TaxTMI 
TaxTMI 
2021 (9) TMI 1394
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.... the Assessing Officer to the TPO to determine the Arms Length Price u/s 92CA (3) in respect of international transactions entered into by the assessee during the Financial Year 2009-10, i.e. Assessment Year 2010-11. The Transfer Pricing Officer ("TPO") passed order u/s 92CA (3) of the Income Tax Act, 1961 on 2/1/2014 determining an upward adjustment of Rs. 72,10,14,453/-. In pursuance to the order of the TPO, the draft assessment order was framed by the AO on 31/3/2014. Thereafter, the assessee filed objections before Dispute Resolution Panel on 29.4.2014. After providing due opportunity to the assessee, the ld. DRP vide order dated 31/12/2014 has disposed off the objections of the assessee. Taking into cognizance, the directions of the ld. DRP, the Assessing Officer passed Assessment Order on 8/1/2015 u/s144C read with Section 143(3) of the Income Tax Act, 1961. 5. Facts in brief: Date of filing of return - 30.09.2010 Date of Order of the TPO - 02.01.2014 Date of Draft Assessment Order - 03.01.2014 Date of filing Objections before DRP - 29.04.2014 Date of Order of the DRP - 31.12.2014 Date of Assessment Order - 08.01.2015 ....
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.... prevented from raising that question before the tribunal for the first time, so long as the relevant facts are on record in respect of that item. We do not see any reason to restrict the power of the Tribunal under Section 254 only to decide the grounds which arise from the order of the Commissioner of Income-tax (Appeals). Both the assessee as well as the Department have a right to file an appeal/cross-objections before the Tribunal. We fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier. 6. In the case of Jute Corporation of India Ltd. v. C.I.T. this Court, while dealing with the powers of the Appellate Assistant Commissioner observed that an appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the Appellate As....
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.... (2020) 422 ITR 262 wherein the Hon'ble High Court has given observation that, where there is a change in the form of assessment itself such change is not a mere deposition in procedure but a substantive shift in the manner of framing assessment. Substantive right was ensured to the parties by virtue of the introduction of Section 144C and it is settled position that the law applicable on the first day of assessment year be reckoned as applicable for that year, leads one to the inescapable conclusion that the provisions of Section 144C can be held to be applicable only prospectively, from the Assessment Year 2011-12 only. The Ld. AR also relied upon the decisions of Delhi Tribunal in case of Deputy CIT Vs. Travelport L.P USA in ITA No. 6499/Del/2012 dated 2/11/2020 as well as decision in the case of A.T Kearney Ltd. Vs. ADIT in ITA No. 4405/Del/2011 dated 25/5/2021. The Ld. AR further submitted that the Notification/Circular No. 5/2010 issued by the CBDT was also considered by the Hon'ble Madras High Court in case of Vedanta Ltd. (supra). Thus, in the present Assessment Year Section 144C is not applicable and order u/s 144C is bad in law, void ab-initio and barred by limitation and....
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....ic guidelines as to passing of assessment in relation to Section 143 (3) of the Act. Section 144C(4), the Assessing Officer shall pass the assessment order under Sub- Section 3 within one month from the end of the month in which the acceptance is received or the period of filing of objections under Sub Section (2) expires. Thus, Section 144C has given a mechanism for the assessees to make a reference to Dispute Resolution Panel even before concluding the assessments. The assessee in the present case instead of challenging assessment order before the CIT (A), has preferred the procedural route of DRP and which was duly accepted and adjudicated by the DRP. The ld. DRP duly accepted the reference and adjudicated the matter taking into cognizance the new provision inserted as well as the objections raised by the assessee. The assessee has availed the provisions of Section 144C, voluntarily as per the procedure laid down under Income Tax Statute and the ld. DRP rightly accepted the reference filed and adjudicated the matter. The case laws cited by the Ld. AR in which the decision of the Delhi Tribunal in case of DCIT Vs. M/s Travelport (Supra) for Assessment Year 2010-11 was taken in co....
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....ed in section 153 or section 153B, pass the assessment order under sub-section (3) within one month from the end of the month in which,- (a) the 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),- ....
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....vided in sub-section (12) of section 144BA.] (15) For the purposes of this section,- (a) "Dispute Resolution Panel" means a collegium comprising of three Principal Commissioners or Commissioners of Income-tax constituted by the Board for this purpose; (b) "eligible assessee" means,- (i) any person in whose case the variation referred to in subsection (1) arises as a consequence of the order of the Transfer Pricing Officer passed under sub-section (3) of section 92CA; and [(ii) any non-resident not being a company, or any foreign company.]" 14. Section 144C is a self contained provision which carves out a separate class of assesses i.e. "eligible assessee‟ i.e. any person in whose case the variation arises as a consequence of the order of the Transfer Pricing Officer passed under subsection (3) of Section 92CA. For this class of assesses, it prescribes a collegium of three commissioners, once objections are preferred. Dispute Resolution Panel's powers are similar with that of CIT(A), including the power to confirm, reduce or enhance the variation proposed and to consider the issues not agitated by the Assessee in the objections. As per th....
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....a draft of the proposed order of the assessment to the eligible assessee, if he proposes to make on or after 1st day of October 2009, any variation in the income or loss return which is prejudicial to the interest of such assessee. In the instant case, the AO has rightly forwarded the draft of the proposed order of assessment on 03.01.2014 as per the provisions of Section 144C(1) and the assessee has also filed his objections to the variation with ld. DRP on 29.04.2014 in accordance with the Section 144C(2). The ld. DRP vide order dated 31.12.2014 has issued directions in accordance with the provisions of Section 144C(6). Subsequently, the assessee upon the receipt of the directions issued under sub-section (5) has completed the assessment on 08.01.2015. Thus, on going through the entire provisions of the law, the judgments quoted, the orders of the Tribunal, the procedure followed by the assessee, TPO, ld. DRP and the Assessing Officer has been found to be correct as per the provisions of the Act inserted by the Finance (No.2) Act, 2009, hence, the additional grounds filed on 8.7.2021 with regard to non-applicability of provisions Section 144C are hereby dismissed. 19. The asse....
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....reproduced as under: Dated: 06.02.2020 F. No. JCIT/HSR/2019-20/2896 To, The Income Tax Officer, O/o The Commissioner of Income Tax (DR) (TP) Income Tax Appellate Tribunal, 1-1 Bench, Lok Nayak Bhawan, Khan Market, New Delhi-110003. Sub:- Forwarding of additional grounds of appeal in the case of M/s Jindal Steel and Power Ltd. ( Appellant) in ITA No. 619/Del/2015 for AY 2010-11 - Regarding ******* Kindly refer to your office letter F. No. CIT(DR)/TP/I-1 Bench/ITAT/2019- 20/85 dated 29.01.2020 on the subject cited above. In this connection it is intimated that the then AO i.e. JCIT, Hisar Range, Hisar had passed the order and was having jurisdiction over the case. 2. As per your letter the assessee has raised following additional grounds:- "That the assessment order passed dated 08.01.2015 for AY 2010-11 by the joint Commissioner of Income Tax ("JCIT") is illegal, bad in law and without jurisdiction as the JCIT was not the competent person to pass the said assessment order. That the JCIT who passed the assessment order dated 08.01.2015 for AY 2010-11 was not competent to ....
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.... JCIT, Hisar Range, Hisar 3 AABCM0054E Mangali Petrochem Ltd. 2011-12 ACIT, Hisar JCIT, Hisar Range, Hisar 4 AAIFA6955C Ajay Polymers, 14th K.M. Stone, Delhi Road, Hisar 2011-12 ACIT, Hisar JCIT, Hisar Range, Hisar 5 AACCS9317B Supreme Mobiles Ltd., 473- 74, Automobiles Market, Hisar 2011-12 ITO W-4, Hisar JCIT, Hisar Range, Hisar 6 AAAAT8856C The Bass Co-op. Marketing cum Processing Society Ltd., VPO Bass 2011-12 I TO W-1, Hisar JCIT, Hisar Range, Hisar 7 AARFS8397K Subham Fertilizers & Chemicals Ltd., NGM, Hisar 2011-12 ITO W-4, Hisar JCIT, Hisar Range, Hisar 8 AAACN5499D Jindal Polybutton Ltd., Delhi Road, Hisar 2011-12 ACIT, Hisar JCIT, Hisar Range, Hisar 9 AACFG5467B Ganesh Roadlines, O.P. Jindal Marg, Hisar 2011-12 ACIT, Hisar JCIT, Hisar Range, Hisar 10 AALPU0923B Sorabh Uthra C/o M/s. V.S. Industries, Near Bhatia Colony, Hansi 2011-12 ITO W-4, Hisar JCIT, Hisar Range, Hisar 11 AABCJ3714G JNB Steel Industries Pvt. Ltd., Sec. 27-28, Hisar 2011-12 ACIT, Hisar JCIT, Hisar Range, Hisar 12 ACEPK8515A Ra....
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....ncome-tax authority from time to time; (b) further directs that the Joint Commissioners of Income-tax subordinate to the Commissioners of Income-tax referred to in clause (a) shall perform their functions in respect of such territorial areas or such persons or classes of persons or of such incomes or classes of incomes or of such cases or classes of cases in respect of which the said Commissioners of Income-tax were performing their functions immediately before the commencement of the Government of India, Central Board of Direct Taxes Notification number 732(E) dated 31.07.2001, by virtue of the jurisdiction vested in them under notifications issued by the Board or any other Income-tax authority from time to time; (c) further also directs that the Assessing Officers subordinate to the -Joint Commissioners of Income-tax referred to in clause (b) shall perform their functions in respect of such territorial areas or such persons or classes of persons or of such incomes or classes of incomes or of such cases or classes of cases in respect of which the said Commissioners of Income-tax were performing their functions immediately before the commencement of the Government....
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.... assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 4 Commissioner of Incometax (Central-I), Mumbai Mumbai All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 5 Commissioner of Incometax (Central- II), Mumbai Mumbai All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 6 Commissioner of Incometax (Central- Ill), Mumbai Mumbai All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 7 Commissioner of Incometax (Central- IV), Mumbai Mumbai All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 8 Commissioner of Incometax (Central), Cochin Cochin All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 9 Commissioner of Incometax (Central-I), Chennai Chennai All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 10 Commissioner of Incometax (Central- II), Chennai Chennai All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 11 Commissioner of Incometax (Central- III), Chennai Chennai All cases assigned under sectio....
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.... of conferring the jurisdiction on the AO by the CIT is examined in detail. 27. Section 2(7A) of the I.T. Act, 1961, provides definition of "Assessing Officer" Section 2 (7A) - 2. In this Act, unless the context otherwise requires,- (7A) "Assessing Officer" means the Assistant Commissioner or Deputy Commissioner or Assistant Director or Deputy Director or the Income-tax Officer who is vested with the relevant jurisdiction by virtue of directions or orders issued under sub-section (1) or sub-section (2) of section 120 or any other provision of this Act, and the Additional Commissioner or Additional Director or Joint Commissioner or Joint Director who is directed under clause (b) of subsection (4) of that section to exercise or perform all or any of the powers and functions conferred on, or assigned to, an Assessing Officer under this Act." 28. The above provision provides that Joint Commissioner to be Assessing Officer only when he has been directed under section 120(4)(b) by the Board to act as an Assessing Officer. 29. For the sake of clarity, Section 120 is reproduced as under: "Jurisdiction of income-tax authorities. ....
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.... references in any other provision of this Act, or in any rule made thereunder to the Assessing Officer shall be deemed to be references to such Additional Commissioner or Additional Director or Joint Commissioner or Joint Director by whom the powers and functions are to be exercised or performed under such order, and any provision of this Act requiring approval or sanction of the Joint Commissioner shall not apply. (5) The directions and orders referred to in subsections (1) and (2) may, wherever considered necessary or appropriate for the proper management of the work, require two or more Assessing Officers (whether or not of the same class) to exercise and perform, concurrently, the powers and functions in respect of any area or persons or classes of persons or incomes or classes of income or cases or classes of cases; and, where such powers and functions are exercised and performed concurrently by the Assessing Officers of different classes, any authority lower in rank amongst them shall exercise the powers and perform the functions as any higher authority amongst them may direct, and, further, references in any other provision of this Act or in any rule made thereunde....
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....and where any order is made under this clause, reference in any other provisions of this Act or in any Rules made thereunder to the A.O. shall be deemed to be reference to the Joint Commissioner or Others by whom the powers and functions are to be exercised or perform under such order and any provisions of this Act requiring approval or sanction of the Joint Commissioner shall not apply. 33. These provisions, therefore, make it clear that the Board may assign the power to any Income Tax Authority to exercise powers of the A.O. having regard to territorial area etc., or the Board may authorise or empower Pr. Director General, Pr. Chief Commissioner etc., to issue order in writing to assign powers of the A.O. to other Authorities including Joint Commissioner of Income Tax as Assessing Officer. 34. Considering the provisions of Section 2(7A) of the I.T. Act, 1961, which defines the definition of the Assessing Officer would make it clear that Joint Commissioner of Income Tax could function as an Assessing Officer when jurisdiction have been assigned to him by virtue of the directions or orders issued under section 120(4)(b) of the I.T. Act, 1961. 35. On going through the entir....
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.... JINDAL STEEL & POWER 8 July 2021 To, The Hon'ble Members, 'I-1' Bench, Income-tax Appellate Tribunal, Lok Nayak Bhavan, Khan Market In Re- Jindal Steel & Power Ltd. ITA No. 619/DEL/2015 (A.Y. 2010-11) Reg: Application for admission of additional ground of appeal under Rule 11 of the Income Tax (Appellate Tribunal) Rules, 1963. Respected Members, Date of Hearing - 12.07.2021 The captioned appeal is preferred against the final assessment order dated 08.01.2015 passed under Section 144C r.w.s 143(3) of the Income Tax Act, 1961 for AY 2010-11. It is humbly submitted that the assessment completed under section 144C(13) r.w.s 143(3) of the Income Tax Act, 1961 is illegal, bad in law and barred by time limitation. By way of present application, the Assessee/Appellant is challenging the validity and legality of the impugned assessment on the ground that the provisions of section 144C of the Act was introduced by the Finance (No. 2) Act, 2009 w.e.f. 01.04.2009 is not applicable for the impugned assessment year. It is humbly submitted that since the issue involved is purely legal in nature based on the facts already on recor....