2018 (9) TMI 222 - HC - Income Tax

Order of assessment in pursuance of directions of the Dispute Resolution Panel - variations proposed in the draft order - Objection filled within period of limitation - appeal-able order u/s 246(1)(a) - Held that - In a case where objection is received, the Dispute Resolution Panel might issue such directions as it might think for the guidance of the Assessing Officer to enable him to complete the assessment Section 144C(5) . The Dispute Resolution Panel may also make such further enquiry as it thinks fit or cause any further enquiry to be made by any Income Tax Authority and report the result of it to the Dispute Resolution Panel before issuing any directions, referred to in Section 144C(5). As found by the Dispute Resolution Panel, an objection is to be filed by an aggrieved assessee within thirty days from the date of receipt of the draft assessment order. Dispute Resolution Panel has no power and/or authority and/or jurisdiction to condone the delay in filing the objection. When an objection is filed before the Dispute Resolution Panel beyond the stipulated time of thirty days from the date of receipt of the order, there is no objection before the Dispute Resolution Panel in the eye of law. An order of rejection of an objection on the ground of the same being barred by limitation is not a direction under sub-section 5 read with sub-section 6 to Section 144C. Though the impugned order dated 10.11.2016 rejecting the objection on the ground of the bar of limitation is captioned as a direction under Section 144C(5)is not in fact a direction under Section 144C(5). The quoting of a wrong provision in an order is a mistake apparent on the face of the record and, therefore, inconsequential. The impugned assessment order though stated as an order under Section 143(3) r.w.s. 144C(13) is not an order in pursuance of the directions of the Dispute Resolution Panel, but an order of assessment simplicitor under Section 143(3) from which an appeal would lie to the Commissioner (Appeals). The learned Single Judge rightly dismissed the writ petition and remitted the appellant to his remedy of appeal before the first appellate authority. The time granted to the appellant by the learned Single Bench to file an appeal before the First Appellate Authority as against the impugned order passed by the second respondent is extended for a further period of four weeks from date. The appeal is, accordingly, dismissed.

Summary

Issues Involved:

1. Jurisdiction of the High Court under Article 226 of the Constitution of India.
2. Determination of the arm's length price (ALP) for international transactions.
3. Powers and limitations of the Dispute Resolution Panel (DRP).
4. Appropriate forum for filing an appeal against the assessment order.

Issue-wise Detailed Analysis:

1. Jurisdiction of the High Court under Article 226 of the Constitution of India:

The High Court emphasized that it does not adjudicate the correctness of an order of assessment under its jurisdiction per Article 226 of the Constitution. The learned Single Bench dismissed the writ petition, directing the appellant to pursue the alternative remedy of appeal before the First Appellate Authority, the Commissioner of Appeals. This decision aligns with the principle that the High Court should not intervene when an alternative remedy is available.

2. Determination of the arm's length price (ALP) for international transactions:

The appellant, a private limited company engaged in real estate development, filed its Income Tax Returns declaring 'Nil' income. The scrutiny revealed that the appellant had entered into an international transaction involving Compulsory Convertible Debentures (CCD) with an associated enterprise in Cyprus. The Transfer Pricing Officer (TPO) determined that the interest rate on CCDs could not be based solely on the Prime Lending Rate (PLR) of Indian Banks but should be benchmarked using relevant LIBOR rates with a risk premium of 2%. Consequently, the TPO issued a draft order adjusting the appellant's income by ?3,67,55,978/- for excess interest paid on CCDs.

3. Powers and limitations of the Dispute Resolution Panel (DRP):

The appellant filed an objection to the draft assessment order before the DRP, one day beyond the 30-day limit. The DRP rejected the objection, stating it lacked the authority to condone delays. The High Court confirmed that the DRP's rejection of the objection on the grounds of limitation was not a direction under Section 144C(5) and (6) of the Income Tax Act, 1961. The DRP's role is to issue directions after considering various materials and conducting necessary inquiries, which did not occur in this case due to the late filing.

4. Appropriate forum for filing an appeal against the assessment order:

The High Court clarified that the assessment order in question was not in pursuance of directions from the DRP but was an order of assessment simplicitor under Section 143(3) of the Income Tax Act, 1961. Therefore, the appropriate forum for appeal is the Commissioner (Appeals), not the Income Tax Appellate Tribunal (ITAT). The High Court extended the time for the appellant to file an appeal before the First Appellate Authority by an additional four weeks from the date of the judgment.

Conclusion:

The High Court dismissed the appeal, affirming the Single Bench's decision to direct the appellant to the alternative remedy of appeal before the First Appellate Authority. The appellant was granted an extended period to file the appeal, with the opportunity to raise all relevant questions before the First Appellate Authority. No costs were awarded, and the connected miscellaneous petition was closed.