2013 (9) TMI 679 - AT - Income Tax

Tribunal restores assessment proceedings, emphasizes DRP compliance.

The Tribunal set aside the orders of both the Dispute Resolution Panel (DRP) and the Commissioner of Income-tax (Appeals) (CIT(A)), restoring the ... Transfer pricing adjustment - DRP rejected objections filed by the assessee as non-est and dismissed the same in limine - Rejection of Form 35A - Held that:- Even under the Dispute Resolution Panel Rules or under the provisions of the Act, the mandate to the Dispute Resolution Panel is to consider the objections on merit and give directions to the Assessing Officer with reference to the draft assessment order. Even this basic duty has not been performed by the Dispute Resolution Panel. It simply rejected Form 35A filed by the assessee as invalid, non est and dismissed in limine. On this count also the action of the Dispute Resolution Panel cannot be upheld and therefore, we are of the firm opinion that the order passed on July 4, 2011 by the Dispute Resolution Panel-II is to be set aside with a direction to consider objections afresh and give necessary direction to the Assessing Officer as per the provisions of the Act and the Rules thereon. For this purpose, the matter is restored to the file of the Dispute Resolution Panel for consideration of the objections filed with it, afresh - Decided in favour of assessee. Issues Involved:1. Validity of Form 35A filed by the assessee before the Dispute Resolution Panel (DRP).2. Jurisdiction and procedural adherence of the DRP in rejecting Form 35A.3. Right of the assessee to appeal to the Commissioner of Income-tax (Appeals) (CIT(A)) against the DRP's order.4. Validity of the CIT(A)'s dismissal of the appeal as not maintainable.Issue-wise Detailed Analysis:1. Validity of Form 35A filed by the assessee before the Dispute Resolution Panel (DRP):The DRP rejected Form 35A filed by the assessee on the grounds that it was signed by Mr. Brijesh Ahuja, who was not the managing director or a director of the company as per section 140(c) of the Income-tax Act. The DRP concluded that the form was not in compliance with the statutory provisions, rendering it invalid and non-est.2. Jurisdiction and procedural adherence of the DRP in rejecting Form 35A:The Tribunal found that the DRP did not follow the rules under which it operates. According to Rule 4 of the Dispute Resolution Panel Rules, objections can be filed in person or through an agent, and there is no specific requirement that the agent must be a managing director or director. The Tribunal noted that the DRP's reliance on section 140 was incorrect, as section 140 applies only to the signing of returns under sections 115WD or 139, not to Form 35A. The Tribunal emphasized that the Central Board of Direct Taxes (CBDT) rules permit an agent to file objections, and the DRP exceeded its jurisdiction by rejecting the form based on section 140.3. Right of the assessee to appeal to the Commissioner of Income-tax (Appeals) (CIT(A)) against the DRP's order:The Tribunal observed that the DRP did not provide any directions to the Assessing Officer (AO) on the draft assessment order but simply rejected Form 35A. Therefore, the order of the AO was not covered by the directions of the DRP, giving the assessee the right to appeal to the CIT(A). The Tribunal held that the CIT(A) erred in rejecting the appeal as not maintainable.4. Validity of the CIT(A)'s dismissal of the appeal as not maintainable:The Tribunal set aside the order of the CIT(A), noting that the CIT(A) incorrectly held that the order was passed in pursuance of the DRP's directions. Since the DRP did not give any directions, the assessee's appeal to the CIT(A) was valid. The Tribunal restored the proceedings to the stage of the draft assessment order proposed by the AO, allowing the assessee to choose to proceed either before the DRP or the CIT(A).Conclusion:The Tribunal set aside the orders of both the DRP and the CIT(A), restoring the proceedings to the draft assessment order stage and directing the DRP to consider the objections on merits. Both appeals filed by the assessee were allowed for statistical purposes. The Tribunal emphasized the importance of the DRP following the rules and rendering justice as intended.