Price Waterhouse, A Partnership Firm & Anr v. Commissioner Of Income Tax, Kolkata & Ors

12.12.2022. p.b.Sl. No.1&2. WPA 20210 of 2016 WithWPA 20228 of 2016 Price Waterhouse, a Partnership Firm & Anr. Vs.Commissioner of Income Tax, Kolkata & Ors. Mr. J. P. Khaitan,Mr. Akhilesh Kr. Gupta,Mr. Asim Choudhury,Mr. Sohan Sen.……..for the petitioners. Mr. S. Roy Choudhury.……..for the respondents.Mr. Kaushik Dey.……..for the DRI. In compliance of my order dated 5[th] December, 2022the present Assessing Officer concerned and theCommissioner concerned are present in Court, theirappearance are dispensed with and their written apologyby the letter dated 12[th] December, 2022 by communicationthrough their counsel is accepted. It appears fromparagraph 3 of the said communication that the incometax authority has no objection to the proposal made by theassessee petitioner through its counsel Mr. Khaitan,learned senior advocate and particularly relevantparagraph 3 of the said communication is quoted ashereunder:- “As regards the proposal for setting aside the orderof reference under section 92CA(1) of the Income Tax Act,1961, for the Assessment Year 2013-14 and passing afresh order under section 92CA(1) of the Income Tax Act,1961 in the case of petitioner/assessee in accordance withthe provision of law after giving proper opportunity ofbeing heard, I am directed to convey that the competentauthority has no objection for the said proposal.” Considering the facts and circumstances of this caseand submission of the parties, this writ petition being WPA20210 of 2016 is disposed of in the manner indicated inthe proposal as hereunder:- “The subject matter of challenge in this writ petitionis the order of reference made by the respondent no.3Assessing Officer to the respondent no.5 Transfer PricingOfficer under section 92CA(1) of the Income Tax Act, 1961as mentioned in Annexure P-11 for the Assessment Year2013-14 and the approval granted by the respondent no.1Commissioner of Income Tax in that regard as mentionedin Annexure P-9. It is the petitioner’s contention thatthough the respondent no.1 called the petitioner for ahearing before granting approval, the petitioner was notprovided any copy of the proposal of the respondent no.3containing the reasons for the proposed reference to therespondent no.5. As such, the petitioner was not granted aproper opportunity since the reasons for the proposed reference were not made known to it prior to or even at thetime of the hearing. It is also the case of the petitioner thatnot only copy of the proposal, even copy of the approvalgranted by the respondent no.1 has not been provided.The records bear out the above factual position. In such circumstances, the order of reference undersection 92CA(1) of the Income Tax Act, 1961 made by therespondent no.3 to the respondent no.5 for theAssessment Year 2013-14 as also the approval of therespondent no.1 in that regard are set aside. The petitionerwill be provided with the reasons on the basis of whichreference under section 92CA(1) of the Income Tax Act,1961 is proposed for the Assessment Year 2013-14 inrespect of which the petitioner can made its written andoral representations and the respondent nos.1 and 3 willthereafter decide the matter in accordance with law. All other points in the writ petition are kept open.” Let the writ petition being WPA 20228 of 2016(Lovelock & Lewes, a Partnership Firm & Anr. Vs.Commissioner of Income Tax, Kolkata-8 & Ors.) be treatedas on days list and shall also stand disposed of on thesame terms and conditions as indicated hereinabove. With this observation and direction, these writpetitions being WPA 20210 of 2016 and WPA 20228 of2016 are disposed of. (Md. Nizamuddin, J.)