In Wp.nos.4695 & 4696 Of 2018 v. The Deputy Commissioner Of Income Taxcorporate Circle-I(2)Chennai-600 034

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 11.09.2018 CORAM THE HONOURABLE MR.JUSTICE K.RAVICHANDRABAABU Writ Petition Nos.4695 & 4696 of 2018 andWMP No.5802 of 2018 CET Power Solutions India Pvt. Ltd.,No.2/295, DRR Avenue, AUDCO NagarKattupakkam, Chennai-600 056.Represented by its DirectorMr.Pari Chandran (in WP.Nos.4695 & 4696 of 2018) Vs. The Deputy Commissioner of Income TaxCorporate Circle-I(2)Chennai-600 034. ..Respondent (in WP.Nos.4695 & 4696 of 2018) Writ petition No.4695 of 2018 filed under Article 226 ofthe Constitution of India, for issuance of a Writ of Certiorari,to call for the records of the order dated 31.12.2017 in PANNo.AADCC2912P, passed by the respondent for the assessment year2011-2012 and quash the same. Writ petition No.4696 of 2018 filed under Article 226 ofthe Constitution of India, for issuance of a Writ ofProhibition, prohibiting the respondent from passing any freshassessment order in relation to the assessment year 2011-2012qua the petitioner, as the time period fixed for passing anassessment order under Section 144C(13) of the IT Act hasalready elapsed. For Respondent:Mrs.Hema Muralikrishnanin both petitionersSenior Standing Counsel C O M M O N O R D E R Both these writ petitions are filed by the very samepetitioner. WP.No.4695 of 2018 has been filed challenging theorder of the respondent dated 31.12.2017 in respect of theassessment year 2011-2012. WP.No.4696 of 2018 has been filedseeking prohibition against the respondent from passing anyfresh assessment order in relation to the assessment year 2011-2012, as the time period fixed for passing the assessment orderunder Section 144C(13) of the Income Tax Act, 1961, (for short"IT Act") has lapsed. 2. The short facts necessary for disposal of these writpetitions are as follows: The petitioner is a company engaged in the manufacture ofmodular inverters and power systems. The petitioner is anAssessee under the respondent. They filed the original returnof income for the assessment year 2011-2012 on 26.08.2011. Thecase was selected for scrutiny and a notice under Section 143(2)of the IT Act was issued to the petitioner. The TransferPricing Officer passed an order on 30.12.2014, determining thearm's length price of international transaction entered into bythe Assessee. Consequent to the order of the Transfer PricingOfficer, since variation was proposed in the income of theAssessee, a draft assessment order was passed on 31.03.2015.The petitioner filed objection before the Dispute ResolutionPanel against the said draft assessment order. The DisputeResolution Panel issued certain directions on 28.12.2015.Consequently, the assessment order was passed by the respondentin terms of Section 143(3) of the IT Act on 21.01.2016 and theincome of the petitioner was assessed to be Rs.1,85,13,549/-.The petitioner challenged the assessment order before the IncomeTax Appellate Tribunal. By order dated 29.07.2016, the Tribunalremitted the issues back to the Dispute Resolution Panel to passa speaking order on the disputed issues. Consequently, theDispute Resolution Panel issued fresh directions on 28.12.2017.Thereafter, the respondent through the impugned proceedingspassed a giving effect order, thereby arriving the assessedincome as Rs.1,79,49,484/- for the assessment year 2011-2012.Challenging the said order dated 31.12.2017, the petitioner hasfiled the above writ petitions. 3. These writ petitions are opposed by the respondent, byfiling a counter affidavit. Apart from raising very manycontentions against the claim made by the petitioner, therespondent has specifically stated that the impugned order is anassessment order, duly passed in accordance with the provisionunder Section 144C(13) of the IT Act and thus, the petitionerhas a remedy, by way of filing statutory appeal before the 3. These writ petitions are opposed by the respondent, byfiling a counter affidavit. Apart from raising very manycontentions against the claim made by the petitioner, therespondent has specifically stated that the impugned order is anassessment order, duly passed in accordance with the provisionunder Section 144C(13) of the IT Act and thus, the petitionerhas a remedy, by way of filing statutory appeal before the Income Tax Appellate Tribunal against the same. Thus, thepreliminary objection raised by the respondent is against themaintainability of these writ petitions. 4. The learned counsel for the petitioner mainly contendedthat the Income Tax Appellate Tribunal, while passing the orderon 29.07.2016, though remitted the issues back to the DisputeResolution Panel to pass a speaking order on the disputedissues, which order in effect has set aside the original orderof assessment dated 21.01.2016 and therefore, the presentimpugned proceedings relying upon the said order of theassessment dated 21.01.2016 and consequently, giving effect tothe order of the Dispute Resolution Panel dated 28.12.2017,cannot be sustained. In other words, according to the learnedcounsel for the petitioner, in the absence of any assessmentorder, the present impugned proceedings, cannot withstand thescrutiny of law, when the Tribunal has already set aside theoriginal assessment order dated 21.01.2016. 5. On the other hand, the learned Senior Standing Counselappearing for the respondent submitted that the Tribunal has notset aside the original order of assessment and on the otherhand, it has only remitted the issues back to the DisputeResolution Panel for passing a speaking order on the disputedissues. Therefore, she contended that the original order ofassessment dated 21.01.2016 stands as it is and therefore, inview of the subsequent order passed by the Dispute ResolutionPanel on 28.12.2017, giving certain directions, the respondentis justified in passing the present impugned order. Thus, shesubmitted that it is nothing, but giving effect to the orderpassed by the Dispute Resolution Panel in respect of the orderof assessment already passed on 21.01.2016. 7. The crux of the dispute between the parties is withregard to the order of assessment passed on 21.01.2016, whichaccording to the petitioner, was set aside by the Tribunal,whereas, according to the respondent, it is not so. Perusal ofthe order passed by the Tribunal dated 29.07.2016 would showthat the Tribunal had finally observed, after making elaboratediscussion on the issues involved, that it is inclined to remitthe issues back to the Dispute Resolution Panel to pass aspeaking order on the disputed issues. However, it is alsostated that the appeal of the Assessee is partly allowed forstatistical purposes. Now, the order of the Tribunal is soughtto be interpreted in both ways as stated supra, with regard tostatus of the order of assessment dated 21.01.2016. In myconsidered view, it is for the petitioner to approach theTribunal once again, by challenging the present impugned order, by raising all these contentions, so that the Tribunal will bein a position to clarify the effect of the earlier order passed,while considering the appeal to be filed against the presentimpugned order. Needless to say that any such clarification bythe Tribunal, with regard to the status of the assessment orderdated 21.01.2016, would certainly have a bearing on furtherproceedings including the present impugned order. Since thisCourt finds that it is for the Tribunal to clarify the aboveposition, without expressing any view on the merits of thecontention raised by both parties in respect of the status ofthe assessment order passed on 21.01.2016, these writ petitionsare disposed of, by granting liberty to the petitioner to file astatutory appeal against the impugned order dated 31.12.2017before the Income Tax Appellate Tribunal, within a period offour weeks from the date of receipt of a copy of this order. Ifany such appeal is filed, the Tribunal shall consider the sameand pass orders on its own merits and in accordance with law,uninfluenced by any of the observations made in these writpetitions and also without reference to the period oflimitation. No costs. Consequently, connected miscellaneouspetition is closed. Sd/- Assistant Registrar(CS-VI) //True copy// Sub Assistant Registrar mkTo The Deputy Commissioner of Income TaxCorporate Circle-I(2)Chennai-600 034. +1cc to Mr.Hema Amuralikrishnan, Advocate SR.No.63143 +1cc to Mr.Karthik Sundaram, Advocate SR.No.63117 GMY(25/09/2018)