Case Law Details
CASE LAWS DETAILS
DECIDED BY: HIGH COURT OF MADRAS,
IN THE CASE OF: Intimate Fashions (India) Pvt. Ltd. Vs JCIT, APPEAL NO: Writ Petition No. 24623 of 2009 And M. P. No. 1 of 2009, DECIDED ON December 23, 2009
RELEVANT PARAGRAPH
8. It is no doubt true that as per section 92CA of the Income-tax Act, when the assessee goes before the authority concerned on transfer pricing, an opportunity of personal hearing should be granted to the assessee. As far as the present case is concerned, the notice dated 25-8-2009 was sent by the Transfer Pricing Officer intimating the date of personal hearing on 4-9-2009, on which date the petitioner was to file its reply. Admittedly, the petitioner sought for an adjournment by 15 days. The petitioner was intimated that the case was posted on 15-9-2009, which means, the petitioner should have filed its reply along with availing of the personal hearing on 15-9-2009. Although the petitioner had filed its objections on 16-9-2009, nothing further happened from the side of the petitioner seeking personal hearing or for that matter, the Department intimated later on that the petitioner had not availed of the opportunity of personal hearing. However, as seen from the endorsement in the letter seeking adjournment that the proceedings posted on 15-11-2009, it stands to reason that the petitioner should have availed of the personal hearing on the date on which the reply was filed. Having thus failed to avail of the same, I do not find any justification in the plea of the petitioner that the order had been passed on transfer pricing aspect without affording personal hearing.
9. Leaving that as it may, it is not as though the petitioner is remediless in this regard. Even though the order of the transfer pricing is binding on the assessing authority, as rightly pointed out by the learned standing counsel that as per section 144C of the Income-tax Act, with the Dispute Resolution Panel available, it is always open to the petitioner to go before the panel to agitate on all aspect of assessment including the questions relating to the transfer pricing aspect. Learned standing counsel informed this court that a Board had already been constituted. In this background, I hold that it is but proper for the petitioner to avail of the remedy available under the Income-tax Act. There are no extraordinary circumstances for this court to interfere with the proceedings.
10. As far as the present case is concerned, under normal circumstances, the limitation for passing the assessment order is 31-12-2003. section 144C of the Act begins with the non obstante clause that notwithstanding anything to the contrary contained in the Act if the assessing authority proposes to make any variation in the income or loss returned which is prejudicial to the interest of such assessee on or after the 1-10-2009 at the first instance, the assessing authority shall forward a draft of the proposed order of assessment to the assessee. Sub–section (4) to section 144 provides for the limitation period to pass the assessment order.
11. Sub-section (2) gives the assessee an opportunity to file his objection to the draft order proposed and sent to the petitioner. Sub-section (4) of section 144C of the Act states that notwithstanding anything contained section 153, the assessing authority shall pass the assessment order under sub-section (3) within one month from the end of the month of receive acceptance or on the expiry of the period of filing of objections under sub-section (2).
12. In the face of the limitation given under section 144C and that it provides for service of a draft assessment order, it is open to the assessee to exhaust the remedies as provided for under section 144C of the Act. In the circumstances, considering the availability of the alternative remedy, the writ petition stands dismissed. No costs. Consequently, M. P. No. 1 of 2009 is closed.
