IN HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS 11TH DAY OF FEBRUARY, 2020 BEFORE HON BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NOS.1189 OF 2018 (T-IT) BETWEEN: M/S WIPRO GE HEALTHCARE PVT LTD, NO.4, KADUGODI INDUSTRIAL AREA, WHITEFIELD BANGALORE-560067. REPRESENTED BY ITS AUTHRIZED SIGNATORY, SHRI KEDAR KULKARNI. PETITIONER (BY SMT. ANURADHA S R, ADVOCATE) AND: 1. DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 7(1)(2), BENGALURU. 2. GOVERNMENT OF INDIA, MINISTRY OF FINANCE, INCOME TAX DEPARTMENT, 7TH FLOOR, INCOME TAX OFFICE, BMTC BUILDING, 80 FEET ROAD, KORAMANGALA, BENGALURU 560 001. ... RESPONDENTS (BY SRI. K V ARAVIND, ADVOCATE) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH ASSESSMENT ORDER DATED 28.11.2017 FOR A/Y 2010-11 PASSED BY R-1 ANNEXURE-A AND ETC., THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN B GROUP, THIS DAY, COURT MADE FOLLOWING: 2 ORDER Petitioner being Corporate Assessee engaged in business of providing software services & technology solutions to its parent company for products manufactured worldwide is knocking at doors of Writ Court for assailing Assessment Order dated 28.11.2017, made by first respondent at Annexure-A for Assessment Year 2010-11 whereupon demand for payment of tax so assessed has been raised vide Demand Notices both dated 28.11.2017 at Annexures A1 & A2. 2. After service of notice, respondents having entered appearance through their Sr. Panel Counsel resist writ petition making submission in justification of impugned order; it is also submitted that petitioner has got alternate remedy of appeal and therefore, it should be relegated thereto. 3. Having heard learned counsel for parties and having perused petition papers, this Court grants reprieve to petitioner for following reasons: a) return of income filed by petitioner for Assessment Year 2010-11 was selected for scrutiny by issue 3 of Notice under Section 143(2) of Income Tax Act, 1961; since value of international transactions of petitioner exceeded prescribed limit, reference was made to TPO for determining Arms Length Price of subject international transactions entered with associated enterprises of petitioner; TPO passed order u/s 92CA of Act determining ALP adjustment that was added to returned income along with certain statutory allowances; accordingly, draft Assessment Order having been made on 24.03.2014 was objected to by petitioner in Form 35A filed before Dispute Resolution Panel; DRP issued directions u/s 144C (5) of Act on 12.12.2014 which resulted into Assessing Officer making final Assessment vide order dated 30.01.2015; b) petitioner went in appeal to Income Tax Appellate Tribunal which partly allowed appeal vide order dated 18.09.2015 remanding matter for consideration afresh; operative portion of order reads as under: 5. Having gone through record before us, as recorded above, we find that even during relevant assessment year, assessee had made elaborate submissions and both TPO as well as DRP have failed to consider said objections objectively. In view of same, we deem it fit and proper to remit this issue to file of A.O/TPO 4 for reconsideration of issue in accordance with law. A.O./TPO is directed to give fair opportunity of hearing to assessee and also consider judicial precedents on, issue including orders of Tribunal in assessee s own case while determining ALP. text and context of this order unquestionably leads one to conclusion that it is open remand and therefore, mandatory procedure prescribed u/s 144C(1) of Act ought to have been followed by passing draft order and by giving opportunity to petitioner to file his objections thereto whereupon matter may go before DRP; however, impugned order of Assessment has been made on wrong assumption that remand order did not expect any judicious determination of matter remanded, when it is plainly otherwise; thus, there is gross error apparent on face of record warranting indulgence of this Court for setting it right; and, c) contention of Revenue that petitioner has got alternate remedy of appeal and therefore, it should be relegated to Appellate body does not much impress Court; argument of alternate remedy does not bar writ jurisdiction of this Court when impugned order has demonstrable error of law resulting into prejudice to 5 Assessee; nothing is stated as to how Revenue would be affected by invocation of writ jurisdiction by Assessee when full opportunity is given to both sides; added to this, what difference appeal would have made to matter is also not forthcoming. In above circumstances, this writ petition is allowed in part; Writ of Certiorari issues quashing impugned orders and consequential Demand Notices; matter is remitted to first respondent for consideration afresh i.e, for judicious determination, in accordance with law, after hearing petitioner or its agent. All contentions of parties are kept open. No costs. Sd/- JUDGE Bsv Wipro GE Healthcare Pvt. Ltd. v. Deputy Commissioner of Income-tax, Circle-7(1)(2), Bengaluru / Government of India, Ministry of Finance, Income Tax Department