PAPER ON LAW REFORMS IN THE INCOME TAX ACT 1961 IN RELATION TO
MARKETING INTANGIBLES
(ADVERTISEMENT, MARKETING AND SALES PROMOTION)
1. Nitin Kondalwade Patil,
Deputy commissioner of Income Tax , Phd Scholar, Symbiosis International university,
SLS, Pune-411021
2. Dr.(Mrs.) Rupal Rautdesai,
Associate Professor, Symbiosis Law School, Symbiosis International University.
Viman Nagar, Pune - 411 014.
3. Dr.(Mrs.) Shashikala Gurpur,
Dean, Symbiosis Law School, Symbiosis International University.
Viman Nagar,Pune - 411 014.
Abstract
Advertisement, marketing and promotion expenditure i.e. AMP commonly referred as issue of
marketing intangible has been on the top list of revenue authorities for scrutiny not only in India
but worldwide. In India, the issue has travelled through various Tribunals to the High court. Still
the same has not attained the required finality till date. The issue has been contested on various
debates involving issue of consideration of incurrence of AMP expenditure as an international
transaction, recovery of such expenses from associated enterprise, incurrence of AMP leading to
brand promotion or brand building for Multinational groups etc.
Now the issue has reached to the level where, to have clarity on the issue for taxpayers, the
action on law reform is important. It is not just required at the end of law makers by way of
guidance or clarity on various taxation aspects, but also in the mind-set of taxpayers, tax
consultants and tax authorities. Further, mere efforts from the tax law makers will not suffice.
All the stake holders need to be a part of such a law reform. Clarity on this issue will help in
improving barometer of ease of doing business in India which will provide objective criteria for
avoiding tax base erosion on this issue.
1. Introduction
1.1 MNC Companies and Tax avoidance through Transfer Pricing (‘TP’)
Most Multinational Groups (MNC Groups) aggressively engage in global strategic tax
planning, resulting in some “abusive tax avoidance.” A major type of abusive tax
avoidance is manipulation of transfer prices, which allows MNC Groups to shift income
from higher-tax countries to lower-tax countries. Transfer prices are the charges for
products, services, or technology transferred within an MNC Group. An MNC Group
consists of multiple Multinational Companies (MNC’s), which are related corporations
or similar entities operating in more than one country. Thus, any related- party
transaction within an MNC Group involves transfer prices. World trade is dominated by
related-party Transactions and related-party transactions within MNC Group worldwide
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constitute over half of the total trade conducted by these MNCs1. This means that
transfer pricing plays a significant role in world trade.
Among the transfer pricing transactions of MNE Groups, intellectual property (IP)-
related transfer prices are the most significant and susceptible to manipulation. This is a
result of IP’s high value and mobility and the complexity of IP-related issues. IP carries
tremendous value because it often produces or has the potential to produce enormous
amounts of royalties. Given that IP is an intangible paper asset without physical
presence, it is easily transferable from one country to another. IP-related financial issues
exist in commercial practices, valuation, and accounting as well as in attribution of
income for tax purposes. These intricate financial issues are often complex and in a state
of flux. Consequently, tax avoidance through transfer pricing manipulation of IP is a
growing problem. The concept of analysis of Functions performed, Assets employed and
Risks assumed (‘FAR analysis’) is very important to determine the characterization of
transacting entities within the MNE Group, their relative contribution within the entire
value chain and to identify the entrepreneurial entity, which is entitled to the residual
profits within the value chain. Till recently, the world of TP was focusing upon the
contractual relationship amongst the parties and the aspect of risk presumed a higher
importance. This was more driven by the ‘form’ rather than ‘substance’, since the
allocation of risks within the entities of the MNE Group was possible to be artificially
manipulated. However, over a period of time, the Revenue authorities around the world
realized that the key aspect for evaluation of arm’s length nature of the transfer prices
within the MNE Group is the aspect of functions performed, since this reflected more of
substance within the arrangement, rather than form. This leads to a distinction between
legal owners of an intangible asset against the economic owner of the same.
The artificial allocation of risks and assets led to a situation of ‘economic double non-
taxation’, where neither the developing countries nor the developed countries could get
their fair share of taxes, since the profits within the value chain were parked at tax
heavens through the tax planning / avoidance measures. Given this, the developed as
well as developing countries approached the guiding authority on international taxation
and TP, i.e. Organization for Economic Cooperation and Development (‘OECD’)2. The
1The world’s 200 largest MNE Groups represent over one-fourth of the world’s GDP. See Sarah Anderson & John Cavanagh,
Corporate Empires, MULTINAT’L MONITOR, Dec. 1996, available at http://multinationalmonitor.org/hyper/mm1296.08.html. 2 The OECD provides a forum in which governments can work together to share experiences and seek solutions to common problems. We work with governments to understand what drives economic, social and environmental
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http://multinationalmonitor/
OECD formulated 15 action plans within its Base Erosion and Profit Shifting (‘BEPS’)
project2, requiring guidance, out of which, 4 were dedicated to TP aspects.
These Action Plans provide a detailed guidance on the TP aspects and recognize the
substance aspects by providing guidance on the important aspects of intellectual
property by identifying important aspects around the same, such as Development,
Enhancement, Maintenance, Protection and Exploitation (‘DEMPE3’), which need to be
evaluated to identify the entity creating value within the Group and thus, the concept of
economic ownership assumes importance.
While the concept of economic ownership is technically valid and logical, it gives rise to
a very complex TP analysis, since, the tax aspects around the determination of economic
ownership and methodology of identifying the fair return for the economic owner are
not very clear.
1.2 Marketing Intangible Concept
One important TP issue which depends significantly upon the concept of economic
ownership is the issue of heavy Advertisement, Marketing and Promotion (‘AMP4’)
expenses incurred by a licensee entity within the Group, wherein, the allegation by the
Revenue Authorities is that these expenses are incurred for the promotion of brand
owned by the licensor entity within the Group, thereby, ‘implying’ a transaction of
service by the licensee to the licensor, requiring remuneration. Whereas, the licensee tax
payers have been claiming that they are the economic owners of the intangibles and
change. We measure productivity and global flows of trade and investment. We analyse and compare data to predict
future trends. We set international standards on a wide range of things, from agriculture and tax to the safety of
chemicals. http://www.oecd.org/about/ 2Base erosion and profit shifting (BEPS) refers to tax avoidance strategies that exploit gaps and mismatches in tax
rules to artificially shift profits to low or no-tax locations. Under the inclusive framework, over 100 countries and
jurisdictions are collaborating to implement the BEPS measures and tackle BEPS. available at
http://www.oecd.org/tax/beps/
3 The identity of the member or members of the multinational enterprise group performing functions related to the development, enhancement, maintenance, protection, and exploitation of intangibles (DEMPE), therefore, is one key
consideration in determining prices for controlled transactions and in determining which entity or entities ultimately
will be entitled to returns derived by the multinational enterprise group from the exploitation of intangibles.
https://www.royaltyrange.com/home/royalty-rate-database/dempe and http://www.un.org/esa/ffd/wp-
content/uploads/2016/10/12STM_CRP2_Att6_Intangibles.pdf
4 The issue of marketing marketing intangibles i.e. AMP first came up before Delhi High Court in case of f Maruti Suzuki India Ltd [2010] 328 ITR 210.
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http://www.oecd.org/about/http://www.oecd.org/tax/beps/https://www.royaltyrange.com/home/royalty-rate-database/dempehttp://www.un.org/esa/ffd/wp-content/uploads/2016/10/12STM_CRP2_Att6_Intangibles.pdfhttp://www.un.org/esa/ffd/wp-content/uploads/2016/10/12STM_CRP2_Att6_Intangibles.pdf
hence the heavy AMP costs are incurred for their own benefit, which may accrue over a
period of time. This issue is commonly referred to as the marketing intangible issue,
since the TP aspects are dependent upon the marketing intangible of trade
name/trademark/brand name and a possible intangible arising out of the heavy AMP
expenses.
This paper intends to take a deeper dive into the issue of AMP and identify the need for
tax reforms within the Indian TP Regulations (‘ITPR5’).
While, there may not be a need to bring the tax reform through introduction of new
sections or rules within the Income-tax Act, 1961 (‘the Act’6) or Income-tax Rules, 1962
(‘the Rules’7) respectively, but given the significant litigation around this topic within
India, there is clearly a need to provide substantive guidance to address the tax and TP
aspects of this issue.
2. A preliminary question – what is law reform?
Law reform is a difficult concept. Its precise meaning is elusive; it is susceptible to
different meanings in different contexts. Attempts to define law reform will often be
affected by underlying value judgments, including those relating to the institution who
should properly be concerned with the task. There is some circularity in seeking to
define law reform in order to identify the law reformers.
Is law reform simply the making of new law, or changes in the law, particularly in
response to certain triggers: reactions to “philosophical and moral developments, to new
social habits and patterns, to scientific and technological changes, means of doing
business and international obligations etc. If it is, then it includes developments inherent
in the ordinary course of legal interpretation and day-to-day application of the law by the
revenue authorities / courts. The mixed character of the Indian legal system allows for
the development of the law through doctrines of judicial precedent, even if the proper
scope of so-called judge-made law is controversial. A better definition may be that
5 Chapter X (Section 92 to 92F) of Income Tax Act, 1961 and Rule 10A to 10E of Income Tax Rules, 1962
6 Income Tax Act, 1961 https://www.incometaxindia.gov.in/Pages/acts/income-tax-act.aspx
7 Income Tax Rules, 1962 https://www.incometaxindia.gov.in/Pages/rules/income-tax-rules-1962.aspx
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https://www.incometaxindia.gov.in/Pages/acts/income-tax-act.aspxhttps://www.incometaxindia.gov.in/Pages/rules/income-tax-rules-1962.aspx
‘reform’ does not mean simply any change to the law but only one which involves
“positive, and significant, development in the law”.
This reflects more fully the need for law reform to be seen to involve an underlying
intention, that new developments should be positive and/or significant. The defining
feature may be that law reform must involve a deliberate purpose to effect improvement,
as a primary goal and not as an incidental consequence. The fact that it is difficult to
draw a clear distinction between law making and law reform, or to encapsulate in precise
language the scope of reform, is of wider significance.
As mentioned above, this paper focuses on the law reform aspects, as opposed to any
law making.
3. Origin of Dispute in USA – DHL Case
To understand the issue better, it would be relevant to look at the genesis of the transfer
pricing controversy around marketing intangibles. This issue first came up for
consideration in the case of DHL before the US Tax Court. This was primarily on
account of the 1968 US TP Regulations (‘US TPR’8) which propounded an important
theory relating to ‘Developer-Assister rules’9. As per the rules the developer being the
person incurring the AMP spends (though not being the legal owner of the brand) was
treated as an economic owner of the brand and the assister (being the legal owner of the
brand), would not be required to be compensated for the use or exploitation of the brand
by the developer. The rules lay down four factors to be considered:
• The relative costs and risks borne by each controlled entity
• The location of the development activity
• The capabilities of members to conduct the activity independently
• The degree of control exercised by each entity.
The principal focus of these regulations appears to be equitable ownership based on
economic expenditures and risk. Legal ownership is not identified as a factor to be
8 The legal framework for transfer pricing in the U.S. is contained in a number of sections of the internal revenue code, as well as in IRS
regulations, mostly under Section 482. http://www.ustransferpricing.com/laws.html 9 The decision in case of DHL for making adjustment on account of AMP expenses, applying Bright Line Test which was rendered in the context of a specific law viz. Developer-Assister Rule, in US TPR (US Reg. 482-4). https://www.law.cornell.edu/cfr/text/26/1.482-4
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http://www.ustransferpricing.com/laws.htmlhttps://www.law.cornell.edu/cfr/text/26/1.482-4
considered in determining which party is the developer of the intangible property,
although its exclusion is not specific. However, the developer-assister rule were
amended in 1994, to include, among other things, consideration of ‘legal’ ownership
within its gamut, for determining the developer/owner of the intangible property, and
provide that if the intangible property is not legally protected then the developer of the
intangible will be considered the owner.
However, the US TPR recognize that there is a distinction between ‘routine’ and ‘non-
routine’ expenditure and this difference is important to examine the controversy
surrounding remuneration to be received by the domestic AE for marketing intangibles.
In the context of the above regulations, the Tax Court in the case of DHL coined the
concept of a ‘Bright Line Test’ (‘BLT’)101
by differentiating the routine expenses and
non-routine expenses. In brief, it provided that for the determination of the economic
ownership of an intangible, there must be a determination of the non-routine (i.e. brand
building) expenses as opposed to the routine expenses normally incurred by a distributor
in promoting its product.
An important principle emanating from the DHL ruling is that the AMP expenditure
should first be examined to determine routine and non-routine expenditure and
accordingly, if at all, compensation may be sought possibly for the non-routine
expenditure.
4. Global guidance on the issue of AMP
The AMP issue was, since then, picked up across the world and many authorities,
including OECD and United Nations provided some guidance on this issue. Following
paragraphs provide a gist of guidance provided by various authorities.
4.1 OECD Guidelines11
a) The OECD Guidelines have defined marketing intangibles as follows:
Marketing intangibles include trademarks and trade names that aid in the
commercial exploitation of a product or service, customer lists, distribution
10
The bright line test as per DHL case held that he expenditure on advertisement and brand promotion expenses which exceed the average of AMP expenses incurred by the comparable companies in India, is required to be reimbursed/ compensated by the overseas associated enterprise. 11
OECD Guidelines https://www.oecd.org/corporate/mne/1922428.pdf
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https://www.oecd.org/corporate/mne/1922428.pdf
channels, and unique names, symbols, or pictures that have an important
promotional value for the product concerned.
b) The OECD Guidelines in Chapter VI under paragraph 6.36 to 6.38 states the
problems faced when marketing activities are undertaken by enterprises not owning
trademarks or trade names that they are promoting, for example in case of distributor
of goods.
c) The OECD Guidelines mention that such marketer who is undertaking marketing
activities should be compensated whether as a service provider or with a share in
additional return attributable to marketing intangibles.
d) The OECD Guidelines under paragraph 6.38 states the following in relation to return
attributable to the marketing intangible:
“Distributor may bear extraordinary marketing expenditures beyond what an
independent distributor in such a case might obtain an additional return from the
owner of a trademark, perhaps through a decrease in the purchase price of the
product or a reduction in royalty rate”
4.2 UN TP manual12
a) United Nations Transfer Pricing Manual provides for the allocation of such cost of
market penetration, marketing expansion and market maintenance strategies between
a MNE and its subsidiaries under the TP Regulations
b) Para 5.3.2.5 of the TP manual provides that the allocation of the cost of these
strategies between a MNE and its subsidiaries is an important issue in TP and will
depend on the facts and circumstances of each case
c) UN Manual in its Chapter 10, paragraph 10.4.8.12 to 18 has discussed the Indian
position on intangibles.
d) The UN Manual in paragraph 10.4.8.15 has stated the steps in determination of
arm’s length price in cases of marketing intangibles. It has mentioned functional
analysis, stages of development of marketing intangibles by Indian subsidiary,
12
US TP Manual http://www.ustransferpricing.com/laws.html
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http://www.ustransferpricing.com/laws.html
ascertaining who bears the cost of development and examination of remuneration
model of Indian Subsidiary.
e) The UN Manual in paragraph 10.4.8.14 describes that the Indian tax administration
computes the ALP in the cases involving marketing intangibles following the
concept of a “bright line” test but also faces lot of challenges and also provides for
various contentions of the Taxpayers against the same.
4.3 Australian Tax Office (‘ATO’) guidelines13
a) The ATO has published a guide that illustrates the Tax Office view on the principles
for determining an appropriate reward for marketing activities performed by an
enterprise in relation to a marketing intangible that it does not own.
b) The key matters that determine the approach to such situations are:
i. The contractual arrangements between the trade name owner and marketer, in
particular the duration of the agreement, the nature of the rights obtained by the
marketer in respect of the trade name, and who bears the costs and risks of the
marketing activities.
ii. Whether the level of marketing activities performed by the marketer exceeds that
performed by comparable independent enterprises.
iii. The extent to which the marketing activities would be expected to benefit the
owner of the trade name and/or the marketer, and
iv. Whether the marketer is properly compensated for its marketing activities by a
normal return on those activities or should there be a share in an additional return
on the trade name.
c) Accordingly the ATO Guidelines concludes that in case enterprises not owning
trademarks or trade names undertake marketing activities for its AE’s benefits, then
they should be compensated adequately.
13 Australian Transfer Pricing Guidelines https://www.ato.gov.au/business/large-business/in-detail/business-bulletins/articles/strengthening- transfer-
pricing rules/
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https://www.ato.gov.au/business/large-business/in-detail/business-bulletins/articles/strengthening-%09transfer-pricing%20rules/https://www.ato.gov.au/business/large-business/in-detail/business-bulletins/articles/strengthening-%09transfer-pricing%20rules/
4.4 New Zealand Guidelines14
a) As per New Zealand’s TP Guidelines, legal ownership remains entirely with the
parent company, even though its value has been enhanced by the marketing activities
of its New Zealand subsidiary.
b) The marketing might be treated as a service provided to the parent company, with
reimbursement being provided on a cost plus basis.
4.5 China Guidelines15
a) China is also expanding its audit scope to include local marketing intangibles,
arguing that local marketing activities create excess profit, which should be taxed in
China.
b) The use of deemed transaction of AMP, when combined with Circular 363, suggest
an environment in which loss-making entities are likely to be challenged
aggressively. Circular 363 already states that certain, simple entities should not incur
losses under almost any circumstances.
Thus, there exists enough international guidance on the TP aspects of AMP; however, there is
no guidance from the Indian Central Board of Direct Taxes (‘CBDT’)16
on this issue.
Moreover, the Indian tax law has its unique provisions, which also require clarifications on the
corporate tax aspects of the issue of AMP.
14
Australian Transfer Pricing Guidelines https://www.ato.gov.au/business/large-business/in-detail/business-bulletins/articles/strengthening-transfer-pricing-rules/ 15
China TP Regulations https://www.ibfd.org/sites/ibfd.org/files/content/pdf/itpj_2017_PPV_JulyNewsletter_China.pdf 16 . The Central Board of Direct Taxes (CBDT) is a part of Department of Revenue in the Ministry of Finance. The CBDT provides inputs for policy and planning of direct taxes in India, and is also responsible for administration of direct tax laws
through the IT Department. The CBDT is a statutory authority functioning under the Central Board of Revenue Act, 1963. The
officials of the Board in their ex officio capacity also function as a division of the Ministry dealing with matters relating to levy and
collection of direct taxes. The CBDT is headed by Chairman and also comprises six members, all of whom are ex officio Special
Secretary to the Government of India.
https://en.wikipedia.org/wiki/Chairperson,_Central_Board_of_Direct_Taxes
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https://www.ato.gov.au/business/large-business/in-detail/business-bulletins/articles/strengthening-transfer-pricing-rules/https://www.ato.gov.au/business/large-business/in-detail/business-bulletins/articles/strengthening-transfer-pricing-rules/https://www.ibfd.org/sites/ibfd.org/files/content/pdf/itpj_2017_PPV_JulyNewsletter_China.pdfhttps://en.wikipedia.org/wiki/Chairperson,_Central_Board_of_Direct_Taxes
5. AMP expenses - Indian Scenario
5.1 Overview
Transfer Pricing Litigation concerning Advertising marketing and sales promotion
(AMP Expenses) and creation of Marketing Intangibles for the Foreign Associated
Enterprise, has come to the fore in recent years. In the absence of statutory law on the
subject, the law is getting developed purely through judicial pronouncements and the
same is still at a very nascent stage. In a typical MNC business model, the Indian
subsidiary acts as a distributor/provider of goods/services and incurs AMP expenses for
the promotion of its products or services. The Assessees have contended that the AMP
expense is incurred necessarily for the purpose of selling its products/services in the
Indian market or that they are the economic owners of the purported marketing
intangibles, if any.
In the past, there have been instances of the Tax Department not allowing a tax
deduction for such expenses on the basis that the expenses promote the brand of the
foreign Associated Enterprise (‘AE’)17
in India and resultantly since the expenses benefit
the foreign AE such expenses should not be allowed as a tax deduction in the
determination of taxable income of the Indian AE. Various judicial pronouncements
have held that where the expenditure has been incurred for the purposes of business of
the Indian company, the payment should be allowed as a deduction.
Resultantly, the issue (incurring of AMP expenses and creation of Marketing
Intangibles) has now entered the realm of transfer pricing controversy. The contention of
the Tax Department has been that since the Indian company incurs expenses which
benefit the foreign AE, the Indian company should be reimbursed for such expenses.
In fact, the proposition has been that by promoting the brand in India, the Indian
subsidiary is providing a service to the foreign AE, for which it should receive due
compensation (which could be the recovery of expenses incurred plus an appropriate
mark-up over and above such expenses). It is contended by the Tax Department that
such advertisement and brand promotion expenses resulted in creation of marketing
intangibles which belong to the AE and appropriate compensation for such
17
Meaning of Associated Enterprise
https://www.incometaxindia.gov.in/Acts/Incometax%20Act,%201961/2014/102120000000037184.htm
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https://www.incometaxindia.gov.in/Acts/Incometax%20Act,%201961/2014/102120000000037184.htm
advertisement and brand promotion expenses was required to be made by the Foreign
AE.
Accordingly, the Transfer Pricing Officers (“TPOs”)18
in India, applying the ‘Bright
Line Test’ as laid down in the decision of US Tax Court in DHL Inc.’s case, have held
that the expenditure on advertisement and brand promotion expenses which exceed the
average of AMP expenses incurred by the comparable companies in India, is required to
be reimbursed/ compensated by the overseas associated enterprise.
The principle followed by the Tax Department is that the excess AMP expenditure
incurred by the Indian AE contributes towards the development and enhancement of the
brand owned by the parent of the multinational group (the foreign AE). This perceived
enhancement in the value of the brand is commonly referred to as ‘marketing
intangibles’
The issue for consideration here is that where an Indian AE is engaged in distributing
branded products of its foreign AE, and the Indian AE incurs AMP expenditure for
selling the products, whether such expenses have been incurred for marketing of the
product or for building the brand of the foreign AE in India. The Tax Department ought
to appreciate the difference between product promotion and brand promotion. Product
promotion primarily targets an increase in the demand for a particular product whereas
Brand Promotion results in creation of Marketing Intangibles.
There have been many decisions (mainly Tribunal Decisions) which have discussed the
aspect of AMP expenditure which leads to creation of marketing intangibles for the
foreign AEs who have derived benefits and TP adjustments in respect thereof. However,
the Tribunals in the decisions pronounced prior to the retrospective amendments made
by the Finance Act, 201219
, in this regard, have held that since the specific international
transactions pertaining to AMP expenses have not been referred to the TPO by the
Assessing Officer (‘AO’) the assumption of the jurisdiction by the TPO in working out
the ALP of the AMP transaction is not justified. Furthermore, assessees, prior to the
amendments introduced by Finance Act, 2012, have contended that marketing
18
“Transfer Pricing Officer” means a Joint Commissioner or Deputy Commissioner or Assistant Commissioner authorised by the Board12 to perform all or any of the functions of an Assessing Officer specified in sections 92C and 92D in respect of any person or class of persons. https://en.wikipedia.org/wiki/Chairperson,_Central_Board_of_Direct_Taxes 19
Finance Act, 2012 https://www.incometaxindia.gov.in/Pages/acts/income-tax-act.aspx
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https://en.wikipedia.org/wiki/Chairperson,_Central_Board_of_Direct_Taxeshttps://www.incometaxindia.gov.in/Pages/acts/income-tax-act.aspx
intangibles per se were not covered under the meaning of the term “international
transaction”.
However, the amendments brought by Finance Act, 2012 in the Indian Transfer Pricing
Regulations empower the TPO to scrutinize any international transactions which the
TPO deems fit and additionally, the definition of the term international transaction has
been broadened to bring within its ambit provision of services related to the
development of marketing intangibles.
5.2 The journey of Indian TP litigation on AMP
a) The Maruti Suzuki Case by Delhi High Court:
While there have been numerous case laws on the issue of AMP by Indian Income
Tax Appellate Tribunal (‘ITAT’), some of the decisions have been the milestones in
the journey of TP litigation on AMP. The issue started with Maruti Suzuki’s case at
ITAT, which further travelled to High Court [Maruti Suzuki India Ltd vs. ACIT
(2010‐TII‐01‐HC‐DELTP)]20.
In connection with the AMP spends incurred by Maruti Suzuki, the Delhi High Court
laid down the following guidance:
i. If the AMP spends are at a level comparable to similar third party companies, then
the foreign entity would not be required to compensate the Indian entity.
ii. If the AMP spends are significantly higher than third party companies, the use of
foreign entity’s logo is mandatory and the benefits derived by the foreign entity are
not incidental, then the foreign entity would be required to compensate the Indian
entity.
However, later, the Supreme Court remanded back the issue to the files of the
Assessing Officer (‘AO’) to evaluate the issue in light of law, without being biased
with the decision of High Court.
20
Maruti Suzuki V. CIT 64 taxmann.com 150 (Delhi).pdf
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b) The LG Case by special bench of Income Tax Appellate Tribunal (‘ITAT’):
Later, the special bench of ITAT adjudicated the issue by upholding that the AMP is
an international transaction and BLT is an appropriate methodology to compute the
Arm’s Length Price (‘ALP’), however, the special bench provided a partial relief to
the Assessee by identifying the expenses, which need to be excluded from AMP,
being in the nature of product promotion or pure advertisement for sales. The
special bench opined that there nothing called ‘economic ownership’ within the
provisions of the Indian Income Tax regime. Following decisions followed the LG
ruling to adjudicate the AMP matters:
Particulars Citation Copy of Case law
Whirlpool of India Ltd
[2015] 64 taxmann.com 324
(Delhi) 01. CIT v. Whirlpool 381 ITR 154.pdf
Daikin Air-conditioning
India (P.) Ltd.
[2013] 37 taxmann.com 14
(Delhi - Trib.) 02. Daikin Airconditioning India (P.) Ltd. v. DCIT 146 ITD 335.pdf
Casio India Co. (P.) Ltd. [2015] 58 taxmann.com 375
(Delhi - Trib.) 03. Casio India Co. (P.) Ltd. v. DCIT 70 SOT 48.pdf
c) The BMW Case by Delhi ITAT:
However, subsequent to the LG ruling, the Delhi bench of ITAT, in case of BMW,
distinguished the LG ruling and provided a relief to the assessee by adjudicating that
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no adjustment for AMP is required since the margins of the assessee are sufficiently
higher than those of comparables. The main distinguishing point by the Delhi bench
was that BMW was a distributor as against LG being a manufacturer. Following
ITAT rulings followed the BMW rationale to provide relief to the taxpayers:
Particulars Citation Copy of Case law
Casio India Co. (P.)
Ltd.
[2015] 58 taxmann.com
375 (Delhi - Trib.) 04. Casio India Co. (P.) Ltd. v. DCIT 70 SOT 48.pdf
Bose Corporation
India (P.) Ltd.
[2014] 49 taxmann.com 24
(Delhi - Trib.) 05. Bose Corporation India (P.) Ltd. v. ACIT 150 ITD 542.pdf
Motorola Solutions
India (P.) Ltd.
[2014] 48 taxmann.com
248 (Delhi - Trib.) 06. Motorola Solutions India (P.) Ltd. v. ACIT 152 ITD 158.pdf
Perfetti Van Melle
India (P.) Ltd.
[2015] 57 taxmann.com
390 (Delhi - Trib.) 07. Perfetti Van Melle India (P.) Ltd. v. DCIT 166 TTJ 636.pdf
Ray Ban Sun Optics
India Ltd.
[2014] 45 taxmann.com
460 (Delhi - Trib.) 08. Ray Ban Sun Optics India Ltd. v. DCIT 150 ITD 94.pdf
d) The Sony case by Delhi High Court:
Later, the Delhi High Court, in case of Sony, provided a substantial relief to the
Indian distributors, wherein, the High Court upheld the presence of international
transaction by way of heavy AMPs, rejected the application of BLT, since not
prescribed within ITPR, adjudicated that the compensation for AMP can be direct or
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indirect, recognized the concept of economic ownership, accepting the benefit of
AMP accruing to the assessee, based on a long term contract establishing economic
ownership. Following rulings followed the High Court’s decision on Sony:
Particulars Citation Copy of Case
Law
Adobe Systems Incorporated [2016] 69 taxmann.com 228
(Delhi) 09. Adobe Systems Incorporated v. ADIT 292 CTR 407.pdf
AT & S India (P.) Ltd. [2016] 72 taxmann.com 324
(Kolkata - Trib.) 10. AT & S India (P.) Ltd. v. DCIT 72 taxmann.com 324.pdf
Whirlpool of India Ltd [2015] 64 taxmann.com 324
(Delhi) 11. CIT v. Whirlpool 381 ITR 154.pdf
Mattel Toys (India) (P.) Ltd [2016] 72 taxmann.com 86
(Mumbai - Trib.) 12. DCIT v. Mattel Toys (India) (P.) Ltd. 183 TTJ 81.pdf
Discovery Communications
India
[2015] 64 taxmann.com 120
(Delhi - Trib.) 13. Discovery Communications India v. DCIT 175 TTJ 271.pdf
Essilor India (P.) Ltd. [2016] 68 taxmann.com 311
(Bangalore - Trib.) 14. Essilor India (P.) Ltd. v. DCIT 178 TTJ 69.pdf
GlaxoSmithKline Consumer
Healthcare Ltd.
[2015] 64 taxmann.com 84
(Chandigarh - Trib.) 15. GlaxoSmithKline Consumer Healthcare Ltd. v. JCIT 175 TTJ 552.pdf
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Particulars Citation Copy of Case
Law
Goodyear India Ltd. [2016] 70 taxmann.com 67
(Delhi - Trib.) 16. Goodyear India Ltd. v. DCIT 70 taxmann.com 67.pdf
Honda Siel Power Products
Ltd.
[2015] 64 taxmann.com 328
(Delhi) 17. Honda Siel Power Products Ltd. v. DCIT 283 CTR 322.pdf
India Medtronic (P.) Ltd. [2016] 66 taxmann.com 218
(Mumbai - Trib.) 18. India Medtronic (P.) Ltd v. DCIT 66 taxmann.com 218.pdf
Bausch & Lomb India (P.)
Ltd.
[2015] 59 taxmann.com 448
(Delhi - Trib.) 19. Bausch & Lomb India (P.) Ltd. v. DCIT 59 taxmann.com 448.pdf
e) Latest Maruti Suzuki case by Delhi High Court:
Later, the Delhi High Court ruled in another case of Maruti Suzuki, keeping the
AMP outside the scope of TP and adjudicating that the burden to prove a transaction
is on the tax department. The High Court held that the provisions of ITPR do not
permit an exercise of deducing the existence of an international transaction in the
nature of AMP spend, when such expenses have admittedly been incurred by the
Indian company for its own business. Following decisions followed the rationale of
the Delhi High Court in respect of this Maruti Suzuki case:
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Particulars Citation Copy of Case Law
Whirlpool of India
Ltd
[2015] 64 taxmann.com 324
(Delhi) 11. CIT v. Whirlpool 381 ITR 154.pdf
Goodyear India Ltd. [2016] 70 taxmann.com 67
(Delhi - Trib.) 16. Goodyear India Ltd. v. DCIT 70 taxmann.com 67.pdf
Honda Siel Power
Products Ltd.
[2015] 64 taxmann.com 328
(Delhi) 17. Honda Siel Power Products Ltd. v. DCIT 283 CTR 322.pdf
L'Oreal India (P.)
Ltd.
[2016] 69 taxmann.com 419
(Mumbai - Trib.) 23. L'Oreal India (P.) Ltd. v. DCIT 49 ITR(T) 473.pdf
Mondelez India
Foods (P.) Ltd.
[2016] 70 taxmann.com 112
(Mumbai - Trib.) 24. Mondelez India Foods (P.) Ltd. v. DCIT 70 taxmann.com 112.pdf
Thomas Cook
(India) Ltd.
[2016] 70 taxmann.com 322
(Mumbai - Trib.) 25. Thomas Cook (India) Ltd. v. DCIT 49 ITR(T) 178.pdf
TVS Motor
Company Ltd.
2017] 77 taxmann.com 105
(Chennai - Trib.) 26. TVS Motor Company Ltd. v. ACIT 77 taxmann.com 105.pdf
Whirlpool of India
Ltd
[2015] 64 taxmann.com 324
(Delhi) 11. CIT v. Whirlpool 381 ITR 154.pdf
Goodyear India Ltd. [2016] 70 taxmann.com 67
(Delhi - Trib.) 21. Goodyear India Ltd. v. DCIT 70 taxmann.com 67.pdf
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Honda Siel Power
Products Ltd.
[2015] 64 taxmann.com 328
(Delhi) 22. Honda Siel Power Products Ltd. v. DCIT 283 CTR 322.pdf
L'Oreal India (P.)
Ltd.
[2016] 69 taxmann.com 419
(Mumbai - Trib.) 23. L'Oreal India (P.) Ltd. v. DCIT 49 ITR(T) 473.pdf
5.3 Summary: Divergent views by the courts, requiring law reforms:
The section below provides a brief comparative analysis of the 3 major decisions
discussed above:
Issue Maruti Suzuki Ruling Sony Ericsson
Ruling
LG Special
bench Ruling
Copy of the case
Maruti Suzuki V. CIT 64 taxmann.com 150 (Delhi).pdf
Sony Ericssion Vs. CIT 55 taxmann.com 40.pdf
LG Electronics India Vs. ACIT - 29 taxmann.com300.pdf
AMP expenses
constitute an
International
Transaction
AMP expenses is not an
International
Transaction as
application of BLT is
not permissible under
TP regulations
AMP expense is an
International
Transaction as the
marketing and
distribution functions
are performed towards
a related party.
Amp expenses is
an International
Transaction.
Application of
BLT/bifurcation of
expenses into
routine versus non
Relying on the Sony
Ericsson ruling,
application of BLT
Application of BLT
and concept of non-
routine AMP expenses
BLT accepted as
a tool to bifurcate
AMP expenses
into routine and
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Issue Maruti Suzuki Ruling Sony Ericsson
Ruling
LG Special
bench Ruling
routine rejected. rejected. non-routine
Transfer Pricing
Approach
If payment of royalty and
import of raw materials
is tested separately, there
is no additional benefit
flowing by way of AMP
expense.
AMP function is
closely linked to and a
part of the overall
distribution activity
can be aggregated for
TP analysis.
Purchase of
goods and AMP
expense are
separate
transactions è
Cannot be
aggregated
Set off
permissible/aggreg
ation of
transactions
No TP adjustment is
warranted as the major
margins of the taxpayer
is higher vis-à-vis the
comparables by
application of the
TNMM.
Distribution of goods
and marketing are
closely linked
transactions. Hence,
no adjustment is
warranted if the
taxpayer is
remunerated
adequately by higher
margins on the
distribution of goods.
The AMP
function is to be
separately
compensated
even if there is
higher
profitability in the
distribution.
Economic
Ownership of
intangibles
Concept of economic
ownership appreciated.
Concept of economic
ownership
appreciated.
Concept of
economic
ownership
rejected.
Much water has flown during the past decade in the arena of benchmarking of marketing
and market development functions carried out by the Indian subsidiaries. It may be
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candidly admitted that while the issue of development of marketing intangibles by the
Indian arm of multinationals is a valid one in the arena of Indian Transfer Pricing, the
evidence brought on record by the TPOs for the existence of a legal basis for invoking
transfer pricing provisions, has been held in various decisions of the High Courts to be
mostly inadequate.
In the interest of reducing avoidable, time consuming and costly litigation which
benefits nobody and for providing certainty to foreign investors and encouraging inflow
of much needed FDI, the Finance Ministry should issue necessary detailed fair,
reasonable and equitable/balanced guidelines with suitable illustrations and examples on
the lines of Australian Tax Office’s Guidelines or bring in necessary statutory
amendments in Indian Transfer Pricing Regulations. The Guidelines/Statutory
Amendments should be framed keeping in mind the business realities which Foreign
Businessmen have to face in India; particularly the fact that, in view of accelerating
changes in technology, the shelf life of a product or service is very short, such that an
Electronic Product (Smartphone, Tablet, Laptop etc.) tends to get outdated within 6-9
months of its launch. This necessitates recoupment of expenditure on product research
and development by garnering significant level of market share, in a very short time by
means of aggressive expenditure on advertisement, marketing and sales promotion,
leaving the competition well behind.
6. Law reform on the issue of AMP expenses - Urgent need
While the Indian TP Regulations are very broad, it is important to get clarity on
following aspects, which, may be guided by the Central Board of Direct Taxes
(‘CBDT’) by way of Frequently Asked Questions (‘FAQs’) or Notifications/Circulars.
A practice of providing taxation consultation papers is prevalent in the overseas
countries, such as the UK, Canada, Australia, etc., which is a good practice on the law
reforms.
6.1 Whether incurring of AMP is an international transaction?
While Section 92B (1) defines the term international transactions and includes the
‘marketing intangibles’ in the same, the moot point is whether the issue of AMP
expenses incurred by Indian entity falls within the purview of marketing intangibles
when such intangibles are legally owned by the overseas foreign entity; Also, in what
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situation can the Indian taxpayer be said to be contributing towards development or
enhancement of marketing intangibles legally owned by an overseas Group entity?
The allegation by the Indian Revenue Authorities (‘IRA’) is that the Indian taxpayers
have incurred excess AMP, thereby, providing brand development/brand promotion
services to the overseas Associated Enterprise (‘AE’). In such a situation, the issue is
not about marketing intangibles, but an ‘implied’/‘embedded’ service transaction, which
is undertaken without receipt of a service fee. Moreover, a plain vanilla comparison of
AMP costs with the comparables will not provide a conclusive proof that the expenses
are incurred towards promotion of a brand on account of following reasons:
a) The taxpayer may be a late entrant in the market and may need to incur heavy AMP
costs to create market awareness for the ‘branded products’ to facilitate sales, as
opposed to ‘promotion of a brand’,
b) The nature of expenses need to be considered as to whether the expenses are
towards ‘promotion of branded products for higher sales’ or for ‘promotion of
brand’ itself,
c) The choice of mode of advertisement/promotion also is important, e.g., if an entity
chooses to have a mass television advertisement, then its costs will certainly be
higher than those of an entity choosing the print media as the mode of
advertisement.
Considering the above, it is important to be very clear as to whether:
i. The taxpayer has incurred an expense for its own business and on its own account
and whether the benefits of such an expenditure will accrue to the taxpayer itself for
a foreseeable future, i.e. whether the taxpayer is an ‘economic owner’ of the
intangibles/benefits accruing out of the heavy AMP costs even though it is not the
legal owner of the brand? Or
ii. The taxpayer is a simplicity service provider, having no recourse to the future
economic benefits and hence a service provider to the brand owner on account of
heavy AMP costs?
Thus, the situation (i) may lead the issue of heavy AMP to development of ‘marketing
intangible’ on own account, whereas, the situation (ii) will lead to an issue of
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‘implied’/‘embedded’ transaction of service provision without a remuneration. Thus,
only under circumstances similar to a situation (ii), the AMP costs can be considered as
an international transaction.
The law reform can provide clarifications on the above position in the form of clear and
objective parameters that are to be taken into account by the stakeholders for
ascertaining the existence of an international transaction, so as to provide a certainty on
the issue to the stakeholders.
6.2 Once the existence of international transaction is determined, whether there needs
to be a separate compensation for such international transaction or such
compensation can be in an indirect form, such as by way of reduction in the price
of products imported by the Indian entity from the overseas AE?
It would be important to clarify the circumstances where the margins earned by the
Indian taxpayer shall be considered to be adequate and no separate compensation is
insisted upon for the excessive AMP expenses incurred by the Indian entity, For eg:
where the intercompany contract and pricing provides for an indirect compensation to
the Indian entity such as by way of reduction in the price of products imported by the
Indian entity from the overseas AE. Moreover, it would also be important to provide
guidance on the identification of comparables in such cases, since, identification of
comparables with lower AMP spends/absence of AMP function may not provide an
appropriate basis for evaluating the adequacy of margins earned by the taxpayer.
Further, the CBDT should also identify parameters for categorizing the benefits of AMP
spend of an Indian taxpayer as ‘incidental benefit’ to the overseas legal owner of the
brand, which is not an intra-group service, as per the OECD guidelines.
6.3 Need for guidance on the concept of economic ownership.
While the Special bench of ITAT in case of LG clearly disregarded existence of any
‘economic ownership, the Delhi High Court in case of Sony has recognized the concept
of ‘economic ownership’. The High Court dealt with this issue by stating that the onus
to demonstrate economic ownership is on the taxpayer; however, there is no guidance in
terms of objective parameters as to what constitutes an economic ownership.
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A mere existence of a long term contract may not constitute an economic ownership,
unless such a contract is entered into based on arm’s length circumstances and terms and
conditions. Such terms should clearly bring out that the licensee is an economic owner
of the intangibles and any enhancement thereto. Such a contract may need a clear clause
on the pre-mature termination of such a long term contract and specify the manner of
computation of ‘exit charge’, if any.
If a contract doesn’t comply with the test of ‘arm’s length behaviour’ and does not
address some of the points mentioned above, it may be difficult for a taxpayer to
demonstrate the economic ownership and in such a case, the taxpayer may get
categorized under situation (ii) from point number 6.1above, thereby, implying the
heavy AMP as a service to the owner of brand, requiring a remuneration.
Following references to other guidance may help the CBDT for this purpose:
a) It is interesting to note that the Organization for Economic Cooperation and
Development (‘OECD’) also has recognized the concept of economic ownership, by
bringing out the key functions in relation to the intangibles, based on Development,
Enhancement, Maintenance, Protection and Exploitation (‘DEMPE’).
b) The Japanese administrative guidelines (para 2.12) also specify that for a licensing
transaction for an intangible property, not only the legal ownership, but also the
contribution of respective entities in the formation, maintenance and development of
it also need to be considered.
c) A guidance can also be drawn from the Circular 6 of 2015 by the CBDT, where, for
the applicability of TNMM, the CBDT refers to important parameters, such as actual
supervision and control as well as the ability to do so, the strategic functions, such as
conceptualization, etc.,
d) The United Nations (‘UN’) Transfer Pricing Manual (‘TPM’) discusses the concept
of economic ownership in Chapter 5, wherein it states that the economic ownership of
a trademark/trade name can be created based on such entity’s contribution in the
strategy of enhancing the market share.
6.4 Need for guidance on tax treatment of economic ownership.
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If the economic ownership is established, it is clear that the heavy AMP may not be an
international transaction. However, assuming that the economic ownership is
established, it is important for the CBDT to come up with guidance on the following
aspects:
a) Under what circumstances should the economic ownership need remuneration?
While the economic owner is expected to reap the benefits of the asset for itself, it
would be important to specify whether a pre-mature termination of a long term
contract would need a remuneration for the ‘economic ownership’, calling it as
‘relinquishment’/‘extinguishment’ of contractual rights under the scope of Section 2
(27) of the Act or whether the remuneration is required by way of an ‘exit charge’.
b) Chargeable head of taxation?
It would be important to identify whether the remuneration against economic
ownership is taxable
i) Under the head Profits and Gains of Business and Profession (‘PGBP’) in terms
of Section 28 (iv), i.e. any value of any benefit arising from business or Section
28 (va), i.e. for non-compete reasons, or
ii) Under the head capital gains, treating the pre-mature termination/non-renewal of
a long term contract as ‘relinquishment’/‘extinguishment’ of a capital asset under
Section 2 (27) or a transfer of contractual rights as referred to in Section 32 of the
Act.
c) Clarifications required if the remuneration is taxable under the head capital
gains
If the remuneration against the economically owned intangible is considered to be
taxable as capital gains, it would be important to get guidance on following
important aspects:
i) Cost of acquisition of asset: Whether the same should be considered as NIL as
per the provisions of Section 55 of the Act, treating the asset as ‘self-generated’
asset, or considering the costs incurred and royalties paid on development of
assets as the cost of acquisition.
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ii) Availability of indexation: It would also be important to get clarity on the
availability of indexation for the economically owned intangible and the
parameters for determining the period of holding for such an asset.
iii) In case the cost of acquisition/indexation doesn’t get any clarity, the machinery
of taxation of capital gains itself would fail, thereby making the remuneration as
non-taxable, as per the verdict of the Supreme Court in case of B. C. Srinivasas
Shetty.
d) Clarifications required if the remuneration is taxable as PGBP
OECD provides a guidance that mere transfer of functions/risks would not require
any compensation by way of exit charge, unless, such a transfer is coupled with the
transfer of assets. Assuming that the situation is a bundled situation of transfer of
functions and assets (extinguishment = transfer), and further assuming that the exit
charge is required and is taxable as PGBP, a guidance is further required on the
manner of computation of the exit charge.
e) Non applicability of TP provisions
If a conclusion is drawn that the exit charge/remuneration is neither taxable as
PGBP nor as Capital Gains, then the provisions of Chapter X of the Act itself (i.e.
the entire TP provisions) will not apply since the machinery Section 92 refers to
computation of ‘income’ having regard to the arm’s length price, implying thereby,
that the precondition for TP is ‘taxable income’.
6.5 Whether the pre-mature cancellation / non-renewal of a long term contract is an
international transaction of ‘business restructuring’ or a transaction of transfer of
‘marketing intangibles.
This would be important since there could be an ambiguity in interpreting the above
situation as ‘transfer’ of the marketing intangibles. Moreover, a business restructuring is
an international transaction, irrespective of the fact whether it has any impact on the
profits/income/assets, etc.
6.6 Reporting requirements and documentation
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The CBDT should also come up with a guidance on the manner of reporting the TP
aspects of the AMP costs in the Accountant’s Report (in prescribed Form 3CEB), since
the taxpayer may take a position that there exists an economic ownership, thereby,
negating any existence of an international transaction. Moreover, the CBDT should also
provide guidance on the documentation to be maintained to demonstrate the
appropriateness of the AMP costs, the existence of the economic ownership, etc.
6.7 onstituents of routine and non-routine AMP costs.
While the special bench of ITAT has provided guidance on the routine AMP costs, i.e.
costs for promotion of products, it would be important for CBDT to come up with
guidance on this aspect. It may be possible to clarify that only non-routine AMP costs
may need evaluation around the economic ownership/‘underlying’ or ‘implied’ or
‘embedded’ service transaction.
6.8 Method for computation of ALP for the AMP service income/exit charge/ transfer
price.
A detailed guidance on selection of method, computation of ALP, conducting valuation,
if applicable, is required to be provided by the CBDT. While the Bright Line Test
(‘BLT’) may not be the most appropriate way to identify the cost of provision of service,
the CBDT may come up with a detailed guidance on this aspect.
6.9 Alternate dispute resolution on the AMP issue.
The CBDT may also come up with Safe Harbour Rules on the AMP costs to provide
administrative relief for insignificant / normal AMP costs and small and medium
enterprises. A detailed guidance on resolution of an Advance Pricing Agreement
(‘APA’) or Mutual Agreement Procedure (‘MAP’) may help the taxpayers to explore
alternate dispute resolution to achieve certainty on the aspects of their AMP costs.
6.10 Applicability of General Anti Avoidance Regulations (‘GAAR’)
It would also be necessary to categorically examine whether this ‘substance vs. form’
issue would be covered under the TP provisions (Specific Anti Avoidance Regulations –
‘SAAR’) or the GAAR, since the manner and procedures for handling such situations
differ under the Indian Income-tax Act. While the SAAR refers to Arm’s Length Price
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(‘ALP’) for a known / identified transaction (i.e. form), the GAAR refers to the entire
circumstances of a transaction, such as arm’s length behaviour, etc. (i.e. substance).
7. Conclusion
The action on law reform is not just required at the end of law makers by way of
guidance / clarity on various taxation aspects, but also in the mind-set of taxpayers, tax
consultants and tax authorities. Mere efforts by the tax law makers will not be
sufficient, since all the stake holders need to be a part of such a law reform. A clarity on
this issue will further help in improving the ‘ease of doing business barometer’ of India
as it would provide objective criteria for avoiding tax base erosion on this issue.
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References:-
1) 1968 US TP Regulations (‘US TPR’)
2) OECD Guidelines in Chapter VI under paragraph 6.36 to 6.38
3) Para 5.3.2.5 of the TP manual
4) UN Manual in its Chapter 10, paragraph 10.4.8.12 to 18
5) Supreme Court in case of B. C. Srinivasas Shetty. (128 ITR 294 SC)
6) Circular 6 of 2015 by the CBDT
7) Japanese administrative guidelines (para 2.12)
References of Case laws
8) Maruti Suzuki India Ltd vs. ACIT (2010‐TII‐01‐HC‐DELTP)]
9) Whirlpool of India Ltd [2015] 64 taxmann.com 324 (Delhi)
10) Daikin Air-conditioning India (P.) Ltd. [2013] 37 taxmann.com 14 (Delhi - Trib.)
11) Casio India Co. (P.) Ltd. [2015] 58 taxmann.com 375 (Delhi - Trib.)
12) Bose Corporation India (P.) Ltd. [2014] 49 taxmann.com 24 (Delhi - Trib.)
13) Motorola Solutions India (P.) Ltd. [2014] 48 taxmann.com 248 (Delhi - Trib.)
14) Perfetti Van Melle India (P.) Ltd. [2015] 57 taxmann.com 390 (Delhi - Trib.)
15) Ray Ban Sun Optics India Ltd. [2014] 45 taxmann.com 460 (Delhi - Trib.)
16) Adobe Systems Incorporated [2016] 69 taxmann.com 228 (Delhi)
17) AT & S India (P.) Ltd. [2016] 72 taxmann.com 324 (Kolkata - Trib.)
18) Whirlpool of India Ltd [2015] 64 taxmann.com 324 (Delhi)
19) Mattel Toys (India) (P.) Ltd [2016] 72 taxmann.com 86 (Mumbai - Trib.)
20) Discovery Communications India [2015] 64 taxmann.com 120 (Delhi - Trib.)
21) Essilor India (P.) Ltd. [2016] 68 taxmann.com 311 (Bangalore - Trib.)
22) GlaxoSmithKline Consumer Healthcare Ltd. [2015] 64 taxmann.com 84 (Chandigarh -
Trib.)
23) Goodyear India Ltd. [2016] 70 taxmann.com 67 (Delhi - Trib.)
24) Honda Siel Power Products Ltd. [2015] 64 taxmann.com 328 (Delhi)
25) India Medtronic (P.) Ltd. [2016] 66 taxmann.com 218 (Mumbai - Trib.)
26) Bausch & Lomb India (P.) Ltd. [2015] 59 taxmann.com 448 (Delhi - Trib.)
27) Goodyear India Ltd. [2016] 70 taxmann.com 67 (Delhi - Trib.)
28) Honda Siel Power Products Ltd. [2015] 64 taxmann.com 328 (Delhi)
29) L'Oreal India (P.) Ltd. [2016] 69 taxmann.com 419 (Mumbai - Trib.) 30) Mondelez India Foods (P.) Ltd. [2016] 70 taxmann.com 112 (Mumbai - Trib.) 31) Thomas Cook (India) Ltd. [2016] 70 taxmann.com 322 (Mumbai - Trib.) 32) TVS Motor Company Ltd. [2017] 77 taxmann.com 105 (Chennai - Trib.)
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