Bombay High Court
India Medtronic Private Limited vs Deputy Commissioner Of Income Tax on 6 February, 2019
Bench: Akil Kureshi, M.S. Sanklecha
11. os itxa 1404-16.doc
R.M. AMBERKAR
(Private Secretary)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
INCOME TAX APPEAL NO. 1404 OF 2016
India Medtronic Private Limited .. Appellant
Versus
Dy. Commissioner of Income Tax OSD - 8(2) .. Respondent
...................
Mr. Nishant Thakkar a/w Mr. Hiten Chande i/by PDS Legal for the
Appellant
Mr. Arvind Pinto for the Respondent
...................
CORAM : AKIL KURESHI &
M.S. SANKLECHA, JJ.
DATE : FEBRUARY 6, 2019.
P.C.:
1. This appeal under Section 260A of the Income Tax Act, 1961 ("the Act" for short), challenges the order dated 31.12.2015 passed by the Income Tax Appellate Tribunal, Mumbai ("the Tribunal" for short).
2. This appeal relates to the Assessment Year 2009-10.
3. The appellant assessee has urged following question for our consideration:-
" Whether the expenditure incurred by the appellant of Rs.
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11. os itxa 1404-16.doc 31,37,96,140/- (referred to as AMP expenditure) be regarded as an international transaction and subjected to the rigors of Chapter X of the Act?"
4. From the question raised, it is evident that the issue raised is in respect of the transaction being an International Transaction or not. The grievance of the appellant is that this issue though raised was not decided by the Tribunal in the impugned order of the Tribunal. This even though it had remanded the issue of determining the ALP of the transactions to the Assessing Officer / Transfer Pricing Officer. Mr. Thakkar points out that on remand, the Assessing Officer passed an order even examining the issue of transaction being an international transaction or not. This order of the Assessing Officer (on remand) is now in the appeal before the Tribunal. Thus, the issue raised herein viz. whether the transaction is international transaction or not for the purpose of determining AMP expenses is before the Tribunal and is now fixed for hearing on 10.3.2019.
5. In the above view, the Tribunal is now in seisen of the issue whether the AMP expenses incurred by the respondent in an international transaction or not. This by virtue of the 2 of 3 ::: Uploaded on - 12/02/2019 ::: Downloaded on - 16/03/2019 07:33:34 :::
11. os itxa 1404-16.doc order of the Assessing Officer / Transfer Prising Officer in the second round. Therefore, it would be appropriate that the Tribunal decides the issue in the second round without in any manner being fettered by the impugned order.
6. Under these circumstances, we dispose of this appeal with direction to the Tribunal to decide the issue which is a subject matter of dispute in second round of appeal along with this appeal. It is made clear that other issues raised in the first round of appeal (except those remanded) are not to be re-adjudicated by the Tribunal.
7. Accordingly, this appeal is disposed of in the above terms.
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