Ericsson AB vs. ADIT (Delhi High Court)

DATE: (Date of pronouncement)
DATE: February 14, 2011 (Date of publication)

Click here to download the judgement (ericsson_144C_DRP.pdf)

S. 144C DRP must act to expectations & not have perfunctory approach

The assessee filed a writ petition to challenge a s. 144C draft assessment order on the ground that though the TPO had directed that no transfer pricing adjustment was required to be done and this was binding on the AO u/s 92CA (4), the AO had still made a transfer pricing adjustment without giving the assessee an opportunity. HELD declining to interfere in the writ and directing the assessee to approach the DRP:

(i) S. 144C which empowers the Dispute Resolution Panel (DRP) to issue directions to the AO cannot be treated as totally redundant or absolutely inefficacious remedy to the assessee. The assessee is obliged to take the statutory remedy;

(ii) The DRP, being an authority created under a statute and conferred with the powers, has the obligation to act as a body living to the expectations which the law mandates. The DRP has to afford adequate opportunity for personal hearing and deal with the issues urged by a speaking order which would reflect cogent reasons. This is apt to say so that no assessee can have any kind of apprehension that the approach to the DRP is perfunctory.

Note: The DRP’s “laconic” orders have been criticized in Vodafone Essar Ltd (Delhi High Court), GAP International Sourcing India (ITAT Delhi) & Adobe Systems India Pvt Ltd (ITAT Delhi)
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