MRF Ltd v. Dy. CIT (2022) 445 ITR 103/ 215 DTR 165/ 328 CTR 976// 140 taxmann.com 512 /(2023) 334 CTR 692 (Mad.)(HC)

S. 144A : Power-Joint Commissioner-Direction-Transfer pricing-Arm’s Length Price-Must be given opportunity to be heard-Order not valid. [S. 37, 40A(2), 92(1), 139, 142(1), Art. 226]

The assessee filed a return under section 139 of the Act for the assessment year 2016-17, which was examined by the Deputy Commissioner by issuing notices under section 142(1). A dispute arose as to whether the amounts paid by the assessee to its Singapore subsidiary were inflated so as to reduce the profit and the Income-tax liability of the assessee. Under these circumstances, the Deputy Commissioner issued a notice dated November 13, 2018 and called upon the assessee to show cause as to why a reference to a Transfer Pricing Officer should not be made in terms of section 92(1) read with Instruction No. 3 of 2016 dated March 10, 2016 ([2016] 382 ITR (St.) 36). The assessee replied to the notice, thereafter, no decision was taken as to whether the case was referred to the Transfer Pricing Officer or the assessment was to be completed by the Deputy Commissioner as the jurisdictional Assessing Officer. During the course, it appeared that the Deputy Commissioner made a reference to the Joint Commissioner under section 144A of the Act. The Joint Commissioner by a direction directed the Deputy Commissioner to disallow 2.5 per cent. of the transacted amount amounting to Rs. 28,05,26,782 under section 40A(2)(a) and section 37 of the Act. The consequential assessment order dated December 27, 2018 of the Deputy Commissioner was challenged on the ground that the directions of the Joint Commissioner was not in accordance with section 144A of the Act. On writ allowing the petition the Court held  that, the order passed by the Joint Commissioner to complete the assessment in a particular manner was prejudicial to the assessee. The assessee should have been called for hearing by the Joint Commissioner. As there was a violation of section 144A the consequential assessment order dated December 27, 2018 passed by the Deputy Commissioner  was  quashed. (AY.2016-17)