TaxTMI 
TaxTMI 
2015 (12) TMI 837
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....with the respondent during the assessment year. The Provisions of Section 144 C makes it clear that if the assessing authority proposes to make any variation in income or loss returned by the assessee, necessarily he has to pass a draft assessment order, forward it to the assessee with all the details and after the assessee files his objections, the assessment can be completed within one month. Section also provides an option to the assessee to file the objections before the Disputes Resolution Panel which can issue a direction for guidance of the assessing authority to enable him to complete the assessment. Since the respondent failed to follow the above provision, the petitioner is before this Court. 2. According to the learned Senior counsel for the petitioner the respondent failed to follow the provisions of Section 144 C of the Income Tax Act, 1961. By the act of the respondent, the petitioner lost several opportunities. The learned Senior Counsel appearing for the petitioner further submitted that as per the C.P.D.T. instructions dated 20.05.2003, the value, once it crosses over and above a sum of Rs. 5 crores, necessarily the assessing authority has to refer the matter to....
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....acceptance is received; or (b) the period of filing of objections under sub-section (2) expires. (5) The Dispute Resolution Panel shall, in a case where any objection is received under sub-section (2), issue such directions, as it thinks fit, for the guidance of the Assessing Officer to enable him to complete the assessment. (6) The Dispute Resolution Panel shall issue the directions referred to in sub-section (5), after considering the following, namely: (a) draft order; (b) objections filed by the assessee; (c) evidence furnished by the assessee; (d) report, if any, of the Assessing Officer, Valuation Officer or Transfer Pricing Officer or any other authority; (e) records relating to the draft order; (f) evidence collected by, or caused to be collected by, it; and (g) result of any enquiry made by, or caused to be made by, it. (7) The Dispute Resolution Panel may, before issuing any directions referred to in sub-section (5), (a) make such further enquiry, as it thinks fit; or (b) cause any further enquiry to be made by any income-tax authority and report the result....
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....ion 144BA. (15) For the purposes of this section, (a) "Dispute Resolution Panel" means a collegium comprising of three Commissioners of Income-tax constituted by the Board54 for this purpose; (b) "eligible assessee" means, (i) any person in whose case the variation referred to in sub-section (1) arises as a consequence of the order of the Transfer Pricing Officer passed under sub-section (3) of section 92CA; and any foreign company.] Section 92 C of the Act, reads as under : " 92CA. The assessing officer may refer the case for determination of the arm's length price to the TPO where the assessing officer considers it necessary and expedient to do so." 6. While dealing with a similar circumstance, this Court in W.P. No: 1526 and 1527 of 2014, vide its order dated 29.04.2014, held as follows :- "20. Under Section 144 (C) of the Act, it is evident that the assessing officer is required to pass only a draft assessment order on the basis of the recommendations made by the TPO after giving an opportunity to the assessee to file their objections and then the assessing officer shall pass a final order. According to....
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.... to enable him to complete the assessment. In the case of the petitioner, admittedly the TPO suggested an adjustment of Rs. 52.14 crores u/s.92CA of the Act on 20.09.2011 and forwarded it to the Assessing Officer and to the assessee under sub-section (3) thereof. The assessing officer accepted the variation submitted by the TPO without giving the petitioner any opportunity to object to it and passed the impugned assessment order. As this has occurred after 01.10.2009, the cut off date prescribed in sub-section (1) of S.144C, the Assessing Officer is mandated to first pass a draft assessment order, communicate it to the assessee, hear his objections and then complete assessment. Admittedly, this has not been done and the respondent has passed a final assessment order dated 22.12.2011 straight away. Therefore, the impugned order of assessment is clearly contrary to S.144C of the Act and is without jurisdiction, null and void. The contention of the Revenue that the circular No.5/2010 of the CBDT has clarified that the provisions of S.144C shall not apply for the assessment year 2008-09 and would apply only from the assessment year 2010-2011 and later years is not ten....
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....7.09.2013. 33. The decision of the Division Bench of the Andhra Pradesh High Court deals with an identical issue as that of the present case. In this case, against the order passed by the second respondent on 26.03.2013, the petitioner filed objections before the DRP, the first respondent herein and the first respondent refused to entertain it by stating that the order passed by the second respondent is a final order and it had jurisdiction to entertain objections only if it is a draft assessment order. While so, the order dated 26.03.2013 of the second respondent can only be termed as a final order and in such event it is contrary to Section 144C of the Act. As mentioned supra, in and by the order dated 26.03.2013, the second respondent determined the taxable amount and also imposed penalty payable by the petitioner. According to the learned senior counsel for the petitioners, even as on this date, the website of the department indicate the amount determined by the second respondent payable by the company inspite of issuance of the corrigendum on 15.04.2013 as a tax due amount. Thus, while issuing the corrigendum, the second respondent did not even withdraw the taxable am....
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....if the aggregate value thereof exceeded Rs. 5 crore. This contention was turned down in the following words :- " 37. The other ground on which the instruction is challenged is that it completely takes away the discretion of the AO in relation to an international transaction of the value exceeding Rs. 5 crores. A reading of the impugned instruction indicates that it acts as a guideline to the AO in the exercise of the discretion conferred under Section 92CA (1). This instruction is in fact helpful in ensuring that the discretion of the A will not be abused. It correctly interprets the law as requiring only a formation of a prima facie opinion by the AO at the stage of the reference. Therefore, the question of the CBDT supplanting the judicial discretion of the AO does not arise. It is perfectly possible that, independent of the circular, the AO might still "consider it necessary or expedient" to refer an nternational transaction of such value of the TPO for determination of the ALP. At the same time it is not as if the transactions of the valueof less than Rs. 5 crores cannot be referred to the TOP by the AO. Ultimately, any exercise of discretion by the AO is bound t....