TMI Blog2020 (12) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment was completed without proper inquiries which circumstances necessitated, it is competent for the CIT to invoke the revisional jurisdiction and direct fresh assessment, after verifying and examining all relevant facts, as well as legal position as may be involved. Both, the CIT, as well as the ITAT, have already made clear that adequate opportunity of being heard is required to be extended to the Assessee in the fresh assessment proceedings to be undertaken by the AO. Therefore, no liberty or clarification is necessary. In any case, it is clarified that the Assessee will be entitled to rely upon all legally permissible material, including the decision of this Court in Sesa Sterlite Limited [ 2019 (8) TMI 16 - BOMBAY HIGH COURT] and there is no doubt that the AO, in undertaking the fresh assessment, will take into account all such contentions of the Assessee and make a fresh order in accordance with law, on its own merits. Substantial questions of law answered against the Assessee. - TAX APPEAL NO. 1 OF 2016 WITH CIVIL APPLICATION NO.17 OF 2016 - - - Dated:- 27-11-2020 - M. S. SONAK DAMA SESHADRI NAIDU, JJ. Mr. R.G. Ramani, Senior Advocate with Mr. Pranav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts and circumstances of the present case. 5. Accordingly, by granting liberty to the Revenue to urge all permissible defences, we frame the aforesaid substantial questions of law and with the consent of the learned Counsel for the parties, proceed to consider the same. 6. The Appellant-Assessee filed returned of income on 30/09/2008 for the Assessment Year 2008-09. Since some element of Transfer Pricing was involved, the case of the Appellant was referred to the Transfer Pricing Officer (TPO) in terms of Section 92CA of the IT Act. 7. The TPO made an order dated 31/10/2011, determining the arm's length price in respect of certain transactions relating to imports and exports. Based thereon, the Assessing Officer (AO) made draft order under Section 143(3), read with Section 144-C of the IT Act on 30/12/2011. The Appellant filed objections to the draft order and the matter was duly referred to the Dispute Resolution Panel (DRP) in terms of Section 144-C(2)(b) of the IT Act. The DRP, by an order dated 7/9/2012 rejected the Appellant's objections and based thereon, the AO made the final assessment order dated 19/10/2012 under Section 143(3), read with Section 144 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich were at the later stage withdrawn or clarified or the Justice M.B. Shah report which had recorded its findings without compliance with the principles of natural justice and fair play. He relied upon the decision of this Court in Sesa Sterlite Limited vs. The Assistant Commissioner of Income-Tax and ors. Writ Petition No.141/2015 and connected matters dated 9/7/2019 in support of these contentions. 13. Mr. Ramani finally submitted that on behalf of the Assessee several grounds, as indicated in paragraph 2 of the ITAT's order dated 10/9/2015 were in fact raised, but the ITAT chose to focus only on one of the grounds and this is also a good reason to interfere with the ITAT's impugned order. 14. For all the aforesaid reasons, Mr. Ramani submitted that the substantial questions of law as framed are required to be answered in favour of the Assessee and against the Revenue. As a consequence, he submitted that the impugned orders made by the CIT and the ITAT in this matter are required to be set aside. 15. Ms. Linhares, the learned Standing Counsel for the Revenue submitted that only one ground was pressed before the ITAT and, therefore, it is not open to the Asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised in the Appeal Memo, but at the time of arguments, only one or two grounds are actually pressed. 23. The CIT, in exercising its revisional jurisdiction, has satisfied the twin requirements as prescribed in Section 263 of the ITAT Act. There was material before the ITAT to at least prima facie infer that there was under-invoicing and that this aspect of under-invoicing was not considered by the AO in making his assessment order. The CIT, in exercising its revisional jurisdiction, has not shut out any of the defences open to the Assessee, but has directed the AO to pass a fresh assessment order after verifying and examining all the relevant facts of the case, legal position and giving adequate opportunity of being heard to the Assessee. 24. In Malabar Industrial Co. Ltd. vs. Commissioner of Income Tax 243 ITR 83 , the Hon'ble Supreme Court has held that the CIT can pass an order under Section 263 of the IT Act even on debatable issues. Similarly, it is clear where the assessment was completed without proper inquiries which circumstances necessitated, it is competent for the CIT to invoke the revisional jurisdiction and direct fresh assessment, after verifying and exa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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