2021 (1) TMI 202 - AT - Income Tax

Legality of reference to the Transfer Pricing Officer - case of the assessee was not selected for any scrutiny assessment proceedings and AO made a reference to the Transfer Pricing Officer u/s. 92CA(1) never the less but admittedly while making this reference he did not obtain the prior approval of the Commissioner or the Principal Commissioner of the Income Tax - on receipt of Transfer Pricing Officer s order, he reopened the assessment u/s. 147 and proceeded to make ALP adjustment on the basis of this TPO order - HELD THAT - We find that the very assumption of jurisdiction to make reference to the TPO is clearly vitiated in law in as much as neither any proceedings were pending before the Assessing Officer nor any approval of the Commissioner or the Principal Commissioner of the Income Tax was taken in the present case. Once we come to conclusion that the assumption of jurisdiction for making a reference to TPO itself was vitiated in law, no other valid legal consequences can flow from the same. The conclusions arrived at by the learned CIT(A), therefore cannot be faulted. We therefore, confirm the well reasoned conclusion arrived at by the learned CIT(A) decline to interfere in the matter.

Summary

Issues:
Challenge to correctness of order dated 17.03.2016 under Income Tax Act for assessment year 2007-08 - Deletion of addition made by AO - Approval of Commissioner not obtained for reference to Transfer Pricing Officer - Validity of ALP adjustment - Legality of proceedings - Reopening of assessment u/s. 147 - Appeal before ITAT Mumbai.

Analysis:

Issue 1: Deletion of Addition by CIT(A)
The assessing officer challenged the deletion of an addition of ?2,56,55,638 made by the AO, arguing that the CIT(A) did not examine the facts of the case and the quantum of international transactions. The CIT(A) observed that the reference to the Transfer Pricing Officer (TPO) was made without the prior approval of the Commissioner, as required by law. The CIT(A) noted that no proceedings were pending when the reference was made, and the AO did not obtain the necessary approval. The CIT(A) dismissed the appeal, emphasizing the lack of legal sanctity in the reference to the TPO due to the absence of Commissioner's approval, rendering the ALP adjustment invalid.

Issue 2: Legality of Proceedings
The ITAT Mumbai considered the legality of the reassessment proceedings, focusing on the validity of the reference to the TPO. It was established that the AO lacked the authority to make the reference without the Commissioner's approval, and no proceedings were ongoing at the time. The ITAT concluded that the assumption of jurisdiction to refer to the TPO was vitiated in law, leading to the dismissal of the appeal. The ITAT upheld the CIT(A)'s decision, emphasizing the fundamental flaw in the initiation of the proceedings.

Conclusion:
The ITAT Mumbai dismissed the appeal, affirming the CIT(A)'s decision to delete the addition made by the AO. The ITAT found the reference to the TPO invalid due to the lack of Commissioner's approval, rendering the ALP adjustment legally unsound. The ITAT upheld the principle that without a valid basis for the reference, no legally sustainable consequences could arise, leading to the dismissal of the reassessment proceedings.