2023 (11) TMI 998 - AT - Income Tax

ITAT sets aside assessment order for failing to incorporate DRP directions on transfer pricing adjustments

Hitachi Astemo Haryana Private Ltd. (formerly Showa India Private Ltd.) Versus DCIT, Circle 22 (2), Delhi.

ITAT Delhi set aside the final assessment order u/s 144C for failing to incorporate DRP directions regarding upward adjustment in ALP of international ... Validity of final assessment order u/s 144C as not conforming binding directions of ld. DRP - upward adjustment in ALP of international transactions - DRP’s directions could not be complied with as the order giving effect of the TPO was not received by the AO at the time of the passing of the order - HELD THAT:- As final assessment order is without incorporating of DRP’s directions. As stated above, the reason is that DRP has given certain directions which were to be given effect by the TPO. The AO till passing the final assessment order has not received the order giving effect by the TPO. In the case of Anand NVH Products Pvt. Ltd. [2021 (8) TMI 1262 - DELHI HIGH COURT] we noted that assessment order has been passed under section 143(3) read with section 144C of the Act without waiting for the decision of the DRP, thus in this case set aside the final assessment order along with notice of demand and restored the matter to the level of DRP. In the case of SRF Ltd. [2021 (7) TMI 1298 - DELHI HIGH COURT], the final assessment order was passed without incorporating the DRP’s directions. Thus in such a situation, quashed the final assessment order and the demand of notice and remitted the matter to DRP for consideration u/s 144C. Also in Fibrehome India Pvt. Ltd. [2021 (12) TMI 944 - DELHI HIGH COURT] the final assessment order was passed without incorporating the directions of the DRP, thus as referring to cases of Anand NVH Products Pvt. Ltd. and SRF Ltd. [2021 (8) TMI 1262 - DELHI HIGH COURT] remitted the matter to DRP keeping in view of the scheme of section 144C. Thus, it is emanating that in the final assessment order passed without incorporating the DRP’s directions, the matter has been remanded to the DRP by the Hon’ble High Court to give effect to the scheme of section 144C of the Act. The above case laws are binding upon us. We remit the issue to the file of AO. AO shall pass an order incorporating DRP’s directions which has been given effect by the TPO. Assessee appeal is allowed for statistical purposes. Issues involved:The judgment deals with the final assessment order passed by the Assessing Officer for the assessment year 2018-19, pursuant to the directions issued by the Dispute Resolution Panel (DRP). The main issues revolve around the conformity of the final assessment order with the binding directions of the DRP, the incorporation of DRP's directions in the assessment order, and the validity of the assessment order in light of the DRP's directions.Issue 1: Compliance with DRP's DirectionsThe appeal raised concerns regarding the final assessment order's compliance with the binding directions of the DRP. The Taxation Officer (TO) passed an order suggesting upward adjustments in the Arm's Length Price (ALP) of international transactions. The Assessing Officer (AO) incorporated the TO's recommendations in the draft assessment order but failed to comply with the DRP's directions issued under section 144C(5) of the Income-tax Act, 1961. The final assessment order was passed without incorporating the DRP's directions due to the non-receipt of the order giving effect by the TO. This led to a legal challenge by the assessee, arguing that the final assessment order was not in conformity with the DRP's directions.Issue 2: Legal Validity of Assessment OrderThe legal validity of the final assessment order was questioned on the grounds that it did not conform to the binding directions of the DRP. The assessee contended that the AO's failure to receive and incorporate the order giving effect by the TO rendered the assessment order legally flawed. Citing relevant Tribunal decisions and a Karnataka High Court case, the assessee argued that passing an assessment order without incorporating the DRP's directions was not permissible under the law. In response, the Revenue relied on decisions of the Delhi and Madras High Courts, highlighting that similar cases did not result in the quashing of the entire proceedings but rather the setting aside of the assessment order for rectification.Judgment:After considering the arguments and case laws presented by both parties, the Tribunal referred to the decisions of the jurisdictional High Courts. It was noted that in cases where the final assessment order was passed without incorporating the DRP's directions, the High Courts remanded the matter to the DRP for compliance with the provisions of section 144C of the Act. Following the binding precedents, the Tribunal remitted the issue back to the AO to pass an order that incorporates the DRP's directions, which were to be given effect by the TO. Consequently, the Tribunal allowed the appeal filed by the assessee for statistical purposes, without the need to adjudicate on other grounds at that juncture.