2012 (4) TMI 259 - AT - Income Tax

Disputed the validity of order of DRP as constitution of DRP is contrary to principle of natural justice as one of the member of DRP is the Jurisdictional Commissioner of assessee and assessee filed objections before DRP on Transfer Pricing Officer s order suggesting Arm Length Price (ALP) adjustment but DRP disposed off the objections stating that AO is to follow adjustment proposed by TPO and did not go into the merits of objections filed by assessee Held that - considering the fact that CBDT issued notification which is subsequent to the order passed by Hon ble High Court of Uttarkhand in the case of Hundai Heavy Industries Ltd. v. Union of India (2011 -TMI - 210159 - UTTARAKHAND HIGH COURT) observing that CBDT to ensure that Jurisdictional Commissioner is not nominated as a member of DRP considering Sec. 144C that DRP before giving any direction to AO under sub-section (5) to enable him to complete assessment, will give opportunity of being heard to parties on such directions which are prejudicial to the interest of assessee or the interest of Revenue - DRP has not given any reason and/or commented upon the objections of assessee in the said order while agreeing with the adjustments proposed by TPO - order passed by DRP u/s. 144C of the Act is not a speaking order and held to be set aside AO to pass fresh assessment order - in favour of assessee.

Summary

Issues:
1. Composition of the Dispute Resolution Panel (DRP) and its validity.
2. Consideration of objections by DRP and the requirement of a speaking order.

Analysis:

Issue 1: Composition of the DRP and its validity
The appellant challenged the validity of the order of the DRP based on two grounds. Firstly, the appellant argued that the composition of the DRP, including the Jurisdictional Commissioner of the assessee, violated the principles of natural justice. The appellant relied on a decision of the Hon'ble High Court of Uttarakhand, which emphasized the importance of avoiding any perception of bias by excluding the Jurisdictional Commissioner from the DRP. The appellant contended that the order of the DRP should be set aside due to this violation. The Departmental Representative, however, argued that the composition was in accordance with the law and that the case cited by the appellant was not directly applicable. The Tribunal, after considering the arguments and the High Court's directive, found merit in the appellant's submission. The Tribunal concluded that the order passed by the DRP was contrary to the High Court's observation and directed that the assessment order be set aside.

Issue 2: Consideration of objections by DRP and the requirement of a speaking order
The second objection raised by the appellant related to the DRP's failure to consider the objections raised by the assessee in a speaking order. The appellant argued that the DRP did not provide reasons or comments on the objections while agreeing with the adjustments proposed by the Transfer Pricing Officer (TPO). The appellant highlighted the provisions of Section 144C of the Income Tax Act, which mandate the DRP to consider objections and issue directions for the guidance of the Assessing Officer (AO). The Tribunal noted that the DRP's order lacked reasoning regarding the objections filed by the assessee, thus not meeting the requirements of natural justice and the Act. The Tribunal held that the order passed by the DRP was not a speaking order as required by law. Consequently, the Tribunal set aside the AO's order and directed a fresh assessment to be conducted in compliance with the Act and the High Court's observations.

In conclusion, the Tribunal allowed the appeal filed by the assessee for statistical purposes, emphasizing the importance of adherence to legal procedures and principles of natural justice in tax assessments.