Kimberly Clark Lever P.Ltd., Pune V. ACIT, Pune

ITA 2480/PUN/2012

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9513 (ITAT-PUNE)
• Duration Of Justice: 4 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 02-05-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 14-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: P J PARDIWALA
• Keywords: Reopening of assessment; Transfer pricing; Search and seizure; Opportunity of being heard; International transaction; Retrospective amendment; Additional evidence; Initiation of penalty proceedings; Avoidance of tax; Reason to believe; Reassessment proceedings
• Section: 92C; 143(3); 92D; 92B; 92F; 92A; 92E; 10B; 148; 144; 139; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI RAJESH KUMAR , AM . / ITA NO.2480/PUN/2012 / ASSESSMENT YEAR : 2007-08 KIMBERLY CLARK LEVER PRIVATE LIMITED, GAT NO.934 TO 937, VILLAGE SANASWADI, OFF NAGAR ROAD, TALUKA SHIRUR, PUNE 412 208 PAN : AAACK4647E . / APPELLANT VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-11(1), PUNE . / RESPONDENT / APPELLANT BY : SHRI P.J. PARDIWALA / RESPONDENT BY : SHRI RAJEEV KUMAR DATE OF HEARING : 02.05.2017 / DATE OF PRONOUNCEMENT: 05.05.2017 / ORDER PER SUSHMA CHOWLA, JM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE IS AGAIN ST ORDER OF ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-11(1), PUNE, DAT ED 29.10.2012 RELATING TO ASSESSMENT YEAR 2007-08 PASSED UNDER SECTION 143(3) R.W.S. 147 AND 144C OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- THE APPELLANT OBJECTS TO THE ORDER DATED 29 OCTO B ER 2012 PASSED UNDER SECTION 143(3) R.W.S 147 AND 144(C) OF THE INCOME-TAX ACT, 1961 ('THE ACT') BY THE ASSISTANT COMMISSIONER OF INCOME TAX , CIRCLE 11 (1) , PUNE [ ' ACIT' OR ' AO'] FOLLOWING THE DIRECTIONS ISSUED BY THE DISPUTE RESO LUTION PANEL ( ' DRP ' ) IN RESPECT OF THE AFORESAID ASSESSMENT YEAR ON THE FOLLOWING A MONG OTHER GROUNDS: ITA NO.2480/PUN/2012 2007-08 2 1. REOPENING OF ASSESSMENT U NDER SEC T I ON 14 8 OF T H E ACT INVA L ID AND BAD IN LAW A. THE LEARNED ACIT ERRED IN REOPENING THE ASSESSMENT UNDER SECTION 148 OF THE ACT ON THE BASIS OF THE ADJUSTMENT PROPOSED IN THE ORDER DATED 29 OCTOBER 2010 PASSED UNDER SECTION 92CA(3) OF THE ACT . B. THE LEARNED ACIT ERRED IN NOT APPRECIATING THAT THE AFORESAID ORDER DATED 29 OCTOBER 2010 PASSED UNDER SECTION 92CA(3) OF THE AC T WAS WITHOUT ISSUE OF NOTICE UNDER SECTION 143(2) OF THE AC T AND WAS THEREFORE INVALID / BAD IN LAW AND COULD NOT HAVE BEEN THE BASIS FOR THE REOPENING OF AN ASSESSMENT . C. THE LEARNED ACIT ERRED IN REOPENING T H E ASSESSMENT FOR THE REASON THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147(C)(I) OF THE ACT . D. THE LEARNED ACIT ERRED IN NOT APPRECIATING THAT FOR THE ASSESSMENT YEAR UNDER REFERENCE , NO ASSESSMENT HAD BEEN MADE AND THEREFORE EXPLANATI ON 2(C) (I) OF SECTION 147 OF THE ACT WAS NOT APPLICABLE FOR HOLDI NG THAT INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. E. THE LEARNED ACIT ERRED IN NOT APPRECIATING THAT AS THE AFORESAID ORDER WAS PASSED BEFORE THE EXPIRY OF THE LIMITATION FIXED FO R FRAMING THE OR I GINAL ASSESSMENT , NO FRESH MATERIAL WAS AVAILABLE WHICH WOULD JUSTIFY RECOURSE BEING TAKEN TO SECTION 147 OF THE ACT . F. THE LEARNED DRP ERRED IN HOLDING THAT THE ASSESSME NT HAD BEEN CORRECTLY REOPENED BY THE LEARNED ACIT UNDER SECTION 148 OF T HE ACT . G. THE LEARNED ACIT / DRP ERRED IN NOT CONSIDERING THE SUBMI S SIONS OF THE APPELLANT IN THE CORRECT PERSPECTIVE . 2. REASSESSMENT INVALID AND BAD IN LAW A. THE LEARNED ACIT ERRED IN MAKING A REASSESSMENT WIT HOUT ISSUE OF ANY NOTICE UNDER SECTION 143(2) OF THE ACT . B. THE LEARNED ACIT ERRED IN NOT APPRECIATING THAT THE ISSUE OF NOTICE UNDER SECTION 143(2) O F THE ACT WA S MANDATOR Y FOR THE PURPOSE OF REASSESSMENT UNDER THE ACT AND HENCE ANY ORDER PASSED WITHOUT ISSUE OF SUCH NOTICE WAS INVALID AND BAD IN LAW. C. WITHOUT PREJUDICE TO THE ABOVE , THE LEARNED DY . COMMISSIONER OF INCOME TAX , CIRCLE 11(1) , PUNE ( ' DCIT') / ACIT ERRED IN NOT MAKING A FRESH REFERENCE TO THE TRANSFER PRICING OFFICER ( ' TPO ' ) UNDER SECTION 92CA(1) OF THE ACT FOR THE REASSESSMENT UNDER SECTION 147 OF THE ACT . D. THE LEARNED DCI T / ACIT ERRED IN NOT APPRECIATING THAT A FRESH REFEREN CE UNDER SECTION 92CA(1) OF THE ACT OUGHT TO HAVE BEEN MADE TO THE TPO FOR A REASSESSMENT INITIATED VIDE NOTICE UNDER SECTION 14 8 OF THE ACT , ESPECIALL Y CONSIDERING THE FACT THAT THE REFERENCE WHICH WAS MADE EARLIER TO THE TPO WAS INVALID AND BAD IN LAW IN ABSENCE OF ANY VALID NOTI CE UNDER SECTION 143(2) OF THE ACT . ITA NO.2480/PUN/2012 2007-08 3 E. WITHOUT PREJUDICE TO THE ABOVE , THE LEARNED DCIT/ACIT ERRED IN NOT APPRECIATING THAT A REFERENCE UNDER SECTION 92CA(1) OF THE ACT C AN BE MADE ONLY WITH THE PRIOR APPROVAL OF THE COMMISSIONER AND THEY THEREFORE ERR ED IN NOT COMMUNICATING TO THE APPELLANT WHETHER THE REFERENCE MADE EARLIER TO THE TPO UNDER SECTION 92CA(1) OF THE ACT WAS AFTER OBTAINING PRIOR APPROV AL OF THE COMMISSIONER OR NOT . F. THE LEARNED DRP ERRED IN UPHOLDING THE REASSESSMEN T MADE BY THE LEARNED ACIT UNDER THE ACT . G. THE LEARNED ACIT/DRP ERRED IN NOT CONSIDERING THE S UBMISSIONS OF THE APPELLANT IN THE CORRECT PERSPECTIVE. 3. DISALLOWANCE OF ADVERTISING AND MARKETING ('A&M ') EXPENSES A. THE LEARNED ACIT ERRED IN DISALLOWING A&M EXPENSES OF RS . 4 , 78 , 66 , 335/- REIMBURSED TO HINDUSTAN UNILEVER LIMITED ( ' HUL'). THE LEARNED DRP ERRED IN CONFIRMING THE SAME. B. THE LEARNED ACIT/DRP ERRED IN HOLDING THAT HUL WAS MANAGING DIRECTLY OR INDIRECTLY THE ADVERTISEMENT NETWORK FOR THE APPELL ANT THEREBY RENDERING MANAGERIAL SERVICES TO THE APPELLANT . C. THE LEARNED ACIT/DRP ERRED IN HOLDING THAT THE PROV ISIONS OF SECTION 194J OF THE ACT WERE APPLICABLE TO THE REIMBURSEMENTS MADE TO HUL . D . THE LEARNED ACIT/DRP ERRED IN NOT APPRECIATING THAT : I. THE EXPENDITURE ON THE VARIOUS TRADE PROMOTION S CHEMES RUN BY THE APPELLANT TO PROMOTE THE SALE OF ITS PRODUCTS WAS E NTIRELY CONTROLLED BY THE APPELLANT; II. THE ABOVE TRADE PROMOTION SCHEMES WERE MEREL Y ADMINISTERED THROUGH THE EXISTING SELLING AND DISTRIBUTION NETWORK OF HU L ; AND III . THE AMOUNTS PAID TO HUL WERE TOWARDS REIMBURSEMENT OF THE TRADE SPENDS INCURRED BY HUL ON BEHALF OF THE APPELLANT AND THER EFORE THE QUESTION OF DEDUCTION OF TAX AT SOURCE AND CONSEQUENT DISALLOWA NCE UNDER SECTION 40(A)(IA) OF THE ACT DID NOT ARISE. E. THE LEARNED ACIT / DRP ERRED IN NOT CONSIDERING THE SUBMISSIONS OF THE APPELLANT / DOCUMENTARY EVIDENCE FILED BY THE APPEL LANT IN THE CORRECT PERSPECTIVE . 4. DISALLOWANCE OF MANAGEMENT COST A. THE LEARNED ACIT ERRED IN DISALLOWING MANAGEMENT COST OF RS . 1 , 42 , 56 , 511/ - REIMBURSED TO HUL . THE LEARNED DRP ERRED IN CONFIRMING THE SAME. B.THE LEARNED ACIT / DRP ERRED IN HOLDING THAT THE PAYMENT TO HUL WAS NOTHING BUT PAYMENT FOR RENDERING MANAGEMENT SERVICES COVER ED UNDER SECTION 9(1)(VII) OF THE ACT . ITA NO.2480/PUN/2012 2007-08 4 C. THE LEARNED ACIT / DRP ERRED IN NOT APPRECIATING THAT THE PAYMENT TO HUL IN RESPECT OF THE DEPUTED EMPLOYEES WAS TOWARDS REIMBURSEMENT OF THE SALARY COST INCURRED B Y HUL ON BEHALF OF THE APPELLANT . D. THE LEARNED ACIT / DRP ERRED IN NOT CONSIDERING THE SUBMISSIONS OF THE APPELLANT / DOCUMENTARY EVIDENCE FILED BY THE APPEL LANT IN THE CORRECT PERSPECTIVE . 5 . DISALLOWANCE OF SELLING DISCOUNT A. THE LEARNED ACIT ERRED IN DISALLOWING SELLING DI SCOUNT GIVEN TO HUL . THE LEARNED DRP ERRED IN CONFIRMING THE SAME. B. THE LEARNED ACIT / DRP ERRED IN HOLDING THAT HUL WA S MANAGING DIRECTL Y OR INDIRECTLY THE SALES PROMOTION NETWORK OF THE AP PELLANT THEREBY RENDERING MANAGERIAL SERVICES TO THE APPELLANT . C . THE LEARNED ACIT / DRP ERRED IN HOLDING THAT THE PROVISIONS OF SECTION 194J OF THE ACT WERE APPLICABLE TO THE SELLING DISC OUNT GIVEN TO HUL . D . THE LEARNED ACIT ERRED IN HOLDING THAT THE SELLIN G DISCOUNT GIVEN TO HUL WA S NOTHING BUT COMMISSION PAID TO HUL UNDER SECTION 19 4H OF THE ACT . THE LEARNED DRP ERRED IN NOT GIVING ANY DIRECTIONS IN R ESPECT OF THE SAME . E . THE LEARNED ACIT / DRP ERRED IN NOT APPRECIATING THAT THE SELLING DISCOUNT GIVEN TO HUL WAS BASED ON THE SALES ACHIEVED BY HUL BEING THE APPELLANT ' S LARGEST CUSTOMER AND NOT FOR ANY SERVICES RENDERED B Y HUL . F . THE LEARNED ACIT / DRP ERRED IN NOT CONSIDERING T HE SUBMI S SIONS OF THE APPELLANT / DOCUMENTARY EVIDENCE FILED BY THE APPEL LANT IN THE CORRECT PERSPECTIVE. G . WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED ACIT ERRED IN CONSIDERING THE AMOUNT OF RS . 4 , 08 , 38 , 775/- FOR DISALLOWANCE INSTEAD OF THE ACTUAL SELLIN G DISCOUNT OF RS.2 , 76 , 30 , 251/- GIVEN TO HUL . THE LEARNED DRP ERRED IN NOT GIVING ANY DIRECTIONS IN RESPECT OF THE SAME . 6. DISALLOWANCE INCORRECTLY MADE UNDER SECTION 40( A)(IA) OF THE ACT A. WITHOUT PREJUDICE TO THE ABOVE GROUNDS OF APPEAL , THE LEARNED ACIT ERRED IN DISALLOWING THE A&M EXPENSES / MANAGEMENT COST REIMBURSED TO HUL AND SELLING DISCOUNT GIVEN TO H U L UNDER SECTION 40(A)(IA) OF THE ACT . THE LEARNED DRP ERRED IN CONFIRMING THE SAME. B. THE LEARNED ACIT / DRP ERRED IN NOT APPRECIATING T HAT : I. THE ABOVE REIMBURSEMENTS MADE / DISCOUNT GIVEN TO HUL WERE DULY TAKEN INTO ACCOUNT BY HUL IN COMPUTING ITS TOTAL INCOME I N THE RETURN OF INCOME FURNISHED UNDER SECTION 139 OF THE ACT AND TAX DUE ON THE INCOME DECLARED IN THE RETURN OF INCOME FILED HAD ALSO BEEN PAID BY HUL ; II. I N TERMS OF THE AMENDMENT TO SECTION 40(A)(IA) OF TH E ACT MADE BY THE FINANCE ACT , 2012, IT WOULD BE DEEMED THAT TAX ON THE AFORESAID REIMBURSEMENTS MADE / DISCOUNT GIVEN TO HUL HAD BEEN DEDUCTED AND PAID BY THE APPELLANT FOR THE PURPOSE OF ALLOWING DEDUCTION UNDER THE SAID SE CTION; ITA NO.2480/PUN/2012 2007-08 5 III. THE AMENDMENT IN SECTION 40( A)(IA) OF THE ACT MADE BY THE FINANCE ACT , 2012 WAS CLARIFICATORY IN NATURE AND THEREFORE HAS RETROSPECTIVE EFFECT FROM 1 APRIL 2005 , BEING THE DATE ON WHICH THE SAID SECTION WAS INSERT ED BY THE FINANCE (NO.2) ACT , 2004. C. WITHOUT PREJUDICE TO THE ABOVE , THE LEARNED ACIT ERRED IN NOT RESTRICTING THE DISALLOWANCE , IF ANY, TO THE AMOUNTS PAYABLE TO HUL AS ON 31 MARC H 2007. THE LEARNED DRP ERRED IN NOT GIVING ANY DIRECTIONS IN RESPECT OF THE SAME. D. THE LEARNED ACIT / DRP ERRED IN NOT APPRECIATING THAT THE PROVISIONS O F SECTION 40(A)(IA) OF THE ACT WERE APPLICABLE ONLY T O THE AMOUNTS OF EXPENDITURE WHICH WERE PAYABLE AS ON 31 MARCH OF THE PREVIOUS Y EAR AND COULD NOT HAVE BEEN INVOKED TO DISALLOW EXPENDITURE WHICH HAD ACTU ALLY BEEN PAID TO HUL DURING THE PREVIOUS YEAR. 7. INCORRECT REJECTION OF ADDITIONAL EVIDENCE A. THE LEARNED DRP ERRED IN REJECTING THE ADDITIONA L EVIDENCE FILED BY THE APPELLANT. B. THE LEARNED ACIT / DRP ERRED IN NOT APPRECIATING THAT THE ADDITIONAL EVIDENCE FILED B Y THE APPELLANT CLEARLY ESTABLISHED THAT NO TAX WAS R EQUIRED TO BE DEDUCTED AT S OURCE ON THE REIMBURSEMENTS MADE/DISCOUNT GIVEN TO HUL AND THEREFORE THE QUESTION OF DISALLOWING THE SAME DID NOT ARISE. 8. TRANSFER PRICING ADJUSTMENT A. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED TRANSFER PRICING OFFICER ('TPO')/DRP ERRED IN CONFI RMING THE UPWARD ADJUSTMENT OF RS . 12 , 17,43,370 TO THE INCOME OF THE APPELLANT , IN RESPECT OF A&M EXPENSES INCURRED BY THE APPELLANT , PRIMARILY THE LEARNED AO / TPO HAS ERRED IN: I. HOLDING THAT INCURRING OF A&M EXPENSES BY THE AP PELLANT IS AN INTERNATIONAL TRANSACTION MERELY ON THE BASIS OF AN ASSUMPTION THAT AN ARRANGEMENT EXISTS BETWEEN THE APPELLANT AND THE AE FOR INCURRING SUCH EXPENSES WITHOUT DEMONSTRATING BASED ON THE FACTS T HAT ANY SUCH AN ARRANGEMENT EXISTS, AND WITHOUT APPRECIATING THAT S UCH EXPENSES WERE INCURRED BY THE APPELLANT ON ITS OWN BEHALF AND FOR THE PURP OSES OF ITS OWN BUSINESS. II. PROCEEDING TO COMPUTE THE ARM ' S LENGTH PRICE OF SUCH ALLEGED INTERNATIONAL TRANSACTION WITHOUT THERE BEING ANY REFERENCE FROM THE LEARNED AO TO COMPUTE THE ARM'S LENGTH PRICE FOR ANY SUCH TRANSACTION . III. ASSUMING THAT INCURRING OF ALL SUCH EXPENSES A UTOMATICALLY CONTRIBUTES TO AN ENHANCEMENT OF THE BRAND VALUE AND CREATION OF M ARKETING INTANGIBLES THEREBY ASSUMING THAT THE LEGAL OWNER OF THE BRAND HAS BENE FITTED ON ACCOUNT OF INCURRING OF SUCH EXPENSES, AND WITHOUT APPRECIATING THAT ANY SUCH ALLEGED BENEFIT TO THE AE AT THE MOST WOULD BE PURELY INCIDENTAL IN NATURE . IV. USING AN ARBITRARY AND AN UNSPECIFIED METHOD NOT PR ESCRIBED IN RULE 10B OF THE INCOME-TAX RULES, 1962 TO COMPUTE THE ARM ' S LENGTH PRICE OF ANY SUCH ALLEGED INTERNATIONAL TRANSACTION. 9. INITIATION OF PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT. A. THE LEARNED ACIT ERRED IN INITIATING PENALT Y PROCEEDINGS UNDER SECTION 271(1) ( C ) OF THE ACT. THE LEARNED DRP ERRED IN NOT GIVING ANY DIRECTIONS IN RE S PECT OF THE SAME . ITA NO.2480/PUN/2012 2007-08 6 B. THE LEARNED ACIT / DRP ERRED IN NOT APPRECIATING THAT THERE WA S NO CONCEALMENT O F INCOME OR FURNISHING OF INACCURATE PARTICULARS OF I NCOME BY THE APPELLANT FOR PENALT Y PROCEEDINGS TO BE INITIATED IN THIS REGARD . 10. E ACH ONE OF THE ABOVE GROUNDS OF APPEAL IS WITHOUT P REJUDICE TO THE OTHER. 11. THE APPELLANT RESERVES THE RIGHT TO AMEND , ALTER OR ADD TO ANY OF THE ABOVE GROUND S OF APPEAL. 3. THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESS EE AT THE OUTSET POINTED OUT THAT THE ASSESSEE HAS RAISED THE PRELIMINARY IS SUE AGAINST THE REOPENING OF ASSESSMENT UNDER SECTION 147/148 OF THE ACT AND POI NTED OUT THAT THE SAID ISSUE IS COVERED BY THE EARLIER ORDERS OF THE TRIBUNAL IN THE CASE OF MAXIMIZE LEARNING PRIVATE LIMITED VS. ACIT IN ITA NO.2234/PUN/2012 RE LATING TO ASSESSMENT YEAR 2007-08 ORDER DATED 02-02-2015 AND DCIT VS. SAS RES EARCH & DEVELOPMENT (INDIA) PVT. LTD. IN ITA NOS.810/PUN/2013, ITA NO.1 850/PUN/2013, ITA NOS.1927/PUN/2013, CO. NOS. 03 & 04/PUN/2015 RELATI NG TO ASSESSMENT YEAR 2004-05 TO 2006-07 ORDER DATED 16-09-2016. 4. BRIEFLY IN THE FACTS OF THE CASE THE ASSESSEE HA D FILED THE RETURN OF INCOME ON 31-10-2007 DECLARING TOTAL INCOME OF RS.30,01,43 ,006/-. THE SAID RETURN OF INCOME WAS PROCESSED UNDER SECTION 143(1) OF THE AC T. REFERENCE UNDER SECTION 92CA OF THE ACT WAS MADE TO THE TRANSFER PRICING OF FICER ON 26-10-2009. THE TRANSFER PRICING OFFICER PASSED TH E ORDER UNDER SECTION 92CA(3) OF THE ACT ON 29-10-2010 MAKING AN ADJUSTME NT ON ACCOUNT OF ARMS LENGTH PRICE OF THE INTERNATIONAL TRANSACTION AT RS .12,17,43,370/-. THE ASSESSING OFFICER RECORDED REASONS FOR REOPENING TH E ASSESSMENT AND ISSUED NOTICE UNDER SECTION 148 OF THE ACT ON 14-01-2011. THE ASSESSEE IN REPLY VIDE LETTER DATED 28-01-2011 OBJECTED TO THE NOTICE ISSU ED UNDER SECTION 148 OF THE ACT. HOWEVER, WITHOUT PREJUDICE, THE ASSESSEE REQU ESTED THE ASSESSING OFFICER TO TREAT THE RETURN OF INCOME ORIGINALLY FILED ON 2 9-10-2007 AS RETURN FILED IN RESPONSE TO NOTICE UNDER SECTION 148 OF THE ACT. T HE COPY OF THE SAID LETTER IS PLACED AT PAGES 96 AND 97 OF THE PAPER BOOK. THE A SSESSEE ALSO SOUGHT COPY OF ITA NO.2480/PUN/2012 2007-08 7 REASONS RECORDED FOR OPENING THE ASSESSMENT UNDER S ECTION 147/148 OF THE ACT. IN REPLY THE REASONS WERE FURNISHED TO THE ASSESSEE BY THE ASSESSING OFFICER VIDE LETTER DATED 11-02-2011. THE COPY OF THE SAID LETTER AND THE REASONS RECORDED FOR REOPENING THE ASSESSMENT ARE PLACED AT PAGES 98 & 99 OF THE PAPER BOOK. THE REASONS RECORDED FOR REOPENING THE ASSES SMENT READ AS UNDER : M/S. KIMBERLY CLARK LEVER PVT. LTD. A.Y. 2007-08 IN THE CASE REFERENCE U/S.92CA(1) HAS BEEN MADE TO THE TP OFFICE FOR THE A.Y. 2007-08. THE JT.CIT(TP-1), PUNE VIDE ORDER U/ S.92CA(3), DATED 29/10/2010 HAS WORKED OUT ADJUSTMENT IN RELATION TO INTERNATIO NAL TRANSACTIONS OF RS.12,17,43,370/-. IN VIEW OF THE SAME, AS PER THE ADJUSTMENT OF RS.12 ,17,43,370/- TO THE TOTAL INCOME, INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147(C)(I) OF THE INCOME-TAX ACT, 1961. I HAVE THEREFORE REASONS TO BELIEVE THAT INCOME OF RS.12,17,43,370/- HAS ESCAPED ASSESSMENT FOR A.Y. 2007-08, ON ACCOUNT OF ADJUSTMENT TO INTERNATIONAL TRANSACTIONS CARRIED OUT BY THE ASSESSEE. THE CASE SATISFIES CONDITIONS LAID DOWN IN SECTIONS 149(1)(A) AND 151(2) OF THE INCOME-TAX ACT, 1961. ISSUE NOTICE U/S.148 FOR A.Y. 2007-08. 5. IN REPLY THE ASSESSEE OBJECTED TO THE SAID REASS ESSMENT PROCEEDINGS BEING INITIATED AND IT WAS POINTED OUT BY THE ASSES SEE AT THE OUTSET VIDE LETTER DATED 07-03-2011 THAT THE ORDER UNDER SECTION 92CA( 3) DATED 29-10-2010 WAS PASSED WITHOUT ANY ISSUE OF NOTICE UNDER SECTION 14 3(2) OF THE ACT AND THEREFORE THE SAID ORDER WAS INVALID AND BAD IN LAW. IT WAS FURTHER POINTED OUT BY THE ASSESSEE THAT THE REASON TO BELIEVE THAT INCOME HAD ESCAPED ASSESSMENT WAS BASED ON AN INVALID TRANSFER PRICING ORDER AND HENC E THERE WAS NO REASON FOR REOPENING THE ASSESSMENT ON THE BASIS OF THE SAID O RDER OF TRANSFER PRICING OFFICER. 6. THE PLEA OF THE ASSESSEE WAS CONSIDERED BY THE A SSESSING OFFICER AND IN REPLY A LETTER WAS ISSUED ON 13-07-2011. IT WAS PO INTED OUT BY THE ASSESSING OFFICER THAT THE JOINT COMMISSIONER OF INCOME TAX, TRANSFER PRICING-1, PUNE HAD ITA NO.2480/PUN/2012 2007-08 8 PASSED THE ORDER UNDER SECTION 92CA(3) OF THE INCOM E TAX ACT PROPOSING ADDITION OF RS.12.17 CRORES ON ACCOUNT OF ADJUSTMEN T OF ARMS LENGTH PRICE FOR THE INSTANT ASSESSMENT YEAR. THE ASSESSING OFFICER FURTHER OBSERVED THE CASE WAS NOT SELECTED FOR SCRUTINY AND NO NOTICE UNDER S ECTION 143(2) WAS ISSUED. IN VIEW OF THE FINDINGS OF TRANSFER PRICING OFFICER, I T WAS REOPENED IN THE CASE FOR ASSESSMENT YEAR 2007-08 BY ISSUE OF NOTICE UNDER SE CTION 148. THE ASSESSING OFFICER THUS REJECTED THE OBJECTIONS OF THE ASSESSE E AGAINST ISSUE OF NOTICE UNDER SECTION 148 OF THE ACT BEING NOT TENABLE AND HELD T HAT THE REOPENING WAS AS PER LAW. THE SAID COMMUNICATION IS PLACED AT PAGES 100 TO 105 OF THE PAPER BOOK. THE ASSESSEE THEREAFTER PARTICIPATED IN THE ASSESSM ENT PROCEEDINGS, HOWEVER, IT IS AGGRIEVED BY THE ORDER PASSED BY THE ASSESSING O FFICER UNDER SECTION 143(3) R.W.S. 147 AND 144C OF THE ACT BEING WITHOUT JURISD ICTION. 7. THE PLEA OF THE ASSESSEE BEFORE US IS THAT WHERE AGAINST THE RETURN OF INCOME FILED BY THE ASSESSEE IN TIME, NO PROCEEDING S WERE INITIATED BY ISSUE OF NOTICE UNDER SECTION 143(2) OF THE ACT, REFERENCE M ADE TO THE TRANSFER PRICING OFFICER BY THE ASSESSING OFFICER UNDER SECTION 92CA (1) OF THE ACT WAS INVALID AND CONSEQUENTLY THE ORDER PASSED BY THE TRANSFER PRICI NG OFFICER UNDER SECTION 92CA(3) OF THE ACT COULD NOT BE THE BASIS FOR RECOR DING THE REASONS FOR REOPENING THE ASSESSMENT, I.E. INITIATING REASSESSMENT PROCEE DINGS. IT WAS STRESSED BY THE LD. AUTHORISED REPRESENTATIVE FOR THE ASSESSEE THAT THERE WAS NO REASON TO BELIEVE THAT THE INCOME HAD ESCAPED ASSESSMENT AND HENCE THE INITIATION OF THE REASSESSMENT PROCEEDINGS WAS BAD IN LAW AND IS TO B E QUASHED. WHERE THE ASSESSING OFFICER HAD REOPENED THE ASSESSMENT BY ME RELY MAKING A REFERENCE TO THE ORDER OF THE TRANSFER PRICING OFFICER, WHICH ADMITTEDLY WAS PASSED WITHOUT ANY JURISDICTION, THEN THERE WAS NO INDEPENDENT APP LICATION OF MIND BY THE ASSESSING OFFICER TO COMMENCE THE REASSESSMENT PROC EEDINGS AND IN THE ABSENCE OF THE SAME, THE ASSESSMENT PROCEEDINGS COU LD NOT BE RE-OPENED. ITA NO.2480/PUN/2012 2007-08 9 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE WHICH ARISES IN THE PRESENT APPEAL IS AGAINST THE V ALIDITY OF THE ASSESSMENT PROCEEDINGS INITIATED UNDER SECTION 147/148 OF THE ACT. THE FACTS OF THE PRESENT CASE ARE AS IN THE FACTS BEFORE THE TRIBUNAL IN THE CASE OF MAXIMIZE LEARNING PVT. LTD. VS. ACIT (SUPRA), I.E., THE ORIGINAL RETU RN OF INCOME WAS FILED IN TIME AND IN BOTH THE CASES THE ASSESSMENT PROCEEDINGS RELATE TO ASSESSMENT YEAR 2007- 08. ADMITTEDLY IN BOTH THE CASES, REFERENCE WAS MA DE TO THE TRANSFER PRICING OFFICER FOR DETERMINING THE ARMS LENGTH PRICE OF TH E INTERNATIONAL TRANSACTION. IN THE PRESENT CASE, NO NOTICE UNDER SECTION 143(2) OF THE ACT WAS ISSUED BEFORE MAKING THE ABOVE SAID REFERENCE TO THE TRANSFER PRI CING OFFICER. IN THE CASE OF MAXIMIZE LEARNING PVT. LTD. THE SAID NOTICE UNDER S ECTION 143(2) WAS SERVED LATE. THE TRANSFER PRICING OFFICER HOWEVER PASSED THE ORD ER UNDER SECTION 92CA(3) OF THE ACT PROPOSING AN ADJUSTMENT ON ACCOUNT OF ARMS LENGTH PRICE OF THE INTERNATIONAL TRANSACTION. IN THE CASE OF MAXIMIZ E LEARNING PVT. LTD. WHERE THE ASSESSEE FILED THE OBJECTIONS TO THE DRAFT ASSESSME NT ORDER PROPOSED, THE PROCEEDINGS WERE DROPPED SINCE THE NOTICE UNDER SEC TION 143(2) WAS ISSUED BEYOND THE TIME LIMIT. HOWEVER, IN THE CASE OF THE ASSESSEE, NO SUCH NOTICE UNDER SECTION 143(2) WAS ISSUED. THE ASSESSING OFF ICER IN THE LETTER DATED 13- 07-2011 HAS ADMITTED THAT THE CASE WAS NOT SELECTED FOR SCRUTINY AND NO NOTICE UNDER SECTION 143(2) WAS ISSUED, THE SAID LETTER IS PLACED AT PAGES 104 AND 105 OF THE PAPER BOOK. THEREAFTER IN BOTH THE CASES NO TICE UNDER SECTION 148 OF THE ACT WAS ISSUED BY THE ASSESSING OFFICER. IN VIEW O F THE REASONS RECORDED FOR REOPENING THE ASSESSMENT, ON THE BASIS OF THE ORDER OF THE TRANSFER PRICING OFFICER UNDER SECTION 92CA(3) OF THE ACT, THE SAID REASONS RECORDED IN BOTH THE CASES ARE NEARLY IDENTICAL AND THE ASSESSING OFFICE R HAS REASON TO BELIEVE THAT THE INCOME OF RS.12.17 CRORES HAD ESCAPED ASSESSMEN T ON ACCOUNT OF ADJUSTMENT TO INTERNATIONAL TRANSACTIONS, WHICH ADJ USTMENTS WAS WORKED OUT BY ITA NO.2480/PUN/2012 2007-08 10 THE TRANSFER PRICING OFFICER VIDE ORDER PASSED UNDE R SECTION 92CA(3) OF THE ACT ON 29-10-2010. 9. THE ISSUE WHICH ARISE IN THE PRESENT APPEAL IS T HE VALIDITY OF THE REASSESSMENT PROCEEDINGS ON THE SURMISE THAT AN ADJ USTMENT HAS TO BE MADE ON ACCOUNT OF ARM'S LENGTH PRICE OF INTERNATIONAL TRAN SACTIONS IN THE HANDS OF ASSESSEE ON THE BASIS OF SUCH REFERENCE, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, WHICH WERE NOT STARTED. AFTER GOING T HROUGH THE FACTUAL AND LEGAL ASPECTS OF THE CASE, THE TRIBUNAL (SUPRA) VIDE ORDE R DATED 02.02.2015 (SUPRA) HAD FIRSTLY HELD THAT THE ASSESSING OFFICER WAS PRE CLUDED FOR MAKING A REFERENCE TO THE TPO UNDER SECTION 92CA(1) OF THE ACT FOR THE PURPOSE OF COMPUTING ARM'S LENGTH PRICE IN RELATION TO THE INTERNATIONAL TRANS ACTION, WHEN NO ASSESSMENT PROCEEDINGS WERE PENDING IN RELATION TO THE RELEVAN T ASSESSMENT YEAR. THE RELEVANT OBSERVATIONS OF THE TRIBUNAL (SUPRA) ARE I N PARAS 10 TO 23, WHICH READ AS UNDER :- 10. THE CRUX OF THE CONTROVERSY REVOLVES AROUND TH E PROVISIONS OF SECTION 147/148 OF THE ACT WHICH EMPOWER AN ASSESSING OFFIC ER TO ASSESS OR RE-ASSESS SUCH INCOME WHICH HAS ESCAPED ASSESSMENT. SECTION 147 OF THE ACT POSTULATES THAT IF THE ASSESSING OFFICER HAS REASON TO BELIEVE THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR ANY ASSESSMENT YEAR, HE MAY SUBJECT TO THE PROVISIONS OF SECTIONS 148 TO 153 OF THE ACT, ASSES S OR RE-ASSESS SUCH INCOME AND ALSO ANY OTHER INCOME CHARGEABLE TO TAX WHICH H AS ESCAPED ASSESSMENT AND WHICH COMES TO HIS NOTICE SUBSEQUENTLY IN THE COURS E OF PROCEEDINGS UNDER THIS SECTION. A SIGNIFICANT EXPRESSION CONTAINED IN SEC TION 147 OF THE ACT IS REASON TO BELIEVE. IT IS JUDICIALLY WELL-SETTLED THAT SUCH BELIEF OF THE ASSESSING OFFICER MUST BE BASED ON SOME MATERIAL ON RECORD. IN OTHER WORD S, THERE MUST BE SOME MATERIAL ON RECORD TO ENABLE THE ASSESSING OFFICER TO ENTERTAIN A BELIEF THAT CERTAIN INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESS MENT FOR THE RELEVANT ASSESSMENT YEAR. 11. IN THE PRESENT CASE, THE PERTINENT POINT SETUP BY THE ASSESSEE IS THAT THE ASSESSING OFFICER HAS ENTERTAINED THE BELIEF FOR ES CAPEMENT OF INCOME BASED ON AN ORDER OF THE TPO DATED 29.10.2010 U/S 92CA(3) OF THE ACT WHICH IS NONEST AND VOID AB INITIO. THE FUNDAMENTAL POINT CANVASSE D BY THE APPELLANT IS THAT THE REFERENCE U/S 92CA MADE BY THE ASSESSING OFFICER TO THE TPO FOR COMPUTING THE ARM'S LENGTH PRICE WAS INVALID BECAUSE WHEN THE REF ERENCE WAS MADE ON 14.09.2009, NO ASSESSMENT PROCEEDINGS WERE PENDING IN RELATION TO THE INSTANT ASSESSMENT YEAR. 12. AT THIS STAGE, IT WOULD BE APPROPRIATE TO CONSI DER WHETHER THE REFERENCE MADE BY THE ASSESSING OFFICER TO THE TPO ON 14.09.2 009 FOR DETERMINATION OF ARM'S LENGTH PRICE IS VALID OR NOT ? FOR THE SAID PURPOSE, WE MAY BRIEFLY TOUCH- UPON THE RELEVANT PROVISIONS RELATING TO THE TRANSF ER PRICING ASSESSMENT WHICH ARE CONTAINED IN SECTIONS 92 TO 92F OF THE ACT UNDER CH APTER X RELATING TO THE ITA NO.2480/PUN/2012 2007-08 11 SPECIAL PROVISIONS RELATING TO AVOIDANCE OF TAX . SECTIONS 92 TO 92F OF THE ACT WERE INTRODUCED BY THE FINANCE ACT, 2001 AN D ARE EFFECTIVE FROM THE ASSESSMENT YEAR 2002-03. SECTION 92(1) OF THE ACT PROVIDES THAT ANY INCOME ARISING FROM AN INTERNATIONAL TRANSACTION BETWEEN A SSOCIATED ENTERPRISES SHALL BE COMPUTED HAVING REGARD TO THE ARMS LENGTH PRICE. SECTIONS 92A AND 92B OF THE ACT CONTAIN PROVISIONS RELATING TO THE MEANING OF T HE EXPRESSIONS ASSOCIATED ENTERPRISE AND INTERNATIONAL TRANSACTION RESPECT IVELY. SECTION 92C OF THE ACT CONTAINS THE POWERS OF THE ASSESSING OFFICER AND TH E MANNER OF DETERMINATION OF ARM'S LENGTH PRICE IN RELATION TO AN INTERNATIONAL TRANSACTION. SECTION 92CA OF THE ACT PROVIDES THAT WHERE THE ASSESSING OFFICER CONSI DERS IT NECESSARY OR EXPEDIENT TO DO SO, HE MAY REFER TO THE TRANSFER PR ICING OFFICER THE DETERMINATION OF THE ARMS LENGTH PRICE. SECTION 92CB OF THE ACT RELATES TO THE POWER OF THE BOARD TO MAKE SAFE HARBOUR RULES. SECTION 92D OF T HE ACT RELATES TO MAINTENANCE AND KEEPING OF INFORMATION AND DOCUMENT BY PERSONS ENTERING INTO AN INTERNATIONAL TRANSACTION. SECTION 92E OF THE ACT PRESCRIBES THAT THE PERSON ENTERING INTO INTERNATIONAL TRANSACTION SHALL FURNI SH A REPORT FROM A CHARTERED ACCOUNTANT IN FORM NO.3CEB. SECTION 92F OF THE ACT CONTAINS DEFINITIONS OF CERTAIN TERMS WHICH ARE RELEVANT TO COMPUTE ARM'S L ENGTH PRICE, ETC. IN TERMS OF SECTIONS 92 TO 92F OF THE ACT. 13. NOTABLY, THE ENTIRE SCHEME AND MECHANISM TO COM PUTE ANY INCOME ARISING FROM AN INTERNATIONAL TRANSACTION ENTERED B ETWEEN ASSOCIATED ENTERPRISES IS CONTAINED IN SECTIONS 92 TO 92F OF THE ACT. NOW , WE MAY DEAL IN SLIGHT DETAIL THE PROVISIONS OF TRANSFER PRICING ASSESSMENT WHICH ARE RELEVANT IN THE CONTEXT OF CONTROVERSY BEFORE US. SECTION 92(1) OF THE ACT MA NDATES THAT ANY INCOME ARISING FROM AN INTERNATIONAL TRANSACTION SHALL BE COMPUTED HAVING REGARD TO THE ARM'S LENGTH PRICE. SECTION 92C, INTER-ALIA, PRESC RIBES THE METHODS FOR COMPUTATION OF ARM'S LENGTH PRICE IN RELATION TO AN INTERNATIONAL TRANSACTION. SUB- SECTION (3) OF SECTION 92C OF THE ACT EMPOWERS THE ASSESSING OFFICER TO DETERMINE THE ARM'S LENGTH PRICE IN RELATION TO AN INTERNATIONAL TRANSACTION IN ACCORDANCE WITH THE METHODS PRESCRIBED IN SUB-SECTI ON (1), ON THE BASIS OF MATERIAL OR INFORMATION OR DOCUMENTS AVAILABLE WITH HIM, AFTER ALLOWING THE ASSESSEE AN OPPORTUNITY IN THIS REGARD; AND, SUB-SE CTION (4) OF SECTION 92C PROVIDES THAT WHERE THE ASSESSING OFFICER SO DETERM INES THE ARM'S LENGTH PRICE, HE MAY COMPUTE THE TOTAL INCOME OF THE ASSESSEE HAV ING REGARD TO THE ARM'S LENGTH PRICE SO DETERMINED. HOWEVER, SECTION 92CA OF THE ACT PROVIDES THAT WHERE THE ASSESSING OFFICER CONSIDERS IT NECESSARY OR EXPEDIENT SO TO DO, HE MAY REFER THE COMPUTATION OF ARM'S LENGTH PRICE IN RELATION TO AN INTERNATIONAL TRANSACTION TO THE TPO. IN SUCH A SITUATION, THE T PO, AFTER TAKING INTO ACCOUNT THE MATERIAL BEFORE HIM, PASS AN ORDER IN WRITING U/S 9 2CA(3) OF THE ACT DETERMINING THE ARM'S LENGTH PRICE IN RELATION TO AN INTERNATIO NAL TRANSACTION. ON RECEIPT OF THIS ORDER, SUB-SECTION (4) OF SECTION 92CA OF THE ACT R EQUIRES THE ASSESSING OFFICER TO COMPUTE THE TOTAL INCOME OF THE ASSESSEE IN CONF ORMITY WITH THE ARM'S LENGTH PRICE SO DETERMINED BY THE TPO. IN OTHER WORDS, TH E DETERMINATION OF THE ARM'S LENGTH PRICE, WHEREVER A REFERENCE IS MADE TO HIM, IS DONE BY THE TPO UNDER SUB-SECTION (3) OF SECTION 92CA BUT THE COMPUTATION OF TOTAL INCOME HAVING REGARD TO THE ARM'S LENGTH PRICE SO DETERMINED BY T HE TPO IS REQUIRED TO BE DONE BY THE ASSESSING OFFICER UNDER SUB-SECTION (4) OF S ECTION 92C, READ WITH SUB- SECTION (4) OF SECTION 92CA. 14. IN SUM AND SUBSTANCE, THE SCHEME OF THE ACT POS TULATES THAT ARM'S LENGTH PRICE IN RELATION TO AN INTERNATIONAL TRANSACTION I S DETERMINED EITHER BY THE ASSESSING OFFICER AS PROVIDED IN SUB-SECTION (3) OF SECTION 92C OR BY THE TPO U/S 92CA(3) OF THE ACT WHERE A REFERENCE IS MADE TO HIM BY THE ASSESSING OFFICER. IN BOTH SITUATIONS, THE ASSESSING OFFICER IS REQUIR ED TO COMPUTE THE TOTAL INCOME OF THE ASSESSEE HAVING REGARD TO THE ARM'S LENGTH P RICE OF THE INTERNATIONAL TRANSACTION SO DETERMINED, EITHER IN TERMS OF SUB-S ECTION (4) OF SECTION 92C OR SUB-SECTION (4) OF SECTION 92CA. NOTABLY, SUB-SECT ION (4) OF SECTION 92C COMES INTO PLAY WHERE AN ARM'S LENGTH PRICE IN RELATION T O THE INTERNATIONAL TRANSACTION IS DETERMINED BY THE ASSESSING OFFICER AND SUB-SECTION (4) OF SECTION 92CA COMES INTO PLAY WHERE THE ARM'S LENGTH PRICE IN RELATION TO AN INTERNATIONAL TRANSACTION IS DETERMINED BY THE TPO, ON A REFERENCE BY THE ASSESS ING OFFICER. IN THE CASE ITA NO.2480/PUN/2012 2007-08 12 BEFORE US, THE TOTAL INCOME OF THE ASSESSEE HAS BEE N COMPUTED HAVING REGARD TO THE ARM'S LENGTH PRICE DETERMINED BY THE TPO UNDER SECTION 92CA(3) OF THE ACT AND THEREFORE THE ASSESSING OFFICER HAS TAKEN RECOU RSE TO SECTION 92CA(4) OF THE ACT. 15. IT IS QUITE CLEAR THAT THE PROCESS OF DETERMINA TION OF ARM'S LENGTH PRICE IS TO BE CARRIED OUT DURING THE COURSE OF ASSESSMENT PROC EEDINGS, MAY IT BE, UNDER SUB-SECTION (3) OF SECTION 92C WHERE THE ASSESSING OFFICER DETERMINES THE ARM'S LENGTH PRICE OR UNDER SUB-SECTIONS (1) TO (3) OF SE CTION 92CA, WHERE THE ASSESSING OFFICER REFERS THE DETERMINATION OF ARM'S LENGTH PRICE TO THE TPO. WE MAY ALSO REFER TO THE PROVISIONS OF SECTION 143(3) OF THE ACT DEALING WITH ASSESSMENT OF INCOME. IN TERMS OF CLAUSE (II) OF S UB-SECTION (3) OF SECTION 143, IT IS PRESCRIBED THAT THE ASSESSING OFFICER SHALL, BY AN ORDER IN WRITING, MAKE AN ASSESSMENT OF THE TOTAL INCOME OR LOSS OF THE ASSES SEE, AND DETERMINE THE SUM PAYABLE BY HIM OR REFUND ON ANY AMOUNT DUE TO HIM O N THE BASIS OF SUCH ASSESSMENT. IT IS ONLY IN THE COURSE OF SUCH ASSES SMENT OF TOTAL INCOME, THAT THE ASSESSING OFFICER IS OBLIGATED TO COMPUTE ANY INCOM E ARISING FROM AN INTERNATIONAL TRANSACTION OF AN ASSESSEE WITH ASSOC IATED ENTERPRISES, HAVING REGARD TO THE ARM'S LENGTH PRICE. IN THIS BACKGROU ND, IS IT NOT APPROPRIATE TO INFER THAT THE PROVISIONS OF SECTION 92 TO 92F OF THE ACT GET TRIGGERED ONLY DURING THE PENDENCY OF THE PROCESS OF ASSESSMENT OF TOTAL INCO ME BEFORE THE ASSESSING OFFICER, WHICH CULMINATES IN AN ORDER UNDER SECTION 143(3) OR SECTION 144 OF THE ACT, AS THE CASE MAY BE ? 16. IN-FACT, THE OCCASION WHICH REQUIRES THE ASSESS ING OFFICER TO COMPUTE INCOME FROM AN INTERNATIONAL TRANSACTION ARISES ONL Y DURING THE ASSESSMENT PROCEEDINGS, WHEREIN HE IS DETERMINING THE TOTAL IN COME OF THE ASSESSEE. THE APPELLANT HAS CANVASSED THE AFORESAID POSITION BEFO RE US AND IN THIS CONTEXT REFERENCE HAS ALSO BEEN MADE TO THE CBDT INSTRUCTIO N NO.3 DATED 20 TH MAY, 2003 THE RELEVANT PORTION OF WHICH READ AS UNDER :- ..........THE CENTRAL BOARD OF DIRECT TAXES, THERE FORE, HAVE DECIDED THAT WHEREVER THE AGGREGATE VALUE OF INTERNATIONAL TRANS ACTION EXCEEDS RS.5 CRORES, THE CASE SHOULD BE PICKED UP FOR SCRUTINY A ND REFERENCE UNDER SECTION 92CA BE MADE TO THE TPO. IF THERE ARE MORE THAN ONE TRANSACTION WITH AN ASSOCIATED ENTERPRISE OR THERE ARE TRANSACTIONS WITH MORE THAN ONE ASSOCIATED ENTERPRISES THE AGGREGATE VALUE OF WHICH EXCEEDS RS.5 CRORES, THE TRANSACTIONS SHOULD BE REF ERRED TO THE TPO. BEFORE MAKING REFERENCE TO THE TPO, THE ASSESSING O FFICER HAS TO SEEK APPROVAL OF THE COMMISSIONER/DIRECTOR AS CONTEMPLAT ED UNDER THE ACT. UNDER THE PROVISIONS OF SECTION 92CA REFERENCE IS I N RELATION TO THE INTERNATIONAL TRANSACTION. HENCE ALL TRANSACTIONS HAVE TO BE EXPLICITLY MENTIONED IN THE LETTER OF REFERENCE. SINCE THE CA SE WILL BE SELECTED FOR SCRUTINY BEFORE MAKING REFERENCE TO THE TPO, THE AS SESSING OFFICER MAY PROCEED TO EXAMINE OTHER ASPECTS OF THE CASE DURING PENDENCY OF ASSESSMENT PROCEEDINGS BUT AWAIT THE REPORT OF THE TPO ON THE VALUE OF INTERNATIONAL TRANSACTION BEFORE MAKING FINAL ASSES SMENT. [UNDERLINED FOR EMPHASIS BY US] 17. IT IS EMPHASIZED ON THE BASIS OF THE CBDT INSTR UCTION (SUPRA) THAT EVEN AS PER THE UNDERSTANDING OF THE CBDT, A CASE IS TO BE SELECTED FOR SCRUTINY ASSESSMENT BEFORE THE ASSESSING OFFICER MAY REFER T HE COMPUTATION OF ARM'S LENGTH PRICE IN RELATION TO AN INTERNATIONAL TRANSA CTION TO THE TPO U/S 92CA OF THE ACT. THEREFORE, WE ARE INCLINED TO UPHOLD THE POSI TION SOUGHT TO BE CANVASSED BY THE ASSESSEE THAT AN ASSESSING OFFICER CAN MAKE REF ERENCE TO THE TPO U/S 92CA OF THE ACT ONLY AFTER SELECTING THE CASE FOR SCRUTI NY ASSESSMENT. IN-FACT, THE AFORESAID UNDERLINED OBSERVATIONS OF THE CBDT INSTR UCTION (SUPRA) IS A POINTER TO THE LEGISLATIVE IMPORT THAT THE REFERENCE TO THE TP O FOR DETERMINING THE ARM'S LENGTH PRICE IN RELATION TO AN INTERNATIONAL TRANSA CTION IS ENVISAGED ONLY IN THE COURSE OF THE ASSESSMENT PROCEEDINGS, WHICH IS THE ONLY PROCESS KNOWN TO THE ACT, WHEREBY THE ASSESSMENT OF TOTAL INCOME IS DONE . AS PER THE CBDT (SUPRA), THE ASSESSING OFFICER MAY PROCEED TO EXAMINE OTHER ASPECTS OF THE CASE DURING ITA NO.2480/PUN/2012 2007-08 13 PENDENCY OF ASSESSMENT PROCEEDINGS BUT AWAIT THE RE PORT OF THE TPO ON THE VALUE OF THE INTERNATIONAL TRANSACTIONS BEFORE MAKI NG ASSESSMENT SINCE THE CASE WOULD BE SELECTED FOR SCRUTINY BEFORE MAKING REFERE NCE TO THE TPO. 18. IN THE CONTEXT OF THE AFORESAID CONTROVERSY, WE MAY REFER TO THE ARGUMENTS RAISED BY THE LD. CIT-DR WHEREBY IT IS CONTENDED TH AT IT WAS OPEN FOR THE ASSESSING OFFICER TO MAKE A REFERENCE TO THE TPO FO R DETERMINATION OF ARM'S LENGTH PRICE WITHOUT ISSUING NOTICE U/S 143(2) OF T HE ACT; IN OTHER WORDS, AS PER THE REVENUE, REFERENCE TO THE TPO U/S 92CA OF THE A CT CAN BE MADE EVEN IF NO ASSESSMENT PROCEEDING IS PENDING BEFORE THE ASSESSI NG OFFICER. IN THIS CONTEXT, IT IS SUBMITTED THAT THE ANNUAL NORMS FOR SELECTION OF CASES FOR SCRUTINY PRESCRIBED BY THE CBDT FOR ASSESSMENT YEAR 2007-08, INTER-ALIA , PRESCRIBED COMPULSORY SCRUTINY IN ALL CASES WHERE THE TOTAL VALUE OF INTE RNATIONAL TRANSACTIONS AS DEFINED IN SECTION 92B EXCEEDED RS.15 CRORES. ACCORDING TO HER, IN SUCH A CASE, THE ASSESSING OFFICER CAN VERY WELL ISSUE THE NOTICE U/ S 143(2) OF THE ACT AND THEN MAKE A REFERENCE TO THE TPO. HOWEVER, IT IS SUBMIT TED THAT THE CBDT NORMS ALSO PROVIDE THAT A CASE WHICH IS NOT DIRECTLY COVE RED UNDER THE AFORESAID COMPULSORY SCRUTINY NORM, CAN ALSO BE SELECTED FOR SCRUTINY IF THE ASSESSING OFFICER RECORDS A SATISFACTION AND SEEKS THE APPROV AL OF THE CCIT/DGIT (INTERNATIONAL TAXATION)/DGIT (EXEMPTION). THE AFO RESAID NORM HAS BEEN POINTED OUT TO SAY THAT IN ORDER TO PICK-UP A CASE FOR SCRUTINY, SOME SATISFACTION IS REQUIRED TO BE RECORDED BEFORE THE NOTICE U/S 143(2 ) OF THE ACT IS TO BE ISSUED. THIS EXERCISE, ACCORDING TO THE LD. CIT-DR, COULD V ERY WELL BE THE REFERENCE OF THE MATTER OF THE TPO, THEREFORE, THE STIPULATED PE RIOD LAID DOWN BY THE CBDT DOES NOT PRE-SUPPOSE THAT THE ISSUE OF NOTICE U/S 1 43(2) OF THE ACT HAS TO BE NECESSARILY AND WITHOUT FAIL PRECEDE THE REFERENCE TO TPO. 19. WE HAVE CAREFULLY CONSIDERED THE PLEA OF THE LD . CIT-DR, THAT IT IS OPEN TO THE DEPARTMENT TO MAKE A REFERENCE TO THE TPO WITHO UT ISSUING NOTICE U/S 143(2) OF THE ACT, BUT IN OUR VIEW, IT IS NOT SUPPORTED BY A SCHEMATIC READING OF THE RELEVANT PROVISIONS RELATING TO THE TRANSFER PRICIN G ASSESSMENT CONTAINED IN SECTIONS 92 TO 92F. THE ENTIRE PURPOSE OF COMPUTAT ION OF ARM'S LENGTH PRICE IN RELATION TO AN INTERNATIONAL TRANSACTION IS FOUND I N SUB-SECTION (1) OF SECTION 92 OF THE ACT. SECTION 92(1) MANDATES THAT ANY INCOME AR ISING FROM AN INTERNATIONAL TRANSACTION SHALL BE COMPUTED HAVING REGARD TO THE ARM'S LENGTH PRICE. THEREFORE, THE SOLE AIM OF COMPUTING THE ARM'S LENG TH PRICE IN RELATION TO ANY INTERNATIONAL TRANSACTION IS TO COMPUTE THE INCOME ARISING THEREFROM. THUS, THE COMPUTATION OF INCOME AND THE DETERMINATION OF ARM' S LENGTH PRICE IN RELATION TO THE INTERNATIONAL TRANSACTION HAVE TO GO HAND-IN-HA ND AND WITHOUT THERE BEING AN OCCASION TO COMPUTE INCOME ARISING FROM AN INTERNAT IONAL TRANSACTION, IT IS DIFFICULT TO COMPREHEND THE PROCESS FOR COMPUTATION OF ARM'S LENGTH PRICE IN RELATION TO THE RELEVANT INTERNATIONAL TRANSACTION. THEREFORE, IT WOULD NOT BE OPEN FOR THE DEPARTMENT TO SAY THAT THE PROCESS OF COMPUTING ARM 'S LENGTH PRICE OF AN INTERNATIONAL TRANSACTION OR A REFERENCE TO THE TPO TO DETERMINE ARM'S LENGTH PRICE CAN BE INITIATED IN THE ABSENCE OF ANY PROCEE DING FOR COMPUTING TOTAL INCOME OF THE ASSESSEE. 20. FURTHER, IN OUR VIEW, THE LD. CIT-DR HAS RELIED ON ONE OF THE NORMS PRESCRIBED FOR PICKING A RETURN FOR SCRUTINY ASSESS MENT TO SAY THAT CERTAIN EXERCISE IS REQUIRED TO BE DONE ON THE PART OF THE ASSESSING OFFICER TO RECORD HIS SATISFACTION BEFORE THE MATTER IS PUT-UP TO THE CCI T/DGIT WHO SHALL APPROVE THE SELECTION OF CASE FOR SCRUTINY. ACCORDING TO HER, THE RECORDING OF SUCH SATISFACTION CONTEMPLATED IN THE CBDT INSTRUCTION, WOULD, INTER- ALIA, ENVISAGE A REFERENCE TO THE TPO ALSO. IN OUR CONSIDERED OPINION, THE RELIA NCE PLACED BY THE LD. CIT-DR ON THE AFORESAID CBDT PROCEDURE FOR SELECTION OF CA SES FOR SCRUTINY, CANNOT DISTRACT FROM THE RELEVANT STATUTORY PROVISIONS REL ATING TO THE CONTROVERSY BEFORE US. IN-FACT, THE SCHEME OF THE ACT WHICH WE HAVE D EALT EARLIER, ESTABLISHES THAT THE WORK OF COMPUTING THE ARM'S LENGTH PRICE IN REL ATION TO INTERNATIONAL TRANSACTION ARISES ONLY AND ONLY WHEN THE INCOME FR OM SUCH INTERNATIONAL TRANSACTION IS BEING ASSESSED. CERTAINLY, THE REFE RENCE TO THE TPO FOR THE ITA NO.2480/PUN/2012 2007-08 14 COMPUTATION OF ARM'S LENGTH PRICE CANNOT PRECEDE TH E INITIATION OF THE ASSESSMENT PROCEEDINGS BY THE ASSESSING OFFICER BY ISSUANCE OF NOTICE U/S 143(2) OF THE ACT. 21. AS PER THE LD. CIT-DR, SECTION 92C(3) OR 92CA O F THE ACT DO NOT ENJOIN THE ASSESSING OFFICER TO HAVE ANY ASSESSMENT PROCEE DINGS PENDING BEFORE A REFERENCE TO THE TPO CAN BE MADE FOR COMPUTATION OF ARM'S LENGTH PRICE IN RELATION TO AN INTERNATIONAL TRANSACTION. IN THIS CONTEXT, REFERENCE HAS BEEN MADE TO THE PHRASEOLOGY OF SECTION 92CA(1) OF THE ACT TO SAY THAT ONLY TWO CONDITIONS ARE PRESCRIBED THEREIN WHICH ARE TO BE FULFILLED BY THE ASSESSING OFFICER BEFORE REFERRING THE MATTER TO THE TPO. FIRSTLY, ASSESSEE SHOULD HAVE ENTERED INTO INTERNATIONAL TRANSACTION; AND, THAT IF THE ASSESSI NG OFFICER CONSIDERS IT NECESSARY AND EXPEDIENT TO DO SO, HE MAY REFER THE MATTER TO THE TPO UNDER APPROVAL OF THE COMMISSIONER. IF BOTH THE CONDITIONS ARE SATISFIED THERE IS NO BAR OR REQUIREMENT OF ANY ASSESSMENT PROCEEDINGS BEING PENDING, BEFORE THE REFERENCE IS MADE TO THE TPO. 22. THE AFORESAID PLEA OF THE LD. CIT-DR ALSO, IN O UR VIEW, FAILS TO TAKE INTO CONSIDERATION THE ENTIRE SCHEME ENVISAGED FOR THE T RANSFER PRICING ASSESSMENT IN SECTIONS 92 TO 92F OF THE ACT. THE PROVISIONS OF S ECTIONS 92 TO 92F OF THE RELATE TO COMPUTATION OF INCOME FROM THE INTERNATIONAL TRA NSACTION HAVING REGARD TO THE ARM'S LENGTH PRICE, MEANING OF ASSOCIATED ENTERPRIS ES, MEANING OF INTERNATIONAL TRANSACTION, DETERMINATION OF ARM'S LENGTH PRICE, K EEPING AND MAINTAINING OF INFORMATION AND DOCUMENTS BY PERSONS ENTERING INTO INTERNATIONAL TRANSACTIONS, FURNISHING OF A REPORT FROM AN ACCOUNTANT BY PERSON S ENTERING INTO SUCH TRANSACTION AND THE DEFINITION OF CERTAIN EXPRESSIO NS OCCURRING IN SUCH SECTIONS. THE AFORESAID PROVISIONS DO NOT OPERATE IN INDIVIDU AL SPHERES BUT THE SAME OPERATE WITH A SINGULAR PURPOSE OF COMPUTING INCOME ARISING FROM AN INTERNATIONAL TRANSACTION. THE PROCESS OF COMPUTAT ION OF INCOME IS NECESSARILY A PART AND PARCEL OF THE ASSESSMENT PROCEEDINGS ENVIS AGED UNDER THE ACT. SECTION 92CA OF THE ACT IS NOT AN INDEPENDENT PROVISION, BU T IT IS TRIGGERED ONLY WHEN THE OCCASION ARISES FOR APPLICATION OF SECTION 92(1) OF THE ACT, WHEREBY INCOME FROM AN INTERNATIONAL TRANSACTION IS TO BE COMPUTED HAVI NG REGARD TO ITS ARM'S LENGTH PRICE; AND, THE OCCASION TO COMPUTE THE INCOME WOUL D ARISE ONLY WHEN THERE IS AN ON-GOING ASSESSMENT PROCEEDING. THEREFORE, REFEREN CE MADE BY THE LD. CIT-DR TO THE PHRASEOLOGY OF SECTION 92CA(1) WITHOUT CONSI DERING THE ENTIRE SCHEMATIC ARRANGEMENT OF SECTIONS 92 TO 92F WOULD BE INCORREC T. 23. THEREFORE, WE CONCLUDE THIS ASPECT BY HOLDING T HAT THE ASSESSING OFFICER IS PRECLUDED FROM MAKING A REFERENCE TO THE TPO U/S 92CA(1) OF THE ACT FOR THE PURPOSES OF COMPUTING ARM'S LENGTH PRICE IN RELATIO N TO THE INTERNATIONAL TRANSACTION WHEN NO ASSESSMENT PROCEEDINGS ARE PEND ING IN RELATION TO THE RELEVANT ASSESSMENT YEAR. 10. THE TRIBUNAL FURTHER HELD THAT WHEN REFERENCE W AS MADE TO THE TPO BY THE ASSESSING OFFICER FOR DETERMINATION OF ARM'S LENGTH PRICE IN RELATION TO THE INTERNATIONAL TRANSACTION, NO ASSESSMENT PROCEEDING S WERE PENDING AND HENCE IT WAS AN INVALID REFERENCE. CONSEQUENTLY, THE SUBSEQ UENT ORDER PASSED BY THE TPO DETERMINING THE ADJUSTMENT TO THE INTERNATIONAL TRANSACTION WAS A NULLITY IN LAW AND VOID AB INITIO . THE RELEVANT FINDINGS OF THE TRIBUNAL VIDE PARAS 24 TO 27 READ AS UNDER :- ITA NO.2480/PUN/2012 2007-08 15 24. NOW, WE MAY COME BACK TO THE FACTS OF THE PRES ENT CASE. IN THIS CASE, RETURN OF INCOME WAS FILED ON 05.11.2007, WHICH WAS PROCESSED U/S 143(1) OF THE ACT. ON 14.09.2009, THE ASSESSING OFFICER MADE A R EFERENCE TO THE TPO FOR COMPUTATION OF ARM'S LENGTH PRICE IN RELATION TO AN INTERNATIONAL TRANSACTION ENTERED BY ASSESSEE WITH ITS ASSOCIATED ENTERPRISE. THE TPO, AFTER ALLOWING THE ASSESSEE OPPORTUNITY OF BEING HEARD AND AFTER TAKIN G INTO ACCOUNT THE MATERIAL AVAILABLE WITH HIM, PASSED AN ORDER DATED 29.10.201 0 DETERMINING THE ARM'S LENGTH PRICE IN ACCORDANCE WITH SUB-SECTION (3) OF SECTION 92CA OF THE ACT. 25. IN THE BACKGROUND OF THE ABOVE FACTS, IT NEEDS TO BE ESTABLISHED AS TO WHETHER ON 14.09.2009 WHEN THE ASSESSING OFFICER MA DE A REFERENCE TO THE TPO U/S 92CA(1) OF THE ACT, WAS THERE AN ASSESSMENT PRO CEEDINGS U/S 143 OF THE ACT PENDING FOR THE YEAR UNDER CONSIDERATION. IN THE P RESENT CASE, WE ARE DEALING WITH ASSESSMENT YEAR 2007-08 AND ASSESSEE FILED ITS RETURN OF INCOME ON 05.11.2007. IN TERMS OF CLAUSE (II) TO SUB-SECTION (2) OF SECTION 143 OF THE ACT, AS IT STOOD AT THE RELEVANT POINT OF TIME, NOTICE U/S 143(2) OF THE ACT IN ORDER TO SUBJECT THE RETURN OF INCOME TO SCRUTINY ASSESSMENT , SHOULD HAVE BEEN ISSUED WITHIN THIS SIX MONTHS FROM THE END OF THE RELEVANT ASSESSMENT YEAR I.E. UPTO 30.09.2008. THERE IS NO DISPUTE THAT NO SUCH NOTIC E HAS BEEN ISSUED WITHIN THE ABOVE STIPULATED PERIOD. A CONSEQUENCE OF THE AFOR ESAID SITUATION IS THAT THE RETURN OF INCOME FILED BY THE ASSESSEE ON 05.11.200 7 BECAME FINAL AS NO SCRUTINY PROCEEDINGS WERE STARTED WITHIN THE PERIOD STIPULAT ED IN LAW. THE AFORESAID POSITION IS ALSO REINFORCED BY THE CBDT CIRCULAR NO .549 DATED 31.10.1989. AS PER THE CBDT, IF, AFTER FURNISHING RETURN OF INCOME , AN ASSESSEE DOES NOT RECEIVE A NOTICE U/S 143(2) OF THE ACT FROM THE DEPARTMENT WITHIN PERIOD STIPULATED IN THE PROVISO TO SECTION 143(2) OF THE ACT, IT FOLLOWS TH AT THE RETURN FILED BY THE ASSESSEE HAS BECOME FINAL AND NO SCRUTINY PROCEEDINGS SHOULD BE STARTED IN RESPECT OF THAT RETURN. IN OTHER WORDS, IN THE PRESENT CASE, ASSES SMENT PROCEEDINGS U/S 143 OF THE ACT CAME TO END AND THE MATTER BECAME FINAL ON 30.09.2008 I.E. THE DATE WITHIN WHICH A NOTICE U/S 143(2) OF THE ACT WAS REQ UIRED TO BE ISSUED, WHICH WAS NOT DONE. THE JUDGEMENT OF THE HONBLE PUNJAB & HA RYANA HIGH COURT IN THE CASE OF VIPAN KHANNA VS. CIT AND OTHERS, 255 ITR 22 0 (P&H) IS ALSO TO THE SAME EFFECT. IN-FACT, AS PER THE HONBLE PUNJAB & HARYANA HIGH COURT, IN CASE WHERE A RETURN IS FILED AND IS PROCESSED AND NO NOT ICE UNDER SUB-SECTION (2) OF SECTION 143 THEREAFTER IS SERVED ON THE ASSESSEE WI THIN THE STIPULATED PERIOD, THE ASSESSMENT PROCEEDINGS U/S 143 COME TO AN END AND M ATTER BECOMES FINAL. AS PER THE HONBLE HIGH COURT, ALTHOUGH TECHNICALLY NO ASSESSMENT IS FRAMED IN SUCH A CASE, YET THE PROCEEDINGS FOR ASSESSMENT STAND TE RMINATED. TO THE SIMILAR EFFECT IS THE RATIO OF THE JUDGEMENTS OF THE HONBL E MADRAS HIGH COURT IN THE CASE OF (I) CIT VS. M. CHELLAPPAN AND ANOTHER, 281 ITR 4 44 (MADRAS); AND, (II) CIT VS. DEEP BARUAH, 329 ITR 362 (MADRAS). 26. IN THIS BACKGROUND, IF ON THE DATE OF MAKING OF REFERENCE TO THE TPO, THE ASSESSMENT PROCEEDINGS U/S 143 OF THE ACT HAD COME TO AN END AND THE PROCEEDINGS FOR ASSESSMENT STOOD TERMINATED, THERE WAS NO OCCASION FOR THE ASSESSING OFFICER TO HAVE MADE A REFERENCE TO THE T PO FOR DETERMINATION OF ARM'S LENGTH PRICE OF THE INTERNATIONAL TRANSACTION S IN TERMS OF SECTION 92CA OF THE ACT. WE HAVE ALREADY INFERRED IN THE EARLIER PARAS THAT UNDER THE PROVISIONS OF SECTION 92CA OF THE ACT, A REFERENCE TO THE TPO FOR COMPUTATION OF ARM'S LENGTH PRICE IN RELATION TO INTERNATIONAL TRANSACTIONS IS PERMISSIBLE ONLY IN THE COURSE OF THE ASSESSMENT PROCEEDINGS. 27. IN VIEW OF THE AFORESAID DISCUSSION, IT HAS TO BE INFERRED THAT WHEN THE ASSESSING OFFICER MADE REFERENCE TO THE TPO ON 14.0 9.2009 FOR DETERMINATION OF ARM'S LENGTH PRICE IN RELATION TO AN INTERNATIONAL TRANSACTION, THERE WAS NO ASSESSMENT PROCEEDINGS PENDING, AND THEREFORE IT WA S AN INVALID REFERENCE. CONSEQUENTLY, THE SUBSEQUENT ORDER PASSED BY THE TP O ON 29.10.2010 (SUPRA) DETERMINING THE ADJUSTMENT OF RS.2,49,48,811/- TO T HE INTERNATIONAL TRANSACTION IS A NULLITY IN LAW AND VOID AB INITIO. ITA NO.2480/PUN/2012 2007-08 16 11. ANOTHER ASPECT NOTED BY THE TRIBUNAL WAS WHETHE R IN THE ABOVE SAID CIRCUMSTANCES THE ORDER OF THE TPO COULD BE VALID M ATERIAL FOR THE ASSESSING OFFICER TO ENTERTAIN A BELIEF THAT CERTAIN INCOME C HARGEABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT. IT WAS HELD BY THE TRIBUNAL THAT THE REASONS RECORDED BY THE ASSESSING OFFICER IN THE PRESENT CASE DO NOT MEET THE REQUIREMENT OF SECTION 147 OF THE A CT AND THEREFORE THE ASSESSING OFFICER HAD NO JURISDICTION TO ISSUE NOTI CE UNDER SECTION 148 OF THE ACT DATED 14.01.2011 AND AS A CONSEQUENCE, THE SUBSEQUE NT ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R.W.S. 147 AND 144C(3) OF THE ACT WAS LIABLE TO BE QUASHED. THE RELEVANT OBSERVATIONS OF THE TRIBUNAL (SUPRA) ARE IN PARAS 28 TO 35, WHICH ARE AS UNDER :- 28. THE NEXT ASPECT IS AS TO WHETHER, IN THE ABOVE CIRCUMSTANCES, THE ORDER OF THE TPO DATED 29.10.2010 (SUPRA) CAN BE A VALID MAT ERIAL FOR THE ASSESSING OFFICER TO ENTERTAIN A BELIEF THAT CERTAIN INCOME C HARGEABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT. 29. IN THIS CONTEXT, THE LD. CID-DR HAS VEHEMENTLY POINTED OUT THAT THE RETURN OF INCOME FILED BY THE ASSESSEE INCLUDED INTERNATIO NAL TRANSACTIONS ENTERED WITH THE ASSOCIATED ENTERPRISE AND SUCH RETURN OF INCOME WAS REQUIRED TO BE TAKEN-UP FOR COMPULSORY SCRUTINY, AS PER THE NORMS OF THE CB DT RELATING TO ASSESSMENT YEAR 2007-08. THEREFORE, WHEN SUCH A RETURN OF INC OME WAS NOT PICKED UP FOR A SCRUTINY ASSESSMENT WITHIN THE STIPULATED PERIOD, T HE ONLY COURSE FOR THE REVENUE WAS TO ISSUE NOTICE U/S 148 OF THE ACT ON THE GROUN D THAT CERTAIN INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT. SECONDLY , IT IS POINTED OUT THAT THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 05.11 .2007 WITH CIRCLE 11(2), PUNE WHEREAS FORM NO.3CEB FOR THE SAME ASSESSMENT YEAR W AS FILED IN CIRCLE 1(1), PUNE ON 31.10.2007. IT IS ONLY ON 28.07.2009, FORM NO.3CE B WAS RECEIVED BY THE PRESENT ASSESSING OFFICER I.E. CIRCLE 1(1) WHER EIN IT WAS SEEN THAT ASSESSEE HAD ENTERED INTO INTERNATIONAL TRANSACTIONS WITH AS SOCIATED ENTERPRISES. FOR THIS REASON, THE CASE OF THE ASSESSEE HAD ESCAPED FROM C OMPULSORY SELECTION FOR SCRUTINY. ON THIS BASIS, IT IS SOUGHT TO BE POINTE D OUT THAT THE RE-OPENING OF ASSESSMENT BY ISSUANCE OF NOTICE U/S 147/148 OF THE ACT IS JUSTIFIED. 30. APART FROM THE AFORESAID, IT WAS ALSO VEHEMENTL Y ARGUED THAT ANY ILLEGALITY OR IRREGULARITY IN MAKING OF A REFERENCE TO THE TPO U/S 92CA OF THE ACT CANNOT RENDER THE SUBSEQUENT ORDER PASSED BY THE TPO U/S 9 2CA(3) OF THE ACT AS A NULLITY QUA THE BELIEF ENTERTAINED BY THE ASSESSING OFFICER THAT CERTAIN INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT ON ACCOUNT OF DETERMINATION OF ARM'S LENGTH PRICE OF THE INTERNATIONAL TRANSACTION WITH THE ASSOCIATED ENTERPRISE. THE LD. CIT-DR SUBMITTED THAT IN THE CASE OF THE POORAN MAL VS. DIT, (1974) 93 ITR 505 (SC), THE COURT HAD REFUSED TO EXCLUDE FROM THE PURVIEW OF ASSESSMENT EVEN THE MATERIAL AND EVIDENCE WHICH WAS OBTAINED BY THE DEPARTMENT EVEN THROUGH A ILLEGAL SEARCH AND SEIZURE ACTION. DRAWING A SIMIL AR ANALOGY TO THE FACTS OF THE PRESENT CASE, IT IS CONTENDED THAT AN ILLEGAL OR IN CORRECT REFERENCE TO THE TPO WOULD NOT INVALIDATE THE ARM'S LENGTH PRICE DETERMI NED BY HIM U/S 92CA(3) OF THE ACT, WHICH SHOWED THAT AN ADJUSTMENT OF RS.2,49,43, 811/- WAS REQUIRED TO BE MADE TO THE STATED VALUES OF THE INTERNATIONAL TRAN SACTION. THEREFORE, THE ITA NO.2480/PUN/2012 2007-08 17 AFORESAID MATERIAL PROVIDED A GOOD GROUND FOR THE A SSESSING OFFICER TO FORMULATE A BELIEF THAT CERTAIN INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT. 31. AT THE OUTSET, WE MAY NOTICE THAT THE VALIDITY OF THE NOTICE REOPENING THE ASSESSMENT U/S 148 OF THE ACT HAS TO BE DETERMINED ON THE BASIS OF THE REASONS WHICH ARE DISCLOSED TO THE ASSESSEE. THOSE REASONS CONSTITUTE THE FOUNDATION OF THE ACTION INITIATED BY THE ASSESSING OFFICER OF RE OPENING THE ASSESSMENT. THE AVERMENTS MADE BY THE LD. CIT-DR REGARDING THE COMP ULSORY SCRUTINY OF RETURNS WHICH INVOLVED INTERNATIONAL TRANSACTIONS AND/OR TH AT THE FORM NO.3CEB WAS NOT FILED WITH THE ASSESSING OFFICER, ARE REASONS WHICH ARE NOT FINDING A PLACE IN THE REASONS RECORDED BY THE ASSESSING OFFICER FOR RE-AS SESSMENT. THE REASONS RECORDED BY THE ASSESSING OFFICER FOR RE-ASSESSMENT , HAVE ALREADY BEEN REPRODUCED BY US IN THE EARLIER PART OF THIS ORDER. ITS A TRITE LAW THAT THE REASONS RECORDED BY THE ASSESSING OFFICER ARE ALONE TO BE E XAMINED SO AS TO TEST THEIR VALIDITY. IN THIS CONTEXT, A REFERENCE CAN BE MADE TO THE JUDGEMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF NORTHERN EXIM (P) L TD. VS. DCIT, (2012) 20 TAXMANN.COM 466 (DELHI) WHEREIN IT HAS BEEN HELD TH AT A COURT IS TO BE GUIDED ONLY BY THE REASONS RECORDED FOR RE-ASSESSMENT AND NOT BY THE REASONS OR EXPLANATION GIVEN BY THE REVENUE AT A LATER STAGE I N RESPECT OF THE NOTICE OF RE- ASSESSMENT. THE HONBLE DELHI HIGH COURT AFTER MAK ING A REFERENCE TO THE FOLLOWING JUDGEMENTS :- (I) JAMNA LAL KOBRA VS. ITO (1968) 69 ITR 461 (ALL. ); (II) CIT VS. AGARWALLA BROS. (1991) 189 ITR 786 (PA T.); (III) G.M. RAJGHARIA VS. ITO, (1975) 98 ITR 486 (PA T.); (IV) ASA JOHN DEVINATHAN VS. ADDL. CIT, (1980) 126 ITR 270 (MAD.); (V) EAST COAST COMMERCIAL CO. LTD. VS. ITO, (1981) 128 ITR 326 (CAL.); (VI) EQUITABLE INVESTMENT CO. (P.) LTD. VS. ITO, (1 988) 174 ITR 714 (CAL.); AND, (VII) S. SREERAMACHANDRA MURTHY VS. DCIT, (2000) 24 3 ITR 427 (AP). HELD AS UNDER :- THE RATIO LAID DOWN IN ALL THESE CASES IS THAT, HA VING REGARD TO THE ENTIRE SCHEME AND PURPOSE OF THE ACT, THE VALIDITY OF THE ASSUMPTION OF JURISDICTION UNDER SECTION 147 CAN BE TESTED ONLY B Y REFERENCE TO THE REASONS RECORDED UNDER SECTION 148(2) OF THE ACT AN D THE ASSESSING OFFICER IS NOT AUTHORIZED TO REFER TO ANY OTHER REA SON EVEN IF IT CAN BE OTHERWISE INFERRED AND/OR GATHERED FROM THE RECORDS . HE IS CONFINED TO THE RECORDED REASONS TO SUPPORT THE ASSUMPTION OF J URISDICTION. HE CANNOT RECORD ONLY SOME OF THE REASONS AND KEEP THE OTHERS UP HIS SLEEVES TO BE DISCLOSED BEFORE THE COURT IF HIS ACTION IS EVER CH ALLENGED IN A COURT OF LAW. 32. TO THE SIMILAR EFFECT IS THE JUDGEMENT OF THE H ONBLE BOMBAY HIGH COURT IN THE CASE OF 31 INFOTECH LTD. VS. ACIT, (2010) 32 9 ITR 257 (BOM.) WHEREIN IT HAS BEEN HELD THAT THE VALIDITY OF THE REOPENING OF ASSESSMENT HAS TO BE DETERMINED WITH REFERENCE TO THE REASONS WHICH HAD WEIGHED WITH THE ASSESSING OFFICER AND THOSE CANNOT BE ADDED TO OR SUPPORTED O N A BASIS WHICH WAS NOT PRESENT TO THE MIND OF THE ASSESSING OFFICER WHEN H E ISSUED THE NOTICE TO REOPEN THE ASSESSMENT. AS A CONSEQUENCE OF OUR AFORESAID DISCUSSION, WE ARE UNABLE TO CONSIDER THE VALIDITY OF THE ISSUANCE OF NOTICE OF RE-ASSESSMENT BASED ON THE EXPLANATION/REASONS NOW SOUGHT TO BE SUPPLEMENTED B Y THE LD. CIT-DR, WHICH OTHERWISE DO NOT FIND A PLACE IN THE REASONS RECORD ED BY THE ASSESSING OFFICER. 33. WE HAVE ALSO CAREFULLY CONSIDERED THE OTHER PLE A RAISED BY THE LD. CIT- DR BASED ON THE JUDGEMENT OF THE HONBLE SUPREME CO URT IN THE CASE OF POORAN MAL (SUPRA). IT IS QUITE WELL-SETTLED THAT ANY ILL EGALITY OR IRREGULARITY IN OBTAINING MATERIAL OR EVIDENCE WOULD NOT PRECLUDE THE REVENUE AUTHORITIES FROM UTILIZING ITA NO.2480/PUN/2012 2007-08 18 THE SAME IN ASSESSMENT OF INCOME UNLESS THE GENUINE NESS AND CORRECTNESS OF THE MATERIAL OR EVIDENCE IS IN DOUBT. SO HOWEVER, IN THE PRESENT CASE, WE ARE NOT DEALING WITH THE POWER OF THE ASSESSING OFFICER TO COMPUTE INCOME OF THE ASSESSEE ARISING FROM AN INTERNATIONAL TRANSACTION BASED ON THE ARM'S LENGTH PRICE DETERMINED BY THE TPO. INDEED, AS WE HAD SEE N EARLIER THE COMPUTATION OF TOTAL INCOME FROM AN INTERNATIONAL TRANSACTION HAS TO BE DONE BY THE ASSESSING OFFICER UNDER SUB-SECTION (4) OF SECTION 92C READ W ITH SUB-SECTION (4) OF SECTION 92CA OF THE ACT HAVING REGARD TO THE ARM'S LENGTH P RICE DETERMINED BY THE TPO. THERE IS NO DISPUTE ON THE SAID ASPECT. IN THE PRE SENT CASE, THE POINT MADE OUT BY THE ASSESSEE IS THAT A NONEST AND VOID AB INITIO ORDER PASSED BY THE TPO ON 29.10.2010 DETERMINING THE ARM'S LENGTH PRICE U/S 9 2CA(3) OF THE ACT CANNOT FORM A BASIS TO FORMULATE A BELIEF THAT CERTAIN INCOME C HARGEABLE TO TAX HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT. THE CONTROVERSY IN THE PRESENT CASE HAS TO BE ADJUDICATED IN THE LIGHT OF THE PARAMETERS OF SECTION 147/148 OF THE ACT. IN A SOMEWHAT SIMILAR SITUATIO N, THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF BRIG B. LAL VS. WTO, 127 ITR 3 08 (RAJ.) WAS DEALING WITH A SITUATION WHERE THE REOPENING OF ASSESSMENT WAS BAS ED ON A REPORT SUBMITTED BY THE VALUATION OFFICER IN AN INVALID REFERENCE. AS PER THE HONBLE HIGH COURT, A REPORT SUBMITTED BY THE VALUATION OFFICER IN AN INV ALID REFERENCE MUST BE TREATED AS A NULLITY IN THE EYES OF LAW, NONEST AND VOID AB INITIO. ACCORDING TO THE HONBLE HIGH COURT, WHERE THE REOPENING OF ASSESSMENT WAS B ASED ON SUCH ILLEGAL, NULL AND VOID REPORT, THE ENTIRE FABRIC FOR REOPENING OF THE ASSESSMENT PROCEEDINGS FALLS FLAT. IN OUR CONSIDERED OPINION, THE RATIO O F THE JUDGEMENT OF THE HONBLE RAJASTHAN HIGH COURT IN THE CASE OF BRIG B. LAL (SU PRA) IS SQUARELY APPLICABLE IN THE PRESENT CASE. THEREFORE, HAVING REGARD TO THE PECULIAR FACTS OF THE PRESENT CASE, THE PROPOSITION SOUGHT TO BE CANVASSED BY THE LD. CIT-DR BASED ON THE DECISION IN THE CASE OF POORAN MAL (SUPRA) DOES NOT VALIDATE THE ISSUANCE OF NOTICE U/S 148 OF THE ACT TO REOPEN THE ASSESSMENT IN THE PRESENT CASE. 34. THE LD. CIT-DR ALSO RELIED UPON THE JUDGEMENT O F THE PUNJAB & HARYANA HIGH COURT IN THE CASE OF M/S COCA COLA INDIA INC V S. ACIT, (2009) 177 TAXMANN.COM 103 TO SAY THAT AN ORDER PASSED BY THE TPO CAN BE A REASON FOR RE-ASSESSMENT OF INCOME U/S 147/148 OF THE ACT. TH E ABOVE PROPOSITION CANVASSED BY THE LD. CIT-DR IS NOT AN ABSOLUTE PROP OSITION, AND THE JUDGEMENT OF THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE C ASE OF M/S COCA COLA INDIA INC (SUPRA) HAS TO BE APPRECIATED IN THE LIGHT OF T HE FACT-SITUATION THEREIN. IN THE CASE OF M/S COCA COLA INDIA INC (SUPRA), THE STAND OF THE REVENUE WAS THAT ASSESSEE WAS SUPPRESSING ITS PROFIT IN ITS TRANSACT IONS WITH ITS ASSOCIATED ENTERPRISES IN THE PERIOD PRIOR TO THE ASSESSMENT Y EAR 2002-03. THE REVENUE CONTENDED THE SUPPRESSION OF PROFITS ON THE GROUND OF AN ORDER PASSED BY THE TPO UNDER CHAPTER X AFTER 01.04.2002 IN RELATION TO AN ASSESSMENT YEAR AFTER 01.04.2002. SUCH ORDER OF THE TPO FORMED THE BASIS FOR THE ASSESSING OFFICER TO FORMULATE A BELIEF THAT THERE WAS AN ESCAPEMENT OF INCOME WITHIN THE MEANING OF SECTION 147 OF THE ACT FOR THE PERIOD PRIOR TO ASSE SSMENT YEAR 2002-03. PERTINENTLY, IN THE PERIOD PRIOR TO ASSESSMENT YEAR 2002-03, THE UN-AMENDED PROVISIONS OF SECTION 92 OF THE ACT DID NOT PROVIDE FOR AN ORDER BY THE TPO DETERMINING ARM'S LENGTH PRICE. THE ASSESSEE ATTAC KED THE INITIATION OF PROCEEDINGS U/S 147/148 OF THE ACT FOR A PERIOD PRI OR TO ASSESSMENT YEAR 2002-03 CONTENDING THAT THE ORDER OF THE TPO PASSED UNDER C HAPTER X SUBSEQUENT TO THE AMENDMENT MADE WITH EFFECT FROM 01.04.2002 IN RESPE CT OF A SUBSEQUENT ASSESSMENT YEAR WAS IRRELEVANT. IN OTHER WORDS, AS SESSEE CANVASSED THAT THE ORDER OF THE TPO IN RESPECT OF A SUBSEQUENT ASSESSM ENT YEAR COULD NOT BE A GROUND TO REOPEN THE ASSESSMENT OF A YEAR WHICH WAS PRIOR TO THE AMENDMENT OF SECTION 92 OF THE ACT WITH EFFECT FROM 01.04.2002. THE HONBLE HIGH COURT DISAGREED WITH THE ASSESSEES DEFENSE AND UPHELD TH E ACTION OF THE ASSESSING OFFICER IN TAKING INTO ACCOUNT THE SUBSEQUENT ORDER OF THE TPO FOR FORMING A BELIEF THAT CERTAIN INCOME LIABLE TO TAX HAD ESCAPED ASSES SMENT EVEN IN RELATION TO AN ASSESSMENT YEAR PRIOR TO THE INSERTION OF 92CA OF T HE ACT WITH EFFECT FROM 01.04.2002. AS PER THE HONBLE HIGH COURT, THE ORD ER OF THE TPO COULD CERTAINLY HAVE NEXUS FOR REACHING A CONCLUSION THAT INCOME HA S BEEN INCORRECTLY ASSESSED OR HAS ESCAPED ASSESSMENT WITHIN THE MEANING OF SEC TION 147 OF THE ACT. THE ITA NO.2480/PUN/2012 2007-08 19 PROPOSITION LAID DOWN BY THE HONBLE HIGH COURT IS TO THE EFFECT THAT THE ORDER OF THE TPO PASSED U/S 92CA OF THE ACT AFTER 01.04.2002 I.E. UNDER THE AMENDED PROVISIONS, CAN BE ONE OF THE REASONS FOR RE-ASSESS MENT FOR A PERIOD PRIOR TO THE INTRODUCTION OF THE AMENDED CHAPTER X WITH EFFECT F ROM 01.04.2002. CLEARLY, THE DISPUTE IN THE CASE OF M/S COCA COLA INDIA INC (SUP RA) STOOD ON A DIFFERENT FOOTING THAN THE DISPUTE BEFORE US. IN THE CASE OF M/S COC A COLA INDIA INC (SUPRA), IT WAS NOBODYS CASE THAT THERE WAS ANY ILLEGALITY IN THE REFERENCE MADE TO THE TPO OR THAT THE ORDER OF THE TPO WAS VOID AB INITIO WITH R ESPECT TO THE ASSESSMENT YEAR FOR WHICH THE TPO PASSED THE ORDER U/S 92CA(3) OF T HE ACT. THE ONLY POINT WAS WHETHER ORDER OF THE TPO PASSED U/S 92CA(3) OF THE ACT FOR A SUBSEQUENT ASSESSMENT YEAR COULD FORM A BASIS FOR THE ASSESSIN G OFFICER TO FORMULATE A BELIEF ABOUT THE ESCAPEMENT OF INCOME IN A PRECEDIN G ASSESSMENT YEAR WHEN THE AMENDED REGIME OF CHAPTER X WAS NOT ON THE STATUTE. THE FACTS AND CIRCUMSTANCES IN THE PRESENT CASE ARE ENTIRELY DIFF ERENT AND THEREFORE THE JUDGEMENT OF THE PUNJAB & HARYANA HIGH COURT IN THE CASE OF M/S COCA COLA INDIA INC (SUPRA) DOES NOT HELP THE CASE OF THE REV ENUE. 35. AS A CONSEQUENCE, WE CONCLUDE BY HOLDING THAT T HE REASONS RECORDED BY THE ASSESSING OFFICER IN THE PRESENT CASE DO NOT ME ET WITH THE REQUIREMENTS OF SECTION 147 OF THE ACT AND THEREFORE THE ASSESSING OFFICER HAD NO JURISDICTION TO ISSUE NOTICE U/S 148 OF THE ACT DATED 14.01.2011. AS A CONSEQUENCE, THE SUBSEQUENT ASSESSMENT ORDER PASSED U/S 143(3) R.W.S . 147 AND 144C(13) OF THE ACT IS LIABLE TO BE QUASHED. WE HOLD SO. 12. AS REFERRED TO BY US IN THE PARAS HEREINABOVE T HE FACTUAL ASPECTS OF THE PRESENT CASE BEFORE US ARE IDENTICAL TO THE FACTS B EFORE THE TRIBUNAL IN MAXIMIZE LEARNING (P.) LTD. VS. ACIT (SUPRA) AND HENCE THE R ATIO LAID DOWN BY THE CO- ORDINATE BENCH OF THE TRIBUNAL IS SQUARELY APPLICAB LE TO THE FACTS OF THE CASE. IN VIEW THEREOF, WE HOLD THAT WHEN NO ASSESSMENT PROCE EDINGS WERE PENDING IN RELATION TO THE RELEVANT ASSESSMENT YEAR, THE ASSES SING OFFICER WAS PRECLUDED FROM MAKING A REFERENCE TO THE TPO UNDER SECTION 92 CA(1) OF THE ACT FOR THE PURPOSES OF COMPUTING THE ARM'S LENGTH PRICE IN REL ATION TO THE INTERNATIONAL TRANSACTION. CONSEQUENTLY, ORDER PASSED BY THE TPO UNDER SECTION 92CA(3) PROPOSING AN ADJUSTMENT OF RS.12,17,43,370/- TO THE ARM'S LENGTH PRICE OF THE INTERNATIONAL TRANSACTION WAS A NULLITY IN LAW AND VOID AB INITIO . IN VIEW OF THE ABOVE-SAID FACTS AND CIRCUMSTANCES, SUCH AN ORDER P ASSED BY THE TPO WAS NOT A VALID MATERIAL FOR THE ASSESSING OFFICER TO ENTERTA IN A BELIEF THAT CERTAIN INCOME CHARGEABLE TO TAX HAD ESCAPED ASSESSMENT WITHIN THE MEANING OF SECTION 147 OF THE ACT. CONSEQUENTLY, WE HOLD THAT THE REASONS RE CORDED FOR REOPENING THE ASSESSMENT UNDER SECTION 147 OF THE ACT DO NOT MEET THE REQUIREMENTS OF THE SECTION AND HENCE THE ASSESSING OFFICER HAD NO JURI SDICTION TO ISSUE NOTICE UNDER ITA NO.2480/PUN/2012 2007-08 20 SECTION 148 OF THE ACT. CONSEQUENTLY, THE SUBSEQUE NT ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) R.W.S. 147 A ND 144C OF THE ACT IS LIABLE TO BE QUASHED. ACCORDINGLY, WE HOLD SO. THE GROUNDS OF THE APPEAL NO.1 & 2 RAISED BY THE ASSESSEE ARE ALLOWED. 13. AS THE PRELIMINARY ISSUE RAISED BY THE ASSESSEE REGARDING THE ASSUMPTION OF JURISDICTION BY THE ASSESSING OFFICER HAS BEEN D ECIDED IN FAVOUR OF THE ASSESSEE AND THE IMPUGNED ASSESSMENT HAS BEEN QUASH ED, THE REMAINING GROUNDS OF APPEAL RAISED BY THE ASSESSEE REGARDING THE MERITS OF THE ADDITION BECOME ACADEMIC AND HENCE THE SAME ARE NOT ADJUDICA TED FOR THE PRESENT. 14. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED ON THIS 5 TH DAY OF MAY, 2017. SD/- SD/- (RAJESH KUMAR) (SUSHMA CHOWLA) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; DATED : 5 TH MAY, 2017. SATISH / COPY OF THE ORDER IS FORWARDED TO : THE APPELLANT; THE RESPONDENT; ( ) THE CIT(A)-1, PUNE; / THE CIT - 1 , PUNE ; , , / DR A, ITAT, PUNE; / GUARD FILE. / BY ORDER // TRUE COPY // / ASSISTANT REGISTRAR, , / ITAT, PUNE