2012 (4) TMI 653 - AT - Income Tax

Determine arm s length price of the international transactions - information u/s 133(6) - violation of fundamental principle of natural justice - Held that - Any information obtained in the course of assessment proceedings has to be supplied to the assessee for its objections, if any. The absence of doing so leads to violation of fundamental principle of natural justice. In view thereof, the matter is restored to the file of the AO with a direction to supply whatsoever information he wants to use against the assessee to it, grant it reasonable opportunity of being heard and thereafter pass a fresh assessment order as per law.

Summary

Issues:
1. Transfer pricing adjustments based on TPO's recommendations.
2. Lack of sharing information obtained under section 133(6) with the assessee during assessment proceedings.

Transfer Pricing Adjustments:
The case involved the assessment of an assessee company engaged in software development and marketing services. The AO referred the matter to the TPO for determining the arm's length price of international transactions. Discrepancies arose between the TNMM used by the assessee and the profit split method employed by the TPO. The TPO suggested upward revisions in the value of international transactions for software development and marketing support services. The DRP directed the AO to reevaluate the transactions using TNMM and determined specific margins for the services. As a result, the income was enhanced by significant amounts. The assessee, aggrieved by this decision, filed an appeal challenging the adjustments.

Information Sharing under Section 133(6):
The assessee contended that the AO utilized information obtained under section 133(6) without sharing it or granting an opportunity to respond. Citing the Genisys Integrating Systems case, the assessee argued that sharing such information with the assessee is crucial for a fair assessment process. The CIT, DR acknowledged the use of the information but maintained that the assessment order should stand. The tribunal, considering the principles of natural justice and the Genisys case, held that any information gathered during assessment must be shared with the assessee to enable objections. Failure to do so violates fundamental principles of justice. Consequently, the tribunal remitted the matter back to the AO with instructions to provide the information to the assessee, grant a hearing, and issue a fresh assessment order in accordance with the law.

In conclusion, the appeal was treated as allowed for statistical purposes, emphasizing the importance of procedural fairness and adherence to natural justice principles in assessment proceedings.