Karnataka High Court
Toyota Kirloskar Motor Private Limited vs The Additional Commissioner Of Income ... on 7 January, 2011
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 7% DAY OF JANUARY 2011 BEFORE THE HON'BLE MRS.JUSTICE 3.V.NAaARATRNEgD:qjy W.P.Nb.41439/2010 [T.IT]wuLf *D BETWEEN TOYOTA KIRLOSKAR MDTGR PRIVATE LIMITED.} PLOT No.1, BIDADI INDUSTRIAL AREA '» BIDADI, RAMNAGAR, BANGELcRE~562,:o9E REPRESENTED BY ITS VIcE.PRE$IDENT""" FINANCE *.f I i= 'V' "T PETITIONER (By,M/svEDLLR'AND_EDLERI" 1 THE ADDITIONAL CQMEISSIDNER DE INCOME TAx_'¢! ILARGE TEX ?AYERS UNIT ,Wmwm@mmW-H« _____ I 2 TTEE ADDITIONAL COMMISSIONER Oi:'~fI.NCOfMEv~~ TAX . VITRANSEER PRICING] II = BANGALORE ... RESRDNDENTS xj z=-XBy Sri M V SESHACHALA, ADV.,) '*mHIs WRIT ?ETITEON Is FILED UNDER "_RRTIcLEs 226 AND 227 OF THE CONSTITUTION OF ~_T*INDIA RRAXIND TO QUASH THE ORDER DATED u'u24;9.2o1o VIDE ANNExuRE--R ?ASSED BY THE SECOND ".REsRoNDENT AND DIRECT THE SECOND RESRDNDENT TO " UNDERTAKE AND COMLETE TEE ASSESSMENT PROCEEDINGS AFRESH BY TAKI§G INTO ;%/«'/*1 CONSIDERATION THE DOCUMENTS/INFORMAEION PROVIDED BY THE PETITIOEER AND ALSO BY GIVING AN OPPORIUNITY OF BEING HEARD WITHIN A.FER§GD or 8 WEEKS FROM THE DATE or THE oanmamofivjazsfl' COURT. THIS WRIT PETITION _mcQMIN¢"""oR'".§oRnu' PRELIMINARY HEARING THIS DAY, :33 covgw ymng_ THE FOLLOWING:~ 5' oénfig In this writ netitionfitfieinetitioner has sought quashinguo§Vthe¥or§erIdetee 24.9.2010 produced fit gg§§x§§§=§H¢ tn oontending that sufficient *o§§ortnn§t&V neg :not given to the petitioner' to fnntforth 'its case before the Additional I_¢om@iseioner of Income Tax _ [Transfer Prieingjwii, Bangalore~Respondent
V_No;2_nerein§.
Ae2.V.IAneording to the petitioner, the "-g second. respondent issued a notice dated Vxg"i§;2:2008 calling upon it to produce certain E",;doeuments relating to transactions with . associate enterprises during the financial year 2006~200?, which were required to be furnished by 3.3.2008 and that the requisite jgfi documents were produced. Subsequently notice dated 15.2.2010 was sent to the petitioner seeking various additional documents ° and" * information from the petitioner, which was tofiti be complied by 3.3.2010.
3. According to ithe~'petitionertMWthe documents required were toineingus and since it was engaged in finaiisation 55 the accounts for the year ending§3ii3t00i0h a letter was addressed :onfii§134Z0iQfl*seehing extension of time tiii the and or §p;fii"éb1o to provide the documents sought bfi the second respondent. The letter_ wand Vaeknofiiedged by the second a"resfiondentx. and 'htime """ was extended till il0@$120i0= only. However, on 10.3.2003, a representation was submitted by the petitioner iVu stating fhat substantial number of documents H'a"are_§:oduced and that the Company's officials i"« were engaged in audit work and therefore iextension of time and accommodation till the gt.
end of April 2010 was sought.
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4. It is the case of the petitioner that though time was sought till the end of April, 2010, the order dated 24.9.2016, which is impugned in this writ petition states that, though sufficient opportunity was given *£b:fs"
filing documents and to file the snheissiong request for further time by the fietitionernsash not acceded and that the order gas pageéa on the submission and tthee*details. anailahle in the file and that iasiKah;¢eshiterthe second respondent has _not floensidered' the material which was available on record in its proper perspective since there was no hearing given _ and, also the_ documents which were to be dj §rodnceds--and_ for which 'time was sought was alse not granted and as ea result there has . been grave prejudice caused to the petitioner ihoniaoconnt of the impugned order. Hence, the dated 24.9.2010 is challenged by "dfeehtending that an opportunity to be given to the petitioner to putferth its case before the i Mi S _..
second respondent-Additienal Commissioner" of Inceme Tax {Transfer 9ricing}--II, BangalereQW,
5. I have heard the learned: Sefiiezd Counsel appearing for thew petiticfier_eahd\ learned. Standing' Counsel fer: the Ineeme dféxd' Department and perused the materiel an reeerd.
6. The prihcigleriedbfiieeien of the learned Senier cgugsg;t,§p§éa§§n§ for the petitioner_:e teat defend rederd to the fact that timg geeE§?#gh# go §rdddce the requisite documents'aedre1eodaj§raFer was made to give a personal hearind} tfie order dated 24.9.2010, _ categericallymdv states that sufficient AV_eppertdfi1t§Fwas given till 10.3.2010 but not tiiirA§ril'éGiO, but the order does not make
-- it eppareht as to why thereafter time was not tedrantedt when infect the order itself was ,;§asséd in September 2010. He also submits that "tithe documents which were produced in March 2319 have not been censidered in their proper perspective and hence, the matter may be §., ...w""' E remanded back to the concerned authority for re-consideration of the entire issue by giving an opportunity to the petitioner.
7. Learned Counsel for ithe1:mepartment_? however objects to the remand¥of=the eatter hf contending that pursuant: go they grderfl on 24.9.2010 there has':'i:~een'Ai.aV_ trade by the concerned asseeeifigdhetfiogge end if the petitioner is aggrieved bv fine game then the matter hae to he tahen fit hefore the another authoritv;"i§eI? a referenoe has to be made to the di§p§te'--ee§¢iu$§§fi» panel under Section 144~C_of the Inoofie Tax Act. Therefore, the x"petiticnero has "an alternative remedy for d¢hailenginfiVthe same before the said authority andg henoef "the writ petition is devoid of V_ 'merit and the same may be dismissed. d'8. Having considered the rival m"contentions of the parties and on perusal of "the order dated 24.9.2010, it is apparent that only" part information. was made available to the concerned authority i.e., the second respondent by the petitioner and also time was sought for furnishing the rest 'of *T£§é. documents. It is seen that accommodation was sought till April éfiiflhhutt extension of time was not granted and'neithef"
was an opportunity 'fort personaig hearing granted. But however, ti1in§eptemher~2dlO no order was passed hhyi the? authority. It is noticed thatw that authorityp gag no doubt recorded a finding that sufficient opportunity has beenxgiwefi to the petitioner but having regard to__ of the Counsel for __ the, petitionerv that neither a prayer for 'Q personal hearing was considered and also the fact phat the documents which were already on
-- record Were also not taken into consideration hpor*appreciated in their proper perspective, it dlis just and necessary that the petitioner be Vo given an opportunity to putforth its case before the concerned authority. Moreover, the statute in the instant case i e., the Income in the i . 8 .
Tax Act does not bar personal hearing being granted and therefore the request made by the petitioner in that regard ought to have been considered by the second respondent, in whieh event the petitioner could have putforth"itsii case and explained the doc:t1':'ne--nts-'_' on Though learned Counsel fore the respondenteh Department has submitted fihot in View of there being an altef9a§iv9;""£§me§¥' iathisfi writ petition is not nainteinebie;nineyertheless, what has to be taken into oonsideretion is the fact ithat.ftfiefaiQhas' been violation of principles "of _5a:u§a1' justice and. therefore _ this is.a fit case for interference by this i} Court 'nwithin the scope of the writ jurisdiotionfld Therefore, the order dated _V24.§}2eio'is set aside.
i9. The second respondent is directed to E*:irewconsider the matter by giving an iiopportunity to the petitioner to submit the documents on which it places reliance and also give a personal hearing to a petitioner. Since xii.
the parties are represented by their respective Counsel, the matter could beftaken' up by the concerned' authority on 2?}1g2§i3;h:d the petitioner to appear beforej figs! secondgii respondent on the said datefii @heCisec§nai respondent is at liberty to his the date for furnishing of the documents it not suhhitted by the petitioner fig thenias féi; as the date for hearing the §etitioherJfian§h accordingly pass orders within a period of one month from 27.1.2oii,*,d'i 10in in' viefig Gt «this order, the draft assessment 'order ddated 2.12.2019, which is Jhfiled along with a memo today made pursuant to dthe_ordertimpdgned in this writ petition dated 24{3y20lQ is; also set aside. The concerned "~u assessing officer would consider the passing i'."oiH_the draft assessment order' based on the hhrdorder to be passed by the second respondent. :iThe 'time for inaking' of the draft assessment order based on the order to be passed by the second respondent is accordingly extended. ! 10 Writ Petition is disposed of in the aforesaid terms .
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