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2013 (9) TMI 680 - HC - Income TaxWrit petition - alternative remedy - Transfer pricing adjustments - ALP - retrospective effect to section 92CA (2A) - sale of the call centre business - assignment of call options - maintainability of writ petition for setting aside of order passed by the TPO and writ of mandamus petition before the High Court to directing the AO to revise the Draft Assessment Order, after excluding the said transfer price adjustment. Lastly, the petitioner seeks a writ of prohibition, prohibiting the respondents from taking any steps pursuant to the impugned orders. There is one difference of vital importance between the Vodafone case and the case before us. We have already referred to the proceedings that led to Vodafone challenging the order under sections 195, 201(1) and 201(1A). In the Vodafone case, the Revenue proceeded on the basis of a concession and on a demurer. The Revenue did not raise the defence of an alternative remedy that was available to VIH BV even in that case. It was agreed by both the learned counsel that even in that case, VIH BV had an alternate remedy of challenging the notices before the CIT (Appeals). The Revenue, however, invited the Supreme Court to proceed on the basis of the record available in the Writ Petition. It is not open to this Court to speculate or even try and speculate the decision, had the defence of an alternate remedy been taken. However, in the case before us, the defence of an alternate remedy has not only been taken, but has been taken in a very substantial manner and we have found the same to be well founded. In other words, the Revenue in the case before us has not invited a decision on the merits of the matter alone. That they defended the contentions on the merits is irrelevant. In the earlier round in the Vodafone case, the Supreme Court had [2009 (1) TMI 778 - SUPREME COURT OF INDIA] permitted VIH BV to question the decision of the authority on the preliminary issue before this Court in the event of the same being decided against it. The defence, therefore, of an alternate remedy may not have been available before the High Court. Nothing, however, prevented the Revenue from raising a contention of an alternate remedy before the Supreme Court in the final proceedings before the Supreme Court. Even the decision of the authority on the preliminary issue can be appealed against before the CIT (Appeals) and/or the ITAT, as the case may be. The respondents in this case are not bound by the stand taken by them in the Vodafone case. There is no basis for the Court to compel the Revenue in this case to abide by the stand taken by it in the Vodafone case. Writ Petition dismissed
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