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TMI Blog2020 (9) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... lenged the TPO's order in this Court. We may note, even in the first instance the assessee did the same thing by approaching the Tribunal against the final assessment made. Certainly, as done by it earlier, all the issues can be agitated before the Tribunal. In the final order, the Single Judge had also observed that this Court is of an undoubted opinion that the writ petitioner has not made out any case for the purpose of waiving the efficacious alternate remedy available to the writ petitioner under the provisions of the Act and therefore, this Court is not inclined to entertain the writ petition on merits and adjudicate the issues involved in respect of fixing of average rate of royalty payment. We would like to reiterate the legal position involving invocation of the extraordinary jurisdiction of this Court by placing reliance upon the judgment of a Division Bench of this Court in KALANITHI MARAN, KAVERY KALANITHI [ 2014 (7) TMI 605 - MADRAS HIGH COURT] Writ appeal is disposed of with the above observations with liberty to the assessee / appellant to approach the Tribunal within four weeks from the date of receipt of a copy of this order. - WA.No.2104 of 2018 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant company before ITAT on 12.05.2016 which prompted the ITAT to correct and modify its earlier order and direct the TPO to verify whether the petitioner's rate of royalty payment is lesser than the rate prevailing in the industry. The TPO which revisited the royalty payment part opined that the assessee / appellant company relied on Wikipedia and not any authentic source to substantiate its contentions regarding the average royalty rate in the Industry and therefore, reiterated the decision on the disallowance of ₹ 86.88 crores, on account of royalty paid. Irked by this order of the TPO, a Writ Petition No.22508 of 2017 was filed by the assessee / appellant company in which Single Judge of this Court dismissed the petition by stating that it was premature and the assessee / appellant company had not exhausted all the available remedies before approaching this Court. Hence, this appeal against the order of the Single Judge of this Court. 3. The learned senior counsel for the assessee / appellant Mr.Rubal Bansal for Mr. S.P. Chidambaram, learned counsel would contend that the Single Judge of this Court had failed to appreciate the fact that the first respondent TP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... self observed that in respect of royalty payment in automotive sector from the study of 35 licences, the average works out to 4.7% which is higher than the royalty payment of 4.22% of the assessee company . In the same year, the TPO had initially made comparisons like in 2008-09 and concluded that the average royalty paid by the 4 comparable companies is 2.36% while the appellant company had paid 4.22% and hence in excess of the Arm's length price by 1.86% of the sales ie., 165.05 crores which was restricted to ₹ 104.27 crores by the DRP stating two of the comparable companies were not qualifying for the comparison. In this context, it was mentioned by the DRP that the related party transactions were more than 25% and therefore removed two of the four comparable companies to arrive at the average. Subsequently, the ITAT allowed the entire ₹ 104.27 crores based on the observation of the TPO that the royalty payment by the assessee / appellant was 4.22% which was lesser than the Industry average of 4.70%. 6. It is the specific contention of the learned senior counsel that it can be prima facie seen that the first respondent does not have a standard procedure to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n on merits and adjudicate the issues involved in respect of fixing of average rate of royalty payment . 10. We would like to reiterate the legal position involving invocation of the extraordinary jurisdiction of this Court by placing reliance upon the judgment of a Division Bench of this Court in the Joint Commissioner of Income Tax, Media Range and others Vs. Kalanithi Maran and another (2014 (3) Law Weekly 846) in in which one of us is a party (MMSJ) wherein law laid down by the Apex Court in Commissioner of Income Tax and others Vs. Chhabil Dass Agarwal, ((2014) 1 SCC 603), has been noted of. The following paragraphs would be apposite. 12. While holding so, we are quite aware that the jurisdiction vested with High Court under Article 226 of the Constitution of India can be exercised in a given case. In other words, the restriction is self-imposed and nothing else. There may be a case, where an assessment is sought to be reopened by an Officer, who is not competent to do so. Similarly, there may be cases, where on the face of it would appear that the reopening is barred by limitation or lacks inherent jurisdiction. To put it differently, in a case, where no adjud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. 15. The Supreme Court, while considering the said issue, has also taken into consideration the decision rendered in G.K.N.Driveshafts (India) Limited Vs. Income-tax Officer, ((2003) 1 SCC 72 = 259 ITR 19(SC)). In this connection, it is apposite to refer paragraph No.12 of the said decision, which reads as follows:- 12. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, (AIR 1954 SC 207); Sangram Singh vs. Election Tribunal, Kotah, (AIR 1955 SC 425); Union of India vs. T.R. Varma, (AIR 1957 SC 882); State of U.P. vs. Mohd. Nooh, (AIR 1958 SC 86) and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, (AIR 1966 SC 1089) have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or the procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iability may be established founded upon a statute. But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd., 1919 AC 368 and has been reaffirmed by the Supreme Today With All High Courts Page 4 of 6 Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd., 1935 AC 532 (PC) and Secy. of State v. Mask and Co., AIR 1940 PC 105 It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine. 14. In Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 B.P.Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: 77. So far as t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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