2019 (10) TMI 1131 - HC - Income Tax

Remedy available under Section 144C(2)(b) - dispute recommended to competent forum - mechanism to resolve the dispute through the Dispute Resolution Panel - TP Adjustment - Income accrued in India - petitioner is a Permanent Establishment of EOS Germany in India as per the Act and India-Germany Double Tax Avoidance Agreement ('DTAA') - Petitioner Company operates as an Indian Branch office of EOS GmbH Electro Optical Systems, Germany ('Head Office') - Whether petitioner merely acts as a liaison office between the Head Office and its customers in India? - HELD THAT - It is evident that so many factual disputes, which go to the root of the matter, viz., the nature of activities carried on by the petitioner, exist between the parties. Unless and until those factual disputes are settled by appreciation of factual aspects of the matter by a fact finding authority, the question as to whether the income at the hands of the petitioner is to be treated as income earned in India and liable for tax, as claimed by the Revenue, or as the income to be determined by adopting ALP method, as claimed by the petitioner, cannot be considered by this Court and decided at this stage, since the order impugned is only a draft assessment order and the petitioner is only called upon to make objection against the same, if they are not agreeable. Therefore, the disputes raised by the petitioner herein are to be considered by the competent forum provided under the statute itself and resolved accordingly. It is not any empty formality but an effective mechanism. Therefore, to settle such dispute, necessarily the petitioner has to go before the Dispute Resolution Panel as provided under Section 144C of the Income Tax Act, 1961. When the statute provides a mechanism for resolving the dispute between the parties and before which forum, the assessee is entitled to file objections of any nature and when such forum is also vested with power to issue directions to the Assessing Officer for completion of the assessment, this Court is of the view that it is not correct to contend as if the scope and ambit of such forum is with limited purpose and jurisdiction on certain issues. If the above contention of the petitioner is to be accepted that the issue raised in this writ petition cannot be considered by the Dispute Resolution Panel, I am of the view that the very object of providing such mechanism to resolve the dispute through the Dispute Resolution Panel would become redundant. It is well settled that in fiscal matters, the parties cannot directly approach this Court and file writ petition, when an effective alternative remedy is available under the Statute. In other words, the parties cannot attempt to short circuit the whole process, by filing a writ petition straight away and inviting this Court to either assume the role of the Appellate Authority or the Revisional Authority. Therefore, this Court is of the view that the petitioner, instead of agitating the matter before this Court, has to approach the Dispute Resolution Panel and file their objections as provided under Section 144C.

Summary

Issues Involved:
1. Jurisdiction of the Assessing Officer (AO) in Transfer Pricing (TP) matters.
2. Attribution of profits to the Permanent Establishment (PE).
3. Validity of the draft assessment order.
4. Availability and effectiveness of alternative remedies.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Assessing Officer (AO) in Transfer Pricing (TP) matters:
The petitioner contended that the AO exceeded jurisdiction by undertaking a TP analysis, which should be within the domain of the Transfer Pricing Officer (TPO). The petitioner argued that the AO's actions were contrary to the binding instruction issued by the Central Board of Direct Taxes (CBDT) and the ruling of the Supreme Court in DIT vs. Morgan Stanley & Co. (292 ITR 416). The AO, however, maintained that the activities carried out by the petitioner in India justified the attribution of profits without referring the matter to the TPO. The court noted that the jurisdictional issue raised by the petitioner was not apparent on the face of the order and required factual determination, which should be addressed by the Dispute Resolution Panel (DRP).

2. Attribution of profits to the Permanent Establishment (PE):
The petitioner claimed that its remuneration from EOS Germany was at arm's length based on a TP analysis, and therefore, no further attribution of profits should be made. The AO, however, attributed 100% of the global profits earned from sales in India by EOS Germany to the petitioner, arguing that the petitioner was involved in significant business activities beyond mere liaison services. The court observed that the factual disputes regarding the nature of the petitioner's activities and the appropriate method for profit attribution needed to be resolved by the DRP.

3. Validity of the draft assessment order:
The petitioner challenged the draft assessment order, arguing that the AO's determination of income was erroneous and beyond jurisdiction. The court noted that the draft assessment order was an interim step, and the petitioner had the opportunity to file objections before the DRP. The court emphasized that the DRP could consider all objections, including jurisdictional issues, and issue appropriate directions to the AO.

4. Availability and effectiveness of alternative remedies:
The petitioner argued that the DRP did not have the power to annul the draft assessment order and therefore, the alternative remedy was ineffective. The court disagreed, stating that the DRP had the authority to issue directions to the AO, including referring the matter to the TPO if necessary. The court highlighted that the statutory mechanism provided an effective remedy for resolving the disputes raised by the petitioner.

Conclusion:
The court directed the petitioner to file objections before the DRP within 30 days, emphasizing that the DRP had the competence to address all issues raised, including jurisdictional challenges. The court dismissed the writ petition, reaffirming the efficacy of the statutory remedy available under Section 144C of the Income Tax Act, 1961.