2008 (10) TMI 376 - HC - Income Tax

Addition on the basis of Report by TPO - Arm length price - section 92CA(3)- The grievance of the petitioner against that order,is that the show-cause notice was issued to the petitioner on 21-2-2008 - The petitioner filed his reply by 29-2-2008., but in the reply it was stated that due to short time that has been allowed for filing reply, the petitioner could not place all the documents on which the petitioner wish to rely upon and could not submit his complete reply - Held that - The submission made on behalf of the respondents that the petitioner at the rehearing of the matter should not be given an opportunity to file additional reply, wherein he may change his stand or take alternate stand or file additional reply, has no substance because on the final order being set aside the matter becomes at large and, therefore, in our opinion it will be in the interest of natural justice that the petitioner should be given an opportunity to file additional reply and raise contentions that may be available to him in law - The order dated 7-3-2008 impugned in this petition is set aside - Decided in favour of assessee.

Summary

Issues:
Challenge to order determining transfer price and addition to income based on lack of opportunity for personal hearing and filing additional documents.

Analysis:
The petitioner challenged an order passed by the Transfer Pricing Officer, which directed the assessment officer to add a substantial amount to the petitioner's income. The petitioner contended that they were not given a fair opportunity to present their case as they were not granted a personal hearing and were not allowed to file additional documents despite the short time provided for a reply. The High Court noted that although written submissions were filed, the petitioner was not given a personal hearing or the chance to submit additional documents.

The Court emphasized the importance of natural justice and held that denying the petitioner the opportunity to file additional replies or change their stand would not be justified, especially when the final order was set aside. The Court stated that it would be in the interest of justice to allow the petitioner to file additional replies and raise contentions available to them in law. The respondents agreed to grant a personal hearing and make a fresh order, but they argued against allowing the petitioner to change their stand. However, the Court ruled that if the law permits the petitioner to change their stand, they should be given that opportunity.

In light of the above, the High Court set aside the impugned order and directed the petitioner to file additional replies and produce additional documents within four weeks. The Respondent was instructed to schedule a final hearing, ensuring compliance with the principles of natural justice, and then make a fresh order in accordance with the law. The Court made the rule absolute without any order as to costs, ensuring that the petitioner's right to a fair hearing and due process was upheld.