Madras High Court
Ppn Power Generating Company Pvt. Ltd vs The Commissioner Of Income Tax on 28 September, 2020
Author: T.S.Sivagnanam
Bench: T.S.Sivagnanam
W.A.No.855 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.09.2020
CORAM
THE HONOURABLE MR.JUSTICE T.S.SIVAGNANAM
and
THE HONOURABLE MRS.JUSTICE V.BHAVANI SUBBARAYON
W.A.No.855 of 2020
and C.M.P.No.10674 of 2020
PPN Power Generating Company Pvt. Ltd.
Rep.byy its authorised representative
III Floor, Jhaver Plaza,
1A, Nungambakkam High Road,
Chennai 600 034. .. Appellant
Versus
1.The Commissioner of Income Tax,
Aayakar Bhavan,
121, Uthamar Gandhi Salai,
Chennai 600 034.
2.The Assistant Commissioner of Income Tax,
Company Circle-V(II),
121, Uthamar Gandhi Salai,
Chennai 600 034.
3.The Deputy Commissioner of Income Tax,
Transfer Pricing Officer,
121, Uthamar Gandhi Salai,
Chennai 600 034. .. Respondents
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http://www.judis.nic.in
W.A.No.855 of 2020
Prayer:- Writ Appeal filed under Clause 15 of Letters Patent Act to set aside
the order dated 05.02.2020 passed in W.P.No.3241 of 2011 on the file of this
Court.
For Appellant : Mr.G.Baskar
For Respondent : Mr.A.P.Srinivas
Senior Standing Counsel
JUDGMENT
[Order of the Court was made by T.S.SIVAGNANAM, J.] This appeal, filed by the assessee, is directed against the order passed in W.P.No.3241 of 2011 dated 05.02.2020 in a Writ Petition filed by the appellant seeking to quash the reassessment Notice dated 25.02.2010 under Section 148 of the Income Tax Act, 1961 ('the Act' for brevity) and consequently the communication received from the 3rd respondent namely the Transfer Pricing Officer ('TPO' for brevity) dated 27.01.2011 informing the assessee that the assessee case has been referred to him under Section 92CA of the Act by the appellant's Assessing Officer and the assessee was called upon to furnish the information in terms of Section 92D and 92E of the Act as given in the questionare which was enclosed along with the Notice dated 2/6 http://www.judis.nic.in W.A.No.855 of 2020 27.01.2011.
2. The main ground canvassed by the assessee before the learned Single Bench and before us is by contending that the assessee by letter dated 15.09.2010 while acknowledging receipt of the notice under Section 148 of the Act, requested the Assessing Officer to furnish the reasons which were recorded for reopening of the assessment by order dated 29.12.2006, passed under Section 143(3) of the Act. Upon receipt of the assessee's letter dated 15.09.2010, the Assessing Officer communicated the reasons for reopening on 16.09.2010. The assessee on 26.10.2010 filed their objections for reopening of the assessment and submitted the same to the Assessing Officer. The assessee would contend that in terms of the decision of the Hon'ble Supreme Court in the case of GKN of Driveshafts (India) Ltd Vs. ITO [2003 (259) ITR 19 (SC)], the Assessing Officer was bound to dispose of the objections filed to the reopening of the proceeding and without doing so, he could not have referred the case under Section 92AC to the 3rd respondent namely TPO. 3/6 http://www.judis.nic.in W.A.No.855 of 2020
3. The learned Single Bench held that there are several disputed questions of fact which cannot be considered by a Court in exercise of it's jurisdiction under Article 226 of the Constitution of India. We fully agreed with the said reason assigned by the learned Single Bench, being one of the reason for dismissing the Writ Petition. Ultimately the learned Single Bench directed the assessee to participate in the adjudication mechanism. This finding rendered by the learned Single Bench is the appropriate procedure to be adopted, because the Income Tax Act is a complete Code by itself which provides for hierarchy of remedies and the last forum for recording the finding on facts is the Income Tax Appellate Tribunal. Therefore unless there are valid or cogent reasons, the assessee cannot bypass the procedures contemplated under the Act providing for hierarchy of remedies. However, we find that the grievances of the assessee to be not wholly unjustified, because in terms of the decision of the Hon'ble Supreme Court in the case of GKN of Driveshafts (India) Ltd Vs. ITO, the Assessing Officer is bound to dispose of the objections raised by the assessee to reopening of the assessment. In the instant case, it is admitted that on the date when the 3rd respondent / TPO issued notice dated 27.01.2011, the objections were not disposed of by the 4/6 http://www.judis.nic.in W.A.No.855 of 2020 Assessing Officer. Therefore agreeing with the ultimate conclusion arrived at by the learned Single Judge, slight modification can be made to the directions issued by the learned Single Bench in the impugned order.
4. With the above reasons, the Writ Appeal is dismissed with a direction to the 3rd respondent to consider the objections filed by the assessee dated 26.10.2010 and pass a reasoned order and communicate the same to the assessee within a period of six months from the date of receipt of a copy of this judgment. Upon receipt of the reasons, it is open to the assessee as well as the Assessing Officer to proceed in accordance with law. No costs. Consequently connected miscellaneous petition is closed.
(T.S.S.,J) (V.B.S.,J)
28.09.2020
sk
Index: Yes / No
Internet: Yes / No
Speaking Order/Non-Speaking Order
T.S.SIVAGNANAM. J,
AND
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http://www.judis.nic.in
W.A.No.855 of 2020
V.BHAVANI SUBBARAYON, J.
sk
To
1.The Commissioner of Income Tax,
Aayakar Bhavan,
121, Uthamar Gandhi Salai,
Chennai 600 034.
2.The Assistant Commissioner of Income Tax, Company Circle-V(II), 121, Uthamar Gandhi Salai, Chennai 600 034.
3.The Deputy Commissioner of Income Tax, Transfer Pricing Officer, 121, Uthamar Gandhi Salai, Chennai 600 034.
W.A.No.855 of 2020
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