TMI Blog2011 (2) TMI 709X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of extending the benefit of exemption, to be decided by the Assessing Officer, after hearing the petitioner. - the direction issued by the Dispute Resolution Panel is not in violation of section 144C(5) or (8) of the Act. - Decided against the assessee. - 29389 of 2010 - - - Dated:- 8-2-2011 - HULUVADI G. RAMESH, J. JUDGMENT Huluvadi G. Ramesh J.- 1. The petitioner is a company incorporated under the Companies Act, 1956, during January, 1999. According to them, Jon F. Technology Centre is a cent. per cent. export oriented unit approved by the office of the Development Commissioner. Cochin Export Processing Zone and was granted exemption fro a period of five years from March 9, 2005. 2. The petitioner cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said order, the petitioner approached the Dispute Resolution Panel (DRP). However, the Dispute Resolution Panel having distinguished opined that the arm's length price should have been Rs. 336 crores instead of Rs. 406 crores. It appears, the Dispute Resolution Panel has also made certain observation in para. 21 of its order at annexure A as regards the claim of the petitioner regarding deduction under section 10A of the Act. According to the petitioner, the Dispute Resolution Panel ought not to have gone into the ques-tion of extension of section 10A benefit, while revising the order of the Transfer Pricing Officer and that the Assessing Officer alone should have calculated the exemption under section 10A of the Act. Therefore, the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Dispute Resolution Panel is bad in law. Learned counsel, referring to two decisions of the apex court and one decision of the Delhi High Court, contended that despite alternate remedy available, he can move this court under article 226 of the Constitution to set right the things, i.e., there is lack of jurisdiction on the Dispute Resolution Panel in directing the Assessing Officer and, therefore, the impugned order at annexure A, para. 21 needs interference. 6. Section 144C of the Act provides for reference to the Dispute Resolution Panel. In the case on hand, at the first instance, the draft assessment has been made and thereafter, at the instance of the Transfer Pricing Officer, the arm's length price was calculated at Rs. 406 cror ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the draft order, objection filed by the assessee, evidence furnished by the assessee and the report of the Assessing Officer, Valuation Officer or the Transfer Pricing Officer. Sub-section (7) provides that, the Dispute Resolution Panel before issuing any direction as per sub-section (5) make such further inquiry as it thinks fit, or cause any further inquiry to be made by any income-tax authority and report the result of the same to it. 10. In the case on hand, the Dispute Resolution Panel has taken into consideration the aspect of exemption under section 10A of the Act as not available in so far as Rs. 305 crores which was arrived at by the Assessing Officer in the draft assessment and also issued a direction referring to clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income-tax Act and the Central Board of Direct Taxes specifies such exemption to the information technology enabled products or services. However, by the impugned order, the Dispute Resolution Panel either without taking note of the notification or having expressed a doubt, has directed the Assessing Officer to consider whether engineering and design comes within the purview of section 10A of the Act for exemption or how much income has been derived from this so as to seek exemption or whether it is exempted or not. 12. It appears it is not as if the matter has been concluded by the Dispute Resolution Panel. Rather it has kept open the issue whether engineering and design services fall within the definition of "computer software ..... X X X X Extracts X X X X X X X X Extracts X X X X
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