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2008 (12) TMI 19 - HC - Income TaxWrit Petitions to challenge the orders passed by the Transfer Pricing Officer (TPO) whereby he has determined the Arm s Length Price (ALP) in relation to International transactions entered into by each of the petitioners with their Associated Enterprises - TPO has not granted an oral hearing before determining the ALP - failure on the part of the TPO to consider documents and information filed by the petitioners held that order passed by TPO are quashed Writ Petitions are allowed
Issues Involved:
1. Failure to grant an oral hearing before determining the Arm's Length Price (ALP). 2. Non-consideration of documents and information filed by the petitioners. 3. Non-disclosure of information and documents obtained by the Transfer Pricing Officer (TPO). Issue-wise Detailed Analysis: 1. Failure to Grant an Oral Hearing: The petitioners contended that the TPO failed to follow a fair procedure by not granting an oral hearing before determining the ALP for international transactions. They argued that the determination of ALP is a complex process requiring scrutiny and analysis of data, and that the TPO should have confronted the assessee with the material forming the basis of the ALP determination. The court held that the provisions of sub-section (3) of Section 92CA of the Act cast an obligation on the TPO to afford a personal hearing to the assessee before passing an order determining the ALP. The court emphasized that the principles of natural justice require an oral hearing, especially given the severe consequences of the ALP determination, including potential penalties under Section 271(1)(C) read with Explanation 7 of the Act. The court rejected the argument that the failure to demand an oral hearing would validate the impugned orders. It held that the State has a constitutional obligation to adopt a fair procedure, and the lack of demand for an oral hearing cannot be used to justify an otherwise invalid procedure. 2. Non-consideration of Documents and Information: The petitioners argued that the TPO failed to consider the documents and information they submitted. For instance, in WP(C) No. 7958/2008, the petitioner contended that the TPO disregarded their objections and did not call for relevant annexures, leading to an unreasonable addition to the ALP. The court found that the TPO's failure to consider the submitted documents and information violated the principles of natural justice. It emphasized that the TPO should have called upon the petitioner to present their case, especially when crucial documents were inadvertently left out. 3. Non-disclosure of Information and Documents: The petitioners also contended that the TPO used undisclosed information and documents obtained from other sources to determine the ALP, without confronting the petitioners with this material. This was argued to be a violation of the principles of natural justice. The court held that the TPO must disclose the material and confront the assessee with the information forming the basis of the ALP determination. Failure to do so would render the TPO's decision invalid. Separate Judgments Delivered: Moser Baer India Ltd vs The Additional Commissioner of Income Tax and Anr: WP(C) No 6974/2008: The court set aside the impugned order dated 22.08.2008, as the petitioner was not granted an oral hearing despite requesting one. The TPO was directed to recommence proceedings from the stage of the show cause notice dated 23.05.2008, allowing the petitioner to file necessary documents and granting an opportunity for a personal hearing. HCL Technologies BPO Services Ltd vs The Additional Commissioner of Income Tax and Anr.: WP(C) No 7958/2008: The court set aside the impugned order dated 23.09.2008, as the TPO did not call for relevant annexures and failed to provide a fair opportunity to the petitioner. The TPO was directed to recommence proceedings from the stage of the show cause notice dated 01.09.2008, allowing the petitioner to file necessary documents and granting an opportunity for a personal hearing. HCL Technologies Ltd. Vs Addl. Commissioner of Income Tax: WP(C) No 7969/2008: The court set aside the impugned order dated 30.09.2008, as the TPO did not provide reasons for excluding data of comparable companies and failed to address the petitioner's specific requests. The TPO was directed to recommence proceedings from the stage of the show cause notice dated 01.09.2008, allowing the petitioner to file necessary documents and granting an opportunity for a personal hearing. Haier Appliances (I) Pvt Ltd vs The Additional Commissioner of Income Tax: WP(C) No 8054/2008: The court set aside the impugned order dated 24.10.2008, as the TPO made an adjustment on a basis different from the show cause notice, depriving the petitioner of an opportunity to contest the new basis. The TPO was directed to recommence proceedings from the stage of the show cause notice dated 04.09.2008, allowing the petitioner to file necessary documents and granting an opportunity for a personal hearing. Global Logic (I) Pvt Ltd vs. The Additional Commissioner of Income Tax and Anr.: WP(C) No 8055/2008: The court set aside the impugned order dated 30.09.2008, as the TPO changed the basis for adjustment without informing the petitioner, depriving them of an opportunity to contest the new basis. The TPO was directed to recommence proceedings from the stage of the show cause notice dated 26.03.2008, allowing the petitioner to file necessary documents and granting an opportunity for a personal hearing. Kamla Dials and Devices Ltd vs The Additional Commissioner of Income Tax and Anr: WP(C) No 8579/2008: The court set aside the impugned order dated 17.10.2008, as the TPO failed to provide the material and evidence relied upon for the proposed adjustment, despite the petitioner's request. The TPO was directed to recommence proceedings from the stage of the show cause notice dated 03.10.2008, allowing the petitioner to file necessary documents and granting an opportunity for a personal hearing. Conclusion: The court allowed the writ petitions, emphasizing the mandatory requirement of an oral hearing under sub-section (3) of section 92CA, and directed the TPO to recommence proceedings in each case, ensuring compliance with the principles of natural justice.
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