S.J. Vazifdar, J.

1. The petitioner, a company-in-corporated under the Companies Act, 1956, seeks a writ of certiorari to quash and set aside a Transfer Pricing Order dated 31st October, 2011, passed by respondent No.2 – Additional Commissioner of Income-tax, Transfer Pricing (hereinafter referred to as “the TPO”) to the extent that it relates to the addition of Rs.84,34,39,52,555/- on account of two unreported international transactions and a Draft Assessment Order dated 29th December, 2011, passed by respondent No.3– Assistant Commissioner of Income-tax (hereinafter referred to as the “AO” or “Assessing Officer”). The petitioner has also sought a writ of mandamus directing respondent No.3 – the AO to revise the Draft Assessment Order, after excluding the said transfer price adjustment. Lastly, the petitioner seeks a writ of prohibition, prohibiting the respondents from taking any steps pursuant to the impugned orders.

2. The two unreported transactions are the sale of the call centre business by the petitioner to Hutchison Whampoa Properties (India) Pvt. Ltd. and an alleged assignment of call options by the petitioner to Vodafone International Holdings B.V. The TPO determined the arm's length price of these two unreported transactions suo moto in exercise of powers under sections 92CA(2A) and/or (2B) of the Income Tax Act, 1961 (hereinafter referred to as "the Act"). The petitioner has challenged the jurisdiction of the TPO to determine the arm's length price of these transactions on various grounds. The respondents, apart from denying this case, have contended that the Writ Petition is not maintainable on the ground that the petitioner has an alternate remedy under the provisions of the Income Tax Act, 1961, and on certain other grounds.

FACTS :

General :

3. The petitioner was incorporated in March, 1999, in the name of 3 Global Services Private Limited (3GSPL). It was a wholly owned subsidiary of Hutchison Tele-services (India) Holdings Limited, a company incorporated in Mauritius which, in turn, was a wholly owned subsidiary of CGP Investments (Holdings) Limited, a company incorporated in the Caymen Islands (hereinafter referred to as CGP). The shares of CGP were held by HTI (BVI) Holdings Limited, a company incorporated in British Virgin Islands which, in turn, was ultimately controlled by Hutchison Telecommunications International Limited (hereinafter referred to as “HTIL”), a company incorporated in Caymen Islands.

It would be convenient here to reproduce an ownership structure chart set out in the judgment of the Supreme Court in (Vodafone International Holdings B.V. v. Union of India & Anr., (2012) 341 ITR 1. There is no dispute regarding this chart. Mr. Salve, the learned senior counsel appearing on behalf of the petitioner furnished a compressed version of this chart which is indeed convenient to refer to. However, while referring to some of the documents and to the judgment of the Supreme Court, we found it necessary to refer to the detailed chart. It is necessary, therefore, to set out the detailed chart. It is as under :

“OWNERSHIP STRUCTURE CHART”

Since April, 2003, the petitioner, inter-alia, provided call centre services captive to entities within the Hutchison Group viz. Hutchison 3G Australia Pty. Ltd. and Hutchison 3G UK Ltd. in terms of a Managed Services Agreement for contact centre services between Hutchison Call Centre Holdings Limited, British Virgin Islands (HCCH) and the petitioner dated 1st January, 2006.

Transactions :

4. We will refer to the relevant clauses of the agreements later while dealing with the petitioner's case specific to the transactions. For now and while considering the challenge to the TPO's jurisdiction under section 92CA(2A) and (2B) of the Income Tax Act, 1961, we will refer to the transactions only generally.

5. A Framework agreement dated 1st March, 2006, was entered into between the petitioner on the one hand and one Asim Ghosh and three companies controlled by him