9911796707
TMI Blog2013 (12) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... - it is necessary for the Assessing Officer to decide the issue of objection to applicability of chapter X , if raised by the assessee, before referring the transaction to the TPO as it is a basic issue and would prevent loss of man hours on both sides in computing the ALP if it is finally concluded that Chapter X is not applicable. - this exercise could also be done by the Assessing officer before he determines the ALP in exercise of his powers under Section 92C(3) The petitioner shall within two weeks from today submit before the DRP its preliminary objections to Draft Assessment Order and the TPO's order by raising jurisdictional issues. - The DRP shall decide the issue of jurisdiction before considering issue of valuation / quantification raised by the petitioner in its objections filed before the DRP, this of course subject to the additional grounds on jurisdiction being filed by the Petitioner within two weeks from today. The DRP shall decide the issue of jurisdiction as a preliminary issue within two months from the date on which the petitioner files its objections on the question of jurisdiction. - Decided in favor of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... "the Holding Company."); (b) On 21 August 2008, the petitioner issued 2,89,224 equity shares of a face value of Rs.10/each at the premium of Rs.8591/per share aggregating to a total consideration of Rs.246.38 Crores to its holding company. The petitioner received an amount of Rs.86.93Crores on 21 August 2008 and the balance amount of Rs.159.46 Crores on 5 November 2008 from its holding company; (c) As the issue of the equity shares by the petitioner was to a nonresident entity, the same was done in compliance with the provisions of Foreign Exchange Management Act, 1999. The Fair Market Value of the said equity shares was determined in accordance with the methodology prescribed under the Capital Issues (Control) Act 1947; (d) On 30 September 2009, the petitioner filed its return of income for Assessment Year 200910 with the respondentrevenue. Along with its return of income, the petitioner also filed Form 3 CEB dated 28 September 2009 by an accountant in accordance with Section 92E. In the said Form, the transaction of issuance of equity shares by the petitioner to its holding company (undisputedly an Associated Enterprise) was declared as an International Transaction and also th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered as deemed loan by the petitioner and the interest at the rate of 13.50% should not be charged thereon. (h) The petitioner filed its replies on 24 December 2012, 7 January 2013 and 22 January 2013 to the show cause notice issued by the TPO. The petitioner in all its replies contended that Chapter X i.e. Transfer Pricing provisions do not apply to the issue of equity shares. Therefore, it was contended that the notice was completely without jurisdiction and its replies should not be construed as submitting to jurisdiction under Chapter X . Without prejudice, the petitioner contested the show cause notice on merits pointing out that Transfer Pricing provisions do not apply to the issuance of the equity shares. Besides reliance was placed upon the concept of real income and no jurisdiction to tax hypothetical income by recharactering the same as deemed loan; (i) On 28 January 2013, the TPO passed the impugned order holding that the transaction of issuance of equity shares by the petitioner to its holding company is an international transaction covered under Chapter X . In particular, it records the following findings: (i) The issue of equity shares is an International ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As per information available in the order of the TPO for the FY 200708 ii. Shortfall in charging for sale of call centre business during FY 200708 13443.92 As per the order of the TPO for the FY 200809, as modified by the directions given by DRPI, Mumbai. iii. Shortfall in charging for assignment of call options during FY 200708. 61788.83 As per the order of the TPO for the AY 200809 Less: Provision for tax on shortfall in charging for sale of call centre during FY 200708 @ 22.66% 3046.39 As discussed above Less: Provision for tax on assignment of call option during FY 200708 @ 33.99% 21002.02 As discussed Above Description Amount (Rs. Million) Number/ Amount (Rs.) Remarks Total Net Asset Present Value 51515.87 No. of Equity Shares as on 31032008 957992 ALP Value of each equity Share as on 31032008 5377500 Computation of ALP Description Number/Amount (Rs.) ALP Value of each equity shares as on 31032008( a) 53,775 Value of equity shares as per the assessee (b) 8,519 Deficit amount per share (c) = (a)( b) 45,256 No. of equity shares issued (d) 2,89,224 Price charged by the assessee (e) 246,38,99,016 Arm's Length Price (f) = (a) x (d) 1555,30,20,60 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the TPO is without jurisdiction as the transfer pricing provisions do not apply to a transaction of issuing equity shares to its holding company. Besides, the transaction of issuing shares cannot be governed by Chapter X as no income arises and /or affected by it. Further, there is no occasion to recharacterize a bonafide transaction of issue of shares as deemed loan under the Act. Thus, it was submitted that the proceeding seeking to apply Chapter X to issue of shares to its holding company is bad in law; (l) On 22 March 2013, the Assessing Officer passed the impugned Draft Assessment Order under Section 143 read with Section 144C( 1) . The Assessing Officer did not deal with the petitioner's principal contention that Chapter X would not be applicable as the issuance of equity shares to its holding company does not give rise to any income. This was not dealt with by the Assessing Officer on the ground that in terms of Section 92CA( 4) , the Assessing Officer has to compute the total income in conformity with the ALP determined by the TPO. In view of the above, the Assessing Officer added the entire amount of Rs.1397.26 Crores determined by the TPO to the petitioner's income; ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... invoking Chapter X create an additional head of income for the purposes of charging of income tax and computation of total income. (C) The legislative intent that for invocation of Chapter X , income must arise from the international transaction in question (or the expense or interest capable of impacting computation of taxable income must arise) is supported by intrinsic evidence in the provisions of Chapter X as under: ( i) Title of the chapter is special provisions relating to avoidance of tax meaning thereby avoidance of tax on taxable income; (ii) Marginal note to section 92 is "computation of income from international transaction having regard to arm's length price". That means section 92 is only a machinery provision and not a charging section. (iii) All that subsection (1) of section 92 provides is that income arising from an international transaction shall be computed having regard to ALP and, therefore, the explanation clarifies that the allowance for any expenditure or interest arising from such transaction shall also be determined as having regard to arm's length price. Expense or interest can possibly impact computation of taxable income and, therefore, it is taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come. It is therefore vehemently submitted by the learned counsel for the petitioner that the question of determining the arm's length price by invoking the provisions of Chapter X can arise only for the purpose of assessing the income as defined by the Act. (E) While section 2(24) gives an inclusive definition of "income", section 7 provides which income shall be deemed to be received in the previous year in question and section 9 provides which income shall be deemed to accrue or arise in India. None of those provisions provide for any fiction of treating the receipt of share premium as deemed or notional income. Similarly, no provision even in Chapter X provides that a receipt, even if otherwise not covered by the definition of "income" computed having regard to ALP, will be treated as notional income or deemed income. Section 92(1) only provides for computation of income arising from an international transaction having regard to the ALP and does not provide that the amount computed as having been received in terms of the ALP shall be treated as deemed income or notional income. (F) The suggestion made by the Department in the Counter affidavit, that the definition of Intern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts in August/ November 2008. At the relevant time sub clause (xvi) was not yet inserted in Sec.2(24) - which, in certain cases, treats share premium in excess of fair market value of shares as income w.e.f. 1 April 2013. Hence the petitioner could have as well received Rs.246.38 crores from its holding company by simply issuing only share or 100 shares. (I) The AO and the TPO have determined the ALP of each share at Rs.53,775/and on that basis they have treated the differential amount of Rs.45,256/( Rs.53,775 - Rs.8,519) as the shortfall in the share premium. Since the number of equity shares issued by the petitioner was 2,89,224, the transfer pricing adjustment of Rs.1308.91 crores has been made. This alleged shortfall has been treated as loan from the petitioner to the Associated Enterprise or a receivable from the Associated Enterprise or financial facility extended by the petitioner to the Associated Enterprise or a call in arrears that should have been paid by the Associated Enterprise on the date of issue of shares. (J) The AO and the TPO both have still gone further and an interest at the rate of 13.5% for 6 months has been computed on the deemed loan interest quantified a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any amount/income/gain cannot be brought to tax by applying the general understanding of income in the inclusive definition provided under Section 2(24) . In the present case also it was submitted that the issue of shares was on capital account and the same is not taxable under the head Capital Gains, therefore, cannot be brought to tax as income under any other head unless it is specifically defined in the Act. The aforesaid decision of the Bombay High Court was upheld by the Apex Court in 273 ITR page 1. (N) One more issue which arises in this case and which cannot be contended before the authorities is: if the revenue's contention is accepted (the amount received as share premium on issuance of equity shares was received in terms of the ALP determined by the department, then no amount received by the petitioner would be subjected to tax. However, if there is any short fall/difference on the amount determined as ALP and amount received by the petitioner then the petitioner would have to pay tax on the differential amount), such construction would lead to imposition of penalty and would not only be arbitrary and violative of Article 14 but also violative of Article 19(1) (g) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... point of time, the question whether or not, any income arises from international transactions is subject to any examination by the authorities. (d) The constitution of the DRP is such that one of its members is Director of Income Tax (Transfer Pricing). In terms of Instruction No. 3/2003 dated 20 May 2003 a person of equal rank to the Director of Income Tax (Transfer Pricing) who is equal to a member of the DRP is required to approve the order of the TPO. In view of the above, it is submitted that the Writ Petition be entertained and be disposed of on merits. 9. Mr. Salve further submitted that the petition should be entertained and the petitioner should not be relegated to avail of alternate remedy as the challenge in the petition was to the very jurisdiction of the respondentauthority to tax issue of shares at premium by the petitioner to its holding company. In support of the above, the following submissions were made: (a) From the very beginning, the petitioner has protested and challenged the jurisdiction of the authorities in applying Chapter X in respect of the issue of shares, inter alia, on the ground that it does not give any rise to any income. This is evident from F ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer, submitted that this petition be dismissed at the threshold as an efficacious alternative remedy is provided under the Act, the issues raised herein can more appropriately be dealt with by the authorities under the Act. In support, the following submissions were made: (a) The Act provides a complete and self contained machinery for obtaining relief against improper action by the authorities. In this case, the petitioner has already resorted to the alternative remedy by preferring its objections before the DRP. In the above circumstances, the petitioners be directed to proceed with their objections before the DRP and not be allowed to avail of parallel remedies; (b) This Court in almost similar circumstances in Vodafone II case by its order rendered on 6 September 2013 relating to Assessment Year 200809 in respect of the same petitioner refused to exercise its writ jurisdiction. In the aforesaid decision, it has been held that the draft assessment order based on the order of the TPO could be challenged before the DRP on all grounds in its entirety including the issue of jurisdiction. Therefore, whether or not any income arises consequent to the international tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the petitioner's contentions on merits. As indicated earlier, in the affidavitinreply dated 23 September 2013 also the revenue had dealt with merits of the controversy. 14. When the learned counsel for the petitioner submitted in rejoinder that the learned counsel for the revenue had shied away from the merits of the case because the revenue has no case on merits, in the subsequent written submission submitted on behalf of the revenue reliance is placed upon the decision of the Supreme Court in Tin Plate Co. of India Ltd. v/s. State of Bihar and ors, (1998) 8 SCC 272. The Supreme Court observed in that case that when the High Court dismisses a writ petition on the ground that the petitioner has an alternate remedy available to him, the High Court should not make observations touching upon the merits of the case. True it is, that while disposing of a writ petition on the ground of alternate remedy, the Court should not express any opinion on merits of the controversy between parties. That, however, does not absolve the respondentauthority from its duty to Court to indicate a prima facie, probable or atleast a plausible defence when the Court calls upon the respondentauthority t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Form 3 CEB, declaring the issue of shares to its holding company as an international transaction. In terms of Section 92B of the Act, all transactions between Associated Enterprises which have bearing on profit, income or loss or assets would be considered to be an international transaction. Therefore, the issue of equity shares would be regarded as international transaction as it would have bearing on the assets of the petitioner. Moreover, Section 92B includes within the meaning of international transactions also capital financing and business restructuring as provided in the Explanation (1) (c) and (1) (e) to Section 92B . It was submitted that whether or not, the issue of shares has a bearing on the assets and income of the petitioner and the extent of the assets and income would be decided by the authorities, assessing the petitioner to tax. In view of the above circumstances, no submission on merits of the transactions were being made by the revenue at the bar; (b) Issue of share capital by a subsidiary to its holding company is normally liable to capital gains. This is evident from the fact that Section 47 provides for transactions not to be regarded as transfers for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner to Associated Enterprise, and (ii) the assignment of call options under the new framework agreement dated 5 July 2007. The petitioner had contended before the TPO that the transactions did not constitute international transactions. The Division Bench held that there were several issues of fact and law on material aspects which were required to be considered by the authorities under the Act and, therefore, it was not a fit case to invoke Article 226 of the Constitution of India (para 195/page 195). (b) In para 145, the Division Bench dealt with the contentions thus: "The petitioner's case is this. The petitioner and HWP (India) are Indian companies. The call centre business was therefore, transferred by the petitioner, an Indian company, to HWP (India), another Indian company. Section 92B requires at least one of the parties to be a nonresident. As both the parties to the transaction were Indian companies, section 92B did not apply. There was no agreement between HWP (India) and the associated enterprise of the petitioner viz. VIH BV. The findings to the contrary are perverse and without jurisdiction." (c) The Division Bench held that the relevant question was whether cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to determine the arm's length price of the two unreported and unreferred transactions. (para 131/ page 140) (i) The Division Bench held that in the case before it, there was no warrant for exercise of writ jurisdiction because the petitioner had not only an equally but a more efficacious remedy by filing the objections before DRP and that DRP would be entitled to go into all aspects of the matter, factual and legal, whereas in a writ petition a Court may decline interference where there are disputed questions of fact. (Para 107/page 119) 21. It must be pointed out that while relegating the petitioner to the alternate remedy in Vodafone II case, this Court had also entered a caveat that the existence of alternate remedy by itself will not bar the Court from exercising its extra ordinary jurisdiction if the facts of the case so warrant. Moreover, we find that the Court while refusing to entertain the petition had on facts found that the petitioner had not challenged/ objected to the jurisdiction of the TPO at any time prior to filing the petition and on the contrary, the petitioner had actively participated in the proceedings before the TPO without raising any objections as to its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrant dismissal of the petition at the very out set. Therefore, we would have to independently examine the issue on the facts arising herein whether the petition should be entertained or the petitioner be directed to pursue its remedies under the Act. 24. The contention of the petitioner is that filing of objections with the DRP from the draft assessment order is not an efficacious alternative remedy for the reason that in view of Section 144C(8) , the DRP while passing order under Section 144C(5) cannot set aside any variations in the draft assessment order or remand the matter to Assessing Officer for further enquiry. Section 144C(8) reads as under: " The Dispute Resolution Panel may confirm, reduce or enhance the variations proposed in the draft order so, however, that it shall not set aside any proposed variation or issue any direction under subsection (5) for further enquiry and passing of the assessment order." (emphasis supplied) Learned counsel for the petitioner further referred to powers of the Commissioner (Appeals) conferred by Section 251(1)(a) in the following terms: 251(1) In disposing of an appeal the Commissioner (Appeals) shall have the following powers ( a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e TPO was entitled to exercise jurisdiction. 88. This view is not repugnant to the words "confirm reduce or enhance" in section 144C(8). The suggestion that these three words refer only to the valuation or quantification of the arm's length price is unfounded. A reduction or an enhancement indeed relate to the valuation or quantification. The word 'confirm', however, is much wider. The DRP's power to confirm would include the power not to confirm. It would include the power to annul the variations or any of them. The doubt if any, is set to rest by the use of the words "may confirm". Once the entire draft order is before the DRP for confirmation, it is axiomatic that it would have the power to consider the entire draft assessment order, including the question as to whether the unreported transactions are international transactions or not or even whether what the TPO considered was a transaction at all. The Division Bench of the Gujarat High Court in Veer Gems (supra) also held that the issue whether there was an international transaction or not can also be examined by the DRP. 89 to 93……… 94. In the result, the petitioner has, in fact, more than one alternate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer to make a further enquiry and report. 29. Therefore, we have now to consider the issue whether in the face of availability of an efficacious alternative remedy, this Court should exercise its writ jurisdiction. It was contended by the revenue that the petition should not be entertained as the petitioner has already availed of the alternative remedy by filing its objections with the DRP on 26 April 2013. Normally, a writ petition would not be entertained if the petitioner has availed of an alternative remedy on the ground that it is not permissible for a party to pursue two parallel proceedings at the same time. This would be particularly so when the alternative remedy provided under the Act provides for the petitioner obtaining the relief sought in the petition. However, in this case, we find that the petitioner has only filed its objections with regard to valuation/ quantification of the ALP and not with regard to jurisdiction. In its objections to the DRP, the petitioner has specifically noted as under: " Accordingly, since the issues involved in the present case relate to jurisdiction of the AO/TPO and the applicability of transfer pricing provisions, the remedy before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which reads as under: Reference to Transfer Pricing Officer. 92CA (1) Where any person, being the assessee, has entered into an international transaction (or specified domestic transaction) in any previous year, and the Assessing Officer considers it necessary or expedient so to do, he may, with the previous approval of the Commissioner, refer the computation of the arm's length price in relation to the said international transaction ( or specified domestic transaction) under section 92C to the Transfer Pricing Officer. (emphasis supplied) (c) The Constitution of the DRP as constituted consists of one Director of Income Tax (Transfer Pricing). In terms of Instruction No.3/2003 dated 20 May 2003, a person of equal rank i.e. Directorate of Income Tax (Transfer Pricing) has to approve the speaking order passed by TPO. Therefore, the appeal provided from the draft assessment order is illusory being an appeal from Ceaser to Ceaser's wife. We shall now examine each of the above contentions. 32. It is clear that in view of Section 92(1) , there must be income arising and/or affected or potentially arising and/or affected by an International Transaction for the purpose of application o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other Division Bench of this Court in the judgment dated 6 September 2013 in Vodafone II case. However where the Assessing officer is himself determining the ALP in terms of Section 94C(3) then in accordance with Section 94C(4) he would compute the income, having regard to the ALP. In such cases where the Assessing officer decides the ALP himself, it is open to him to consider the issue of income arising and/or being affected or not before commencing the proceedings under Chapter X or at the stage of passing an assessment order. 34. However, in cases of transaction referred to the TPO, it would be for the Assessing Officer to first determine the issue of any income arising and/or being affected or potentially arising on determination of ALP before referring the transaction to the TPO, when specifically contended by the petitioner/Assessee. This is also indicated in Section 92CA(1) which requires an Assessing officer to refer an International Transaction for determination to the TPO only if he considers it "necessary or expedient" to refer the mater to the TPO. The exercise of finding out whether any income arises and/or is affected or potentially arises and/or is affected by the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed out above. Thus at that time the Assessing officer was not bound to complete the assessment in compliance with the ALP determination of the TPO and it was open to the Assessing officer to consider the question of jurisdiction at the time of passing the draft assessment order. However with effect from 2007, Section 92CA(4) has undergone a change and the Assessing officer is bound to pass an order in conformity with the ALP determined by the TPO. Amended Section 92CA(4) reads as under:S. 92CA(4) On receipt of the order under subsection (3), the Assessing Officer shall proceed to compute the total income of the assessee under subsection (4) of section 92C in conformity with the arm's length price as so determined by the Transfer Pricing Officer. (emphasis supplied) Therefore in the context of the preamendment law as then existing hearing on jurisdictional issues could take place after the order of the TPO which is not possible post amendment of 2007. In any case, the fact situation existing in this case of viz. a question of jurisdiction was not in issue in the above cases and therefore these two cases can have no application to the present case. 37. So far as the decision of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his notice dated 16 August 2011 the TPO directed the assessee to show cause why its transaction with the associated enterprise should not be subject to transfer price proceeding and profits of the assessee not appropriately modified. The TPO had ,thus, appreciated that application of transfer pricing provisions was going to cause serious civil consequences for the assessee in that case and ,therefore, principles of natural justice were required to be followed. The same should be done by the TPO in all cases. 40. In our view, once the AO gives hearing to the assessee before making a reference to TPO, the TPO would be bound by formation of opinion of AO that there was international transaction in the relevant year and that income arises or is affected by the international transaction and the TPO is bound to determine the ALP of the international transaction under consideration, since ultimately it is the duty and responsibility of AO to assess chargeable income of the assessee on the basis of the provisions . Hence, there would be sufficient compliance with the principles of natural justice, if AO gives an opportunity of hearing to the assessee. Normally when the assessee files his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does arise from the international transaction. Thus Chapter X became applicable and the entire exercise as provided therein has to be carried out and thereafter the issue of chargeability to tax would arise. In fact in the case before us the petitioner's contention is that no income arises from the International transaction and Chapter X is not applicable. Therefore the above case of Castleton (supra) does not support the revenue. 44. The learned Solicitor General submitted that the action of AO in referring the international transaction to TPO is a mere administrative act, because as per CBDT Instruction No.3 dated 20 May 2003, AO is to exercise powers under Section 92C where the value of the transaction is upto Rs.5 crores (now revised to Rs.15 crores) and AO is required to refer the transaction to TPO where even the value of the international transaction exceeds Rs. 5 crores (now exceed Rs.15 crores). It is, therefore, submitted that in view of the above Circular, AO has no discretion in the matter and , therefore, AO hearing the assessee before making reference to TPO would be an empty formality and a futile exercise. 45. We are unable to accept the above submission of the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he interest of the assesee. It is a continuation of the Assessment proceedings till such time a final order of assessment which is appealable is passed by the Assessing Officer. This also finds support from Section 144C(6) which enables the DRP to collect evidence or cause any enquiry to be made before giving directions to the Assessing Officer under Section 144C(5) . The DRP procedure can only be initiated by an assessee objecting to the draft assessment order. This would enable correction in the proposed order(draft assessment order) before a final assessment order is passed. Therefore, we are of the view that in the present facts this issue could be agitated before and rectified by the DRP. 48. We now take up for consideration the ground based on the constitution of the DRP: one of the members is the Director of Income Tax (Transfer Pricing). In terms of CBDT Instruction No.3/2003 a Director of Income Tax(Transfer Pricing) is required to approve the order passed by the TPO on the ALP. Hence it is submitted that the hearing before the DRP would not be fair hearing as a person of equal rank has already approved the order of TPO. 49. This submission completely overlooks the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the country Foreign Direct Investment (FDI) by way of issue of share capital by an Indian subsidiary company to its foreign holding company, such capital receipts are sought to be taxed, even when the Incometax Act does not contain any provision for such chargeability. Even with effect from 1 April 2013, it is only when the share issuing company falling under Section 56 receives share premium in excess of fair market value of such shares, that such excess premium would be chargeable to incometax. The revenue's case in the present matter is that the share premium was less than the fair market value of the shares issued by the petitioner. Secondly, the petitioner has heavily relied upon the decision of the Supreme Court in Khoday Distilleries Ltd. vs. CIT (2009) 1 SCC 256 (261) laying down that issue of shares to a subscriber is creation of shares, whereas purchase of shares from an existing shareholder is transfer of share. Hence, there is no question of taxing the difference between alleged fair market price of the shares issued by the petitioner to its holding company and the issue price as capital gains as contended by the revenue in its replyaffidavit. 52. The assessee is entit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les its objections on the question of jurisdiction. (C) We make it clear that since the question of jurisdiction for applicability of Chapter X for the Assessment Year 2009-10 is raised independently of the challenge to the orders of the TPO and the AO for the Assessment Year 200809, the DRP shall decide the preliminary issue about applicability of Chapter X to the assessment for the Assessment Year 200910, without awaiting for decision on the dispute relating to the Assessment Year 2008-09. (D) We further make it clear that in case the decision of the DRP on the above preliminary issue is adverse to the petitioner, it would be open to the petitioner to challenge the order of the DRP on the preliminary issue in a writ petition if a case is made out at that stage that the decision of the DRP is patently illegal, notwithstanding the availability of alternative remedy of filing an appeal before the Income Tax Appellate Tribunal. 54. The petition was filed on 24 April 2013. The objections with regard to computation in the draft assessment order were lodged before DRP on 26 April 2013. In view of the matter pending before this Court, the respondentrevenue had made a statement before ..... X X X X Extracts X X X X X X X X Extracts X X X X
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