TaxTMI 
TaxTMI 
2025 (4) TMI 26
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.... is only based on such a final order, the assessing officer could have issued a draft assessment order u/s.144C(1). Since there is no final order u/s.92CA(3), the entire proceedings are void ab-initio. 3. In the absence of specific provisions for computing time limit available for passing a direction on remand to the DRP by the ITAT, the time limitation has to be computed by excluding the time between the date of receipt of objections by the DRP from the appellant (15/03/2016) and the date of receipt of the order of the Hon'ble Tribunal by the Principal Commissioner of Income Tax would be excluded. In such case, assuming the time limit starts from 01/06/2017, the time available to the DRP to pass directions u/s.144C(5) would end by the month of Feb 2018. Since, the DRP has not passed any order till the end of Feb 2018, the time limit for passing an assessment order u/s.144C(13) would end by March 2018. Therefore, the assessment order passed on 31/12/2018 is barred by limitation. And in the alternative, 4. The Dispute Resolution Panel, having taken a view that there is no provision under the Act whereby the Hon'ble ITAT could set aside an assessment order d....
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....d its associated enterprise in respect of import of raw materials and semi-finished products to the tune of Rs. 18.22 crores were the subject matter before the transfer pricing officer. It was pertinent to note that the value of these imports was also assessed by the deputy commissioner of customs, special valuation branch, Chennai vide order in original No. 1073/2010 dated 19/01/2010. This order was operative up to 18/01/2013. 4. Before the transfer pricing officer, the appellant furnished the transfer pricing study wherein transaction net margin method was selected as the most appropriate method and two companies were selected as comparables. The transfer pricing officer did not dispute either the selection of most appropriate method or the selection of comparables. In the transfer pricing study, the profit level indicated was chosen as EBITDA + OR (Earnings before interest, tax, depreciation and amortisation + Operating revenue). The basis for excluding depreciation was that: a. the appellant had invested around Rs.1.2 crores in expansion of its operation by introduction of two products. b. the comparables follow straight line method whereas the appellant fo....
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....y the appellant under rule 10B(2) were denied. Service income was not considered as operating revenue. Difference in margin between the appellant and comparable was computed at 20.36%. Adjustment was made on the proportion of association enterprise's cost to the total cost. Consequently, a downward adjustment of Rs.4,11,01,776/- to the cost of import purchases from appellant's associated enterprise was considered necessary by the transfer pricing officer. As per the ld. Authorized Representative, without waiting for the final order from the transfer pricing officer and based on the draft order passed by the transfer pricing officer, the assessing officer passed a draft assessment order dated 15/02/2016. In the order the assessing officer adopted the downward adjustment of Rs. 4,11,01,776/ to the cost of import purchases made from appellant's associated enterprise. Further, the assessing officer disallowed foreign fluctuation loss amounting to Rs. 55,13,210/- and added an amount of Rs. 34,62,069/-towards the difference in service income as reflected in form 26AS and as credited to profit and loss account. AR). The appellant filed its objection against the draft assessmen....
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....on'ble ITAT directly to the DRP, nor is there any limitation laid down by the Act for issuance of any Direction u/s.144C(5) of the Act in such circumstances. Without prejudice to its view, the DRP issued directions in its order. 8. The Dispute Resolution Panel rejected all the grounds sent back to its file by the Tribunal and directed the AO/TPO to make a downward adjustment to the cost to the tune of Rs.3,33,45,325/-. The transfer pricing officer passed an order dated 20/12/2018 giving effect to the order of the Dispute Resolution Panel, in which downward adjustment to the cost to the tune of Rs.3,33,45,325/- was considered necessary by the transfer pricing officer. Thereafter, the assessing officer passed an order u/s. 143(3) r.w.s. 144C(5) r.w.s. 254 dated 31/12/2018 making downward adjustment of Rs.3,33,45,325/- and disallowing unrealised forex fluctuation amounting Rs.4,12,270/-. The total income of the appellant was assessed at Rs.2,44,32,672/- after allowing set off of brought forward business loss and set off of MAT credit, a demand of Rs.57,90,590/- was raised on the appellant. Aggrieved by the order, the assessee is in appeal before us. 9. During the course of h....
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.... Y-602/ΤΡΟ-3(2)/AY 2012-13 Dated: 20 December 2018 Sub: Order giving effect Company Pvt. Ltd. DRP in the case of M/s. Young Buhmwoo (India) AAACY2562N FY 2012-13- Reg. Ref: Order of DRP-2, Bangalore in F.No.47/Setaside/DRP- 2/BANG/2017-18, dated 30/11/2016 The order giving effect to the order of DRP's order in F.No. 47/Setaside/DRP- 2/BANG/2017-18 dated 30/11/2016 is as below: The revised computation of the adjustment as per the direction of the DRP is worked out as below Operating Revenue 32,67,14,250 Comparable margin as per order dated 14.01.2016 6.16% Arm's Length Cost (93.84% of Operating Revenue 30,65,88,652 Cost as per Books 33,99,33,977 Downward Adjustment 3,33,45,325 Therefore, a downward adjustment of Rs 3,33,45,325/- is considered necessa....
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....#39;ble ITAT, the legal situation as per the Income Tax Act 1961 ("the Act hereinafter) and the Income Tax (Dispute Resolution Panel) Rules 2009(the Rules hereinafter) is as under: (1) As per sub-section (2) of s. 144(C) of the Act an 'eligible assessee" may file "Objection before the Dispute Resolution Panel (DRP hereinafter) against the draft assessment order passed by the assessing officer (AO hereinafter); (ii) The DRP, on receipt of such objection' is required to issue "Directions" for the "guidance of the AO (iii) As per sub-section (13) of s. 144(C) of the Act the AO is mandated to complete the assessment in accordance with the DRP's directions. (iv) As per clause (d) of s. 253 of the Act only an assessment order passed by an assessing officer under sub-section (3) of s. 143 or 3.147 or s.153A or s. 153C in pursuance to the directions of the DRP (or an order passed u/s 154 in respect of such order) is appealable to the Appellate Tribunal. 1.2 Thus, the DRP is empowered by the Act to issue Directions only when an "Objection filed by the assessee against a draft assessment order passed by the AO, or a draft assessment or....
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....al 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 the basis of the draft 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 sub-section (2). (4) The Assessing Officer shall, notwithstanding anything contained in section 15328[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 o....
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....ued under sub-section (5), the Assessing Officer shall, in conformity with the directions, complete, notwithstanding anything to the contrary contained in section 15330[or section 153B], 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 rules31 for the purposes of the efficient functioning of the Dispute Resolution Panel and expeditious disposal of the objections filed under sub-section (2) by the eligible assessee. 32[(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 33[Principal Commissioner or] Commissioner as provided in sub-section (12) of section 144BA.] 34[(14B) The Central Government may make a scheme, by notification in the Official Gazette, for the purposes of issuance of directions by the dispute resolution panel, so as to impart greater efficiency, transparency and accountability by- (a) eliminating the interface between the dispute resolution panel and the eligible assessee or any other pe....
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....54 is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, as the case may be: Provided that where the order under section 250 or section 254 is received by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner or, as the case may be, the order under section 263 or section 264 is passed by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, as the case may be, on or after the 1st day of April, 2019, the provisions of this subsection shall have effect, as if for the words "nine months", the words "twelve months" had been substituted. ** ** &nb....