M/S.WIPRO ENTERPRISES PRIVATE LIMITED V. ASSISTANT COMMISSIONER OF INCOME TAX

WP/3948/2021

AI Insights

In this writ petition, M/s Wipro Enterprises Private Limited, represented by its manager taxation, challenged an order passed by the Assistant Commissioner of Income Tax, Transfer Pricing Officer-2(2)(2), Bengaluru, under Section 92CA(3) of the Income Tax Act, 1961. The petitioner sought to quash the order dated 29th January 2021, which pertained to the assessment year 2017-18, claiming that the TPO had erred in not considering relevant statutory provisions and judicial precedents. The respondents argued that the petitioner had not produced the cited judgments during the assessment proceedings and thus were not entitled to relief. The court, after hearing both parties, decided to set aside the TPO's order and remand the case for a fresh assessment, emphasizing the need for consideration of all relevant laws and precedents.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 675057 (HC-KARNATAKA)
• Appeal Type: Others
• Pronouncement Date: 06-02-2024
• Assessment Year: misc
• Other Referred Cases: Commissioner of Income Tax-3 vs M/s. Thyssen Krupp Industries India Pvt. Ltd., Commissioner of Income Tax vs Tara Jewels Exports Pvt. Ltd., Commissioner of Income Tax vs Keihin Panalfa Ltd., CIT vs Petro Araldite Pvt Ltd., CIT vs Hindustan Uniliever Ltd., CIT vs ALSTOM Projects India Ltd., CIT vs Phoenix Mecano (India) Pvt. Ltd., CIT-I vs Hindustan Unilever Ltd., CIT vs Phoenix Mecano (India) Pvt. Ltd.
• Laws Referred To: Income Tax Act, 1961, Constitution of India
• Result in Favour of: Others
• Court: HIGH COURT
• Department Lawyers: E I SANMATHI
• Assessee Lawyers: S ANNAMALAI; M LAVA
• Keywords: Income Tax; Transfer pricing; Writ of Certiorari; Writ of prohibition
• Section: 92CA(3)

Judgement Text

" - 1 - NC: 2024:KHC:5334 WP No. 3948 of 2021 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF FEBRUARY, 2024 BEFORE THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR WRIT PETITION NO. 3948 OF 2021 (T-IT) BETWEEN: M/S WIPRO ENTERPRISES PRIVATE LIMITED REP BY ITS MANAGER TAXATION SRI ARUN CHOUDHURY AGED ABOUT 33 YEARS S/O SRI ASHOK KUMAR CHOUDHURY 5TH FLOOR, NO.88 S B TOWERS, M G ROAD BENGALURU – 560 001 …PETITIONER (BY SRI. S.ANNAMALAI & SRI.M.LAVA, ADVOCATES) AND: 1. ASSISTANT COMMISSIONER OF INCOME TAX TRANSFER PRICING OFFICER-2(2)(2) BMTC BUILDING, 80 FEET ROAD KORAMANGALA BENGALURU – 560 095 2. JOINT COMMISSIONER OF INCOME TAX SPECIAL RANGE-7 BMTC BUILDING 80 FEET ROAD KORAMANGALA BENGALURU – 560 095 …RESPONDENTS (BY SRI. E.I.SANMATHI, ADVOCATE) THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO ISSUE DIRECTION CALLING FOR THE RECORDS OF THE PETITIONERS CASE AND AFTER EXAMINING THE LEGALITY AND VALIDITY THEREOF QUASH AND SET ASIDE THE ORDER DATED 29TH JANUARY, 2021 PASSED BY R-1 U/S 92CA(3) OF THE INCOME TAX ACT, 1961 FOR THE AY 2017- 18 HEREIN MARKED AS ANNEXURE-J & ETC., Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2024:KHC:5334 WP No. 3948 of 2021 THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER In this petition, petitioner is aggrieved by the impugned order passed by the respondent No.1 (Transfer Pricing Officer) – TPO under Section 92CA(3) of the Income Tax Act, 1961 dated 29.01.2021 and for other reliefs: “a) Issue of writ of Certiorari or a writ in the nature of Certiorari or any other appropirate writ, order or direction under Article 226 of the Constitution of India calling for the records of the Petitioner’s case and after examining the legality and validity thereof quash and set aside the order dated 29th January, 2021 passed by Respondent No.1 under section 92CA(3) of the Income- tax Act, 1961 for the AY 2017-18 herein marked as Annexure – J; b) Issue a Writ of Prohibition or a writ in the nature of Prohibition or any other appropriate writ, order or direction under Article 226 of the Constitution of India ordering and directing Respondent No.2 to refrain from giving effect to an and/or proceeding further by way of assessment or otherwise in any manner in respect of the order dated 29th January, 2021 passed by Respondent No.1 under section 92CA(3) of the Income-tax Act, 1961 for the AY 2017-18 herein marked as Annexure – J; - 3 - NC: 2024:KHC:5334 WP No. 3948 of 2021 c) And pass such other orders as this Hon’ble Court deems fit and proper in the interest of justice and equity.” 2. Heard learned counsel for the petitioner and learned counsel for the respondents and perused the material on record. 3. In addition to reiterating the various contentions urged in the memorandum of petition and referring to the material on record, learned counsel for the petitioner submits that the respondent No.1 – TPO committed an error in passing the impugned order without considering or appreciating the relevant statutory provisions as well as the judgment of various High Courts as stated below: 1. Commissioner of Income Tax-3 vs M/s. Thyssen Krupp Industries India Pvt. Ltd., 381 IR 413 2. Commissioner of Income Tax vs Tara Jewels Exports Pvt. Ltd. Order dated 05.10.2025 in ITA No.1814/2013 (HC- Bombay) 3. Commissioner of Income Tax vs Keihin Panalfa Ltd. 381 ITR 407 (Delhi) 4. CIT vs Petro Araldite Pvt Ltd., (Bombay) Order dated 24.11.2015. 5. CIT vs Hindustan Uniliever Ltd., 394 ITR 73 (Bombay) 6. CIT vs ALSTOM Projects India Ltd., 394 ITR 141 (Bombay) - 4 - NC: 2024:KHC:5334 WP No. 3948 of 2021 7. CIT vs Phoenix Mecano (India) Pvt. Ltd., (2019) 414 ITR 704 (Bombay) 8. CIT-I vs Hindustan Unilever Ltd., SLP(C) No.(s) 22381/2017 Order dated 29.10.2018 (SC) 9. CIT vs Phoenix Mecano (India) Pvt. Ltd., SLP (civil) Diary No.2234/2018 Order dated 05.02.2018 (SC). 4. It is submitted that non consideration of the relevant statutory provisions as well as the law laid down by the various High Courts which have been confirmed by the Apex Court would vitiate the impugned order which deserves to be set aside and the matter be remitted back to the respondent No.1 – TPO for reconsideration afresh in accordance with law. 5. Per contra, learned counsel for respondents would submit that there is no merit in the petition and same is liable to be dismissed. It is submitted that if sufficient opportunities were granted to the petitioner who did not produce the aforesaid judgments and as such they are not entitled to any indulgence in the present petition. 6. I have given my anxious consideration to the rival submissions and perused the material on record. - 5 - NC: 2024:KHC:5334 WP No. 3948 of 2021 7. As rightly contended by the learned counsel for the petitioner, the aforesaid judgments relied upon the petitioner which were rendered prior to the impugned order have not been considered by the respondent No.1 – TPO before passing the impugned order which also does not take into account the relevant statutory provisions before passing the impugned order. Under these circumstances, without expressing any opinion on the merit/demerits of the rival contentions and in order to enable the first respondent – TPO to pass fresh orders after consideration of the relevant statutory provisions and the judgments of various High Courts referred to supra, I deem it just and appropriate to set aside the impugned order and remit the matter back to the first respondent for reconsideration afresh in accordance with law. 8. In the result, I pass the following: ORDER (i) Petitioner is hereby allowed. (ii) Impugned order dated 29.01.2021 passed by the respondent No.1 (Transfer Pricing Officer) – TPO under Section 92CA(3) of the Income Tax Act, 1961, is hereby set aside. - 6 - NC: 2024:KHC:5334 WP No. 3948 of 2021 (iii) Matter is remitted back to the respondent No.1 – TPO for reconsideration afresh bearing in mind the aforesaid judgments and the relevant statutory provisions, in this regard. (iv) All rival contentions on all aspects of the matter are kept open and no opinion is expressed on the same. (v) Liberty is reserved in favour of the petitioner to submit additional pleadings, documents, case law before the first respondent who shall consider the same and proceed further, in accordance with law. (vi) It is made clear that the respondent shall provide sufficient and reasonable opportunity to the petitioner and hear him and proceed further in the matter. Sd/- JUDGE DHA List No.: 2 Sl No.: 0 "