2008 (12) TMI 67 - HC - Income Tax

Multinational company entering into service agreement with Indian company - petition questions application of Transfer Pricing Provisions in Chapter X of the Income Tax Act, 1961 to the petitioner and quashing of notices under Sections 148 and 92CA (3) of the Act - language of Chapter X dealing with transfer pricing being clear, the provisions will be attracted to an international transaction notice of reassessment based on order of Transfer Pricing Officer, is also held valid

Summary

Issues Involved:
1. Inapplicability of unamended provisions of Section 92 of the Act to the petitioner and reassessment of escaped income.
2. Relevance of the order passed by the Transfer Pricing Officer under Chapter X for reassessment of the period prior to the introduction of amended Chapter X.
3. Applicability of Chapter X provisions when both parties to a transaction are subject to tax in India, without allegations of profit transfer out of India or tax evasion.
4. Requirement of an opportunity of being heard before referring the matter of determination of arm's length price to the Transfer Pricing Officer.

Detailed Analysis:

Issue 1: Inapplicability of Unamended Provisions of Section 92 and Reassessment of Escaped Income
The petitioner contended that the unamended Section 92 of the Act, which was not applicable to non-residents for the period relevant to assessment years from 1998-99 to 2001-02, should bar reassessment of escaped income. The court held that Section 147 of the Act, which allows reassessment if the Assessing Officer believes income has escaped assessment, is not controlled by Section 92. The court stated, "The said provision is not in any manner controlled by Section 92 of the Act nor there is any limit to consideration of any material having nexus with the opinion on the issue of escapement of assessment of income." The court concluded that the notice for reassessment was valid and that the Assessing Officer could legitimately form an opinion based on relevant material, including the Transfer Pricing Officer's order.

Issue 2: Relevance of Transfer Pricing Officer's Order for Reassessment
The court found no objection to the Assessing Officer considering the Transfer Pricing Officer's order for forming an opinion on escaped income. The court stated, "Order of Transfer Pricing Officer can certainly have nexus for reaching the conclusion that income has been incorrectly assessed or has escaped assessment." The court emphasized that any relevant material could be considered for reassessment, and the notice proposing reassessment was not vitiated merely because it referred to the Transfer Pricing Officer's order.

Issue 3: Applicability of Chapter X Provisions
The petitioner argued that Chapter X provisions should not apply when both parties to a transaction are subject to tax in India, without allegations of profit transfer out of India or tax evasion. The court rejected this argument, stating that the provisions of Chapter X are applicable to "international transactions" as defined under Section 92B, which includes transactions between associated enterprises, at least one of whom is a non-resident. The court held, "There is no lack of Legislative competence for enacting the said provisions and making them applicable to the petitioner or to a class of persons falling in the category of the petitioner." The court concluded that the provisions advance the object of taxing real income and are applicable to the petitioner.

Issue 4: Requirement of Opportunity of Being Heard Before Reference to Transfer Pricing Officer
The petitioner contended that they should have been given an opportunity to be heard before the matter was referred to the Transfer Pricing Officer. The court found no merit in this contention, stating, "The decision to make a reference does not in any manner visit the assessee with any civil consequence." The court emphasized that the decision to refer the matter is an administrative one and does not affect the assessee's rights, as they would still have the opportunity to challenge the computation of arm's length price at higher levels.

Conclusion:
The court dismissed the writ petition, holding that:
1. The notice for reassessment was valid and not barred by the inapplicability of unamended Section 92.
2. The Transfer Pricing Officer's order could be considered for reassessment.
3. Chapter X provisions are applicable to the petitioner, even if both parties are subject to tax in India.
4. There was no requirement for an opportunity of being heard before referring the matter to the Transfer Pricing Officer.