9911796707
TMI Blog2012 (11) TMI 890X X X X Extracts X X X X X X X X Extracts X X X X ..... l. Commissioner of Income Tax (Transfer Pricing Officer) for the Assessment Year 2008 - 2009 u/s. 92CA(3) of the Income-tax Act, 1961. The petitioner Company is also aggrieved by the Show-Cause Notice dated 10/11/2010 and 6/1/11 issued by the Addl. Commissioner of Income Tax Range - 3 for the Assessment Year 2008 - 2009. It has been stated in the writ petition that the petitioner Company is engaged in the import of coal for the purposes of reselling and while importing coal, the petitioner Company engages ships on time charter/voyage charter basis mostly from foreign shipping companies. The petitioner Company has further stated that a search was carried out u/s. 132 of the Income Tax Act, 1961 at the premises of the petitioner Company on 25th September, 2007 and thereafter notice dated 3/3/2008 was issued u/s. 153A of the Income-tax Act for the Assessment Year 2002 - 2003 to Assessment Year 2007 - 2008. It has been further stated that the petitioner Company filed the return of income for the Assessment Year 2008 - 2009 on 25/9/2008 and the Assessment was selected for scrutiny. A notice was issued u/s. 143(2) dated 30/10/2008. The petitioner Company has further stated that as per th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as made u/s. 92CA(1) of the Income-tax Act, 1961 in case of the petitioner for the assessment year 2008-2009 for computation of arm's length price on 26/3/2009 to the Transfer Pricing Officer - I (Addl. Commissioner of Income Tax, Ahmedabad). It has been further stated that the 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. The Department has further stated that the petitioner Company had entered into international transactions of substantial magnitude of more than 832 crores with its associate concerns and keeping in view the aforesaid, a reference was made by the respondent No. 1. It has been further stated that the reference u/s. 92CA(1) is as per law and Transfer Pricing Officer has rightly passed the order keeping in view the statutory provisions as contained under the Income-tax Act, 1961. The Department has further stated that since the case was referred to Transfer Pricing Officer, the time-limit of 33 months as per the third proviso of Sec. 153B is duly available for completing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... details while filing affidavits of various officers and the same establishes that the petitioner has participated in the proceedings before the Transfer Pricing Officer. 5. The original record was also produced before this Court and the same reveals that there was an approval of the Commissioner of Income Tax in respect of reference made by the Addl. Commissioner of Income Tax to the Transfer Pricing Officer. 6. Mr. Mohan Parasaran, learned Addl. Solicitor General of India has vehemently argued that there is a complete mechanism provided under the Income-tax Act, 1961 for raising objections in the matter of fixation of arm's length price and at this stage, the question of interference, does not arise. He has placed reliance upon the judgment delivered by the Division Bench of Bombay High Court in the case of Hindalco Industries Ltd. v. Addl. CIT [2012] 17 taxmann.com 187 and has prayed for dismissal of the writ petition. 7. Heard learned counsel for the parties at length and perused the record. 8. In the present case, the petitioner Company is aggrieved by a reference made by the Addl. Commissioner of Income Tax, Range- 3, u/s. 92CA(1) dated 26/3/2009 to the Transfer Pricing Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 1st day of June, 2007 but the order under sub-section (3) has not been made by the Transfer Pricing Officer before the said date, or a reference under sub-section (1) is made on or after the 1st day of June, 2007, an order under sub-section (3) may be made at any time before sixty days prior to the date on which the period of limitation referred to in section 153, or as the case may be, in section 153B for making the order of assessment or reassessment or recomputation or fresh assessment, as the case may be, expires. (4) On receipt of the order under, sub-section (3), the Assessing Officer shall proceed to compute the total income of the assessee under sub-section (4) of section 92C in conformity with the arm's length price as so determined by the Transfer Pricing Officer. (5) With a view to rectifying any mistake apparent from the record, the Transfer Pricing Officer may amend any order passed by him under sub-section (3), and the provisions of section 154 shall, so far as may be, apply accordingly. (6) Where any amendment is made by the Transfer Pricing Officer under sub-section (5), he shall send a copy of his order to the Assessing Officer who shall thereafter proceed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng contained in section 153, pass the assessment order under sub-section (3) within one month from the end of the month in which,- (a) the acceptance is received; or (b) the period of filing of objections under sub-section (2) expires. (5) The Dispute Resolution Panel shall, in a case where any objection is received under sub-section (2), issue such directions, as it thinks fit, for the guidance of the Assessing Officer to enable him to complete the assessment. (6) The Dispute Resolution Panel shall issue the directions referred to in sub-section (5), after considering the following, namely:- (a) draft order; (b) objections filed by the assessee; (c) evidence furnished by the assessee; (d) report, if any, of the Assessing Officer, Valuation Officer or Transfer Pricing Officer or any other authority; (e) records relating to the draft order; (f) evidence collected by, or caused to be collected by, it; and (g) result of any enquiry made by, or caused to be made by, it. (7) The Dispute Resolution Panel may, before issuing any directions referred to in sub-section (5),- (a) make such further enquiry, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose. Thus, a complete mechanism has been provided under the Act itself for resolving such a dispute and therefore, this court does not find any reason to interfere at this stage in the matter. 11. The Division Bench of the Bombay High Court while dealing with an order passed by the Addl. Commissioner of Income-tax Transfer Pricing Officer - I, in the case of Hindalco Industries Ltd. (supra) in paras 10 to 13 has held as under : 10. Section 92(1) provides that any income arising from an international transaction shall be computed having regard to the Arm's Length Price. Section 92B(1) defines the expression "international transaction" while section 92C provides for the computation of the Arm's Length Price. Under sub-section (3) of section 92C, the Assessing Officer is empowered to determine the Arm's Length Price in relation to an international transaction on the basis of the provisions of sub-sections (1) and (2) taking account of such material, information or documents as is available with him, where he is of the opinion inter alia that the price charged or paid in an international transaction has not been determined in accordance with sub-sections (1) and (2), or where th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is empowered to issue such directions, as it thinks fit, for the guidance of the Assessing Officer. The Dispute Resolution Panel is empowered under sub-section (7) to make its own enquiry or to cause any further enquiry to be made by any Income-tax Authority. Under sub-section (8) the Panel may confirm, reduce or enhance the variation of the draft order so, however, that it shall not set aside any variation or issue any direction under sub-section (5) for further enquiry and passing of the assessment order. Under Section 253(1)(d), an order passed by the Assessing Officer under section 143(3) or section 147 in pursuance of the directions of the Dispute Resolution Panel is subject to an appeal before the Appellate Tribunal. 11. In the present case, the Assessing Officer, while making a reference to the Transfer Pricing Officer stated in her order dated 9 October, 2009 that she considered it necessary or expedient so to do. While seeking the approval of the Commissioner, the Assessing Officer relied upon an instruction of the CBDT which stipulates that all cases where international transactions exceeding Rs. 15 crores are involved, shall within the meaning of section 92 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been noted earlier. The Delhi High Court in its decision in Maruti Suzuki India Ltd. v. Additional Commissioner of Income-tax [2010] 328 ITR 210 has affirmed the importance of complying with the principles of natural justice for the purposes of the proceeding. In this case, the petitioner was on notice of the nature of the enquiry which was being persued by the Transfer Pricing Officer. The Transfer Pricing Officer addressed a communication on 4 October, 2011 detailing the information that was required and the basis on which disclosure was sought. The petitioner adduced detailed submissions by its letter dated 14 and 21 October, 2011. 13. We are of the view that there is no breach of the principles of natural justice which would warrant the interference of this Court under Article 226 of the Constitution, at this staged. We however clarify that in the remedy which is available to the petitioner in appeal, it would be open to the petitioner to urge all appropriate grounds and contentions and these observations are made by the Court confined to the question as to whether a petition under Article 226 of the Constitution should be entertained at this stage. Before we conclude, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
