TMI Blog2021 (6) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... ollector reiterated the order which had been set aside. It was in that context the decision of the Hon ble Supreme Court made the above observations. In this case, the assessment years are different and the transactions are different and the nature of payments are different. During the assessment year 2013-14 the issue was pertaining to certain payments made to the associated enterprises alone. Whereas the impugned order there are indications that there are adjustments of payments made for the services received and services provided to the associated enterprises. Therefore, it cannot be said that the said order of the Tribunal was binding for the assessment year in question. That apart, the challenge to the impugned order is premature. The petitioner has options under the Act to approach the Dispute Resolution Panel and if such was orders are passed the order, liberty is always available by way of statutory appeal before the income tax appellate Tribunal. Whether the High Court was justified in interfering with the order passed by the Assessing Authority under Section 148 of the Act in exercise of its jurisdiction under Article 226 when an equally efficacious alternate re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw, erred in incorrectly computing the operating margin of the appellant and those of the comparable companies selected for benchmarking purposes. 4. The lower authorities have, in the facts and circumstances of the case and in law, erred in choosing certain comparable companies despite such companies failing the legally required parameter such as, but not limited to, functional dissimilarity, quantitative filters and nonavailability of data. 5. The lower authorities have, in the facts and circumstances of the case and in law, erred in rejecting certain companies selected by the appellant, on incorrect parameters. 6. The lower authorities have, in the facts and circumstances of the case and in law, erred in not admitting the comparability adjustments considered by the appellant, including but not limited to, adjustment for idle capacity. 7. The lower authorities have, in the facts and circumstances of the case, erred in not considering the supporting information and supplemental analysis regarding to the economic circumstances and market conditions experienced by the appellant; such as to the corroboration of capacity utilization based on manufacturing sector wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s rendered, which has helped the assessee in generating the business in respect of marketing and trading. This being so, in view of the decision of Hon'ble Delhi High Court in the case of CIT vs. EKL Appliances Ltd., referred to supra, the id. Assessing Officer is directed to allow the assessee s claim of the Corporate Services expenditure incurred by assessee. Consequently, Grounds Nos.11 to 13 of the assessee stand allowed. 7. It is submitted that the impugned order dated 30.10.2018 passed by the first respondent viz., Deputy Commissioner of Income Tax Transfer Price Officer (TPO) was contrary to the decision of the Hon ble Supreme court in Motor India Ltd., vs. DCIT (2018) 96 taxmann.com 497 (Madras.) and another decision of the Hon'ble Supreme Court in Motor India Ltd., vs. DCIT (2020) 119 Tamann.com 302. 8. The learned counsel for the petitioner further submits that in the impugned order, there is no whisper about the order of the Tribunal dated 14.05.2018, for the Assessment Year 2013-14 and therefore the impugned order passed under Section 92 C A of the Income Tax Act, 1961 was liable to be quashed. 9. The learned counsel for the petitioner also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments made for the purpose of computation of the Income Tax and was really not concerned with the issue as to whether the service for which amounts were paid necessary or unnecessary. It is submitted that these are to be determined only by the Assessing Officer and not by the 1st respondent Transfer Pricing Officer. 16. Defending the impugned order passed by the respondent, the learned counsel for the IT Department submits that the writ petition is liable to be dismissed on the ground of alternate remedy. It is submitted that the statutory remedy against the impugned order is available inasmuch as consequent the impugned order of the first respondent, the 2nd respondent will pass a draft assessment order incorporating the content of the order of the 1st respondent/Transfer Pricing Officer and the petitioner can approach the Dispute Resolution Panel against the same under Section 144C of the Income Tax Act, 1961. Only after disposal of the appeal of the petition or case by the Dispute Resolution Panel and after giving the order of the Dispute Resolution Panel, a draft order of the 2nd respondent becomes the final assessment order. 17. It is further submitted that it is open to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Election Commission (1978) 1 SCC 405 has laid down in paragraph 8 as follows:- The second equally relevant matter is that when a statutory functionary makes an order dated on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge , get validated by additional grounds later brought out. We may here drew attention to the observations of Bose,J., in Commissioner of Police vs. Gordhandas Bhanji AIR 1952 SC 16. Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language in the order itself. Orders are not like old wine becoming better as they grow older . 21. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is aggrieved in respect of the fixing of average rate of royalty payment, then it is left open to them to approach the Disputes Resolution Panel and thereafter, if they are further aggrieved in respect of the fixing of average rate of royalty payment, then they are liberty to approach the ITAT constituted for the purpose of adjudicating the issues. This being the efficacious remedy available under the statute for the writ petitioner, there is no reason to entertain a writ petition under Article 226 of the Constitution of India, so as to adjudicate the merits and the demerits now raised before this Court in the present writ petition in respect of fixing of average rate of royalty payment. 26.The leaned counsel for the respondent has relied on the decision of the Hyundai Motor India Ltd., vs. Deputy Commissioner of Income Tax, (2020) 119 taxmann.com 302, (Madras), wherein it was the appeal of the assessee was dismissed and held as under:- 10. In the instant case, the only question which arises for our consideration and decision is whether the High Court was justified in interfering with the order passed by the Assessing Authority under Section 148 of the Act in exercise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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