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The Delhi High Court (HC) denied bail applications due to factors such as the severity of the crime, current legal proceedings, and the need for an impartial trial.

Case Title: RAJU Versus THE STATE OF NCT OF DELHI

Case No: BAIL APPLN. 2791/2023

Decided on: 20th May , 2024

Quorum: The Hon’ble JUSTICE AMIT MAHAJAN

Facts of the case

The case concerns an occurrence on April 27, 2022, where the applicant, Raju, and his companions are accused of kidnapping the victim from his bakery. After the victim was brought to an unidentified location, calls to the victim’s family were made demanding ₹50,000 in ransom. The applicant and two other people were arrested the same day the victim was discovered to be harmed while being held captive. According to the prosecution, the accused were apprehended while attempting to escape after the victim was identified through technological surveillance. The police also confiscated the accused’s bamboo sticks and the car that was used in the kidnapping. The petitioner disputes any role in the kidnapping or ransom demands, arguing that they have been wrongfully accused

Issues

1. Did Raju, the applicant, take part in the victim’s abduction from the bakery on April 27, 2022?

2. Did the applicant and his cronies call the victim’s relatives and demand a ransom of ₹50,000?

3. Were the defendants apprehended the same day after attempting to leave the scene?

4. Is there proof to back up the prosecution’s allegation that the victim was discovered hurt while the applicant and other co-accused individuals were in custody?

Legal Provisions

Abduction and Ransom: Violations of Sections 365/364A/323/34 of the Indian Penal Code, 1860 (IPC) are at issue in this case. Kidnapping or abduction with the goal to unlawfully and covertly detain a person is covered by Section 365, whereas kidnapping for ransom is covered by Section 364A [T5]. Evidence and Statements: In accordance with Sections 161 and 164 of the 1973 Code of Criminal Procedure (CrPC), statements are used by the prosecution. Public witnesses’ testimony under Section 161 suggest that the victim was abducted, and the victim’s statement under Section 164 strengthens the prosecution’s case [T3] [T6]. Bail Application: In order to be released from custody pending trial, the applicant petitioned for bail under Section 439 of the CrPC. The court took into account elements including the seriousness of the violation, the likelihood of influencing the trial or posing a threat to the victim, as well as the requirement for quick evidence recording . The applicant is accused of violating Section 364A of the IPC, a crime that carries a life sentence or the death penalty.

Appellant Contentions

The court stressed the gravity of the crime and the importance of the victim’s comments and the testimonies of public witnesses as evidence The following are the claims made in the bail application by Raju, the applicant: False Implication: According to the applicant, they were wrongfully accused in the case. It is maintained that the applicant desired retribution against the victim’s brother for abusing his mother, not that there was a kidnapping or ransom involved. The defense points out that on the same day as the current FIR , another FIR was filed in relation to the applicant’s mother’s claimed attack. Demand for Ransom: The applicant challenges the charge of kidnapping for ransom under Section 364A of the Indian Penal Code. The defense contends that the transcript of the purported ransom call implies that the victim made the demand and not by the candidate. It is alleged that the charge sheet has been submitted and that detaining the petitioner is pointless. Request for Bail: The applicant is requesting bail, stating that since the charge sheet has been filed, there is no reason to hold him in detention. The applicant’s involvement in the claimed offense is not demonstrated, according to the defense, which disagrees with the prosecution’s position . The applicant’s bail request is based on these arguments, which refute the prosecution’s version of events surrounding the alleged kidnapping and ransom.

Respondent Contentions

The State of the NCT of Delhi, the respondent, made the following arguments against the bail request: Seriousness of the Offense: According to the prosecution, the applicant is accused of a horrific crime that includes kidnapping and demands for money. In order to oppose the granting of bail, the seriousness of the offense is highlighted. Possibility of Influence : If the applicant is granted bail, the prosecution expresses fears that they could threaten the victim and their family members or influence the outcome of the trial. There is a claim that the victim has not yet been examined and that the case may be jeopardized if the applicant is released. Supporting Evidence : In accordance with Section 164 of the CrPC, the prosecution draws attention to the victim’s statement.

Court Analysis and Judgement

Raju made an application for bail under Section 439 of the 1973 Code of Criminal Procedure, but the judge denied it. The seriousness of the crime, the victim’s statement and the statements of public witnesses served as the court’s basis for its ruling. It also took into consideration the possibility that the applicant might influence the trial or threaten the victim if granted bail. The victim had not yet been examined, the court noted, and it instructed the trial court to quickly record any evidence. The severity of the crime, the current legal proceedings, and the requirement for an impartial trial free from undue influence all played a role in the bail application’s denial. On May 20, 2024, the court rendered its ruling, and the petitioner was granted to resubmit the application following the examination of the principal witnesses .

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Judgement Analysis Written by – K.Immey Grace

 

 

 

 

 

 

 

 

 

 

 

 

 

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Delhi HC rules abatement upon plaintiff’s death on religious accomodation dispute

Case title: Diocese of Delhi-CNI vs. Mr. Deepak Martin Caleb

Case No. C.R.P 46/2022

Dated on: 21st May, 2024

Quorum: Hon’ble Mr. Justice Dharmesh Sharma

FACTS OF THE CASE

The deceased plaintiff was appointed as a resident priest by the defendant No. 1 (referred to as petitioner) to perform religious services and duties in the Church. The petitioner allowed the deceased to reside in accommodation on the ground floor of the Church premises. Despite initially intending to retire in March 2001, the deceased’s services were extended at the request of the petitioner on an ad hoc basis until 2005.Claiming a crisis in the Church’s affairs, the deceased was given further extensions by defendant No. 3 to continue performing religious services and retain the accommodation until May 14, 2018.However, in May 2018, the petitioner informed the deceased that his services were no longer required, and a new Presbyter in-charge had been appointed. Subsequently, defendant No. 2 instructed the deceased to vacate the premises, declining his request for alternative accommodation in November 2018.In response, the deceased instituted a suit challenging the authority of the petitioner and defendant No. 2, alleging harassment and asserting his right to continue residing in the accommodation inside the Church. The deceased’s suit claimed relief against the termination of his services and challenged the authority of the defendants to manage the Church’s affairs, particularly regarding his accommodation rights. The petitioner argued that the deceased’s rights were personal and did not survive his death. They contended that the accommodation was provided as an incidental benefit for the performance of religious duties and that the right to retain it ended with the termination of services and the plaintiff’s death. The court noted that the deceased’s claim to the accommodation was not based on tenancy rights but on possessory rights. It emphasized that no hereditary rights were created, and the deceased’s successor could not continue the suit as a legal heir. Referencing legal precedents, including a case involving the appointment of priests in Hindu temples, the court concluded that the deceased’s personal rights terminated with his death and did not devolve onto his legal representatives. Additionally, the court addressed arguments made by the respondent’s counsel regarding a Supreme Court order granting temporary relief but clarified that it did not determine the survival of legal rights in the pending suit. After analyzing the arguments and legal principles, the court concluded that the deceased’s suit abated upon his death, and the previous order allowing its continuation was set aside. The court instructed that a copy of its order be sent to the trial court for information and compliance, effectively ending the proceedings related to the deceased’s suit.

ISSUES

  1.  Whether the deceased plaintiff’s legal rights continue beyond his death and can be pursued by his legal representatives.
  2. Examining the validity of the defendants’ actions in terminating the deceased’s services and demanding his eviction from the accommodation.
  3. Determining whether the deceased’s rights were personal and extinguished upon his death or if they could be inherited or transferred to his legal representatives.

LEGAL PROVISIONS

  1. Order 22, Rule 1 of the Code of Civil Procedure (CPC): This rule deals with the abatement of a suit in case of the death of a plaintiff or defendant and specifies the circumstances under which the suit may or may not abate.
  2. Principle of “actio personalis moritur cum persona”: This Latin maxim means “a personal action dies with the person.” It applies to certain actions ex delicto, such as defamation or personal injury, where the right to sue extinguishes upon the death of the person.
  3. Legal Precedents: Referring to past judgments like Puran Singh v. State of Punjab and Girja Nandini v. Bijendra Narain, which establishes when the right to sue survives the death of a party and when it does not.

CONTENTIONS OF THE APPELLANT

The appellant, representing the deceased plaintiff, contends that the deceased was initially appointed as a resident priest by the petitioner/defendant No.1. It is acknowledged that the petitioner allowed the deceased to reside in the accommodation on the church premises. Despite the acknowledgment of retirement, the deceased’s services were extended multiple times, indicating an ongoing engagement with the church. The appellant argues that the deceased, in his capacity as a resident priest, faced harassment from the defendants, particularly from petitioner/defendant No.1 and defendant No.2. The deceased challenged the authority of these defendants not only for the non-extension of his tenure but also for alleged harassment. The contention revolves around the termination of his services, which the deceased perceived as unlawful and unjustified. Another key contention is regarding the nature of the legal rights asserted by the deceased. The appellant argues that the rights claimed by the deceased, including the right to continue residing in the accommodation provided by the church, were personal in nature and not heritable. This implies that these rights did not transfer to the appellant upon the deceased’s death.The appellant further contends that the respondent, as the son of the deceased, does not inherit any rights to become a religious priest of the church or challenge the authority of the defendants. The appellant emphasises that the accommodation provided to the deceased was for the sole purpose of facilitating his religious duties and did not confer any hereditary rights upon his heirs. Additionally, the appellant distinguishes between possessory rights and hereditary rights. While acknowledging that the respondent seeks to protect possessory rights in the premises, the appellant asserts that no hereditary rights were created in favour of the respondent. Therefore, the appellant suggests that any claim to the premises should be pursued separately from the deceased’s lawsuit. These contentions collectively form the appellant’s argument against the respondent’s claim and serve as the basis for challenging the lower court’s decision.

CONTENTIONS OF THE RESPONDENT

The respondent contends that the deceased plaintiff challenged the authority of the petitioner/defendant No.1 and defendant No.2. This challenge is not solely based on the termination of his services but also involves allegations of harassment at the instance of defendants No.1 and 2. The respondent argues that such actions justify his right to maintain the suit and seek relief from the court. The respondent asserts that the deceased plaintiff was appointed as a religious priest in the Church in his individual and personal capacity by petitioner/defendant No.1. Moreover, he was allotted and allowed to retain accommodation in the suit premises inside the church premises solely to facilitate him in discharging religious duties. Therefore, the respondent argues that the plaintiff’s legal rights were personal to him and not heritable, which justifies his right to continue the suit.The respondent further contends that even if an extension was granted to the deceased plaintiff, the legal right, if any, available to him was a personal right of action that died with his death and was not transferable or heritable. Therefore, the respondent argues that the relief claimed by the deceased plaintiff challenging the authority of the petitioner/defendant No.1 and defendant No.2 essentially died with him and cannot be pursued further by his successor or legal heir.  The respondent emphasises that no hereditary rights are created in favour of the respondent to continue with the suit filed by the deceased plaintiff as his successor or legal heir. The respondent refers to an analogy regarding the right of a pujari to provide services in Hindu temples to support this argument, suggesting that continuity of service does not confer an independent right upon successors. These contentions form the basis of the respondent’s argument in the case, asserting the legitimacy of maintaining the suit despite the death of the original plaintiff.

COURT’S ANALYSIS AND JUDGEMENT

The court’s analysis and judgement in the case revolve around interpreting the legal rights and obligations concerning the deceased plaintiff’s tenure as a religious priest in the Church and his right to retain accommodation on the church premises. 

The court begins by examining whether the legal right to sue survives the death of the plaintiff, as per legal provisions outlined in Order 22 of the Code of Civil Procedure (CPC). It acknowledges the principle that a personal action dies with the death of the person, citing the maxim “actio personalis moritur cum persona.” However, it notes exceptions where the right to sue survives despite the death of the party, particularly in cases where the relief sought would not be rendered nugatory by the party’s death.

 The court proceeds to analyse the nature of the deceased plaintiff’s rights and tenure as a religious priest in the Church. It observes that the plaintiff’s appointment and accommodation were facilitated by the petitioner/defendant No.1 to enable him to discharge religious duties. The court underscores that the plaintiff’s rights were personal and not heritable, emphasising that the accommodation was provided as an incidental benefit to his role as a priest.

Examining the contentions raised in the suit, the court considers the plaintiff’s challenge to the authority of the petitioner/defendant No.1 and defendant No.2, as well as allegations of harassment. It concludes that the relief sought by the plaintiff challenging his termination and authority essentially died with him, as it was a personal right of action.

Addressing the respondent’s contention that he, as the legal heir of the deceased plaintiff, should be allowed to continue the suit, the court rejects this argument. It emphasizes that no hereditary rights are created in favor of the respondent to pursue the suit, as the deceased plaintiff’s rights were personal and not transferable or heritable.

The court draws parallels with legal precedents related to the appointment of priests in Hindu temples to support its analysis. It highlights that continuity of service does not confer an independent right upon successors, further reinforcing its stance on the non-heritability of the plaintiff’s rights.

 Based on its analysis, the court concludes that the impugned order allowing the respondent’s application under Order 22 Rule 3 of the CPC suffers from patent illegality and constitutes an erroneous exercise of jurisdiction. Consequently, the court sets aside the order and declares that the suit filed by the deceased plaintiff abates, meaning it comes to an end and shall not be further proceeded with in the Trial Court.

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Judgement Reviewed by – Shruti Gattani

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Jurisdictional Limits of Magistrates in Restoring Dismissed Complaints: Vakamulla Chandrashekhar & Ors. V. ROC”

Case Title: VAKAMULLA CHANDRASHEKHAR & ORS. Versus REGISTRAR OF COMPANIES -THROGH ITS DEPUTY REGISTRAR NCT OF DELHI AND HARYANA

Case No: CRL.M.C. 2372/2022 & CRL.M.A. 10023/2022

Decided on: 15th May , 2024

Quorum: HON’BLE MR. JUSTICE NAVIN CHAWLA

Facts of the case

Under Sections 447/448 of the Companies Act, 2013, the respondent lodged a complaint, claiming that the accused firm had misappropriated IPO proceeds to several entities rather than using them for the intended uses specified in the prospectus. The Special Judge first rejected the complaint because the respondent did not show up. Following this, the Special Judge granted the complaint’s restoration, acknowledged the offenses, and sent summonses to the petitioners.

Issues

1. Did the Special Judge have the authority to reinstate the dismissed complaint?

 2. Was it lawful for the order to call the petitioners for violations of the Companies Act?

 3. Whether the 1973 Code of Criminal Procedure’s provisions were appropriately construed and utilized in this instance?

Legal Provisions

The Companies Act of 2013’s Sections 447 and 448 deal with offenses including the diversion of IPO profits. The High Court’s inherent authority to halt proceedings is outlined in Section 482 of the 1973 Code of Criminal Procedure. Section 362 of the 1973 Code of Criminal Procedure grants a judge the authority to rectify mathematical or clerical errors.

 Appellant Contentions

The Code of Criminal Procedure contains no clause allowing a magistrate to review or recall an order, hence the Special Judge lacked jurisdiction to reinstate the dismissed complaint. The complaint was dismissed, rendering the Special Judge functus officio, which prevented the restoration or summons from being issued. The Supreme Court was relied upon ruling in Maj. Gen. A.S. Gauraya v. S.N. Thakur, which highlighted that, in accordance with Section 482 of the Cr.P.C., only the High Court possesses inherent authority.

Respondent Contentions

Since the judgment of dismissal lacked merit, the Special Judge’s reinstatement of the complaint was appropriate. The respondent said that the Special Judge was empowered to recall the dismissing judgment since Section 362 of the Cr.P.C. permits corrections of errors in orders.

 Court Analysis and Judgement

The High Court ruled that because the Cr.P.C. does not allow magistrates to review or recall their orders, the Special Judge lacked power to reinstate the rejected case. The decree directing the petitioners to be summoned was set aside, highlighting the restrictions on the Special Judge’s authority following the complaint’s rejection. The respondent may pursue appropriate legal remedies to get the complaint restored in compliance with the law, the Court further stated. This case emphasizes how crucial it is to comprehend the extent of judicial authority and how laws should be correctly applied in criminal cases.

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Judgement Analysis Written by – K.Immey Grace

 

 

 

 

 

 

 

 

 

 

 

 

 

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The court stressed that judicial interference in expert-driven judgments is limited unless the criteria are perverse or unreasonable

Case Title: MANINI KAUSHIK Versus THE NATIONAL RIFLE ASSOCIATION OF INDIA & ORS.

Case No: W.P.(C) 5438/2024 & CM APPL. 22456/2024

Decided on: 15th May , 2024

Quorum: HON’BLE MR. JUSTICE SUBRAMONIUM PRASAD

Facts of the case

The appellant asked the court for permission to compete in the 50-meter Rifle 3 Position Women Category at the Paris Olympic Selection Trials. The dates of these trials were set for April and May of 2024, respectively, in New Delhi and Bhopal. The appellant had competed in the women’s 50-meter Rifle 3 Position competition both domestically and internationally. Interestingly, she competed for China in the 2022 Asian Games and was a member of the squad that earned a silver medal. In October 2022, the NRAI set the standards for choosing the Olympic Shooting Teams. The NRAI revised the eligibility requirements and added more constraints in November 2023. The appellant claimed to have met the initial 2022 requirements.

Issues

1. Whether the NRAI’s November 2023 adjustment to the selection criteria was fair and justified, given that the initial criteria had been established In October 2022?

2. Whether does the appellant now face unfair disadvantages as a result of the rule change?

Legal Provisions

The Indian Constitution’s Article 226 specifies the High Court’s writ authority.

Appellant Contentions

In the aforementioned case, the appellant, through her attorney, contended that the November 2023 amendment to the NRAI selection criteria was unjust and amounted to altering the rules of the game after it had already started. The appellant was disadvantaged by this change because it changed the eligibility requirement that she had initially sought to meet. The appellant underlined that, under the initial criteria, she should have been eligible for the selection trials because, as per the QROG points, she ranked fourth nationally, higher than some of the selected athletes like Nischal and Shriyanka Sadangi. The appellant claimed that she would have been one of the top five qualified shooters for the 2022 competition if the original 2022 criteria had been applied.

Respondent Contentions

In the aforementioned matter, the Respondent, via their legal representative, was satisfied that modifications to the ISSF calendar—which prolonged the qualifying event deadline and multiplied the chances for athletes to raise their rankings were the reason for the modification of the selection criteria. In order to choose the best athletes from a bigger group, the Respondent claimed that the altered criteria increased the pool of participants in the selection trials. The Respondent further claimed that this was done in good faith in an effort to improve the caliber of the squad.

Court Analysis and Judgement

After reviewing the Paris Olympic selection trials’ 2022 and 2023 requirements, the court concluded that the National Research and Analysis Institute (NRAI) had made the revisions In response to modifications to the ISSF timetable. The court stressed that judicial interference in expert-driven judgments is limited unless the criteria are perverse or unreasonable and found the 2023 criteria legitimate in their attempt to choose the top athletes from a wider pool. Despite the Appellant’s superior QROG ranking, the court decided that the athletes’ selection was warranted based on the national ranking as a whole. Both the Appellant’s application and any ongoing applications were dismissed by the court. The court reviewed the 2022 and 2023 criteria for the Paris Olympic selection trials, determining that the amendments were introduced by the National Research and Analysis Institute (NRAI) in response to changes in the ISSF calendar. The court deemed the 2023 criteria reasonable, aiming to select the best athletes from a larger pool, and emphasized that judicial intervention in expert-driven decisions is limited unless the criteria are perverse or unreasonable. The court acknowledged the Appellant’s higher QROG ranking but ruled that the overall national ranking justified the selection of those athletes. The court dismissed the Appellant’s application and any pending applications.

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Judgement Analysis Written by – K.Immey Grace

 

 

 

 

 

 

 

 

 

 

 

 

 

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Delhi High Court Affirms ITAT’s Authority to Directly Remit Cases to TPO, Renders AO’s Second Reference Redundant

 Case Name: New Delhi Television Ltd. v. Dispute Resolution Panel 2 & Anr 

Case No.: W.P.(C) 2322/2021 

Dated: May20, 2024 

Quorum: Justice Yashwanth Varma and Justice Purushaindra Kumar Kaurav 

 

FACTS OF THE CASE: 

The writ petitioner challenges the Dispute Resolution panel’s ruling. Panel from January 29, 2021, which has refuted its concerns about the preliminary evaluation order formulated on March 31, 2013. That particular draft the evaluation order was created in response to a directive issued by the Officer of Transfer Pricing on October 29, 2019. It appears that the petitioner to have argued before the DRP that, in essence, the reference to the TPO on December 27, 2018, was a follow-up reference to allegedly implement the Income Tax Appellate Court’s ruling tribunal on July 14, 2017.  

Despite having framed an order on October 17, 2017, the record would show that no equivalent order as required by Income Tax Act, 1961 Section 92CA(4) was framed. In order to give effect to the original ITAT order dated July 14, 2017, the petitioner had urged the DRP to consider that the reference made on December 27, 2018, as well as the consequential order dated October 29, 2019, framed by the TPO, were manifestly barred by the statute of limitations as embodied in Section 153(3) of the Act. 

Nevertheless, the DRP declined to consider the restriction challenge, pointing out that Section 144C(8) limits its authority to verifying, modifying, or improving the changes suggested in the draft order. It seems to have essentially adopted the stance that it could not consider a jurisdictional challenge brought forth as an objection under Section 144C(2) of the Act. It is offended by the aforementioned action, which led to the current writ petition being filed.  

According to the Special Bench’s previously stated opinion, it seems that the appeal itself was instructed to be presented before the suitable ITAT Bench for resolution with regard to the findings as produced. It would be relevant to remember that on July 14, the ITAT when discussing the topic of corporate guarantees in 2017, returned the matter with the warning for the TPO’s consideration. That the aforementioned query will be held until the decision was made by the Particular Bench in the ongoing case.  

 LEGAL PROVISIONS:  

  • Section 92CA(4) of the Income Tax Act, 1961- After receiving the order under sub-section (3), the Assessing Officer will calculate the assessee’s total income under section 92C, sub-section (4), taking into account the arm’s length price that the Transfer Pricing Officer determined under sub-section (3). 
  • Section 153(3) of the Income Tax Act– An order under section 254 or section 263 or section 264, setting aside or cancelling an assessment or an order under section 92CA, as the case may be, may be made at any time before the end of the nine-month period following the end of the fiscal year in which the order under section 254 is received by the Principal Chief Commissioner or Chief Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the Principal Commissioner or Commissioner. 

CONTENTIONS OF THE APPELLANTS: 

The learned counsel for the appellants fiercely and strongly argued that a reading of the ITAT’s order dated July 14, 2017, makes it clear that the parties’ permission was obtained before the TPO was mentioned. Mr Jolly emphasised that the respondents had not contested the order dated July 14, 2017, insofar as it related to the referral to the TPO. As a result, they were ineligible to criticise or raise doubts about the propriety of the process used by the ITAT to make that referral. 

It was also emphasised that while the respondents filed appeals on January 02, 2018, against the ITAT’s order dated July 14, 2017, those appeals are limited to the merits of the several issues that were ultimately decided. Even in those appeals, which The learned counsel filed, the respondents do not criticise or cast doubt on the propriety of the ITAT’s decision to forward the case to the TPO.  

The learned counsel went on to say that a simple reading of the TPO’s first ruling, dated October 17, 2017, would prove beyond a reasonable doubt that the aforementioned authority had acted in accordance with the ITAT’s instructions and to give effect to and carry out the order dated July 14, 2017.  

The TPO’s reference and assumption of jurisdiction were subsequently challenged on the basis of limitation as outlined in Section 153 of the Act. The learned counsel contended that the time frame within which the AO or the TPO could have concluded that exercise would be governed by Section 153(3) of the Act, unquestionably in terms of the order of July 14, 2017, and which would clearly be liable to be read as requiring a fresh assessment to be undertaken.  

When considering this, skilled counsel argued that the deadline for creating a draft appeal effect order would have ended on December 31, 2018. The learned counsel stated that this would logically follow from the Act’s Section 153(3)’s straightforward language.   

CONTENTIONS OF THE RESPONDENTS: 

The arguments put forward by the learned counsel for the appellants were sharply and passionately rejected by the learned counsel for originally filed a preliminary objection, arguing that the writ petition should not be granted in defiance of the DRP’s directives. According to The learned counsel’s submission, Section 144C of the Act establishes a unique method to address situations in which alterations in transfer pricing may lead to variances. According to The learned counsel’s submission, qualified assessees are provided with a draft assessment order in all circumstances whereby they are entitled to file objections with the DRP under the Act. It was mentioned that after the DRP rejects those objections, the issue is brought before the AO, who would then decide whether to issue an assessment order.  

As per the advice of knowledgeable legal counsel, an assessee’s entitlement to challenge the respondents’ actions or pursue legal remedies will only be acknowledged upon the drafting of a final assessment decision that follows the DRP’s directives. The learned counsel argued that the DRP’s resolution of objections does not create a liability and is merely a step towards assessment in the event that the assessee is eligible. According to knowledgeable counsel, a tax liability wouldn’t materialise until after a final assessment decision was approved and was subject to an ITAT appeal.  

Subsequently, it was argued that the challenge to the DRP’s recommendations is misguided because it is evident that the aforementioned authority lacks the authority to consider any potential jurisdictional issues, including objections to limitations. It was argued that the DRP’s authority is limited to “confirming, reducing or enhancing the variations proposed,” as would be clear from Section 144C(8) of the Act. The learned counsel argues that this authority cannot be seen as equivalent to or similar to the authority to set aside.  

 COURT’S ANALYSIS AND JUDGMENT: 

First, the court noted that the provisions included in the Finance Act, 2016 were the first to introduce and structure the “nine” and “twelve” month window governing assessments to be made post remit by the ITAT and in cases where a reference under Section 92CA(1) of the Act may be made during an ongoing assessment. Section 153 of the Finance Act, 2014 fully acknowledged and established provisions regarding assessments that may need to be made in compliance with the method outlined under Section 92CA of the Act. This is the second aspect of some relevance.  

After outlining the main points of contention, we believe it is fair to take a closer look at Mr. Hossain’s preliminary objection. Recall that Mr. Hossain had argued that the petitioner was only contesting a DRP order, which in any event carries no legal consequences. The main argument of the submission was that this Court would not be able to use the Article 226 of the Constitution’s jurisdiction if no corresponding order of assessment had been framed. For the following reasons, we are unable to support that objection.  

The court also noted that the Act’s Section 92CA(1) specifies that the concerned AO alone may refer to the TPO. Nonetheless, we see no reason to question the ITAT’s authority to make such a reference while reviewing an appeal that might be brought before it, given the stature and position that have been bestowed upon it. This is because, according to Section 253 of the Act, an assessee has the right to contest a directive that the DRP issued and that may have been converted into a real assessment order.  

The court also discovered that the ITAT’s order referring the case to the “Assessing Officer/Transfer Pricing Officer/Dispute Resolution Panel” was at issue in the ruling made by a knowledgeable single judge of the Karnataka High Court in the TE Connectivity case.  

In any event, the High Court finally ruled in favour of the assessee in that particular case. We are unable to find any observation or conclusion in that decision that might be interpreted as supporting the arguments made by the respondents in this particular process.  

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Judgment reviewed by Riddhi S Bhora. 

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