2012 (11) TMI 890 - HC - Income Tax

Writ Petition - challenging the reference made under section 92CA(1) - computation of arm s length price alleged that no approval of the Commissioner of the Income Tax was obtained for making a reference u/s. 92CA(1) by the first respondent and proper opportunity was not given to the petitioner Company by the Transfer Pricing Officer and documents demanded by the Company were also not given to the petitioner Company by the Transfer Pricing Officer - Held that - Reference was made correctly after obtaining approval from the Commissioner and after verifying the details furnished by the assessee in Auditor s Report in Form No. 3CEB with respect to the international transactions with associate enterprises. There was no breach of the principles of natural justice by the Transfer Pricing Officer. Under sub-section (3) of section 92CA the Transfer Pricing Officer is required to comply with the principles of natural justice and to render a determination of the Arm s Length Price in relation to the international transaction in accordance with section 92C(3) - petitioner was on notice of the nature of the enquiry which was being persued by the Transfer Pricing Officer - reasonable opportunity was granted to the petitioner which is evident from the affidavit filed by the Department - order has been passed by an authority competent to pass such an order - writ petition is accordingly dismissed. No order as to costs

Issues Involved:
1. Challenge to the reference made under section 92CA(1) of the Income-tax Act, 1961.
2. Challenge to the order passed by the Transfer Pricing Officer under section 92CA(3) of the Income-tax Act, 1961.
3. Challenge to the Show-Cause Notices issued by the Addl. Commissioner of Income Tax.
4. Allegations of not following the principles of natural justice.
5. Question of availability of alternative remedy.

Detailed Analysis:

1. Challenge to the Reference Made Under Section 92CA(1):
The petitioner Company challenged the reference made under section 92CA(1) dated 26/3/2009 for the assessment year 2008-2009 by the Addl. Commissioner of Income-tax, Range III, Indore. The petitioner contended that no approval of the Commissioner of Income Tax was obtained for making the reference. However, the respondents provided evidence that the approval was indeed obtained from the Commissioner of Income Tax - I, as per the statutory provisions of the Income-tax Act, 1961. The Court found that the reference was made correctly and lawfully.

2. Challenge to the Order Passed by the Transfer Pricing Officer:
The petitioner Company also challenged the order dated 29/10/2010 passed by the Transfer Pricing Officer (Addl. Commissioner of Income Tax) under section 92CA(3) of the Income-tax Act, 1961. The petitioner alleged that the order was passed without following the principles of natural justice, as proper opportunity was not given to the petitioner Company, and documents demanded by the Company were not provided. The respondents countered this by stating that the petitioner did not furnish the requisite details despite various opportunities and adopted a non-cooperative attitude. The Court found that reasonable opportunity was granted to the petitioner and that the order was passed by a jurisdictionally competent authority.

3. Challenge to the Show-Cause Notices:
The petitioner Company was aggrieved by the Show-Cause Notices dated 10/11/2010 and 6/1/2011 issued by the Addl. Commissioner of Income Tax for the Assessment Year 2008-2009. The petitioner argued that these notices were issued without proper jurisdiction. The respondents stated that the issuance of Show-Cause Notices does not reflect any satisfaction on the part of respondent No. 1 that provisions of sec. 93 are applicable and that the petition was premature. The Court did not find merit in interfering with the Show-Cause Notices at this stage.

4. Allegations of Not Following the Principles of Natural Justice:
The petitioner claimed that the principles of natural justice were not followed, as they were not given a proper opportunity to present their case and examine one Mr. Deepak Sehgal. The respondents provided affidavits and evidence showing that the petitioner was given multiple opportunities to present their case and that the petitioner deliberately did not cooperate. The Court found that the principles of natural justice were adhered to and that the petitioner was given a reasonable opportunity to present their case.

5. Question of Availability of Alternative Remedy:
The petitioner relied on several judgments to argue that the writ petition should be entertained despite the availability of an alternative remedy. However, the Court referred to the statutory provisions under section 144C of the Income-tax Act, 1961, which provide a complete mechanism for resolving such disputes, including the formation of a Dispute Resolution Panel comprising three Commissioners of Income-tax. The Court also referred to the judgment of the Bombay High Court in Hindalco Industries Ltd. v. Addl. CIT, which emphasized the availability of a comprehensive remedy under the Act. The Court concluded that the petitioner has an alternative and efficacious remedy and that the writ petition should not be entertained at this stage.

Conclusion:
The Court dismissed the writ petition, stating that the petitioner Company has an alternative and efficacious remedy available under the Income-tax Act, 1961. The Court found no reason to interfere at this stage and emphasized that the petitioner is at liberty to raise all appropriate grounds and contentions before the appropriate fora. No order as to costs was made.

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