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Income Tax Appellate Tribunal, AHMEDABAD “D” BENCH, AHMEDABAD
Per Pramod Kumar, VP:
By way of this appeal, the assessee appellant has challenged correctness of the order dated 3rd October 2015 passed by the respondent Assessing Officer under section 154 r.w.s. 143(3) and 144C of the Income Tax Act, 1961, for the assessment year 2010-11.
When this appeal was called out for hearing, learned counsel for the assessee invited our attention to the additional ground of appeal, which deals with a fundamental issue, i.e. whether the impugned rectification order could have been at all passed by the respondent Assessing Officer without issuing a draft order first, and submitted that the issue be taken up first as it goes to the root of the matter. He submits that in the event of this ground of appeal being upheld, all other issues raised in the appeal will be rendered academic and infructuous. He also submits that the additional ground of appeal is a purely legal issue, which was inadvertently left out at the stage of preparing the appeal papers, and prays for admission of the additional ground of appeal. Learned Departmental Representative has also been heard on these submissions. Having given our careful consideration to the rival contentions on the
ITA No.: 3321/Ahd/15 Assessment year: 2010-11 Page 2 of 7 issue, and having perused the material on record, we are inclined to admit the additional ground of appeal and take it up, for adjudication, first.
The issue in appeal lies in a narrow compass of material facts. The sequence of events leading to the impugned rectification order dated 3rd October 2015, as pointed out by the learned counsel, are set out for ready reference for this purpose. It is pointed out that the original order, ascertaining arm’s length price of international transactions and holding that an ALP adjustment of Rs 2,15,62.400 was required to be made in respect of the same, was passed by the Transfer Pricing Officer on 15th January 2014. In pursuance of this TPO order, a draft assessment order was framed by the Assessing Officer on 31st January 2014. The assessee raised objections, against the said draft assessment order, before the Dispute Resolution Panel on 3rd March 2014, and, on 30th October 2014, the DRP disposed of these objections by, inter alia, giving certain directions to the TPO for recomputation of the ALP adjustment. As a result of these directions, the TPO recomputed the ALP adjustment and held that, upon implementing the directions of the DRP, no adjustment was required. Accordingly, a final assessment order was passed by the Assessing Officer on 29th December 2014 without any ALP adjustment.
The matter, however, did not rest at that. On 24th August 2015, the Transfer Pricing 4. Officer issued a notice under section 154 pointing out that certain mistakes have crept in while giving effect to the DRP’s order. It was pointed out that as against correct unadjusted and adjusted margin of 33.25% and 21.63% in respect of Spy Resources India Pvt Ltd, the TPO had adopted the figures of 15.52% and 9.42%. As a result of this factual error, the PLI of comparable was wrongly taken at 15.43% which was, for this reason, incorrectly held to be within the permissible range of + 5%. It was thus pointed out that an ALP adjustment of Rs 1,00,30,075 was to be made in the hands of the assessee. While the assessee, in his reply dated 7th September 2015, did not dispute this mistake, the assessee did raise the issues against certain other mistakes in giving effect to the DRP directions. The TPO, on a consideration of the material on record, recommended an ALP adjustment of Rs 1,00,30,075 on 8th September 2015. To give effect to this stand of the TPO, the Assessing Officer passed the impugned order making the said ALP adjustment. The assessee is aggrieved and is in appeal before us.
Learned counsel’s basic stand before us is that the Assessing Officer ought to have issued a draft rectification order under section 154. He submits that the rectifications proceedings under section 154 are nothing but an extension of the assessment proceedings, and what holds good for the assessment proceedings must hold good in this context as well. He submits that even in, what he terms as, second round of proceedings before the Assessing Officer, the draft order was required to be issued. He takes us through a large number of judicial precedents in support of this proposition. Our attention is invited to Hon’ble
ITA No.: 3321/Ahd/15 Assessment year: 2010-11 Page 3 of 7 jurisdictional High Court’s judgment in the case of CIT Vs C Sam India Pvt Ltd [(2017) 398 ITR 182 (Guj)] particularly to paragraph 7 which reads as follows:
The procedure laid down under Section 144C of the Act is thus of great importance. When an Assessing Officer proposes to make variations to the returned income declared by an eligible assessee he has to first pass a draft order, provide a copy thereof to the assessee and only thereupon the assessee could exercise his valuable right to raise objections before the DRP on any of the proposed variations. In addition to giving such opportunity to an assessee, decision of the DRP is made binding on the Assessing Officer. It is therefore not possible to uphold the Revenue's contention that such requirement is merely procedural. The requirement is mandatory and gives substantive rights to the assessee to object to any additions before they are made and such objections have to be considered not by the Assessing Officer but by the DRP. Interestingly, once the DRP gives directions under sub-section (5) of Section 144C, the Assessing Officer is expected to pass the order of assessment in terms of such directions without giving any further hearing to the assessee. Thus, at the level of the Assessing Officer, the directions of the DRP under sub-section (5) of Section 144C would bind even the assessee. He may of course challenge the order of the Assessing Officer before the Tribunal and take up all contentions. Nevertheless at the stage of assessment, he has no remedy against the directions issued by the DRP under sub-section (5). All these provisions amply demonstrate that the legislature desired to give an important opportunity to an assessee who is likely to be subjected to upward revision of income on the basis of transfer pricing mechanism. Such opportunity cannot be taken away by treating it as purely procedural in nature.
These observations are read time and again with a view to highlight the contention that the right of the assessee to approach the DRP cannot be declined by not giving a draft order, whether in the first round of proceedings and equally in the second round of proceedings. Our attention has also been invited to Hon’ble Bombay High Court’s judgment in the case of Dimension Data Asia Pacific Pte Ltd Vs DCIT (WP No. 921 of 2018; judgment dated t6th July 2018) in support of the same proposition. Learned counsel submits that by not first presenting the assessee with a draft rectification order, the assessee has been deprived of the opportunity to approach the DRP in respect of the action at the assessment stage. Our attention is then invited to the judicial precedents in the cases of S Sankappa Vs ITO [(1968) 68 ITR 760 (SC)], Karsandas Bhagwandas Patel Vs ITO [(1975) 98 ITR 255 (Guj)] and Arvind N Mafatlal Vs ITO [(1957) 32 ITR 350 (Bom)] in support of proposition that rectification order is also an order of assessment. It is thus contended that an assessment order, which is what a rectification order in respect of assessment order inherently is, without first presenting the assessee with the draft order vitiates the whole process, and the impugned order is to be quashed for this reason alone. Our attention is then invited to a decision of the coordinate bench in the case of Toyota Tsusho India Pvt Ltd Vs DCIT and vice versa ( ITA Nos IT TP No 350 and 1201/Bang/2015;
ITA No.: 3321/Ahd/15 Assessment year: 2010-11 Page 4 of 7 order dated 31st January 2018) rejecting the appeal against the DRP directions as not maintainable, and that appeals could only be filed against the resultant assessment order and the related rectification order. The treatment to the rectification order, the argument seems to be, must, therefore, be the same as the assessment order. It is submitted that the whole scheme of DRP will be rendered redundant if the Assessing Officer is allowed to straightaway issue the assessment order, and the rectification order thereon. Our attention is thus invited to a large number of judicial precedents holding that an assessment order, without first issuing a draft assessment order, is inherently bad in law and is liable to be quashed for this reason alone. Learned Departmental Representative, on the other hand and in substance, relied upon and justified the stand of the Assessing Officer. The stand of the learned Departmental Representative was that the rectification order in respect of the assessment order was specifically appealable under section 253(1)(d) before us, and, there is no question of challenging the same before the DRP; that would be contrary to the scheme of the Act. The contentions of the learned Departmental Representative, in sum and substance, were as follows. The judicial precedents relied upon by the assessee are out of context, as the relevance of draft order is only for the purpose of approaching the DRP but that has already been done and the short issue in dispute is with respect to the directions of the DRP itself. The assessment order, as a result of the DRP directions, cannot be taken to the DRP again. We are thus urged to confirm the approach of the Assessing Officer, and decline to interfere in the matter. Learned counsel, to sum up, reiterates his submissions once again. We have given our careful consideration to the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position.
We find that section 253(1)(d) clearly provides that “an order passed by an Assessing Officer under sub-section (3), of section 143 or section 147 or section 153A or section 153C in pursuance of the directions of the Dispute Resolution Panel or an order passed under section 154 in respect of such order” (emphasis, by underlining, supplied by us) is appealable before this Tribunal. The scheme of the Act is unambiguous. Once the DRP has given its directions, the order passed in pursuance of such directions, or rectification order in respect thereof, can only be appealed before the Tribunal. Whether the directions of the DRP have been correctly implemented or not cannot, at any stage, be challenged before the DRP, unlike, for example, the situations with respect to the appellate authorities. What can be challenged before the DRP under section 144C is only a proposed “order of assessment”. As for the observations made by Hon’ble Courts above to the effect that a rectification order is also an order of assessment, these observations are made in a materially different context. As for Sankappa’s case (supra), Hon’ble Supreme Court were dealing with a situation in which the return was filed before the commencement of the Income Tax Act, 1961, and the question arose whether the rectification proceedings could be construed as “proceedings for the assessment” under section 297(2)(a) so that the proceedings could be taken up under the Income Tax Act 1922 even though the said Act stood repealed. It was in this context that Hon’ble Supreme Court had held that the rectification proceedings are part of the
ITA No.: 3321/Ahd/15 Assessment year: 2010-11 Page 5 of 7 “proceedings for assessment”, and, therefore, the action could be taken under the provisions of the Income Tax Act, 1922. That has nothing to do with the question, as is sought to be canvassed, that the rectification order is to be treated as an assessment order. Similar was the position in the case of Karsandas Bhagwandas Patel (supra) before Hon’ble jurisdictional High Court. In the case of Arvind N Mafatlal (supra), Hon’ble Bombay High Court was dealing with the question whether upon merger of the princely Phaltan State, and consequent repeal of Phaltan State Income tax Act, 1941, by the virtue of Section 7 of Taxation Laws (Extension to Merged States and Amendment) Act, 1949, a rectification under section 35 of the Indian Income Tax 1922 could be made. It was in this backdrop that Hon’ble Bombay High Court had observed that “There is no substance in the contention that because the Phaltan State Income-tax Act has been repealed an order under section 35 of the Income-tax Act rectifying a mistake in an assessment order passed by the Income-tax Officer cannot be passed. Even though the Phaltan State Income-tax Act has been repealed by the Taxation Laws (Extension to Merged States and Amendment) Act, 1949, for purposes of levy, assessment and collection of income-tax and super-tax the Phaltan Income-tax Act does survive, and rectification of a mistake in assessment must be regarded as "assessment" within the meaning of section 7 of the Taxation Laws (Extension to Merged States and Amendment) Act,” All these observations were thus clearly a materially different context, and cannot be treated an authority in support of the proposition that a rectification order must be treated at par with the assessment order. An order being passed in the course of assessment proceedings, in any case, is one thing, and an order of assessment quite another. It is also elementary that, as observed by Hon’ble Supreme Court in the case of CIT Vs Sun Engineering Works Pvt Ltd [(1992) 198 ITR 297 (SC)], which is oft quoted, “It is neither desirable nor permissible to pick out a word or a sentence from the judgment of this Court, divorced from the context of the question under consideration and treat it to be the complete 'law' declared by this Court. The judgment must be read as a whole and the observations from the judgment have to be considered in the light of the questions which were before this Court. A decision of this Court takes its colour from the questions involved in the case in which it is rendered and while applying the decision to a latter case, the Courts must carefully try to ascertain the true principle laid down by the decision of this Court and not to pick out words or sentences from the judgment, divorced from the context of the questions under consideration by this Court, to support their reasonings. In H.H. Maharajadhiraja Madhav Rao Jiwaji Rao Scindia Bahadur v. Union of India [1971] 3 SCR 9 this Court cautioned:- "It is not proper to regard a word, a clause or a sentence occurring in a judgment of the Supreme Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment."”. When we apply this principle on the support placed by the learned counsel on the judicial precedents referred to above, we find that the arguments of the learned counsel are only fit to be noted and rejected. It is not possible for us to hold that an order under section 154 in respect of order passed by the Assessing Officer under section 143(3), as a result of the directions of the Dispute Resolution Panel, must be treated as an “order of
ITA No.: 3321/Ahd/15 Assessment year: 2010-11 Page 6 of 7 assessment” and that the Assessing Officer is required to share with the assessee the draft or proposed rectification order so as to enable the assessee to approach, if so advised, the DRP. That is not, in our humble understanding, scheme of the Act. As regards the Toyota Tsusho India Pvt Ltd (supra) decision, nothing really turns on the same as there cannot indeed any appeal against the directions of the DRP and what can be challenged before the Tribunal is only the assessment order passed by the Assessing Officer as a result of DRP directions. Once the DRP gives the directions in respect of a particular assessment, it is functus officio and one can not go back to the DRP for grievance against the proper effect not being given to the DRP directions. As the law specifically provides, the order giving effect to these directions, as also orders under section 154 in respect of such order, can only be appealed in the Income Tax Appellate Tribunal. The assessee has duly availed this remedy. In view of these discussions, and bearing in mind entirety of the case, we see no merits in the plea of the assessee on this count and hold that the Assessing Officer was not required to issue a draft order for rectifying the mistake apparent on record under section 154.
As regards the merits of the rectification order, learned counsel does not have much to say. He fairly accepts that the mistakes pointed out in the rectification order are indeed correct. He, however, hastens to add that there are certain other mistakes in the same order, and if the Assessing Officer was to rectify the mistakes in question, he ought to have rectified the other mistakes as well. He submits that the assessee has duly pointed out those other mistakes in the TPO’s order giving effect to the directions of the DRP, and that once those mistakes are rectified, no ALP adjustments will be warranted. What is before us, however, is the challenge to the rectification order passed by the Assessing Officer, and we see no infirmity, jurisdictional or on merits, in respect of the same.
Learned counsel has very vehemently contended that rectification of mistake apparent on record must be done in totality and not in piece meal, and that it cannot be open to the Assessing Officer to carry on the exercise of rectification only to the extent it is in his interest to do so. It is submitted that these mistakes were pointed out to the TPO, in the course impugned proceedings, but the TPO did not even deal with the same. It is also submitted that there was no need to point out these mistakes earlier as the mistakes were tax neutral so far as the assessee is concerned, and that, in any case, the order of the TPO was not served on the assessee. We see no merits in this plea either. Once it is not in dispute that the mistakes rectified by the Assessing Officer are indeed covered by the scope of “mistake apparent on record”, rectification of these mistakes cannot be declined on the ground that there are other mistakes which would neutralize the tax impact of these mistakes. It is for the assessee to seek remedy for the mistakes apparent on record in respect of an order, but the mere existence of such mistakes, even if there be any, cannot be ground enough to decline rectification of other mistakes in the same order. The remedy for other mistakes alleged to have crept in the impugned order, which prejudice the interests of the assessee, cannot be in
ITA No.: 3321/Ahd/15 Assessment year: 2010-11 Page 7 of 7
cancelling the rectification of mistakes which prejudice the interests of revenue; two wrongs will not make a right. We decline to negate the rectification of mistakes for this reason assigned by the asseseee as well. There is no cause for interference on merits as such.
In view of the above discussions, as also bearing in mind entirety of the case, we see no merits in grievance of the assessee- on the issue of jurisdiction as also on merits. We, therefore, confirm the impugned rectification order and decline to interfere in the matter. No other issues were raised before us.
In the result, the appeal is dismissed. Pronounced in the open court today on the 7th 11. day of June, 2019.
Sd/- Sd/- Madhumita Roy Pramod Kumar (Judicial Member) (Vice-President) Ahmedabad, dated the 7th day of June, 2019
Copies to: (1) The appellant (2) The respondent (3) CIT (4) CIT(A) (5) DR (6) Guard File By order True Copy Assistant Registrar Income Tax Appellate Tribunal Ahmedabad benches, Ahmedabad