Principal Commissioner Of Income Tax-4 Delhi v. Haier Appliances India Pvt Ltd

$~33 & 34 *IN THE HIGH COURT OF DELHI AT NEW DELHI +ITA 330/2022 PRINCIPAL COMMISSIONER OF INCOME TAX-4, DELHI ..... AppellantThrough:Mr.Abhishek Maratha, Sr.StandingCounsel for the Revenue.versusHAIER APPLIANCES INDIA PVT LTD..... RespondentThrough:Mr.Aniket D.Agrawal withMr.Saksham Singhal, Advocates. +ITA 331/2022 PRINCIPAL COMMISSIONER OF INCOME TAX-4 DELHI ..... Appellant Through:Mr.Abhishek Maratha, Sr.StandingCounsel for the Revenue. versus HAIER APPLIANCES INDIA PVT LTD..... RespondentThrough:Mr.Aniket D.Agrawal withMr.Saksham Singhal, Advocates.%Date of Decision: 14[th]September, 2022 CORAM: HON'BLE MR. JUSTICE MANMOHANHON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA J U D G M E N T MANMOHAN, J (Oral): 1.Present income tax appeals have been filed challenging the commonimpugned order dated 16[th]August, 2021 passed by the Income TaxAppellateTribunal(‘ITAT’)inITANo.2968/Del./2016andITA1594/Del./2016 for the Assessment Year 2011-12. ITA Nos.330-331/2022 Page 1 of 3 2.Learned counsel for the Appellant states that the ITAT has erred inholding that routine selling and distribution expenses would not form part ofAdvertising, Marketing and Promotion (AMP) expenses disregarding thefact that these expenses contribute to the creation of marketing intangible,even when the same is a factor for comparability analysis, as differententries account for such expenditure under different heads. 3.Learned counsel for the Respondnet, who appears on advance notice,states that the aforesaid submission does not arise for consideration in theappeal being ITA No.330/2022 arising out of ITA No. 2968/Del./2016. 4.Admittedly, the issue raised in the present appeals is covered by thejudgment passed by this Court dated 31[st]July, 2019 in assessee’s own casefor the Assessment Year 2009-10 in ITA No.709/2019 and in Sony EricssonMobile Communications (India) Pvt. Ltd. vs. Commissioner of IncomeTax; (2015) 374 ITR 118 (Del). 5.Learned counsel for the Appellant states that the Revenue has notaccepted the said judgement and has challenged the same before theSupreme Court. 6.Though the judgment of this Court has been challenged and ispending adjudication before the Supreme Court, yet there is no stay of thesaid judgment till date. 7.Consequently, in view of the judgments passed by the Supreme Courtin Kunhayammed and Others vs. State of Kerala and Another, (2000) 6SCC 359 and Shree Chamundi Mopeds Ltd. Vs. Church of South IndiaTrust Association CSI Cinod Secretariat, Madras (1992) 3 SCC 1, theappeal being ITA No.331/2022 challenging the ITAT Order in ITA1594/Del./2016 is dismissed being covered by the judgment passed by the ITA Nos.330-331/2022 learnedpredecessorDivisionBenchinSonyEricssonMobileCommunication (supra).It is clarified that the order passed in ITANo.331/2022 shall abide by the final decision of the Supreme Court in theCivil Appeal No.132/2016 titled ‘Canon India Pvt. Ltd. vs. DeputyCommissioner of Income Tax’. However, the appeal being ITA No.330/2022arising out of ITA No. 2968/Del./2016 is dismissed as not maintainable. MANMOHAN, J SEPTEMBER 14, 2022KA MANMEET PRITAM SINGH ARORA, J ITA Nos.330-331/2022