2012 (3) TMI 472 - AT - Income Tax

Non speaking order - validity of an assessment - Held that - When as assessee objects to the validity of an assessment, it is the AO is bound to dispose off the same by a speaking order. In this case we find that the AO has not at all dealt with this important issue regarding jurisdiction. Hence applying the decision fo the Apex Court in the case of GKN Drive shafts (India ) Ltd v CIT (2002 (11) TMI 7 - SUPREME Court ), in the interest of justice we set aside this issue to the files of the AO for redoing the same in accordance with the provisions of the law, after giving reasonable opportunity to the Assessee to raise their objections on this issue and giving a reasoned order.

Issues Involved:
1. Validity of the assessment order due to alleged non-service of notice under Section 143(2) of the Income-tax Act, 1961.
2. Adjustment in arm's length price (ALP) of international transactions.
3. Rejection of transfer pricing (TP) documentation.
4. Ignoring the limited risk nature of services provided by the assessee.
5. Errors in the application of multiple year/prior year data and selection of comparable companies.
6. Depreciation rate on computer peripherals.
7. Levy of interest under Sections 234B and 234C of the Act.

Detailed Analysis:

1. Validity of the Assessment Order Due to Alleged Non-Service of Notice Under Section 143(2):
The primary contention of the assessee was that the assessment order was invalid due to the non-service of notice under Section 143(2). The department argued that there was a valid presumption of service of notice, mistakes were curable under Section 292BB, and the actions of both parties complied with the requirements of Section 143(2). The assessee countered by stating that objections were raised during the assessment proceedings, and no evidence was provided by the department to prove the service of notice. The Tribunal found that the Assessing Officer (AO) did not address this issue in the draft or final assessment order. Applying the Apex Court's decision in GKN Drive Shafts (India) Ltd v CIT (259 ITR 19), the Tribunal set aside this issue to the AO for redoing the assessment in accordance with the law, giving the assessee an opportunity to raise objections.

2. Adjustment in Arm's Length Price (ALP) of International Transactions:
The assessee contended that the AO, Transfer Pricing Officer (TPO), and Dispute Resolution Panel (DRP) erred in making an adjustment of Rs. 42,747,499 to the ALP of its international transactions. The Tribunal did not decide on this issue at this stage, as the legal issue regarding the validity of the assessment needed to be resolved first.

3. Rejection of Transfer Pricing (TP) Documentation:
The assessee argued that the AO and DRP erred in upholding the rejection of its TP documentation by the TPO. The Tribunal deferred the decision on this issue pending the resolution of the primary legal issue.

4. Ignoring the Limited Risk Nature of Services Provided by the Assessee:
The assessee claimed that the AO, TPO, and DRP ignored the limited risk nature of the services it provided and wrongly concluded that no adjustment for risk differential was required. The Tribunal did not address this issue at this stage.

5. Errors in the Application of Multiple Year/Prior Year Data and Selection of Comparable Companies:
The assessee highlighted several errors by the TPO, including not applying multiple year/prior year data, using data available at the time of assessment proceedings instead of at the time of preparing TP documentation, and cherry-picking companies with high profit margins. The Tribunal deferred the decision on these issues.

6. Depreciation Rate on Computer Peripherals:
The assessee argued that the AO erred in allowing depreciation on computer peripherals at 15% instead of 60%, as applicable to computers under Rule 5 of the IT Rules, 1962. The Tribunal did not decide on this issue at this stage.

7. Levy of Interest Under Sections 234B and 234C:
The assessee contended that the AO erred in levying interest under Sections 234B and 234C. The Tribunal deferred the decision on this issue pending the resolution of the primary legal issue.

Conclusion:
The Tribunal set aside the issue of the validity of the assessment order due to the alleged non-service of notice under Section 143(2) to the AO for redoing the assessment in accordance with the law. The Tribunal did not decide on the other issues raised by the assessee at this stage, as the legal issue regarding the validity of the assessment needed to be resolved first. The appeal of the assessee was allowed for statistical purposes.

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