TaxTMI 
TaxTMI 
2023 (9) TMI 438
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....as made by the Assessing Officer ("AO") to the Transfer Pricing Officer ("TPO") under Subsection (2) of Section 92CA of the Act. The TPO passed an order under Section 92CA(3) of the Act making upward adjustment. On the basis of the said order of the TPO, the AO passed draft assessment order. The draft assessment order which contained additions was objected to by Petitioner before the Dispute Resolution Panel ("DRP") under Sub-section 5 of Section 144C of the Act. The DRP rejected the contentions of Petitioner and upheld the additions made. Consequently, a final assessment order came to be passed under Section 143(3) read with Section 144C(13) of the Act. The assessment order was challenged by Petitioner before the Income Tax Appellate Tribunal ("ITAT"). The ITAT vide its common order dated 1st May 2019 disposed Petitioner's appeals by setting aside the transfer pricing adjustments made and remanded the matter to the AO/TPO for de-novo consideration. The AO/TPO was also directed to consider Petitioner's additional submissions. Accordingly, the matter was referred by the AO to the TPO under Section 92CA(2) of the Act. The TPO passed an order under Section 92CA(3) of the Act w....
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....t order, if- (a) the assessee intimates to the Assessing Officer the acceptance of the variation; or (b) no objections are received within the period specified in subsection (2). (4) The Assessing Officer shall, notwithstanding anything contained 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....
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....der passed by the Assessing Officer with the prior approval of the Principal Commissioner or 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 Principal Commissioner 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 sub-section (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." Section 144(15)(b)(i) defines 'Eligible Assessee' 7. It is clear that the AO shall, in the first instance, forward a draft of the proposed order of assessment to the eligible assessee if he proposes to make any variation is prejudicial to the interest of such assessee. Certainly there is a variation in the assessment order different from what was filed in the return of income and since it is by way of an addition made, the variation is prejudicial to the interest of Petitioner. In Andrew Telecommunications Private Limited (Supra) also the facts were ident....
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....tional India (P.) Ltd. v. Dy. CIT [2017] 82 taxmann.com 125/398 ITR 177(Delhi). xxxxxxxxxx 17. In the case of International Air Transport Association (supra), the Division Bench of this Court has held that the order passed by the Assessing Officer without their being any draft assessment order is illegal and without jurisdiction. The same view has been reiterated in the case of Zuari Cement Ltd. v. ACIT [WP(C) No. 5557 of 2012, dated 21-02-2013] by the Division Bench of Andhra Pradesh High Court which also held that the failure to pass a draft assessment order under Section 144C(1) of the Act would result in rendering the final assessment as one without jurisdiction. This position of law is settled. xxxxxxxxxx 20. In the case of JCB India Ltd. (supra) the Division Bench of the Delhi High Court in identical circumstances has held that after the remand on facts, the draft assessment order was necessary." (emphasis supplied) 8. In ExxonMobil Company Private Limited (Supra) where the facts were also similar, Revenue's counsel conceded that under Sub-section (1) of Section 144C of the Act, the AO ought to have issued draft assessment order and if such draft assessme....