2009 (12) TMI 293 - HC - Income Tax

International Transactions- The petitioner by means of this writ petition has challenged the order passed by the Transfer Pricing Officer (TPO) under section 92CA(3) of the Income-tax Act 1961 determining the arm s length price (ALP) in respect of international transaction for representation services on the ground that no proper opportunity was given to the petitioner and the petitioner was not confronted with the formula which is ultimately adopted by the Transfer Pricing Officer while fixing the ALP. On the basis of this order the Assessing Officer has prepared a draft assessment order under section 144C of the Act proposing to incorporate in the assessment order the addition made by the Transfer Pricing Officer in the computation of ALP of representation services transaction. Held that- this was not a case where opportunity of hearing was not afforded to the petitioner before passing the order because the Transfer pricing officer had called upon the petitioner from time to time and asked the petitioner to furnish information and make submission in that behalf. After the draft assessment order was framed the petitioner had remedy to approach Dispute Resolution Penal. Thus the petition has dismissed

Summary

Issues:
Challenge to order by Transfer Pricing Officer under section 92CA(3) of the Income-tax Act, 1961 determining arm's length price for international transaction for "representation services" without proper opportunity given to petitioner.

Analysis:
The petitioner challenged the order passed by the Transfer Pricing Officer (TPO) under section 92CA(3) of the Income-tax Act, 1961, determining the arm's length price (ALP) for international transaction for "representation services". The petitioner contended that they were not given a proper opportunity and were not confronted with the formula adopted by the TPO while fixing the ALP. The petitioner argued that despite furnishing information and details regarding the computation of ALP, they were not given a chance to address the issues raised. The TPO unilaterally made an addition to the ALP without proper confrontation, resulting in a substantial increase in the price. The petitioner relied on a previous judgment that emphasized the obligation of the TPO to provide a personal hearing before determining the ALP.

The court noted that the petitioner was called by the TPO multiple times, asked to provide information, and make submissions before the impugned order was passed. While the petitioner was given opportunities to be heard, they were not confronted with the basis ultimately adopted by the TPO. The court highlighted that the petitioner could raise objections to the TPO's order and the draft assessment order prepared by the Assessing Officer. The Dispute Resolution Panel, guided by specific provisions, would consider the draft order, objections, evidence, reports, records, and inquiries before issuing directions. The petitioner was advised to utilize this remedy to challenge the basis adopted by the TPO and present supporting evidence.

The court emphasized that the petitioner had the opportunity to raise objections and provide evidence to rebut the TPO's report during the Dispute Resolution Panel proceedings. Therefore, the court dismissed the writ petition, expecting the Dispute Resolution Panel to consider the objections and evidence presented by the petitioner before passing final orders. The petitioner was encouraged to engage in the dispute resolution process to address the issues raised regarding the determination of the arm's length price for the international transaction involving "representation services".