TMI Blog2008 (12) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... us THE ADDITIONAL COMMISSIONER OF INCOME TAX and ANR. HON'BLE MR JUSTICE BADAR DURREZ AHMED and HON'BLE MR JUSTICE RAJIV SHAKDHER Mr S. Ganesh, Sr. Advocate with Mr Ajay Vohra, Ms Kavita Jha and Mr Sriram Krishna in WP(C) No 6974/2008 Mr Ajay Vohra in WP(C) Nos 7958/2008, 7969/2008, 8054/2008, 8055/2008, 8597/2008. for the Appellant. Mr. Parag P. Tripathi, ASG with Mr Sanjeev Sabharwal for the Respondent. JUDGMENT The judgment of the court was delivered by RAJIV SHAKDHER, J - In the captioned writ petitions, a challenge has been laid to the orders passed by the Transfer Pricing Officer (hereinafter referred to as the 'TPO') whereby he has determined the Arm's Length Price (hereinafter referred to as 'ALP') in relation to 'International transactions' entered into by each of the petitioners with their Associated Enterprises. The orders of the TPO which have been challenged in each of the writ petitions are as follows:- (i) WP(C) No 6974/2008: Impugned order dated 22.08.2008 (ii) WP(C) No 7958/2008: Impugned order dated 23.09.2008 (iii) WP(C) No 7969/2008: Impugned order dated 30.09.2008 (iv) WP(C) No 8054/2008: Impugned order dated 24.10.2008 (v) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s with the material or information which could form the basis of the determination of ALP by the TPO. 4.2 It was contended by Mr S. Ganesh, Sr Advocate appearing in writ petition no. 6974/2008, that the provisions of section 92CA, sub-section (3) mandate grant of an oral hearing, before the TPO makes a determination of ALP in relation to 'international transaction(s)' entered into by assessee's with their Associated Enterprise. This, according to the learned counsel, is particularly so, in view of the fact that the determination of ALP involves scrutiny and analysis of data of enterprises, which is, involved and hence, tends to be invariably complex. It was his submission that prior to the amendment brought about by virtue of Finance Act, 2007, w.e.f. 1.6.2000, the assessee was afforded an opportunity of presenting its case, both before the TPO, as well as, before the Assessing Officer. However, with the amendment brought about in section 92CA(4) by virtue of the Finance Act, 2007, the Assessing Officer is required to compute the total income of the assessee in 'conformity' with the ALP determined by the TPO. 4.3 It is his submission that post the 2007 amendment in Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a situation, that an oral hearing is a must both under the scheme of Chapter X, as well as, on account of the myriad complexities which arise in determination of ALP. In this regard, the learned Senior counsel placed reliance on the judgment of the Supreme Court in Travancore Rayons vs UOI: AIR 1971 SC 862 at page 864 (paragraph 7), and the judgment of Kerala High Court in Indian Transformers Ltd Vs Assstt. Collector and Anr (1983) E.L.T. 2293 at page 2300 (paragraph 7). 4.7 Similarly, Mr Ajay Vohra who appears for the petitioner in writ petition no. WP(C) No. 7958/2008, WP(C) No. 7969/2008, WP(C) No. 8054/2008, WP(C) No. 8055/2008 and WP(C) No. 8597/2008, contended that apart from the fact that the impugned orders of the TPO were liable to be set aside on the ground that no oral hearing had been granted before the final determination of the ALP by the TPO: the impugned orders of the TPO were a nullity in the eye of law as the petitioner/assessee had not been confronted by the TPO with material or information which formed the basis for the determination of ALP by the TPO. It was the submission of Mr Vohra that it was incumbent on the TPO to confront the assessee with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d only impede true and correct determination of ALP. In these circumstances we were left with no choice but to proceed to decide the matter. 5.2 On the substantial issue of the scope and width of provisions of Section 92CA(3) of the Act, the Learned ASG submitted that the principles of natural justice have been complied with in each and every case. It was his submission that oral hearing was not a necessary facet of natural justice. A right to effective representation would suffice. The learned ASG in this regard relied upon the following judgments:- UOI vs Jesus Sales Corporation (1996) 4 SCC 69, pr 5, pg 74, 75; Carborundum Universal Ltd vs CBDT (989) Supp (2) SCC 462, pr 6, pg 464; Hira Nath Mishra and others vs The Principal, Rajendra Medical College (1973) 1 SCC 805, pr 12, pg 809, 810; SBI vs Allied Chemicals Lab. (2006) 9 SCC 252, pr 6, pg 253 5.3 He further submitted that the application of the principle of natural justice is always contextual, which is more so, in taxation matters. To buttress his submission reliance was placed on the following judgments of the Supreme Court:- N.K. Pasanda vs Government of India (2004) 6 SCC 299, pr 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w, the writ petition would be a proper remedy. See observations of the Supreme Court in the case of State of U.P. vs Mohd. Nooh: AIR 1958 SC 86 at pages 93 and 94(para 10 and 11) and Whirlpool Corporation vs Registrar of Trade Marks, Mumbai and Ors: (1988) 8 SCC 1 at pages 9 to 11 (para 13 to 20). 6.2 We are also of the view that availability of an alternate remedy does not debar an aggrieved party from moving the court by way of a writ petition under Article 226 of the Constitution of India. The practice adopted by Court's, is to normally dissuade an aggrieved party to come directly to the High Court, by exercising his right to avail of extraordinary remedy, where an effective and efficacious alternate remedy is available. This, however, is a rule of convenience and not a rule of law. The court is empowered to entertain a writ petition under Article 226 of the Constitution of India, even though there is an alternate remedy available to an aggrieved party. The discretion in this regard vests entirely with the Court which is to be exercised by the Court keeping in mind the facts and circumstances of each case. We, accordingly, reject the objection raised by the responden ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar no. 14/2001 dated 12.12.2001 [2001 252 ITR (st.) 65]. Broadly, the Board explained that the reasons for insertion of the said Chapter was that with the increasing participation of multi-national groups in the economic activities in the country, it gave rise to 'new' and 'complex' issues whereby two or more enterprises of the same multi-national group would manipulate their prices in a manner which led to erosion of tax revenues. The raison d'etre for substituting the existing section 92 of the Income Tax Act was best explained in the following paragraphs of the said Circular no. 14/2001. 55.2 Under the existing section 92 of the Income Tax Act, which was the only section dealing specifically with cross border transactions, an adjustment could be made to the profits of a resident arising from a business carried on between the resident and a non-resident, if it appeared to the Assessing Officer that owing to the close connection between them, the course of business was so arranged so s to produce less than expected profits to the resident. Rule 11 prescribed under the section provided a method of estimation of reasonable profits in such cases. However, this provision was of a g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o clause (m), the two enterprises under sub-section (2) of section 92A would be deemed to be Associated Enterprises. 6.6.2 Section 92B defines as to what would be construed as an 'international transaction'. In order to appreciate the full width, amplitude of an 'international transaction' the meaning of which is provided in section 92B one would have to in addition read the definition of 'transaction' as given in section 92F(v). 6.6.3 This bring us to the provision crucial for determination of ALP, which is, Section 92C. Sub-section (1) of section 92C provides that ALP in relation to an 'international transaction; could be determined by any of the methods provided in the said sub-section which is 'most appropriate' having regard to the nature of transactions or class of transaction or class of associated persons or functions performed by such persons or such other relevant factors which may be prescribed by the Board. The methods provided being (a) comparable uncontrolled price method; (b) resale price method; (c) cost plus method; (d) profit split method; (e) transactional net margin method and; (f) such other method as may be prescribed by the Board. In determining the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the computation made by him of the ALP. This brings us to the provision which is presently, in issue, before this Court i.e., sub-section (3) of Section 92CA. The said sub-section provides that the TPO, by an order in writing, will determine the ALP in relation to an 'international transaction' in accordance with sub-section (3) of section 92C after hearing such evidence as the assessee may produce including any information or documents referred to in sub-section (3) of Section 92D and after considering such evidence as the TPO may require on any specified points, and after taking into account all relevant material which the TPO has gathered. The TPO is required to send a copy of the order, whereby a determination of ALP is made both to the Assessing Officer and the assessee. Sub-section (3A) of Section 92CA provides a time frame within which the TPO is required to pass an order under sub-section (3) of section 92CA. Sub-section (3) of Section 92CA reads as follows:-'On the date specified in the notice under sub-section (2), or as soon thereafter as may be, after hearing such evidence as the assessee may produce, including any information or documents referred to in sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to look into issues pertaining to determination of ALP by the TPO. In this regard, also see observations of a Division Bench of this Court in the case of Sony India P. Ltd vs Central Board of Direct Taxes and Anr: (2007) 288 ITR 52 (Del) The other sub-sections not being relevant for the purpose of these petitions, are not being discussed herein. 6.6.5 As indicated above, Section 92D provides for information and documents which the assessee is required to keep as may be prescribed, in respect of its international transactions. The documentation which the assessee is required to maintain, is provided in rule 10D of the Rules. Sub-section (3) of Section 92D empowers the Assessing Officer or the Commissioner (Appeals) to request the assessee to furnish any information or document as may be sought within 30 days of being served with such a notice. This period of 30 days on an application being made is extendable by a further period not exceeding 30 days. 6.6.6 Section 92E provides that parties, who have entered into an 'international transaction' during the previous year, shall obtain a report from an accountant and furnish such report on or before the specified date in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly, under Section 271BA, an Assessing Officer is entitled to impose a penalty equivalent to a sum of Rs. 1,00,000/- in the event of failure on the part of the assessee to furnish an audit report in terms of section 92E. Lastly, under Section 271G, the Assessing Officer or the Commissioner of Appeals is entitled to impose penalty if the assessee fails to furnish any information or document as required in sub-section (3) of section 92D. Under this provision, the penalty imposable is, a sum equal to 2% of the value of the international transaction for the each such failure. 7. An overall review of the provisions, if summarised, broadly is as follows:- 7.1 Under Section 92, an Assessing Officer is empowered to compute income from international transactions which involve transfer pricing provision having regard to ALP. The meaning of what would constitute an associated enterprise or an international transaction is provided in section 92A and 92B respectively. The manner of computation of ALP is set out in section 92C. The primary burden in regard to computation of ALP is that of the assessee, which the assessee is required to compute by resorting to the most appropriate metho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l over the world that authorities which have a power to decide and whose decisions would prejudice a party, entailing civil consequences, would be required to accord oral hearing even where the statute is silent. See State of Orissa vs Kr (Miss) Binapani Dei: AIR 1967 SC 1269. The courts have gone to the extent of holding that the right to oral hearing may not necessarily flow from a statute but flows from rule of law as enunciated by courts. That brings us to the issue as to what could be regarded as 'civil consequences' in a given case. The expression of 'civil consequences' has been best explained by our Supreme Court in the case of Mohinder Singh Gill vs The Chief Election Commission: (1978) 1 SCC 405 at 440. The Supreme Court has observed that civil consequences involve infraction of not only property and personal rights, but also, actions which impinge on civil liberty of an individual or result in material deprivation or even result in non-pecuniary damages. 7.3 Keeping in mind the test as enunciated by the Supreme Court in the case of Mohinder Singh Gill (supra) and State of Orissa vs Dr (Miss) Bina Pani Dei (supra), we have no doubt in our minds that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The answer to this question is not far to seek. Where the State is a litigating party, it is, its Constitutional obligation to adopt a procedure which is both fair and just while dealing with its citizens. The fact that a citizen is unaware of his legal right cannot be used as a plank to seek legal sustenance for its actions which are otherwise invalid. It is duty of the State, in its role as a litigating party, to inform the citizen of his right i.e., to seek an oral hearing. An enquiry of the kind which is contemplated under Chapter X by the TPO will achieve a far more fair result, if there is an opportunity for an oral hearing or personal representation. The observation of Megarry J, in John vs Rees, (1969) 2 All. ER 274 best illustrates the point as to why it is important to give a personal hearing especially in such like matters. The relevant extracts reads as follows:- 'It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. 'When something is obvious,' they may say, 'why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard' T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the TPO, but the usual practice followed by the TPO is that when responses are filed by the assessees to a show cause notice, there is invariably an interaction between the assessee and/or his representatives and the TPO. This submission of the respondents will not carry their case any further. Firstly, this fact is vehemently rebutted by the counsel for the petitioner's and secondly, in any event, there is no record of the same before us which would have us accept the version given by the learned counsel for the respondent. Lastly, but more importantly, if the entire thrust is on a meaningful and effective hearing, we do not see how a brief interaction at the time of submission of the reply by the assessee or his representative who may or may not be equipped to answer the queries raised by the TPO would help the cause of the Revenue or the assessee. In any event, it would be well nigh impossible even for the TPO to appreciate the full impact of the reply unless he has read and understood the contents of the reply filed before him. 8. In support of his submission that failure to demand oral hearing would be fatal to the challenge to the impugned order on the ground of a brea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot agree with the High Court that merely because the State Government did not call upon the Board to appear for a personal hearing and to produce material in support of its explanation it violated the principles of natural justice. 10. As is evident, this case turned on its own facts, in particular, the provisions of Section 298 of the said Act which, as observed by the Supreme Court, did not envisage a personal hearing. It is in such circumstance, the Supreme Court observed, that where a provisions like Section 298 is fully complied with, and the Municipal Board had neither asked for an opportunity of personal hearing or production of materials in support of its explanation, the order of the State Government could not have been set aside, on the ground that it did not call upon the Municipal Board to appear in person or produce material in support of its explanation. In the present case, there is a statutory requirement as observed, hereinabove and in fact a mandatory requirement to accord a personal hearing. Hence, it cannot be said that failure to demand personal hearing would lend efficacy to the impugned orders. 11. The other case i.e., Dehri Rohtas light Railway c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rict Auditor in exercise of his statutory powers notified the members of the city council that he proposed to consider issuance of a certificate seeking to recover a certain sum from the delinquent members on the ground that their actions had led to a loss to the city council. The notice of the District Auditor identified specific losses resulting from the delay in fixing the rate; as also the members of the city council, that is, the councillors who had by their wilful misconduct caused the loss. The notice of the District Auditor also stated that the members could make written representations to the District Auditor before he reached his decision. It is in this context the House of Lords was called upon to consider as to whether the decision of the District Auditor could be faulted on the ground that he had not given the affected members an opportunity of making oral representations. It is evident that the decision of the House of Lords was based on the circumstances obtaining in the case, the nature of inquiry, and the statute under which the District Auditor was exercising his powers. The House of Lords, noted that, the District Auditor was dealing with a group of 41 councillor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the district auditor, either in not offering the appellants an oral hearing or not offering them an opportunity to comment on his proposed findings before he rejected the appellants' representations as untrue, that failure was fully cured by the hearing in the Divisional Court under the statutory appeal process....' 15. A close reading of the observation would show that the dictum of the House of Lords if applied would cover those cases where an aggrieved party has an unbridled right of appeal on facts and law, and a complete freedom to file evidence which was not filed before the original authority. In other words the appellate authority is required to examine the circumstances 'de novo on whatever evidence that may be put before the appellate court'. In the instant case it cannot be disputed that under the provisions of sub-section (4) of section 92 CA the Assessing Officer is required to compute the total income of the assessee in conformity with the ALP determined by the TPO. Against the order of the Assessing Officer, an appeal is maintainable under Section 246A of the Act. While the Commissioner of Appeals under sub-section (4) of section 250 in disposing of any appeal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the House of Lords in Lloyds vs Mc Mohan (supra) have commented as follows:- 'In order to preserve flexibility the courts frequently quote general statements such as the following: The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with, and so forth. To the same effect is a passage, much cited, in a speech of Lord Bridge in the House of Lords. (Lloyds vs McMohan) 'My Lords, the so called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirements of fairness demand when any body, domestic, administrative of judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework or other framework in which it operates. In particular, it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the failure to literally comply with sub-clause (iii) of clause (b) of Regulation 68(ii)(x) vitiates the enquiry altogether or whether it can be held in the circumstances that there has been a substantial compliance with the said sub-clause and that on that account, the enquiry and the punishment awarded cannot be said to have been vitiated.' 20. In this context, the Supreme Court, after considering the case law, came to the conclusion that the said sub-clause (iii) of clause (b) of Regulation 68, was not mandatory and that, even if it was mandatory since it was conceived in the interest of the employee and not in public interest, it could have been waived, even if the regulation used the word 'shall'. The Supreme Court also drew distinction in the said case with regard to violation of rights under a substantive provision as against a procedural provision. The Supreme Court observed that a substantive provision has normally to be complied with and the theory of substantial compliance or the test of prejudice would not be applicable in such case. It went on to observe that procedural provisions are generally meant for affording a reasonable and adequate opportunity to a delinq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th principles enunciated by the Supreme Court in the said case in paragraph 33 at page 389-391. 21. The submission of the learned ASG that the principles of natural justice have to be applied in taking into account the context in which the issue arises is a proposition which we have no difficulty in accepting. But our agreement ends there. In the context of the provisions of sub-section (3) of section 92CA, as observed hereinabove, the requirement to grant an oral hearing is mandatory and cannot be given a short shrift by the TPO. 22. The judgment cited by learned ASG to support his submission that the principles of natural justice does not necessarily imply the oral hearing and that the right of representation would suffice were cases where there was no statutory requirement to grant an oral hearing. 23. In UOI vs Jesus Sales Corporation (supra) the Supreme Court was considering the impact of the third proviso to sub-section (1) of section 4-M of the Imports and Exports (Control) Act, 1947 on the decision impugned; whereby an application for waiver of pre-deposit of penalty had been dismissed without giving an opportunity of personal hearing. In the context of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i-judicial in nature. The exclusion of an oral hearing can only be where there is a clear provision to that effect or it can be inferred from the scheme of statute. The fact situation in the present case is quite different. 26. The third case which was relied upon by the Respondents was State Bank of India vs Allied Chemical Lab (supra), we find this has no relevance to the proposition advanced before us by the learned ASG. This is a case which dealt with a situation where the High Court had set aside a final decree or order of the DRT in a writ petition in exercise of its power under Article 226 and 227 of the Constitution of India, on the ground that the DRT had rejected the application of one of the parties before it for cross examining the deponent of an affidavit by way of evidence, filed by the bank. The Supreme Court was of the view that the High Court could not have set aside the decree/final order of the DRT in exercise of its powers under Article 226 and 227 of Constitution of India for the reasons that the grievance of the aggrieved party that it had not been afforded an opportunity of cross-examining the deponent could always be set right by way of a statutory Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) Since such a requirement flows from a plain reading of the provisions of sub-section (3) of section 92CA, the determination of ALP by the TPO cannot be sustained by taking recourse to the fact that the assessee did not demand an oral hearing. (iii) To obviate any difficulties in future the show-cause notice issued by the TPO just prior to the determination of ALP under Section 92CA(3) should refer to the documents or material available with the Assessing Officer in relation to the international transaction in issue. The show cause notice should also give an option to the assessee:- (a) both to, inspect the material available with Assessing Officer as also the leeway to file further material or evidence if he so desires, and (b) to seek a personal hearing in the matter. 30. This conclusion we have arrived at keeping in mind the nature and the complexity of the inquiry and the width and amplitude of sub-section (3) of section 92CA, which empowers the TPO to gather evidence from all available sources in the event the TPO disagrees with determination of ALP by the assessee in the first instance. Therefore, the directions issued above, if followed, would obviate any cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ofit making companies only for comparing the operating profit margin of the petitioner and not considering the other comparable companies satisfying the criteria laid down in the show cause notice dated 26.8.2008 by the respondent no. 1 have been discarded primarily on the ground that the petitioner did not inadvertently enclose the annexure containing the necessary details. Respondent No. 1 did not call for the relevant annexure and passed the impugned order dated 23.9.2008, while he had time till 31 st October, 2008 to complete such proceedings. The action of the Respondent No. 1 disregarding the contentions of the petitioner to proceed without calling for the relevant details, it would be noted, was solely directed to create an unreasonable addition by considering a very high operating profit margin of 25.72% by taking into account two high profit making companies, viz. Saffron Global and Airline Financial Support Services, ignoring the other comparable companies which otherwise satisfied the comparability criteria to create.' 34. A perusal of comments made in paragraph 6.5(vii) of the impugned order would show that even though there is a reference to the contention raised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... companies identified as comparable in the Transfer Pricing documentation, were not found to be comparable with the petitioner. The petitioner requested Respondent No. 1 to provide the basis for not considering the 43 companies relied upon in the Transfer Pricing documentation as the comparable companies. The petitioner specifically requested the respondent no. 1 to provide details as to what were the specific functions being performed or risks being assumed by Infosys Technologies Limited and Satyam Computers Services which were not being undertaken by these 43 companies, to seek to exclude these remaining companies for purpose of comparison / benchmarking of the international transactions entered into by the petitioner with its associated enterprises.' 36. It is the grievance of the petitioner that even though in response to a show cause notice dated 1.9.2008 the petitioner had specifically requested the TPO to respond and /or give details or reasons as to why the data of comparable companies was not considered for the purposes of final determination of ALP by applying the TNMM method. The petitioner submits that the impugned order does not specifically deal with the said is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground to set aside the order of the TPO. The TPO in these circumstances will, however, commence the proceedings from the stage at which he had issued the show cause notice dated 4.9.2008. The petitioner will within a period of 3 days from today convey to or file any document or information which they think is necessary to support their case before the TPO. The TPO shall also grant inspection of the material, document or information in its possession and also permit the petitioner to take copies of the same on payment of charges on which it proposes to rely upon in determination of the ALP. The TPO shall give, by way of a notice, an opportunity of personal hearing to the petitioner setting out the date and time for the said purpose. Global Logic (I) Pvt ltd vs. The Additional Commissioner of Income Tax and anr.: WP(C) No 8055/2008; 38. In this writ petition the order dated 30.9.2008 passed by the TPO was impugned. By the said order the TPO has made an adjustment of Rs 2,22,55,571/-to the ALP of the international transaction, involving rendering of a better software development services amounting to Rs 25.62 crores. The petitioner has impugned the order of the TPO, amongst o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imilarly, in this writ petition the order dated 17.10.2008 passed by the TPO has been impugned. The petitioner has stated that by the impugned order TPO has made an adjustment/enhancement of his income to the extent of 2.51 crores. Amongst others, the petitioner grievance is that after the issuance of the show cause notice dated 3.10.2008 even though it furnished replies dated 10.10.2008 and 14.10.2008 wherein request was made to the TPO to provide the material and evidence relied upon by the TPO for the proposed adjustment as indicated in the show cause notice, the TPO did not respond to the same and instead in haste proceeded to pass the impugned order dated 17.10.2008. These averments are not rebutted. We find that a fair procedure required to TPO to supply the material based on which it proposed to make the adjustment indicated in his show cause notice. The failure to do so in our view has vitiated the order dated 17.10.2008 passed by the TPO. We accordingly quash the order dated 17.10.2008. The TPO in these circumstances will, however, commence the proceedings from the stage at which he had issued the show cause notice dated 3.10.2008. The petitioner will within a period of 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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