Income Tax Appellate Tribunal - Delhi
Acit, Ltu Circle-2, New Delhi vs Whirlpool Of India Ltd., Gurgaon on 19 March, 2024
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH 'I-2': NEW DELHI
BEFORE,
SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER
AND
SHRI ANUBHAV SHARMA, JUDICIAL MEMBER
MA No.161/Del/2020
(Arising out of ITA No.9191/Del/2019)
ASSESSMENT YEAR 2015-16
ACIT M/s Whirlpool of India
LTU Circle-2 Vs. Limited
New Delhi Plot No.40, Sector-44
Gurgaon
Haryanan-122 002
PAN-AAACW 1336L
(Appellant) (Respondent)
Assessee by Sh. Neeraj Jain, Advocate
Sh. Ramit Katyal, CA and
Ms. Mansha Bhalla, CA
Department by Ms. Garima Sharma, Sr. DR
Date of Hearing 01/03/2024
Date of Pronouncement 19/03/2024
ORDER
PER ANUBHAV SHARMA, JM:
This order disposed off the Miscellaneous Application ('MA', for short) filed by the Revenue against the order dated 20/01/2020.
2. M.A. No.161/Del/2020 ACIT vs. Whirlpool of India Ltd.
4 2. Heard and perused the record.
3. The Ld. DR submitted that while passing the order dated 20/01/2020, the Bench had relied the decision of Tribunal for A.Ys. 2008-09 to 2014-15. The Ld. DR submitted that in A.Y. 2008-09, in the case of the assessee the Hon'ble ITAT vide its order dated 13/01/2014 in ITA No.426/Del/2013, has upheld that Advertisement, Marketing and Promotion (AMP) expenses as international transaction and has held that Arms Length Price (ALP) of AMP expenses should be determined by following its order in LG Electronics India Pvt. Ltd., Vs. ACIT (2013) 152 TTJ (Del) (SB) 273. 3.1 She pointed out that however, the Hon'ble High Court in ITA No.610/2014 & ITA No.228/2015 vide order dated 22/12/2015 held that the Revenue has been unable to demonstrate that there is an international transaction involving AMP expenses between the assessee and its foreign AE and that since BLT (Bright Line Test) has been rejected by the Hon'ble Delhi High Court as a valid method for determining the ALP of AMP expenses [referring to Sony Ericsson Mobile Communications India P. Ltd. vs. Commissioner of Income Tax (2015)374 ITR 118 (Del)], the AO/TPO cannot Page 2 of 8
3. M.A. No.161/Del/2020 ACIT vs. Whirlpool of India Ltd.
determine ALP in this case and revenue appeal was dismissed in this case. The Department has filed SLP (SLP (C) No.029270/2016) before the Hon'ble Supreme Court of India.
3.2 It was submitted for Revenue that in A.Y. 2009-10 the ITAT Delhi vide its order dated 26.11.2018 in ITA No 1254/Del./2014 following the Hon'ble Delhi High Court judgment in Sony Ericsson (supra) and assessee own case for A.Y. 2008-09, set aside the matter of AMP expenses with the following observations (Flag -A).
"18. At the same time, we cannot ignore the submission of the learned DR that the matter is pending before Hon 'ble Apex Court and the decision of Hon 'ble Apex Court would be binding upon all the authorities. In view of the above, we set aside the order of authorities below and restore the matter to the fde of the Assessing Officer. We hold that as per the facts of the case and the legal position as of now and discussed above in this order, the adjustment made by the TPO/DRP/AO in respect of AMP expenses is not sustainable. However, if the above decisions of Hon 'ble Jurisdictional High Court which is under consideration before the Hon 'ble Apex Court is modified or reversed by the Hon 'ble Apex Court, then the Assessing Officer would pass the order afresh considering the decision of Hon 'ble Apex Court. In those circumstances, he will also allow opportunity of being heard to the assessee. "
3.3 Further appeal against the above order was preferred by the Revenue wherein the Hon'ble High Court of Delhi in ITA 394/2019 dated 22.04.2019 has held that "the reasoning of the ITAT cannot be faulted with. As in the case of the impugned order, this court Page 3 of 8
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clarifies that the parties shall be bound by the final decision of the Supreme Court on both the questions."
3.4 She has pointed form the application that the ITAT in its order dated 18.01.2019 for A.Y. 2010-11 (ITA No. 1972/Del/2015) , A.Y. 2011-12 (ITA No. 1787/Del/2016) & AY 2012-13 (ITA No. 7085/Del/2017) and order dated 25.02.2019 for A.Y. 2013-14 (ITA No. 8272/Del/2018) & A.Y. 2014-15 (ITA No. 8273/Del/2018) set aside the matter of AMP expenses to the file of Assessing Officer with the following observation in its order dated 18.01.2019;
"8.2 However, we appreciate the concern raised by Ld. Sr. DR that decision of Hon'ble Supreme Court will be binding upon assessee as well as revenue. We are therefore, inclined to set aside this issue to Ld. AO/TPO to pass fresh order considering decision of Hon'ble Supreme Court. Needless to say that proper opportunity shall be granted to assessee of being heard. "
3.5 Further, the Hon'ble ITAT has made similar observation vide its order dated 18.02.2020 for A.Y. 2013-14 & 2014-15:
"7.2 However, we appreciate the concern raised by Ld. Sr. DR that decision of Hon 'ble Supreme Court will be binding upon assessee as well as revenue. We are therefore inclined to set aside this issue to Ld. AO/TPO to pass fresh order considering decision of Hon'ble Supreme Court. Needless to say that proper opportunity shall be granted to assessee of being heard. "Page 4 of 8
5. M.A. No.161/Del/2020 ACIT vs. Whirlpool of India Ltd.
3.6 Ld. DR further submitted that, with respect to the issue in Ground No. 4 to 4.4, the ITAT has allowed the appeal of the assessee in the year under consideration while in the earlier years from A.Y. 2010-11 to 2014-15 ITAT has set aside issue by holding that "As the issue relating to nature of AMP expenses being international transaction or not, has been set aside to Ld. AO in preceding paragraphs, allowability of such expenses claimed by the assessee under section 37 of the Act also deserves to be set aside. The outcome of this ground raised depends upon decision of Hon'ble Supreme Court in assessee's own case. "
3.7 She thus submitted that as explained above, the Tribunal has followed its order from A.Y 2009-10 to 2014-15 w.r.t issues raised in Ground No. 3 to 3.21 and Grounds No. 4 to 4.4 but has given a different decision in as much as in this year the Hon'ble ITAT has directed deletion of addition though in all preceding years these issues have been set aside to the Assessing officer to frame fresh order as per decision of Hon'ble Supreme Court. There is a visible and apparent error & contradiction in this year. As Hon ble ITAT has followed its own order for earlier years from A.Y. 2009-10 Page 5 of 8
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& 2014-15, but has not given any decision on merits as to why the issues are allowed in favour of assessee whereas in earlier years on the identical issues the Hon'ble ITAT has set aside these issues to the file of AO/TPO for passing assessment order after considering the decision of Hon'ble Supreme Court.
4. It was thus contended that Tribunal should review its order in ITA No.9191/Del/2019 dated 20.01.2020 and either give decision on merits or modify the directions to the AO /TPO in accordance with decision / directions in AYs 2009-10 to 2014-15.
5. After considering the submissions, we are of the considered view that the alleged mistake apparent from record, that there is a visible and apparent error & contradiction in this year in not following previous trend of findings, is not the one in regard to which we can exercise the limited power of correcting the errors and the indulgence as desired by Revenue will result in a Review of the order which is beyond the jurisdiction u/s 254(2) of the Income Tax Act 1961. The scope of jurisdiction of Tribunal, under Section 254(2), as per, the Hon'ble Supreme court, in the case Page 6 of 8
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Commissioner of Income Tax v. Reliance Telecom Ltd., 2021 SCC OnLine SC 1170, decided on 03.12.2021, is that the powers are only to correct and/or rectify the mistake apparent from the record and not beyond that. They are akin to Order XLVII Rule 1 CPC and thus while considering the application under Section 254(2) of the Act, we cannot re-visit earlier order of Co-ordinate Bench and to go into detail on merits again.
6. The application of Revenue is dismissed.
Order pronounced in the open Court on 19th March, 2024.
Sd/- Sd/- /-
(SHAMIM YAHYA) (ANUBHAV SHARMA)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 19/03/2024
Pk
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT, NEW DELHI
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8. M.A. No.161/Del/2020
ACIT vs. Whirlpool of India Ltd.
Draft dictated 13.03.2024
Draft placed before author 13.03.2024
Approved Draft comes to the Sr.PS/PS
Order signed and pronounced on
File sent to the Bench Clerk
Date on which file goes to the AR
Date on which file goes to the Head Clerk.
Date of dispatch of Order.
Date of uploading on the website
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