2015 (4) TMI 300

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....(TP)A No.1274/BANG/2008 dated 21.06.2013, for the assessment year 2003-04. The Revenue has claimed the following question of law for determination by this Court: "Whether, in view of the first proviso to section 92C(2) of the Income Tax Act, 1961, the Tribunal was correct in holding that if some profit level indicators of a comparable, out of a set of comparables, is higher than the profit level indicators of the taxpayer, then the transactions reported by the taxpayer is at an arm's length price as contemplated in section 92, 92C and other related provisions of the said Act?" Counsel for the respondent-assessee, however, has raised a preliminary objection as to the jurisdiction of this Court on the ground that the order has been pas....

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....ons India Pvt. Ltd. which had been assessed at Gurgaon. It is contended that merely because of the fact that the assessment had been made at Bangalore would not be a relevant factor since the AO has, now, been changed and therefore, the situs of the Tribunal would not be a determining factor. After hearing counsel for the parties, we are of the view that the argument raised by the Revenue is not sustainable and the objections raised by the respondent-assessee is liable to be upheld. As noticed above, in the case of Motorola India Ltd. (supra), there was a transfer order passed under Section 127 of the Act, whereby the records were transferred from Bangalore to Gurgaon and the jurisdiction of the respondent-assessee was transferred to this ....

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....in the application under subsection (1) and (2) of Section 256 of the Act vested in the High Court of Bombay and not of Delhi. We are in respectful agreement with the aforementioned reasoning of the Delhi High Court. Accordingly, we hold that the preliminary objection raised by learned counsel for the assessee-respondent is sustainable. xxxx xxxx xxxx A conjoint reading of the aforementioned provisions makes it evident that the Director General or Chief Commissioner or Commissioner is empowered to transfer any case from one or more Assessing Officers subordinate to him to any other Assessing Officer. It also deals with the procedure when the case is transferred from one Assessing Officer subordinate to a Director General or Chief Commissi....

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....ourt, as noticed above. Another ground which militates against the Revenue is that the merger with the respondent-company is stated to have taken place on 01.04.2005 and the AO's order was made on 27.03.2006. As per Section 170 of the Act, the predecessor is to be assessed in respect of the income of the previous year only in which the succession took place upto the date of succession and the successor is to be assessed in respect of the income of the previous year, after the date of succession. Relevant portion reads as under: "Succession to business otherwise than on death. 170. (1) Where a person carrying on any business or profession (such person hereinafter in this section being referred to as the predecessor) has been succeeded....