Delhi High Court - Orders
Whirlpool Of India Ltd vs Assistant Commissioner Of Income Tax on 1 March, 2021
Author: Rajiv Shakdher
Bench: Rajiv Shakdher, Talwant Singh
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 2481/2021& CM Appls. 7276/2021, 7277/2021
WHIRLPOOL OF INDIA LTD ..... Petitioner
Through: Mr. Ajay Vohra, Senior Advocate
with Mr. Neeraj Jain & Mr. Aniket D.
Agarwal, Advs.
versus
ASSISTANT COMMISSIONER OF INCOME TAX ..... Respondent
Through: Mr. Abhishek Maratha, Senior
Standing Counsel.
CORAM:
HON'BLE MR. JUSTICE RAJIV SHAKDHER
HON'BLE MR. JUSTICE TALWANT SINGH
ORDER
% 01.03.2021
[Physical Court Hearing]
1. This is a writ petition whereby the challenge is laid to the order dated 28.01.2021 passed by Transfer Pricing Officer (TPO) under Section 92CA (3) read with Section 254 of the Income Tax Act, 1961 (in short "the Act").
2. This order was passed by the TPO to give effect to the order passed by Income Tax Appellate Tribunal (in short "the tribunal") dated 25.02.2019 with respect to the assessment year (AY) 2013-2014.
3. The tribunal via its order dated 25.02.2019 directed deletion of transfer pricing adjustment (TPA) amounting to Rs.42,59,009/- made on account of advertising, marketing and promotion expenditure (in short "AMP expenditure") incurred by the petitioner-assessee.
4. A perusal of the order of passed by the tribunal would show that this direction was issued, inter alia¸ having regard to decision rendered by this W.P.(C) 2481/2021 page 1 court in Sony Ericson India Pvt. Ltd. vs. CIT, (2015) 55 Taxmann.com 240on the very same issue. The reference to this aspect of the matter is made by the tribunal in paragraph 6.1 of its order.
5. It is also pertinent to note that the judgments referred to by the tribunal in paragraph 6.1 have been assailed by the respondent/Revenue herein by taking recourse to the special leave petition route.
6. We are informed by counsel for the parties that the special leave petitions preferred by the Revenue have been admitted and are pending adjudication. 6.1 It is in this backdrop that the TPO has passed the impugned order.
7. Mr. Abhishek Maratha, Senior Standing Counsel, who appears on behalf of the respondent/ Revenue, says that the impugned order has been passed to protect the interest of the respondent/ Revenue in the event it were to succeed in the civil appeals pending adjudication before the Supreme Court.
8. Mr. Ajay Vohra, Advocate, on the other hand says that TPO was only required to give effect to the order passed by the tribunal and therefore ought not to have passed the impugned order.
9. Mr. Vohra, however, does not deny that if the respondent/ Revenue were to succeed before the Supreme Court, then, consequences would follow and, perhaps, the adjustment made by the TPO in the transfer pricing qua AMP would have to be factored in.
10. Having regard to the aforesaid facts and contentions of the learned counsel for the parties, in our view, the best way forward would be to stay the operation of the impugned order and give liberty to TPO to take next steps in the matter, albeit, in accordance with the law once a decision is W.P.(C) 2481/2021 page 2 rendered by the Supreme Court in the pending civil appeals. 10.1 It is ordered accordingly.
11. The writ petition and pending applications are disposed of in terms of the direction issued hereinabove.
12. In addition to what is stated hereinabove by us, Mr. Vohra, also makes a statement for the comfort of the respondent/Revenue that in case the respondent/Revenue were to succeed before the Supreme Court, the petitioner will not raise any objection concerning limitation as provided under the Act is running out.
13. Mr. Vohra's statement is taken on record. The petitioner will remain bound by the statement made by Mr. Vohra.
RAJIV SHAKDHER, J
TALWANT SINGH, J
MARCH 1, 2021/nk
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W.P.(C) 2481/2021 page 3