark-up has to be benchmarked with comparable uncontrolled transactions or transactions for providing similar service/product. The Revenue’s stand in some cases applying the prime lending rate fixed by the Reserve Bank of India with a further mark-up, is mistaken and unfounded. Interest rate mark-up would apply to international transactions granting/availing loans, advances, etc.
19. The Tribunal adjudicated as under:
“5.0 We have carefully considered the submissions made by both the sides and have also perused the material available on record. It is seen that the issue in dispute has been decided in favour of the assessee by the coordinate Bench of this Court in earlier assessment years and the order passed by the coordinate Bench for A.Y.2009-10 has also been upheld by the Hon’ble Jurisdictional High Court. In earlier years the issue in dispute has been decided in favour of the assessee by the coordinate Bench by taking into consideration the following decisions of the Hon’ble Jurisdictional High Court:-
(i) Maruti Suzuki India Ltd. vs. CIT reported in 381 ITR 117 (Delhi);
(ii) CIT vs. Whirlpool of India Ltd. reported in 381 ITR 154 (Delhi);
(iii) Honda Siel Power Products Ltd. vs. Dy. CIT reported in 237 Taxman 304 (Delhi);
(iv) Bausch and Lomb Eyecare (India) Pvt. Ltd. v. Addl. reported in CIT 381 ITR 227 (Delhi);
5.1 In the year under consideration there is no change in the facts and circumstances of the case as compared to A.Y. 2009-10 and even the agreements between assessee and the AE continue to be operational for the year under consideration. We, therefore, concur with the reasoning given by the coordinate Bench for A.Y. 2009-10,wherein, it is held as under:-
“8. We have considered the submissions made by the parties and have also perused the material available on record. Undisputedly, the main data processing and subsidiary distribution activities of the appellant have been held to be at the arm’s length price applying the transactional net margin method. Provision of the information technology enabled services to associated enterprise under the agreement has been thoroughly benchmarked by the Transfer Pricing Officer. Most appropriate method being the transactional net margin method has not been doubted and after an in-depth analysis of comparable companies selected by the appellant and by tinkering with the same the learned Transfer Pricing Officer has given a finding that OP/OC of the assessee is 20.27 per cent and OP/OC of revised comparable set is 23.94 per cent. No adjustment made on this account has been made as the difference is within + five per cent range. The learned Transfer Pricing Officer, however, has segregated the advertisement, marketing and promotion expenses and held that being an independent transaction it requires to be benchmarked independently. In these circumstances, in our opinion, the fundamental question to be answered is to decide as to whether in the absence of any agreement, arrangement or understanding for either incurring the advertisement, marketing and promotion expenses on behalf or for the benefit of the associated enterprise or for payment of the advertisement, marketing and promotion expenses by the associated enterprise can it be held that there was an “international transaction” only on the basis that the advertisement, marketing and promotion expenditure, incurred by the appellant, would have benefited the associated enterprise, who owned the brands used by the appellant. The learned authorized representative has rightly submitted that this is a jurisdictional issue, which requires a foremost adjudication and only if the answer to this issue is against the appellant that the matter then required a de novo adjudication in the light of the jurisdictional High Court decision in the case of Sony Ericsson Mobile Communications (supra). The above line of adjudication is also supported by the decision of the honourable jurisdictional High Court in the case of Diakin Airconditioning India (P.) Ltd. (supra) wherein it is held as under:
“Accordingly, the court directs as under:
(a) The impugned order dated October 8, 2015, passed by the Income-tax Appellate Tribunal in I. T. A. No. 5090/DEL/2010 for the assessment year 2006-07 is set aside and the said appeal is restored to the file of the Income-tax Appellate Tribunal ;
(b) The Income-tax Appellate Tribunal will first decide the question regarding the existence of an international transaction involving AMP expenses between the assessee and its associated enterprise. This question will not be remanded by the Income-tax Appellate Tribunal to any other authority for decision. If the said question is answered in favour of the assessee, then no other question would arise. If answered against the assessee, then the Income-tax Appellate Tribunal will decide the further issues that arise in the appeal in accordance with law.”
8.1 The case records further show that both the lower authorities have categorically given a finding that there existed a “transaction” for brand promotion between appellant and its associated enterprise. This is also under challenge before us. Hence, it cannot be said that necessary facts are not on record. With regard to the submissions of the learned Departmenta l representative that the issue of advertisement, marketing and promotion expenses be restored back to the file of the learned Transfer Pricing Officer, we would like to state that since facts necessary to determination are on record the law laid down by the honourable jurisdictional High Court has to be given effect to. It is not even the argument of the learned Commissioner of Income-tax (Departmental representative) that any fresh fact is required for such a determination. Under the circumstances, a direction for remand is not called for. The honourable jurisdictional High Court in various cases have highlighted the tests to be applied for ascertaining whether there exists a transaction for brand promotion in a particular case. The learned authorised representative has impartially summarised the relevant propositions from these decisions in his note, which we have reproduced above. We find that in the cases of Maruti Suzuki India Ltd. vs. CIT  64 taxmann.com 150/ 237 Taxman 256/381 ITR 117, CIT v. Whirlpool of India Ltd.  64 taxmann.com 324/ 237 Taxman 49/381 ITR 154 (Delhi), Bausch & Lomb Eyecare (India) (P.) Ltd.  65 taxmann.com 141/237 Taxman 24/381 ITR 227 (Delhi) the honourable High Court on the issue of the advertisement, marketing and promotion expenses has deliberated upon extensively on each and every argument raised by the Transfer Pricing Officer/Dispute Resolution Panel and has analysed the same threadbare. We would like to reproduce the relevant portion of the judgment of Bausch & Lomb Eyecare (India) (P.) Ltd.’s case (supra) as under (page 251):
“A reading of the heading of Chapter X (‘Special provisions relating to avoidance of tax’) and section 92(1) which states that any income arising from an international transaction shall be computed having regard to the arm’s length price and section 92C(1) which sets out the different methods of determining the arm’s length price, makes it clear that the transfer pricing adjustment is made by substituting the arm’s length price 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 arm’s length price. Under sections 92B to 92F, the pre-requisite for commencing the transfer pricing 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 arm’s length price 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 arm’s length price and make the transfer pricing adjustment by substituting the arm’s length price for the contract price.
Section 928 defines ‘international transaction’ as under:
‘928. Meaning of international transaction.—(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 anyone 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. ‘ Thus, under section 928 (1) an ‘international transaction ‘ means—
‘(a) a transaction between two or more associated enterprises, 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 associated enterprises 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. ‘
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 8LI 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 8LI and 8&L, USA whereby 8LI is obliged to spend excessively on AMP in order to promote the brand of 8&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 928 are described as an ‘international transaction’. This might be only an illustrative list, but significantly it does not list advertisement, marketing and promotion spending as one such transaction.
In Maruti Suzuki India Ltd.  381 ITR 117 (Delhi), one of the submissions of the Revenue was (page 144) : ‘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 (page 144):
‘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 forma l or in writing”, it 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 advertisement, marketing and promotion 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. ‘
In Whirlpool of India Ltd.  381 ITR 154 (Delhi), the court interpreted the expression ‘acted in concert’ and in that context referred to the decision of the Supreme Court in Daiichi Sankyo Co. Ltd. v. Jayaram Chigurupati  157 Comp Cas 380 (SC) ;  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 paragraph 44, it was observed as under (page 408 of 157 Comp Cas):
‘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, dehors 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 co-operate in actual acquisition of shares, etc., or they may agree to co-operate 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. ‘
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 advertisement, marketing and promotion 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 advertisement, marketing and promotion expenditure incurred, for the associated enterprise. In any event, after the decision in Sony Ericsson  374 ITR 118 (Delhi), the question of applying the bright line test to determine the existence of an international transaction involving the advertisement, marketing and promotion expenditure does not arise.
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 recharacterising the advertisement, marketing and promotion 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 928 runs counter to the legal position explained in CIT v. EKL Appliances Ltd.  345 ITR 241 (Delhi) which required a Transfer Pricing Officer ‘to examine the “international transaction” as he actually finds the same’. In the present case, the mere fact that 8&L, USA through 8&L, South Asia, Inc. holds 99.9 per cent. of the share of the assessee will not ipso facto lead to the conclusion that the mere increasing of the advertisement, marketing and promotion 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 advertisement, marketing and promotion expenses would also enure to the associated enterprise is itself sufficient to infer the existence of an international transaction has been negatived by the court in Maruti Suzuki India Ltd. 381 ITR 117(Delhi) as under (page 146):
‘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 advertisement, marketing and promotion expenses, Mr. Srivastava only referred to section 92F(ii) which defines arm’s length price to mean a price “which is applied or proposed to be applied in a transaction between persons other than associated enterprise in uncontrolled conditions”. Since the reference is to “price” and to “uncontrolled conditions” it implicitly brings into play the bright line test. 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 arm’s length price. The court does not see this as a machinery provision particularly in light of the fact that the bright line test has been expressly negatived by the court in Sony Ericsson. Therefore, the existence of an international transaction will have to be established dehors the bright line test. . . .
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 arm’s length price, an ‘adjustment’ has to be made. The burden is on the Revenue to first show the existence of an internationa l transaction. Next, to ascertain the disclosed “price” of such transaction and thereafter ask whether it is an arm’s length price. If the answer to that is in the negative the transfer pricing adjustment should follow.
The objective of Chapter X is to make adjustments to the price of an international transaction which the associated enterprises involved may seek to shift from one jurisdiction to another. An “assumed” price cannot form the reason for making an arm’s length price adjustment.
Since a quantitative adjustment is not permissible for the purposes of a transfer pricing adjustment under Chapter X, equally it cannot be permitted in respect of advertisement, marketing and promotion 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 advertisement, marketing and promotion spend of the assessee on application of the bright line test, is excessive, thereby evidencing the existence of an international transaction involving the associated enterprise. The quantitative determination forms the very basis for the entire transfer pricing exercise in the present case. . . .
The problem with the Revenue’s approach is that it wants every instance of an advertisement, marketing and promotion spend by an Indian entity which happens to use the brand of a foreign associated enterprise to 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 advertisement, marketing and promotion spend for a foreign associated enterprise 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 Transfer Pricing Officer proceed to benchmark the portion of such, advertisement, marketing and promotion spend that the Indian entity should be compensated for? ‘
Further, in Maruti Suzuki India Ltd.  381 ITR 117 (Delhi) the court further explained the absence of a machinery provision qua the advertisement, marketing and promotion expenses by the following analogy (page 149): ‘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 40A(2)(a) under which certain types of expenditure incurred by way of payment to related parties is not deductible where the Assessing Officer “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 Assessing Officer 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 Assessing Officer 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. ‘ 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  128 ITR 294 (SC) ; [2002- TIOL-587-SC-IT-LB] and PNB Finance Ltd. v. CIT  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 transfer pricing adjustment exercise. As already mentioned, merely because there is an incidental benefit to the foreign associated enterprise, it cannot be said that the advertisement, marketing and promotion expenses incurred by the Indian entity was for promoting the brand of the foreign associated enterprise. As mentioned in Sassoon J. David  118 ITR 261, 276 (SC) ‘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’.”
8.2 On a careful consideration of the facts on record we are of the opinion that there is nothing on record to show that the appellant by incurring the advertisement, marketing and promotion expenses wanted to promote its associated enterprise. The learned Transfer Pricing Officer has failed to prove that the appellant by incurring the advertisement, marketing and promotion expenses wanted to benefit the associated enterprise and not to promote its own business. The submission of the learned Transfer Pricing Officer that clauses 10.02, 10.05, 11.01 and article XVI of the agreement indicate the existence of a “transaction” for brand promotion is not supported by contents of those clauses. The appellant’s objections before the learned Dispute Resolution Panel, which we have quoted above, are acceptable. These clauses nowhere provide that the appellant will be incurring brand promotion expenses for and on behalf of its associated enterprise or solely for its business purposes and interests. The agreement dated October 1, 2004, between the appellant and its associated enterprise is based upon the revenue sharing model in which 46 per cent revenue is being shared by Amadeus Spain with the appellant and, hence, it is difficult to visualise that the appellant will not be incurring routine advertisement expenses in its entrepreneur capacity. Excluding the payment of incentives, which in the earlier years have been held, to be pure selling expenses the ratio of the AMP/sales of the appellant is mere 2.29 per cent. The learned authorised representative is also right in relying upon the decision of the honourable jurisdictiona l High Court in the case of Sony Ericsson Mobile
Communications (supra) for submitting that events which would transpire on termination of distribution require a transfer pricing adjustment at that stage but the same will be immaterial to presume the existence of an agreement, arrangement or understanding in the year under consideration. In this regard the honourable High Court at paragraph 153 of its reported judgment has been pleased to be hold as under (page 217):
“Economic ownership of a brand is an intangible asset, just as legal ownership. Undifferentiated, economic ownership brand valuation is not done from moment to moment but would be mandated and required if the assessed is deprived, denied or transfers economic ownership. This can happen upon termination of the distribution-cum-marketing agreement or when economic ownership gets transferred to a third party. Transfer pricing valuation, therefore, would be mandated at that time. The international transaction could then be made a subject matter of transfer pricing and subjected to tax.”
8.3 As held above, the appellant has raised objections before the learned Dispute Resolution Panel that none of the above clauses of the agreement make it mandatory for the appellant to incur the brand promotion expenses for and on behalf of the associated enterprise. The learned Dispute Resolution Panel has not disturbed these objections but has upheld the case of the learned Transfer Pricing Officer on some other grounds, i.e., (i) by relying upon the Special Bench decision in the case of L.G. Electronics India (P.) Ltd. v. Asstt. CIT  29 taxmann.com 300/140 ITD 41 (Delhi – Trib.) [SB] ; (ii) by holding that since the appellant is a dependent agency permanent establishment of its associated enterprise hence all the expenses on advertisement, marketing and promotion are being incurred by it for the benefit of the associated enterprise, and (iii) by relying upon the amended provisions of section 92B. We do not find any substance in the above approach of the learned Dispute Resolution Panel. The decision of the Special Bench in L.G. Electronics (P.) Ltd. (Supra) is no more good law post above decisions of the jurisdictional High Court. We have already reproduced the above findings of the jurisdictional High Court in the case of Bausch & Lomb Eyecare (India) (P.) Ltd. (supra) wherein it is held that (page 253) “. . . 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 advertisement, marketing and promotion spending as one such transaction . . .” hence the amendments to section 92B by the Finance Act, 2012, also do not support the case of the Revenue lastly on the observations made by the learned Dispute Resolution Panel that since the appellant is a dependent agency permanent establishment of its associated enterprise, hence, all its expenses on advertisement, marketing and promotion are being incurred by it for the benefit of associated enterprise we would like to state that this is also entirely irrelevant. While alleging as the above the learned Dispute Resolution Pane l has not appreciated that the appellant has been held to be a dependent agent permanent establishment of Amadeus Spain for determination of Amadeus Spain’s income, which is taxable in India. Moreover, we may refer here the decision of the honourable jurisdictional High Court in the case of Whirlpool of India Ltd. (supra) wherein it is held by the honourable High Court as under (pages 175, 179 of 381 ITR):
The provisions under Chapter X do envisage a ‘separate entity concept’. In other words, there cannot be a presumption that in the present case since WOIL is a subsidiary of Whirlpool USA, all the activities of WOIL are in fact dictated by Whirlpool USA. Merely because Whirlpoo l USA has a financial interest, it cannot be presumed that the advertisement, marketing and promotion expense incurred by the WOIL are at the instance or on behalf of Whirlpoo l USA. There is merit in the contention of the assessee that the initial onus is on the Revenue to demonstrate through some tangible material that the two parties acted in concert and further that there was an agreement to enter into an international transaction concerning the advertisement, marketing and promotion expenses . . . .
As already mentioned, merely because there is an incidental benefit to Whirlpool, USA, it cannot be said that the advertisement, marketing and promotion expenses incurred by WOIL was for promoting the brand of Whirlpool, USA. As mentioned in Sassoon J. David  118 ITR 261 (SC) ‘the fact that somebody other than the assessee is also benefited 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.”
8.4 Considering the material facts like the absence of an agreement, arrangement or understanding between the appellant and its associated enterprise for sharing the advertisement, marketing and promotion expenses or for incurring the advertisement, marketing and promotion expenses for the sole benefit of the associated enterprise, payments made by the appellant under the head “advertisement, marketing and promotion” to the domestic parties cannot be termed as an “international transaction” specifically when the learned Transfer Pricing Officer has not been able to prove that the expenses incurred were not for the business carried out by the appellant in India. We are thus of the opinion that the Transfer Pricing Officer had wrongly invoked the provisions of Chapter X of the Act for the said advertisement, marketing and promotion spent. The addition of Rs. 75,40,09,515 is, therefore, directed to be deleted. Ground Nos. 4 to 4.4 are therefore allowed. Considering our conclusions above ground Nos. 5 and 5.1 do not require any adjudication.”
5.2 The order passed by the coordinate Bench for A.Y. 2009-10 has also been followed by the Tribunal vide order dated 23rd October, 2017 in ITA No.1835/Del/2015 for A.Y. 2010-11. Moreover, the decision of the coordinate Bench for A.Y.2010-11 has also been upheld by the Hon’ble Jurisdictional High Court in ITA No. 154/2017 vide order dated 26th April, 2017 as under:-
“3. The first issue concerns the deletion of the transfer pricing adjustment of Rs.75,40,09,515/- on account of Advertising, Marketing and Sales Promotion Expenses (AMP Expenses) relying upon the decisions of this Court including the decision in Bausch & Lomb Eyecare (India) Pvt. Ltd. vs. Additional Commissioner of Income Tax (2016) 381 ITR 227 (Del).
4. As far as the above issue is concerned, it is covered by the earlier decisions of this Court against the Revenue. This Court is not inclined to frame any substantial question of law on this issue. ”
5.3 Respectfully following the above binding precedents, it is concluded that the TPO has wrongly invoked the provisions of Chapter X of the Act. The addition of Rs.114.89 crores, is therefore, directed to be deleted. Ground Nos. 3 & 3.1 are, therefore, allowed. Considering our conclusions, other grounds challenging various other facets of the impugned addition do not require any adjudication as having become in fructuous. ”
20. The Hon’ble High Court of Delhi in assessee’s own case in ITA No. 154/2017 order dated 26.04.2017 had the occasion to consider this quarrel. Order of the Hon’ble Jurisdictional High Court reads as under:
2. There are broadly two issues raised by the Revenue in this appeal under Section 260A of the Income Tax Act, 1961 (‘Act’) against the order dated 21st August, 2016 passed by the Income Tax Appellate Tribunal (‘ITAT’) in ITA No. 1804/Del/2014 for the Assessment Year (‘AY’) 2009-10.
3. The first issue concerns the deletion of the transfer pricing adjustment of Rs. 75,40,09,515/- on account of Advertising, Marketing and Sales Promotion Expenses (AMP Expenses) relying upon the decisions of this Court including the decision in Bausch & Lomb Eyecare (India) Pvt. Ltd. v. Additional Commissioner of Income Tax (2016) 381 ITR 227(Del).
4. As far as the above issue is concerned, it is covered by the earlier decisions of this Court against the Revenue. This Court is not inclined to frame any substantial question of law on this issue.”
21. This order was again followed by the Hon’ble High Court in ITA No. 901 of 2019 order dated 16.10.2019. The relevant findings read as under:
“3. The Revenue is in appeal to assail the order dated 27.02.2019 passed by the Income Tax Appellate Tribunal, Delhi Bench ‘I’, New Delhi. We are concerned with ITA 1662/Del/2016 relevant to the assessment year 2011-12 in respect of the Respondent assessee. The Tribunal has rejected the said appeal. On the issue of Transfer Pricing Adjustment on account of AMP expenses, the Tribunal relied upon the Coordinate Bench decision in the Respondent assessee’s own case for the assessment year 2010-11 which has been upheld by this Court in ITA 154/2017 deleting the addition on the ground that the TPO has wrongly invoked the provisions of Chapter X of the Act for the said AMP spent. In relation to the issue of deduction under Section 10A, the ITAT has followed its own decision in the Respondent assessee own case for the assessment year 2009-10 and held that the assessee is eligible for the claim of deduction under Section 10A of the Act.
It has also relied upon the order of this Court in ITA 154/2017 dated 22.05.2017 which has upheld the findings of the Tribunal for the assessment year 2009-10. Mr. Hossain learned senior standing counsel for the Appellant fairly states that so far as these issues are concerned, they stand concluded by this Court.”
22. Respectfully following the decision of the co-ordinate bench and the Hon’ble Jurisdictional High Court of Delhi, we direct the Assessing Officer /TPO to delete the additions made on account of AMP expenditure, substantive and protective. Ground Nos. 1 to 8 taken together are allowed.
23. Second grievance relates to the disallowance of Rs. 38,31,472/-made u/s 14A of the Act.
24. We find that during the year under consideration, the assessee has earned no exempt income. Therefore, in the light of the ratio laid down by the Hon’ble Jurisdictional High Court decision of the Special Bench of the Tribunal in the case of M/s Cheminvest Ltd 121 ITD 318 which was affirmed by the Hon’ble High Court of Delhi. Same view is taken by the Hon’ble Gujarat High Court in the case of Corrtech Energy (P) Ltd 372 ITR 97. We are of the considered opinion that no disallowance should have been made u/s 14A of the Act. We accordingly direct the Assessing Officer to delete the addition of Rs. 38,31,472/-.
25. Challenge of levy of interest u/s 234B of the Act is consequential and we direct accordingly.
26. In the result, appeal of the assessee in ITA No. 7376/DEL/2018 is allowed.
The order is pronounced in the open court on 08.03.2021.