TMI Blog2019 (1) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... easons recorded. There is no failure on the part of the petitioner to disclose fully and truly all material facts necessary for its assessment for the assessment year under consideration. On a reading of the reasons recorded for reopening the assessment in their entirety, there is nothing therein to indicate that there is any failure on the part of the petitioner to disclose fully and truly all the relevant facts. On a plain reading of the reasons recorded, it is evident that the same refers to sections 92C and 92CA of the Act and the failure on part of the AO to observe the procedures prescribed thereunder. Under the circumstances, this being a reopening of the assessment beyond a period of four years from the end of the relevant as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l income of ₹ 1,79,42,470/-. The audit report as required under section 92E of the Act in Form-3CEB was filed on 30.11.2011. The return came to be selected for scrutiny and regular assessment came to be completed under section 143(3) of the Act on 31.01.2014. Thereafter, by the impugned notice dated 04.12.2017 issued under section 148 of the Act, the respondent proposed to reassess the income of the petitioner for assessment year 2011-12. In response to the impugned notice the petitioner filed return on 19.04.2017 and requested the respondent to provide a copy of the reasons recorded for reopening the assessment. Upon such reasons being furnished, the petitioner submitted its objections thereto. Vide order dated 07.08.2018, the respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essment on the ground that the arms length price of payment of corporate cost to Associated Enterprise could not be benchmarked at Nil as done in the previous year and subsequent years and resulted into an upward adjustment of ₹ 3,31,22,076/- towards international transaction to the income and hence, there was an underassessment to that extent. 5.2 The attention of the court was invited to the provisions of section 92C of the Act and more particularly, to sub-section (3) thereof, to submit that the discretion lies with the Assessing Officer to proceed to determine the arms length price in relation to the international transactions. It was submitted that therefore, the failure, if any, is on the part of the Assessing Officer and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... porate cost/management cost. In the preceding AY 2010-11, the ALP of corporate cost taken at NIL and an upward adjustment proposed by TOP. Further, the ALP of corporate cost at NIL was also confirmed by DRP, Ahmedabad vide directions dt. 28.11.2014. In view of the above facts, payment of corporate cost to AE during AY 2011-12 also to be considered at NIL in the line of earlier TP order since, the facts/matters/terms etc. for payments remained same. Failure to observe procedures prescribed u/s 92C and 92CA of the Act, the ALP of payment of corporate cost to AE could not be benchmarked at NIL as done in previous and subsequent years and resulted into an upwards adjustment of ₹ 3,31,22,076/- towards international transaction to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recorded, it is evident that the same refers to sections 92C and 92CA of the Act and the failure on part of the Assessing Officer to observe the procedures prescribed thereunder. Under the circumstances, this being a reopening of the assessment beyond a period of four years from the end of the relevant assessment year, whereby the proviso to section 147 of the Act is clearly attracted, in the absence of any failure on the part of the petitioner to disclose fully and truly all material facts relevant for its assessment, the assumption of jurisdiction on the part of the Assessing Officer is without authority of law. The impugned notice, therefore, cannot be sustained. 10. For the foregoing reasons, the petition succeeds and is, accordi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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