M/s TNS India Private Limited V. Union of India, rep. by Secretary, Ministry of Finance, South Block, New Delhi and The Assistant Commissioner of Income Tax, Circle-2(2), Hyderabad

WP/8528/2019

AI Insights

The case involves two writ petitions filed by M/s TNS India Private Limited against the Union of India and the Assistant Commissioner of Income Tax, challenging the consequential orders issued for the assessment year 2006-07. These orders were based on a remand by the Income Tax Appellate Tribunal, which had partly allowed the petitioner's appeal and directed the Assessing Officer to reassess certain items. The main legal contention was whether the consequential orders could be issued beyond the statutory time limit prescribed under Section 153(2A) of the Income Tax Act, 1961. The High Court examined the applicability of Section 153(2A) in the context of the Tribunal's remand and the nature of the orders passed.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 797518 (HC-MISC)
• Appeal Type: Others
• Pronouncement Date: 01-01-2023
• Assessment Year: misc
• Other Referred Cases: Instruments Control Co. v. Chief Commissioner of Income-tax, Commissioner of Income-tax v. Bhan Textiles (P) Ltd, Nokia India (P.) Ltd. v. Deputy Commissioner of Income-tax, DR R.P. PATEL v. KOTTAYAM VERSUS THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE - 1, KOTTAYAM, Virtusa Consulting Services (P.) Ltd. v. Dispute Resolution Panel
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: G NARENDRA CHETTY
• Assessee Lawyers: DEEPAK CHOPRA
• Keywords: Arm's Length Price; Assessment Year 2006-07; Consequential Order; Deduction under Section 10A; Income tax appellate tribunal; Intimation; Rectification Order; Refund; Transfer Pricing Officer; Writ of Certiorari
• Section: 143(3); 154; 254; 10A; 226; 227

Judgement Text

"L HIGH COURT FOR THE ST ; ;\" :, j i*iF,fffi{l*:,:'.;^ - \" ^,^ 1?['fJ\"lii,u#iiliff .\",[?,1??T [ 3386 I THE HON,BLE SR rHE H.N,BLE \"*,rrrr,affitcE P' sAM KosHY ;E LAXMI NARAYANA ALISHETTY WRtT 019: PRESENT NO: 853 AND PETITloN 85280F 2015 WP No.8530F 2 Between: M/s TNS lndia pr pa rr< p ro'i,li;\",i t,Jfi ;\",..: ti:,l J,.i\" ill R;;o?,l.^?, i f :1, rh e v_A s ce n d a s r r AND __ _v,vv(J ,v,duildpur, nyoerabad ..U\"?OIOT?J*.*, ' Ullf,i of lndia, rep. by [s secretary. Minisrry of Finance, south Btock, New 2. The Assistan, ao-T,f:,^o,L9l of tncome.Tax, Circte_ 2e).Hyderabad, Room \" iSariJ,i 5th Froor, sisnature r\"*.ii,'rJttl'gilo ,,,ono\"rr., Hyderabad_ ' il:: fl ?: t'I^ ?\", g1's;#:?L'd' llff#; lff ;?rt[;,* 2 (2), H y d e r a b ad, Roo m peririon under Articte 226 of the Constitution of lndia p*yiff:[:ih.i;: circumstances stated in the affidavit fired therewith, the High court may be pleased to a writ of certiorari, or a writ in the nature of certiorari, or any other appropriate writ, order or direction under artiile 226t227 \", ,n\" a\"\"\"nr;;;'., lndia, ca,ing for the records of the petitioners case so far as they rerate to the issue of (a) the rmpugned consequentiar order under section 254 read with section 143(3) for assessment year 2006 - 07 dated Aprit 20, 2018 (Exhibit p), (b) the impugned rectification order gn6s7 section 154 (Exhibit e) for assessment year 2006_ 07 dated October 12, 2O1B and (c) the impugned intimation bearing reference no. F.No.ACrr -2(2)t245t201g-1g dated June 15, 2018 (Exhibit R) and, after going through and examining the question of the validity, propriety and regarity thereof, be preased to decrare the same to be illegal and unenforceable, and, quash the same and directing the Respondents to pass necessary orders granting deduction under section 10 A of the Act as \"/ w Der the claim made by the Petitioner in its return :H,iJ \"ou\"\" of the assessment proceedins deducted at sollrce of Rs 2'69'19'506 and' lo,uu,r, ,t t as comPuted in (Exhibit T) of income as amended bY it s, (b) grant credit for taxes (c) issue a refund of Rs' IANo: '1 0F 2019 of CPC PraYing that in the Petition un ort of the Petition' the High circumstances stated in the affidavit filed in suPP I disPosal of this Petition ' the Court may be Pleased Pending the hearing and fina pursuant to the impugned der Order 39 Rule 1 & 2 ResPondents be re intimation bearing 2018 (Exhibit R) strained from taking any steps 45/2018-19 dated June 15' reference no F No ACIT-2(2)/2 that in the circumstances stated der Section 151 CPC Prayrng e High Court maY be Pleased to ed in suPport of the Petition' th copY of imPugned order dated e filing of the original / certified IA NO: OF 2019 Petition un in the aff idavit fil dispense with th 20th APril 2018 2 ^\"\"ffi##der Section 151 cPc praving that in the circumstances stated in the affidavit fifed in support of the petition' the High Court may be pleased to grant leave to the petitioner company to carry out the amendment by changing the Petitioner Company's name from TNS lndia Private Limited' to 'Kantar GDC lndia Private Limited' in the cause title of the writ petition and other miscellaneous petitions and also wherever it is required in the proceedings in the interest of justice Petition under Section '1 51 CPC praying that in the circumstances stated IA NO:2OF 2021 in the affidavit filed in suPPort of the petition' the High Court may be pleased to WP No.853 of 2019 bY expedite the hearing ln advancing the date of convenient date as this circumstances of the case the above writ Petition i.e.. hearing ftom 31 .08.2022 lo Hon'ble High Court deems today or any nearest fit and proper in the Counsel for the Petitioner: SRt DEEpAK CHOPRA, COUNSEL FOR SRI G. NARENDRA CHETTY Counsel for Respondents: WPNo: 85280F 2019 Between: MS. K. MAMATA CHoUDARY rj,i#!#'if,'i''i:fl ,'f \"sill,*,ki,fi ffi '&f ,Ftd;i,: 1. The Assistant Commissioner of lncome Tax Cir No.513, Sth Ftoor so00e0 --,, sisnarure i.;;;r. K,;ti;;rr.j\"^jli,;IrTlffi#TS:, I Ing Deputy Commissio. ner of lncome Tax. Trar 3. Union of lnbia. reo Derhi _ _, ._,_ by its secre.ti,ry ir4;\"i3i.y;i,Fri;:iJ::,8%flflE\"|;Ilt%flbro perition under Articte 226 of the Constitution of tndia ,.\";f;il:ir,\".T;: circumstances stated in the affidavit fired therewith, the High court may be pleased to a writ of certiorari. or a writ in the nature of certiorari. or any other appropriate writ. order or direction under articre 226t227 0f the constitution of lndia ca'ing for the records of the petitioners case so far as they rerate to the issue of (a) the lmpuoned TP oGE passed by the second Respondent dated January 07, 2o1g (Exhibit M). (b) the rmpugned consequentiar order under section 254 read with section 143(3) for A.y. 2008 - 09 dated January 22. 2o1g (Exhibit N) (c) the rmpugned Inlimation urs. 245 0f the Act (Exhibit o). and, after going through and examining the question of the validity, propriety and legality thereof, be preased to decrare the same to be iflegar and unenforceabre, and' quash the same and directing the Respondents to pass necessary orders as per the craims rirade by the petitioner in its revised return of income. (b)issue a refund of Rs. 14,26,56.136 as computed in (Exhibit p) AND PETITIONER lA NO: 1 OF 2019 Petition under section 1s1 cpc praying that In the circumstances stated in the affidavit filed in support of the petition, the High court may be preased to pending the hearing and final disposal of this petition, the respondents be restrained from taking any steps pursuant to the impugned intimation under section 245 dated January 22 zo19 bearing reference No.F. No. AABCN22TBF/ AY 2008-09 (Exhibit O) IA NO:20 2019 Petitio n under Se in the affidavit frled in s disPense with the filing dated January O7 ' 2019 IA Noi oF2oz',l der section 1 51 cPC praylng that in the 6il6urnsf3n6ss stated Petition un the High Court may be Pleased in the affidavit filed in support of the petition' out the amendment bY changing grant Ieave to the Petitioner Company to carry a Private Limited' to 'Kantar GDC the Petitioner Company's name from 'TNS lndi of the writ Petition and other lnd ia Private Limited in the cause title t is required in the proceedings ln miscellaneous petitions and also wherever t the interest of iustice and be pleased ction '1 51 CPC praying that in the circumstances stated ;;;;\" ., the petition' the High court mav be pleased to of the Original/certified copy of impugned TP OGE order F 1 trNt#p]!!f-a\" *aer Section 1Sl CpC praying that in the circumstances stated in the affidavit filed in support of the petition, the Hiqh court may be pleased to expedite the hearing in the above writ petition i'e ' WP No-8528 of 2019 by advancing the date of hearing from 31 'OB 2022 to today or any nearest convenient date as this Hon'ble High Court deems fit and proper in the circumstances of the case ' Counsel for the Petitioner: SRI DEEPAK C!{-O'PILIOUNSEL FOR iCr o. NARENDRA cHErrY Counsel for Respondent'' llt' X' MAMATA CHOUDARY The Court made the following: ORDER 3 THE HON'BLE SRI JUSTICE P.SAM KOSHY AND THE HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY WRIT PETITION Nos.853 & 8528 of2Ol9 COMMON ORDER: (per Hon'ble Si Justice P.SAM KOSHY) The challenge in these two writ petitions a-re the consequential orders dated 20.04 -2O 1B issued by the respondent No.3/The Deputy Commtssioner of Income Tax-2 under Section 254 read with Section 143 of the Income Tax Act, 196 1, (for short the \"Act\") for the assessment year 2006-2007 and the impugned rectification order dated l2'lO'2O18 issued by the respondent No.2/The Assistant Commissioner of Income Tax underSectionl54oftheActforthesalneassessmentyear.For Convenience,W.P.No.853of2Olgistakenup,sofarasthefacts are concerned. 2,HeardMr.DeepakChopra,learnedcounselappearingon behalf of Mr.Narendar Chetty' learned counsel for the petitioner andMs'K.MamataClroudaSl,learnedcounselforthe re spondent-DePartment 3. The whole dispute in the two writ petitions originates from an order passed by the Income Tax Appellate Tribunal (for shorl / I tEEiE ffi.-{ the \"Tribunal\") in ITA No.108/H1'd/2011 for the assessment )iear 2006-2007. The Tribunal vidc order clated27.06.2O14 had partly allorved an appcal of the petitioner/assesse. 4. For the aloresaid year, thc petitioner/ assesse had filed its return after cl:uming deductions r-rnder Section 1OA of the Act. The said return of the petitioner/assesse 'as subjccted to scrutiny by the Assessing Officer. Thc Assessing Oificcr ncting certaln international transactions being mirdc by thc petitioner/ assesse referred the matter to the Transfer Pricing Officer (TPO) under Section 92CA(1) for determining the Arm's Length Price (ALP). On examination, the TPO noted that while selecting comparables in ITES-BPO category, the petitioner/ assesse has wrongly applied incomparables with the comparables ignoring the provisions ol rule lOB(a) of the Act. Finally, the TPO passed a draft assessment order. The petitioner/ assesse raised objections before the Dispute Resolution Panel (DRP) who in l.urn rejected the same, leading to filing of ITA before the Tribunal. 5. The Tribunal after due consideration of all the contentions put forth bv the petitioner/ assesse found that there were certain items which were not properly assessed by the Assessing Officer. 5 / (t To the aforesaid extent, the appeal of the petitioner/ assesse was partly allowed and the matter was remitted back to the fiie of Assessing Olficer with a direction [o look into the aspect and take a decision in the matter alter veri$ing the claim of the petitioner / asse sse and giving a fair and reasonable opportunity of hearing. The order of the Tribunal was one which was passed on 27.06.2014. Now the consequential order pursuant to the remand by the Tribunal has been passed by the Assessing Officer only on 20.O4 2}la' It is this passing of the consequential order dated 20 'O4 '2018 which is the bone of contention in the present rvrit petitions' 6. The contention is as to \"whether the consequential order could have been passed by the Assessing Ofircer beyond the prescribed period of time as is envisaged under Section 153 (2A) of the Act.,, Secondly, uwhether aJter a remand is made by the Tribunal while aliowing an appeal in part' order that needs to be passed would be 153(2A) or would be under Section 153(3) of the Act'' 7. For ProPer aPPreciatton of the issue raised in the writ petitions it would be relevant at this juncture to quote the aforesaid two provisions of law under the Act i'e' Section 153(2A) the consequential one under Section 6 E=-F..1_#E - r..'t:*.i.i ii'! t 'J and Section 153(3) u,hich for read1. refercnce are reproduced herein under: \"(2A) Notluithstanding angthinq contained h sub-sections (1), (1A), (l B) and (2), in relation fo lhe a-ssessm ent Aear comnrcncing on the l't dag of April I 971 , and ang subser1tent assessmerlt Aear, an order of fres h assessmenf in pursuance of o.n order under section 250 or section 254 oJ section 263 of seciion, setting asirle or cancelllng an assessme,l L, ntag be marle at antl time before the e4tiry of one gear from tlrc encl of Lhe frnanciat 11ear in tuhich the order under sectiott 250 of section 254 is recei.ued bg Ihe Pnncipal ChreJ Commissioner or Chief (.ommissioner or Pincipal Commissioner or Cnmmissroner or, as lhe case ntag be, lhe order under section 263 or section 264 is passecl bg the Pincipa! Chief Commissioner or Chief Comrniss,oi., o, pnicipal C ommis s ione r o r Commts s io rLer. \"(3) .The prouistons of sub secrions (t), (tA), ltB) and (2) sha not appLA lo the folLowing classe-s o;f as.sessmenls, ,ro..r\"r.-\"rzta and recomputatons uthich maq, sthject to the prouisions o/ sulr. section (2A), be completed at anA time- o r*t (it uthere the assessmenl, rea.ssessmenf or recomputotion is made on lhe assessee or anA person ln