2022 (9) TMI 1150 - HC - Income Tax

Attachment orders - additional affidavit on record pointing out specific financial constraints on its business operations on account of the interim order - Pleadings are complete in the said application - application of the Petitioner seeking partial modification of the interim order has been heard from time to time - HELD THAT - Though a suggestion is made by Respondent that the AO will be free to take recourse having the books of accounts of the Petitioner audited by an expert, yet the said suggestion is strongly refuted by the senior counsel for the Petitioner. We are not dealing with the merits of the rival contentions taken in these proceedings and the assessing officer will take such steps as are available to him, in accordance with law. It is made clear that the above order has been passed on the basis of offer made by the Petitioner and will not be considered as a precedent in any other proceeding. Accordingly, the attachment orders and this Court s order are modified in the manner stated above. However, this order shall come into effect from the date the Petitioner deposits the additional 100 crores in terms of para 7(i) above. Upon deposit of the said sum, the AO will withdraw the attachment orders and will communicate the same to the parties to whom attachment orders were served. With the above directions, present writ petition and pending applications stand disposed of.

Issues Involved:
1. Modification of interim order dated 21st April, 2022.
2. Compliance with Section 132(9B) of the Income Tax Act, 1961.
3. Financial constraints and business operations.
4. Allegations of non-submission of records.
5. Determination of profit margins and arm's length price.
6. Security for potential tax demands.
7. Time-bound assessment proceedings.

Detailed Analysis:

1. Modification of Interim Order Dated 21st April, 2022:
The petitioner sought deletion of para 9(iii) of the order dated 21st April, 2022, which restricted repatriation of any money abroad without the court's leave. The petitioner argued that this restriction hindered their ability to make payments to overseas suppliers, crucial for their business operations. The court acknowledged the petitioner's compliance with previous conditions and their need to fulfill long-term contracts requiring import of equipment and spare parts.

2. Compliance with Section 132(9B) of the Income Tax Act, 1961:
The petitioner contended that the powers under Section 132(9B) should be used sparingly and only as a last resort. They argued that there were no outstanding tax dues and that the future estimates of demand by the respondents were unsubstantiated. The respondents, however, maintained that the petitioner failed to produce books of accounts during the search proceedings, which was a legal requirement.

3. Financial Constraints and Business Operations:
The petitioner highlighted that their inability to make payments to overseas suppliers due to the interim order was causing significant prejudice to their business. They emphasized that substantial foreign exchange was being brought into India through their business activities and sought modification of the order to continue operations smoothly. The court considered these financial constraints and the petitioner's commitment to secure the respondents' interests.

4. Allegations of Non-Submission of Records:
The respondents alleged that the petitioner did not produce books of accounts during the search proceedings and failed to comply with the provisions of Section 128 of the Companies Act, 2013. They argued that the absence of appropriate books of accounts made it difficult to determine the veracity of the profit margin disclosed by the petitioner. The petitioner refuted these allegations, stating that detailed lists of documents and information had been submitted to the respondents.

5. Determination of Profit Margins and Arm's Length Price:
The respondents raised concerns about the profit margins disclosed by the petitioner, especially in the absence of proper books of accounts. They suggested that the transactions of import might not be at arm's length based on the suspect profit margins. The petitioner, however, argued that the basis of the purported additions had already been scrutinized and added to their income in regular assessments.

6. Security for Potential Tax Demands:
The respondents proposed that to facilitate the petitioner's business, circulating funds of Rs.300 crores could be allowed, with the petitioner providing security for a minimum sum of Rs.350 crores. They also suggested that if the petitioner insisted on complete removal of restrictions, suitable security corresponding to tax on an additional amount of Rs.2300 crores should be provided. The petitioner agreed to secure the respondents by preparing another Fixed Deposit Receipt of Rs.100 crores, in addition to the existing Rs.100 crores.

7. Time-Bound Assessment Proceedings:
The petitioner suggested that the assessment proceedings be made time-bound to ensure early resolution of disputes. The respondents, however, argued that time-bound assessment contrary to statutory limitations would not be possible due to potential requirements for special audits and references to the Transfer Pricing Officer. The court directed the respondents to complete the assessment as expeditiously as possible.

Conclusion:
The court balanced the equities without delving into the merits of the allegations and contentions. The interim order was modified to allow the petitioner to prepare an additional Fixed Deposit Receipt of Rs.100 crores and directed the respondents not to release any refund until the assessment proceedings were completed. The petitioner was also restricted from repatriating any royalty or dividend abroad and was required to continue filing monthly statements of payments received and made. The attachment orders were modified, and the court clarified that this order would not be considered a precedent in any other proceeding.

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