2020 (10) TMI 796

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ter X of the Income Tax Act, especially enacted for these purposes. 3. The learned Single Judge has dismissed the Writ Petition as premature finding that against the order of the learned TPO when passed in consequence of the directions given by the DRP, there is an appeal remedy available to the Assessee before the learned Tribunal and therefore, the questions of facts coupled with the questions of law sought to be raised before the DRP and before this court under the Writ Jurisdiction, can be first agitated before the learned Tribunal as well. Thereafter, the Assessee has further remedy by way of appeal to this court on the substantial questions of law arising from the order of the Tribunal under section 260A of the Income Tax Act. The relevant observations of the learned Single Judge in the impugned order dated 20 October 2017 are quoted below for ready reference:- 16. It is to be noted that though the petitioner has challenged the directions issued by the DRP in its entirety Mr.N.Venkatraman, confined his submissions only with regard to the enhancement made by DRP, and the assessee will challenge the other findings once the assessment is complete. Thus, it has to be ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ld be too far fetched plea on the part of the petitioner to state that sans facts, the decision in Mobis, and other cases, (Firestone, Il Jin Electronics etc) should be applied and the finding with regard to the adjustment of the ALP should be set aside, is a proposition, which cannot be acceded to. The DRP while issuing directions has directed adjustment by examining the facts. This direction is required to be implemented by the Assessing Officer after which it ripens into an assessment order open to challenge in terms of the provision of the Act. This appears to be precisely the reason for terming the impugned order as a direction under Section 144C (5) of the Act and it ripens into an order on being given effect to by the Assessing Officer. Therefore, I am convinced that the decisions cited by Mr.N.Venkatraman, cannot be applied, at this juncture, as the factual position requires to be considered, which obviously cannot be done in a Writ Petition and therefore, the impugned direction issued by the DRP has to be given effect to and the third respondent has to pass an order of assessment, which can be questioned by the petitioner by filing an appeal before the Tribunal. ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

.... should not be allowed to be invoked by the Assessees at this premature stage and the learned Single Judge was right in dismissing the Writ Petition as premature. 6. To allay the unfounded fears of the Assessee, she has further drawn our attention to the Affidavit filed by the third Respondent viz., the Assistant Commissioner of Income Tax, Large Tax Payer Unit II, Chennai, Dr.S.R.Nedumaran. In paragraph 3 of his Affidavit, it is clearly stated that no adjustments in respect of domestic or third party transaction shall be made by the Transfer Pricing Officer or Dispute Resolution Panel. Paragraph 3 of the said Affidavit is quoted below for ready reference:- "3. In any event, notwithstanding the above and without prejudice it is submitted that there is no adjustment made in respect of domestic or third party transactions by the Transfer Pricing Officer or Dispute Resolution Panel. The adjustments made relate to International transactions only. Hence, there is no basis to raise a question of law. The chart filed by the appellant at page 32 of the typed set of papers is his understanding/ interpretation of the order of the DRP. It is submitted that no adjustments were made....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....r mixed with the findings of fact can be raised and argued before the concerned authorities below, including the TPO and before the learned Tribunal. Such a digression from the normal channel of the remedies provided in the Act in the said Chapter, need not be cut short by allowing the Assessee to invoke the Writ Jurisdiction in such cases. 9. In our considered opinion, this digression is self defeating and defeats the very purpose of quicker assessments sought to be achieved in the special law relating to international transactions envisaged in the Chapter X of the Income Tax Act provided for assessment of international transactions, so that an image of balanced approach by IT authorities can be projected on the international horizons. Many other developed countries provide for such quicker management of tax dispute resolution. 10. In view of the undertaking given by the Respondents in paragraph 3 of the Affidavit of the Assistant Commissioner that they are going to apply for TP Adjustments only to international transactions, even the aforesaid unfounded apprehension of the Assessee is not justified. 11. The learned Counsel for the Assessee also wanted to take us through ....