At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE AKIL KURESHI & THE HONOURABLE MR. JUSTICE M.S. SANKLECHA
For the Appellant: Jehangir D. Mistry, Senior Advocate a/w Harsh M. Kapadia, Advocates. For the Respondent: Abhay Ahuja a/w P.A. Narayanan a/w Sangita Yadav, Advocates.
Akil Kureshi, J.
The petitioner has challenged an order dated 15.10.2018 passed by Transfer Pricing Officer ("TPO" for short").
2. Contention of the learned counsel for the petitioner is that in such order, the TPO has computed arm's length price of specified domestic transaction though the same was not referred to him by the Assessing Officer in terms of subsection 1 of Section 92CA of the Income Tax Act, 1961 ("the Act" for short). Learned counsel submitted that in absence of any such reference, it was not open for the TPO to undertake the scrutiny with respect to said transaction. Our attention was drawn to sub-section (2A) of Section 92CA of the Act to contend that the jurisdiction of the TPO to examine any transaction which comes to his notice during the course of the proceedings though not referred to him under sub-section 1 is confined to an international transaction. In other words, said powers cannot be exercised in relation to a domestic transaction.
3. Learned counsel for the Department submitted that the reference to international transaction under sub-section (2A) of Section 92CA of the Customs Act would include even a domestic transaction and in any case, at this stage, when the Assessing Officer has not yet passed the final order of assessment and the petitioner would have further statutory remedies once such order is passed, Writ Petition should not be entertained.
4. We would like to examine the issue further after the respondents file the reply. A question of jurisdiction of TPO to examine any domestic transaction with respect to which no reference under sub-section 1 of Section 92CA of the Act has been made, arises in the present petition. The Assessing Officer as per sub-section 4 of Section 92CA of the Act is bound to pass an order in terms of the report of the TPO. We wonder whether the Assessing Officer can examine this grievance of the petitioner. We are of the prima facie opinion that if the TPO had no jurisdiction to examine ce
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rtain transaction, relegating the petitioner to statutory remedies may not be justified. 5. S.O to 17th January, 2019. By way of ad-interim relief, the Assessing Officer is prevented from passing any further orders.