2019 (11) TMI 1755

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....read with section 143(3) of the Income Tax Act, 1961 (hereinafter referred to as 'the Act') in pursuance of the directions of the Dispute Resolution Panel (DRP). ITA No. 123/CHD/2017 is against the order dated 10.11.2016 of the Assessing Officer passed u/s 154 of the Income Tax Act in pursuance of the directions of the Dispute Resolution Panel (DRP). ITA No. 1289/Chd/2019 2. The appeal in ITA No. 1289/Chd/2019 is barred by limitation period of 133 days. The Ld. Counsel for the assessee has filed an application seeking the condonation of delay wherein, detailed explanation has been furnished about the reasons because of which the appeal could not be filed within the time prescribed. It has been submitted in the application that the ord....

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.... will be well served if the delay in filing the present appeal is condoned. We order accordingly. 4. The assessee in this appeal has taken following grounds: "The following grounds of objection are independent of, and without prejudice to one another: "1. The Ld. Assessing Officer ('Ld. AO') erred in passing the final assessment order dated 31.10.2016 u/s 143(3) r/w 144C of the Act, without giving effect to the binding directions of the Learned Dispute |Resolution Panel ('Ld. DRP') within a period of one month as stipulated u/s 144C(13) of the Act and is therefore, bad and illegal in law and liable to be quashed 2. The Assessment Order passed by the Ld. AO in pursuance of the directions issued by the Ld. DRP is....

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.... 3.4 including high-profit making companies in the final comparables' set for benchmarking a low risk captive unit such as the Appellant (disregarding judicial pronouncements on the issue), thus demonstrating an intention to arrive at a pre-formulated opinion with the single-minded intention of making an addition to the returned income of the Appellant; 3.5 erroneously including certain functionally dissimilar companies that are not comparable to the Appellant in terms of functions performed, assets employed and risks assumed and excluding certain comparable companies on arbitrary/frivolous grounds; 3.6 not considering the correct computation of the Return on Total Operating Cost ('ROTC') of certain co....

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....ing order vide order dated 23.9.2016 as per the provisions of section 144C(13) of the Act. The assessment order as per the directions of the DRP was to be framed within one month from the end of the month in which such directions were received as provided u/s 144C(13) of the Act. The relevant provision of section 144C of the Act for the sake of reference are reproduced as under: "144C. The assessing Officer shall, notwithstanding anything to the contrary contained in this Act, in the first instance, forward a draft of the proposed order of assessment (hereafter in this section referred to as the draft order) to the eligible assessee if he proposes to make, on or after the 1st day of October, 2009, any variation in the income or los....

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....er i.e. DCIT since had failed to comply with the directiuons within stipulated period, he, therefore, framed the impugned assessment order without complying with the directions of the DRP. Hence, the order passed by the Assessing Officer had no sanctity of law and was nothing but a waste paper. The AO observed that when any order from TPO would be received after passing of the impugned assessment order, the impugned assessment order would be rectified. This type of action is neither recognized, nor justifiable in the eyes of law. Only because the concerned TPO had failed to follow the directions of the DRP and failed to frame assessment order as per statutory provisions, that does not entitle the AO to frame the assessment order, for the sa....