Karnataka High Court
M/S Wipro Enterprises Private Limited vs The Deputy Commissioner Of Incom-Tax on 6 February, 2024
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2024:KHC:5227
WP No. 61783 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
WRIT PETITION NO. 61783 OF 2016 (T-IT)
BETWEEN:
M/S WIPRO ENTERPRISES PRIVATE LIMITED
REP BY ITS MANAGER TAXATION,
SRI S.B.NAVANEETH,
AGED ABOUT 32 YEARS,
S/O SRI BASU RANGASWAMY,
C BLOCK, CCLG DIVISION,
DODDAKANNELLI, SARJAPUR ROAD,
BANGALORE - 560 035
...PETITIONER
(BY SRI. M LAVA, ANNAMALAI S & SRI.M.LAVA., ADVOCATES)
AND:
1. THE DEPUTY COMMISSIONER OF INCOME-TAX
TRANSFER PRICING-2(2)(2),
BMTC BUILDING, 80 FEET ROAD,
KORAMANGALA,
Digitally BANGALORE - 560 095
signed by
VANDANA S
Location: 2. THE ASSISTANT COMMISSIONER OF
HIGH COURT INCOME -TAX CIRCLE-7(1)(2)
OF
KARNATAKA BMTC BUILDING,
80 FEET ROAD, KORAMANGALA,
BANGALORE - 560 095
...RESPONDENTS
(BY SRI.RAVIRAJ Y.V. & SRI.M DILIP., ADVOCATES)
THIS WP IS FILED UNDER ARTICLES 226 & 227 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER PASSED
BY R-1 UNDER SEC. 92 CA OF THE INCOME-TAX ACT, 1961 DATED
28.10.2016 FOR THE ASSESSMENT YEAR 2013-14 HEREIN AT
ANNEX-A AND THE PENALTY PROCEEDINGS INITIATED BY R-1
UNDER SEC. 271G OF THE ACT FOR ALLEGED FAILURE TO
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NC: 2024:KHC:5227
WP No. 61783 of 2016
MAINTAIN DOCUMENTATION UNDER SEC. 92D IN RESPECT SDT
AND THE TRANSACTION OF RECEIPT OF SHARES FROM
SUBSIDIARIES / INVESTMENT IN SUBSIDIARIES & ETC.,
THIS PETITION, COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
In this petition, petitioner is aggrieved by the impugned order
passed by the respondent No.1 (Transfer Pricing Officer) - TPO
under Section 92 CA of the Income Tax Act, 1961 dated 28.10.2016
and for other reliefs:
"a) Issue a writ of Certiorari and direction in the nature of a
writ of certiorari quashing the order passed by the
Respondent No.1 under section 92 CA of the Income Tax
Act, 1961 dated 28.10.2016 for the assessment year 2013-
14 herein marked as Annexure - A and the penalty
proceedings initiated by the first respondent under section
271G of the Act for alleged failure to maintain documentation
under section 92D in respect SDT and the transaction of
receipt of shares from subsidiaries / investment in
subsidiaries.
b) Declare that order in Annexure - A is in violation of
principles of natural justice.
c) And pass such other orders as this Hon'ble Court deems
fit and proper in the interest of justice and equity."
NC: 2024:KHC:5227
2. Heard learned counsel for the petitioner and learned
counsel for the respondents and perused the material on record.
3. In addition to reiterating the various contentions urged in
the memorandum of petition and referring to the material on record,
Learned counsel for the petitioner submits that non issuance of show
cause notice prior to passing the impugned order is violative of
principles of natural justice and that the respondent No.1 - TPO
committed an error in passing the impugned order without
considering or appreciating the relevant statutory provisions as well
as the judgment of various High Courts as stated below:
1. Commissioner of Income Tax-3 vs M/s. Thyssen Krupp
Industries India Pvt. Ltd., 381 IR 413
2. Commissioner of Income Tax vs Tara Jewels Exports Pvt. Ltd.
Order dated 05.10.2025 in ITA No.1814/2013 (HC-Bombay)
3. Commissioner of Income Tax vs Keihin Panalfa Ltd. 381 ITR
407 (Delhi)
4. CIT vs Petro Araldite Pvt Ltd., (Bombay) Order dated
24.11.2015.
5. CIT vs Hindustan Uniliever Ltd., 394 ITR 73 (Bombay)
6. CIT vs ALSTOM Projects India Ltd., 394 ITR 141 (Bombay)
NC: 2024:KHC:5227
7. CIT vs Phoenix Mecano (India) Pvt. Ltd., (2019) 414 ITR 704
(Bombay)
8. CIT-I vs Hindustan Unilever Ltd., SLP(C) No.(s) 22381/2017
Order dated 29.10.2018 (SC)
9. CIT vs Phoenix Mecano (India) Pvt. Ltd., SLP (civil) Diary
No.2234/2018 Order dated 05.02.2018 (SC).
4. It is submitted that non consideration of the relevant
statutory provisions as well as the law laid down by the various High
Courts which have been confirmed by the Apex Court would vitiate
the impugned order which deserves to be set aside and the matter
be remitted back to the respondent No.1 - TPO for reconsideration
afresh in accordance with law.
5. Per contra, learned counsel for respondents would submit
that there is not merit in the petition and same is liable to be
dismissed. It is submitted that sufficient opportunities were granted
to the petitioner who did not produce the aforesaid judgments and as
such, they are not entitled to any indulgence in the present petition.
6. I have given my anxious consideration to the rival
submissions and perused the material on record.
NC: 2024:KHC:5227
7. As rightly contended by the learned counsel for the
petitioner, the aforesaid judgments relied upon the petitioner which
were rendered prior to the impugned order have not been
considered by the respondent No.1 - TPO before passing the
impugned order which also does not take into account the relevant
statutory provisions before passing the impugned order. Under
these circumstances, without expressing any opinion on the
merit/demerits of the rival contentions and in order to enable the first
respondent - TPO to pass fresh orders after consideration of the
relevant statutory provisions and the judgments of various High
Courts referred to supra, I deem it just and appropriate to set aside
the impugned order and remit the matter back to the first respondent
for reconsideration afresh in accordance with law.
8. In the result, I pass the following:
ORDER
(i) Petitioner is hereby allowed.
(ii) Impugned order dated 28.10.2016 passed by the
respondent No.1 (Transfer Pricing Officer) - TPO under Section
92CA of the Income Tax Act, 1961, is hereby set aside.
NC: 2024:KHC:5227
(iii) Matter is remitted back to the respondent No.1 - TPO
for reconsideration afresh bearing in mind the aforesaid judgments
and the relevant statutory provisions, in this regard.
(iv) All rival contentions on all aspects of the matter are kept
open and no opinion is expressed on the same.
(v) Liberty is reserved in favour of the petitioner to submit
additional pleadings, documents, case law before the first
respondent who shall consider the same and proceed further, in
accordance with law.
(vi) It is made clear that the respondent shall provide
sufficient and reasonable opportunity to the petitioner and hear him
and proceed further in the matter.
Sd/-
JUDGE
DHA
