2012 (9) TMI 45 - AT - Income Tax

Transfer pricing adjustment - addition to income as against Nil declared by assessee - Held that - As Departmental Representative fairly submitted that information obtained u/s. 133(6) was used in the case of the assessee thus it is necessary that for such information is shared with the assessee and the assessee is granted sufficient opportunity to examine it and present the appropriate response. Thus any information obtained in the course of assessment proceedings has to be supplied to the assessee for its objection, if any. In the absence of doing so, it is a violation of fundamental principles of natural justice. Thus the matter is restored back to the file of the AO with the direction to supply whatsoever information used against the assessee and the assessee be granted a reasonable opportunity of being heard and thereafter pass a fresh assessment order, as per law - in favor of assessee for statistical purposes.

Summary

Issues:
1. Validity of assessment order and jurisdiction of authorities.
2. Transfer pricing adjustments and arm's length price determination.
3. Reliance on non-public information under section 133(6) of the Income Tax Act.
4. Violation of natural justice principles in assessment proceedings.

Issue 1: Validity of assessment order and jurisdiction of authorities:
The appeal challenged the order of the Assessing Officer for the assessment year 2007-08. The appellant contended that the orders passed by the Transfer Pricing Officer and the Assessing Officer were void ab initio. The appellant disputed the jurisdiction of the authorities and questioned the determination of total income. Additionally, concerns were raised regarding the remuneration model, profit shifting, and compliance with transfer pricing regulations.

Issue 2: Transfer pricing adjustments and arm's length price determination:
The Transfer Pricing Officer re-determined the arm's length price, resulting in an upward adjustment in the international transactions of the appellant. The appellant argued that the TPO failed to establish the conditions specified in the Income Tax Act before disregarding the appellant's arm's length price. The appellant also criticized the use of single-year data for comparability analysis and the selection of comparables by the TPO and the Dispute Resolution Panel.

Issue 3: Reliance on non-public information under section 133(6) of the Income Tax Act:
The appellant raised concerns about the TPO relying on non-public information obtained through section 133(6) notices. The appellant highlighted instances where such information was incomplete, sketchy, or not shared with the appellant. The appellant argued that the TPO's reliance on non-public information without providing the appellant an opportunity to respond violated natural justice principles.

Issue 4: Violation of natural justice principles in assessment proceedings:
The Appellate Tribunal found that the failure to supply information used against the appellant and the denial of an opportunity to be heard constituted a violation of fundamental principles of natural justice. Consequently, the matter was remanded back to the Assessing Officer with directions to provide the appellant with all information used against them and to allow the appellant a reasonable opportunity to present objections. The appeal was allowed for statistical purposes.

This detailed analysis of the judgment addresses the issues raised in the appeal comprehensively, focusing on the key arguments, legal principles, and the ultimate decision of the Appellate Tribunal.