2023 (1) TMI 663

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....t. 2. At the outset, the ld. counsel for the assessee has submitted that the impugned order passed by the Assessing Officer dated 12.04.2019 u/s 143(3)/147 read with section 144C & 144C(5) of the Act was wrong and illegal and void ab initio. The ld. counsel has invited our attention to the following sequence of events: Particulars In case of the Appellant Return of Income u/s 139(1) filed 28 Nov 2014 Notice u/s 143(2)/142(1) of the Act issued 31 Aug 2015 Case referred to the TPO w/s 92CA(1) of the Act 7 Sep 2015 Final Assessment Order passed u/s 143(3) of the Act 22 Dec 2016 Transfer Pricing notice u/s 92CA(2) r.w.s. 92D issued by the TPO initiating proceedings 6 Jan 2017 Transfer Pricing order u/s ....

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....cer, itself, was wrong and illegal. And since there was no legally valid reference made by the Assessing Officer to the TPO during the reassessment proceedings, therefore, the Dispute Resolution Panel decided that it had no jurisdiction to interfere with the aforesaid invalid and void draft assessment order. The Dispute Resolution Panel held that the case of the assessee not being a "eligible assessee" as per the provisions of section 144C(15) of the Act, therefore, it declined to interfere with the said order without any adjudication. The relevant part of the order of the Dispute Resolution Panel is reproduced as under: "2.1 In this case the return of income was filed on 18.01.2014 which was selected for scrutiny assessment under ....

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....o discussion, in the re-assessment order, on the corporate issues considered and assessed in the original assessment order: 2.3 Considering the background of the present draft re-assessment order under consideration before the DRP, the primary fact noticed is that the AO was statutorily required to refer the transfer pricing issue related to international transaction to the TPO in terms of s.92C(3) of the Act and the TPO is mandated to pass necessary orders u/s 92CA(3) of the Act and the AO, thereafter, is required to pass draft assessment order in conformity with the order of the TPO in terms of s.92CA(4) of the Act. In this case no reference was made by the AO to the TPO u/s 92C(3) of the Act during the re-assessment proceedings,....

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....#39;eligible assessees' in whose case the variation referred to in s.144C(1) of the Act arises as a consequence of the TPO order passed u/s 92CA(3) of the Act. The relevant s. 144C (15) (b) of the Act is reproduced below: "(15) For the purposes of this section,- (a) "Dispute Resolution Panel" means a collegium comprising of three 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 foreign company." 2.6 In view of the above provisions, a....