TaxTMI 
TaxTMI 
TaxTMI 
2020 (1) TMI 1632
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....essee submitted that in the course of assessment proceeding, the Assessing Officer referred the matter to the Transfer Pricing Officer (TPO) for determination of Arm's Length Price in respect of international transactions. However the TPO found that no adjustment was required to the international transaction carried by the assessee. The Assessing Officer subsequently passed a draft assessment order on 30.12.2016 accepting the income returned by the assessee. While accepting the returned income of the assessee, the Assessing Officer found that the assessee is not eligible for the benefit of the treaty. According to the Ld.AR, the assessee is eligible for the benefit under the Indo Cyprus Double Taxation Avoidance Agreement. The Assessing Officer found that the assessee is not eligible for the benefit under the Indo Cyrus DTAA. Therefore, the assessee filed an objection before the Dispute Resolution Panel (DRP). The DRP by their order dated 15.09.2017 found that since no variation was made U/s.144 of the Income Tax Act, 1961 (in short 'the Act'), the objection filed by the assessee was beyond the scope of the power of the DRP. According to the Ld.AR, when the DRP categorically found ....
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....ot the beneficial owner of the royalties. Hence, the assessment order is passed within the time frame consequent to the direction of the DRP. 5. We have considered the rival submissions on either side and perused the material available on record. We also carefully gone through the Section 144C of the Act, which reads as follows: "144C. REFERENCE TO DISPUTE RESOLUTION PANEL (1) 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 loss returned which is prejudicial to the interest of such assessee. (2) On receipt of the draft order, the eligible assessee shall, within thirty days of the receipt by him of the draft order,- (a) file his acceptance of the variations to the Assessing Officer ; or (b) file his objections, if any, to such variation with,- (i) the Dispute Resolution Panel ; and (ii) the Assessing Officer. (3) The Assessing Officer shall complete the assessment on th....
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....all be issued after nine months from the end of the month in which the draft order is forwarded to the eligible assessee. (13) Upon receipt of the directions issued under sub-section (5), the Assessing Officer shall, in conformity with the directions, complete, notwithstanding anything to the contrary contained in section 153, the assessment without providing any further opportunity of being heard to the assessee, within one month from the end of the month in which such direction is received. (14) The Board may make rules for the purposes of the efficient functioning of the Dispute Resolution Panel and expeditious disposal of the objections filed under subsection (2) by the eligible assessee. (14A) The provisions of this section shall not apply to any assessment or reassessment order passed by the Assessing Officer with the prior approval of the Commissioner as provided in sub-section (12) of section 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 Board for this purpose ; (b) "eligible assessee" means,- (i) any person in whose case the variation referred ....
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....es the Assessing Officer to pass draft assessment order after first day of October 2009, in case there was any variation in the income or loss returned which is prejudicial to the interests of the assessee. In this case, there was no variation in the income or loss returned by the assessee. Admittedly, the income returned by the assessee was accepted by the Assessing Officer. Therefore, there is no question of any prejudice to the assessee. Hence the Assessing Officer is not expected to pass any draft assessment order. As rightly submitted by the Ld.AR, the Assessing Officer has to pass an order within 33 months from the end of the relevant assessment order. Admittedly 33 months from the end of the assessment order falls on 31.12.2016. In this case, admittedly the assessment order was passed on 28.09.2017, which is beyond the period of limitation. 6. We have carefully gone through the direction of the DRP. The DRP at page 2 of its order as observed as follows:- "Panel: It is seen that the only ground filed pertain to application of tax rate at 25% as per section 115(1)(b) of the Act. The scope of 'Reference to Dispute Resolution Panel is as per sub-section 2 of section 144C of t....