2018 (9) TMI 1637 - HC - Income Tax

Suo motu rectification by the department - main grievance of the petitioner is that the first respondent has chosen to pass the present impugned order only by considering its own suo motu rectification application without considering the rectification application filed by the petitioner also under Rule 13 of the said Rules and passing an order on such application as well - Held that - The respondents admitted to the position that the application filed by the petitioner has not been disposed of so far. Needless to state that when the parties have filed the rectification petition to rectify the same order, it is not proper to pass an order on the application filed by one party alone leaving the other application either unheard or not disposed of. Therefore, without expressing any view on the merits of the contentions raised by both parties, this Court is of the view that the present impugned order has to be set aside only for the purpose of remitting the matter back to the first respondent for considering both the applications filed under Rule 13 and pass a fresh order on merits and in accordance with law. Accordingly, the writ petition is allowed and the impugned order is set aside. Consequently, the matter is remitted back to the first respondent to hear afresh the suo motu application under Section 13 by the first respondent along with the application filed by the petitioner for rectification dated 11.10.2017 and pass orders on both the applications on merits and in accordance with law. Such exercise shall be done by the first respondent within a period of eight weeks form the date of receipt of a copy of this order.

Summary

Issues:
1. Rectification of assessment order for assessment year 2013-2014 based on Transfer Pricing Officer's order.
2. Consideration of objections raised by petitioner regarding royalty payment adjustments.
3. Discrepancy in treatment of similar issues in assessment years 2011-2012 and 2012-2013.

Issue 1: Rectification of assessment order for assessment year 2013-2014 based on Transfer Pricing Officer's order:
The petitioner, engaged in wind turbine generator business, challenged the assessment order for the year 2013-2014 due to a downward adjustment on royalty payment to Regen, Cyprus. The Transfer Pricing Officer's order led to the draft assessment order proposing a significant adjustment. The petitioner raised objections before the first respondent, citing errors in the adjustment and lack of consideration for the agreement terms. The first respondent rejected the objections, highlighting past rejections for similar issues in previous years. However, the Tribunal's order for the assessment year 2011-2012 prompted a re-calculation of royalty payments, resulting in a downward adjustment. The first respondent attempted to rectify the order, claiming differences in facts between the years. The petitioner also sought rectification based on the Tribunal's order, leading to the present writ petition challenging the first respondent's decision-making process.

Issue 2: Consideration of objections raised by petitioner regarding royalty payment adjustments:
The petitioner's objections centered around the arm's length nature of royalty payments and the lack of retained profits by Regen Cyprus. They also contested the treatment of royalty payable by Regen Cyprus to Vensys AG. The first respondent initially rejected the objections for the assessment year 2013-2014, citing consistency with past decisions. However, the Tribunal's intervention in the assessment year 2011-2012 led to a re-calculation of royalty payments and subsequent acceptance by the second respondent. The first respondent's attempt to rectify the order based on differing facts between years raised concerns regarding the fair consideration of the petitioner's objections and the Tribunal's directive.

Issue 3: Discrepancy in treatment of similar issues in assessment years 2011-2012 and 2012-2013:
The crux of the matter lies in the discrepancy between the treatment of identical issues in assessment years 2011-2012 and 2012-2013 compared to the assessment year 2013-2014. While the first respondent rejected objections for the latter based on past decisions, the Tribunal's order for the assessment year 2011-2012 necessitated a re-calculation and downward adjustment of royalty payments. The first respondent's attempt to rectify the order for 2013-2014 raised questions about the fair consideration of facts and the petitioner's right to have their rectification application heard alongside the respondent's application. The court ultimately set aside the impugned order, remitting the matter back to the first respondent for a fresh consideration of both applications under Rule 13 to ensure a fair and lawful decision-making process.

This detailed analysis of the judgment highlights the complexities surrounding the rectification of assessment orders, the consideration of objections, and the need for consistency in addressing similar issues across assessment years.