Wp/1189/2018 Of M/S Wipro Ge Healthcare Pvt Ltd v. Deputy Commissioner Of Income Tax

IN THR HIGH COURT OF KARNATAKA AT BBNGALURU| DATBD THIS THR 11 DAY OF FEBRUARY, 2020 BEFORE THERE HON’BLE MR. JUSTICE KRISHNA S.DIXI ;WRIT PETITION NOS.1189 OF 2018 (TIT) BETWEEN: M/S WIPRO GE HEALTHCARE PVT LTD,NO.4, KADUGODI INDUSTRIAL AREA,WHITKRRIELD BANGALORE-560067.REPRBSEBENTBD BY [TSAUTHRIZED SIGNATORY,SHRI KE DAR KULKARNI. _ PRETITIONB (BY SMT. ANURADHA 8 R, ADVOCATE) AND: 1.DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 7(1)(2),BENGALURU. 2.GOVERNMENT OF INDIA,MINISTRY OF FINANCE,INCOME TAX DEPARTMENT,% FLOOR,INCOME TAX OFFICE,|BMTC BUILDING, 80 FEET ROAD,KORAMANGALA,BBNGALURU — 560 OO1. — RBSPONDENTS| (BY SRI. K V ARAVIND, ADVOCATE) THIS WRIT PEHTITION IS FILED UNDER ARTICLES 226 AND22/ OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THEASSESSMENT ORDER DATED 28.11.2017 FOR A/Y 2010-11)PASSED BY THE R-1 ANNEXURE-A AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY|HEARING IN B GROUP, THIS DAY, THE COURT MADE THEFOLLOWING: ORDER Petitioner being a Corporate Assessee engaged in thebusinessoT|providingsoftware § service&%technologysolutionsTO itsparentCOM1pa fforthe.productsmanutactured worldwide is Knocking at the doors of Writ|Court for assailing the Assessment Order dated 28.11.2017,made by the first respondent at Annexure-A for the|Assessment Year 2010-11 whereupon the demand for|payment of tax so assessed has been raised vide Demand|Notices both dated 28.11.2017 at Annexures Al & A2. 2 |After service of notice, respondents having enteredappearance through their Sr. Panel Counsel resist the writ|petition making submission in justification of the impugned|order; it is also submitted that the petitioner has got an|alternate remedy of appeal and therefore, it should be|relegated thereto. 3.|Having heard the learned counsel for the partiesand having perused the petition papers, this Court grants|reprieve to the petitioner for the following reasons: a)the return of income filed by the petitioner for theAssessment Year 2010-11 was selected for scrutiny by issue of Notice under Section 143(2) of the Income Tax Act, 1961;since the value of international transactions of the petitionerexceeded the prescribed limit, a reference was made to TPOfor determining the Arms Length Price of the subjectinternationaltransactionsenteredwith|the.associatedenterprises of the petitioner; the TPO passed an order u/s92CA of the Act determining the ALP adjustment that wasadded to the returned income along with certain statutoryallowances; accordingly, the draft Assessment Order havingbeen made on 24.03.2014 was objected to by the petitionerin Form 305A filed before the Dispute Resolution Panel; theDRP issued directions u/s 144C (5) of the Act on 12.12.2014which resulted into the Assessing Officer making a finalAssessment vide order dated 30.01.2015; b)|the petitioner went in appeal to the Income TaxAppellate Tribunal which partly allowed the appeal vide order|dated 18.09.2015 remanding the matter for consideration|afresh; the operative portion of the order reads as under: {9 5.Having gone through the record beforeus, as recorded above, we find that even during therelevant assessment year, the assessee had madeelaborate submissions and both the TPO as well asthe DRP have failed to consider the said objectionsobjectively. In view of the same, we deem it fit andproper to remit this issue to the file of the A.O/TPO for reconsideration of the issue in accordance withlaw. The A.O./TPO is directed to give fairopportunity of hearing to the assessee and alsoconsider judicial precedents on, the issue includingthe orders of the Tribunal in assessee’s own casewhile determining the ALP.” {9 5.Having gone through the record beforeus, as recorded above, we find that even during therelevant assessment year, the assessee had madeelaborate submissions and both the TPO as well asthe DRP have failed to consider the said objectionsobjectively. In view of the same, we deem it fit andproper to remit this issue to the file of the A.O/TPO for reconsideration of the issue in accordance withlaw. The A.O./TPO is directed to give fairopportunity of hearing to the assessee and alsoconsider judicial precedents on, the issue includingthe orders of the Tribunal in assessee’s own casewhile determining the ALP.” The text and context of this order unquestionably leads one tothe conclusion that it is an open remand and therefore, themandatory procedure prescribed u/s 144C(1) of the Act oughtto have been followed by passing a draft order and by givingan opportunity to the petitioner to file his objections theretowhereupon matter may go before the DRP; however, theimpugned order of Assessment has been made on a wrongassumption that the remand order did not expect anyjudicious determination of the matter remanded, when it isplainly otherwise; thus, there is a gross error apparent on theface of the record warranting indulgence of this Court forsetting it right; and, Cc)the contention of the Revenue that the petitionerhas got an alternate remedy of appeal and therefore, it shouldbe relegated to the Appellate body does not much impress theCourt; the argument of alternate remedy does not bar the writjurisdiction of this Court when the impugned order has ademonstrable error of law resulting into prejudice to the Assessee; nothing is stated as to how the Revenue would beaffected by the invocation of writ jurisdiction by the Assesseewhen full opportunity is given to both the sides; added to this,what difference an appeal would have made to the matter isalso not forthcoming.| In the above circumstances, this writ petition is allowedin part; a Writ of Certiorari issues quashing the impugnedorders and the consequential Demand Notices; the matter isremitted to the first respondent for consideration afresh 1.e,for judicious determination, in accordance with law, aiter hearing the petitioner or its agent. All contentions of the parties are kept open. No costs. Bsv_ Sd/-|JUDGE