Wp/2098/2016 Of Dsp Hmk Holdings Private Limited v. Deputy Commissioner Of Income Tax 2(1)(1) And 3 Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTIONWRIT PETITION NO. 2098 OF 2016 DSP HMK Holdings Pvt.Ltd...PetitionerVersusDeputy Commissioner of Income-tax,2(1)(1), Mumbai & Ors...Respondents Mr.Madhur Agarwal with Mr.B.D. Damodar I/b. Kanga & Co. for Petitioner.Mr.Sursh Kumar with Ms.Samiksha Kanani for Respondents. CORAM: M. S. SANKLECHA & S.C. GUPTE, JJ. DATE : 21 SEPTEMBER 2016 P.C.: At the joint request of the Counsel, the petition itself is takenup for final disposal. 2.The petition challenges an order/ communication dated 24February 2016 passed by the Assessing Officer referring the Petitioner'stransaction to the Transfer Pricing Officer (T.P.O.). The impugnedcommunication dated 24 February 2016 is in respect of Assessment Year2013-14 holding that the Petitioner's donation to a charitable trust wouldbe “specified domestic transaction” covered by Section 92BA of theIncome Tax Act, 1961 (Act). This is on the basis that Section 92BAincludes “any transaction referred to in Section 80A” of the Act. 3.It is an agreed position between the parties that the twopetitions, being Writ Petition Nos.1424/2016 and 1573/2016, filed by Petitioner's sister companies challenging an identical order dated 24February 2016 were allowed by way of remand to the Assessing Officer,by an order dated 10 August 2016. We find that impugned order dated 24February 2014 is without any reasons in support of its conclusion, just asthe order dated 24 February 2016 in the earlier petitions by the sistercompanies. 4.Therefore, it is an agreed position that the facts andcircumstances in the present case are identical to those in the writpetitions filed by the sister companies, as referred to above and in respectof which the order dated 10 August 2016 was passed. Therefore, for thereasons indicated therein, the present writ petition is also disposed of bysetting aside the impugned order dated 24 February 2016 and restoringthe issue to the Assessing Officer to pass a fresh order on his notice dated1 February 2016. The notice dated 1 February 2016 called upon thePetitioner to respond his prima facie view that a donation made to acharitable trust would be a transaction covered by Section 92BA of the Actand would warrant a reference to the T.P.O. 5.However, as the period to make a reference to the T.P.O.would have in the normal course expired on 31 March 2016, the periodcommencing from 24 February 2016 till today would be excluded tocompute the period of limitation. 6.It is made clear that the Assessing Officer will apply his mindindependently while disposing of the show cause notice dated 1 February2016 and will not be influenced in any manner by the order dated 10August 2016 and the order passed today. We also make it clear that we have not examined the merits of the respective contentions and have setaside the order only because it was without any reasons in support. 7.The petition is disposed of in the above terms. No order as tocosts. (S.C. GUPTE, J.) (M. S. SANKLECHA, J.)