2021 (12) TMI 16

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....a that :- "1. Whether on facts and in circumstances of the case, the Ld. CIT(A) is legally justified in allowing appeal of the assessee on merely procedural irregularity in giving appeal effect to findings and directions of the Hon'ble ITAT issued u/s 254 of the Income Tax Act, 1961 (the Act)? 2. Whether on facts and in circumstances of the case, the Ld. CIT(A) is legally justified in allowing appeal of the assessee by holding the Assessing Officer (the AO) failed to refer the order giving effects to findings and directions of the Hon'ble ITAT to Dispute Resolution Panel (DRP) u/s 144C of the Act?" 2. Briefly stated the facts necessary for adjudication of the controversy at hand are : Nokia India Private Limited....

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....8,40,20,105 Disallowance of provision for obsolescence of inventory 3,05,93,250 Depreciation on computer peripherals 2,01,17,941 Transfer pricing adjustment 4,27,32,000 Total adjustments as per the final assessment order dated November 29, 2010 68,71,61,862 5. Then assessee approached the Tribunal which has allowed one issue pertaining to claiming depreciation on computer peripheral in favour of the assessee and remanded the remaining issue back to the AO for fresh consideration. Thereafter, AO passed assessment order dated 28.03.2013 which was challenged by the assessee before the ld. CIT (A) who has decided the appeal in favour of the assessee by deleing the addition made in the order dated 28.03.2013 on legal i....

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....back by the ITAT to the AO. Perusal of the assessment order under reference shows that the AO has passed final order dated March 28, 2013 under section 143(3) of the Act without passing the draft assessment order in accordance with the provisions of section 144C(1) of the Act. 5.8 The case of the appellant is squarely covered by the order of the Hon'ble High Court in it's case for AY 2008-09 as well as that of JCB India Ltd. v. Deputy Commissioner of Income Tax)(supra) where the Delhi High Court followed its decision in Turner International (supra). The Court held that not referring the transfer pricing issues to the TPO was a violation of section 144C(1) of the Act which was a non curable effect in terms of section 292B of....