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2021 Supreme(Mad) 1108
IN THE HIGH COURT OF JUDICATURE AT MADRAS
C. Saravanan, J.
M/s Durr India Private Limited - Petitioner
Versus
The Assistant Commissioner of Income Tax Corporate Range-I and ors. – Respondents
W.P.No.32751 of 2017 and W.M.P.No.36089 of 2017
Decided On : 27-05-2021
Advocate Appeared:
For the Petitioner: Mr. Vikram Vijayaraghavan for M/s Subbaraya Aiyar Padmanabhan
For the Respondent: Ms. Hema Murali Krishnan Sr. Standing Counsel
Headnote:
Constitution of India,1950 - Article 226 - Income Tax Act, 1961 - Sections 144C, 143 (3) 144C (1) - Bypassing the statutory safeguards - Prays for quashing of the impugned order by remitting the case back - Whether the 1st respondent was justified in passing impugned order without passing a Draft Assessment Order as was done in the 1st round of the litigation - Petitioner in present writ petition is that after a Transfer Pricing Order was passed by the 2nd respondent Transfer Pricing Officer after case was remanded back by Income Tax Appellate Tribunal by its common order in ITA therefore it was incumbent on part of 1st respondent to have passed a Draft Assessment Order under section 143 (3) read with section 92CA (4) and section144C(1)of Income Tax Act, 196 - Assessment Order, 1st respondent has directly passed the impugned Assessment Order bypassing the statutory safeguards prescribed under the provisions of the Income Tax Act, 1961 - It is therefore submitted that impugned order was without jurisdiction and is not only contrary to the provisions of the Income Tax Act, 1961 – Held, Transfer Pricing Order was passed by the 2nd respondent for the assessment year - Pursuant to the aforesaid Transfer Pricing Order, the 1st respondent passed a Draft Assessment Order Against aforesaid Draft Assessment Order, the petitioner filed an application before the Dispute Resolution Panel, under Section 144C of the Income Tax Act, 1961 - Assessment Order under section 144C read with section 143 (3) of Income Tax Act, 1961 - Petitioner preferred an appeal before Income Tax Appellate Tribunal - Court find sufficient force in the arguments advanced by learned counsel for petitioner - Impugned order has been passed without jurisdiction. It was passed by bypassing statutory safeguards prescribed under provisions of the Income Tax Act, 1961 - Writ Petition is allowed
ORDER :
The petitioner has filed the present writ petition challenging impugned order dated 14.11.2017 passed by the 1st respondent assessing officer for the assessment years 2009-10.
2. The impugned order has been passed by the 1st respondent pursuant to order dated 14.8.2017 of the 2nd respondent Transfer Pricing Officer.
3. These orders were passed by the respective respondents pursuant to an order dated 21.12.2017 of the Income Tax Appellate Tribunal in ITA Nos. 754/Mds/2014; 972/Mds/2015 and 455/Mds/ 2016for the assessment years 2009-10; 200010-11 and 2011-12.
4. The main contention of the petitioner in the present writ petition is that after a Transfer Pricing Order dated 14 8.2017 was passed by the 2nd respondent Transfer Pricing Officer after the case was remanded back by the Income Tax Appellate Tribunal by its common order dated 21.12.2017 in ITA Nos. 754/Mds/2014; 972/Mds/2015 and 455/Mds/ 2016, for AY 2009-10, 2010-11 and 2011-12 and therefore it was incumbent on the part of the 1st respondent to have passed a Draft Assessment Order under section 143 (3) read with section 92CA (4) and section144C(1)of the Income Tax Act, 196.
5. It is submitted that, instead of passing a Draft Assessment Order, the 1st respondent has directly passed the impugned Assessment Order dated 14.11.2017 bypassing the statutory safeguards prescribed under the provisions of the Income Tax Act, 1961. It is therefore submitted that impugned order was without jurisdiction and is not only contrary to the provisions of the Income Tax Act, 1961 but also deprives the opportunity to petitioner approach the Dispute Resolution Panel under section 144C of Income Tax Act, 1961.
6. Appearing on behalf of the petitioner, the learned counsel for the petitioner reliance on the following decisions of the court:-
1. Nokia India Pvt. Ltd Vs. ACIT (WP (C) No.3692/2017 & CM aPPL 15963/2017 Delhi HC), as affirmed by the Hon'ble Supreme Court in ACIT Vs. Nokia India Pvt. Ltd. (SLP Diary No.7302/2018 dated 14.05.2018 SC),
2. Control Risks India Private Limited Vs. DCIT,(WP (C) No.5722/2017 & CM No.23860/2017 Delhi HC) as affirmed by the Hon'ble Supreme Court in DCIT Vs. Control Risks India Private Limited (SLP Diary No.7090/2018 dated 16.03.2018 SC)
3. PCIT Vs. Andrew Telecommunications Pvt. Ltd., (Tax Appeal No.144 of 2017, Bombay HC)
4. Vijay Television Pvt. Ltd., Vs. DRP & Ors., 89 CCH 245 Chennai HC
5. JCB India Ltd., Vs. Deputy Commissioner of Income Tax.
6. Zuari Cement in W.P.No.5557 of 2012 dated 21.02.2013.
7. CIT Vs. Zuari Cement in SLP (CC) No.16694 of 2013 dated 27.09.2013.
8. ESPN Star Sports Mauritius S.N.C. ET Compagnie Vs. UoI.
9. Dimension Data Asia Pacific Pvt Ltd., Vs. DCIT (WP No.921 of 2018 Mumbai HC)
10. Stryker India Pvt. Ltd., Vs. ACIT (WP (C).11325 of 2017 Delhi HC)
11. Turner International India Pvt. Ltd., Vs. DCIT (WP (C) No.4260 of 2015 Delhi HC).
12. The Pr.Commissioner of Income Tax Vs. Headstrong Services India Pvt. Ltd.
7. The learned counsel for the petitioner therefore prays for quashing of the impugned order by remitting the case back to the 2nd respondent to pass a Draft Assessment Order under the Provisions of the Income Tax Act, 1961.
8. Defending the impugned order, learned counsel for the respondents has made submissions on the merits of the case. That apart, for the learned counsel for the Respondent-Income tax Department submits that under section 144 C(1) of the Income Tax Act, 1961, the requirement of passing a Draft Assessment Order would arise only in the 1st instance and not when the case is remanded back for passing a fresh order.
9. It is submitted that order has been passed pursuant to remanded order passed in ITA Nos. 754/Mds/2014; 972/Mds/2015 and 455/Mds/ 2016 by the Income Tax Appellate Tribunal and there was no necessity to pass a Draft Assessment Order. The learned counsel for the respondent has into distinguished the cases cited on behalf of the petitioner.
10. I have considered the arguments advanced by the learned counsel, the p
