TaxTMI 
TaxTMI 
2023 (2) TMI 1422
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....ith its associated enterprises (AE's) and the matter was referred to the Transfer Pricing Officer (TPO) for determining the arm's length price (ALP) of the said international transactions. The TPO passed order under Section 92CA of the Act on 31.10.2014 proposing a transfer pricing adjustment of Rs. 12,57,52,333/- to the arm's length price. Pursuant to the TPO's order, draft assessment order under Section 143(3) r.w.s. 144C of the Act was passed on 17.02.2014. The assessee filed its objections before the Dispute Resolution Panel (DRP) against the draft assessment order. The DRP, vide its directions dated 25.11.2014, disposed off the objections of the assessee. The DRP excluded 6 comparables out of the 10 comparables selected by the TPO and confirmed functional comparability of remaining 4 comparables. Pursuant to the DRP directions, the final assessment order dated 30.12.2014 was passed, wherein the transfer pricing adjustment was reduced to Rs. 8.89,42,012/- from Rs. 12,57,52,333/- proposed in the draft assessment order. 3. Aggrieved by the final assessment order dated 30.12.2014, both Revenue and assessee filed appeals before the Tribunal. The Tribunal vide ....
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..... National Thermal Power Corporation 229 ITR 383. 7. The learned D.R. submitted that the assessee has not raised the issue agitated in additional ground Nos. 1 & 2 before the CIT(A). Hence the additional grounds should not be admitted. Ground Nos. 1 & 2 raised in the additional grounds read as under: - "1. That the order of the assessment dt. 22.11.2016 passed by the Assessing Officer is void-ab-initio as the mandatory provisions of Sec. 144C of the Income-tax Act 1961 (Act) have not been complied with. 2. That the learned Assessing Officer erred in law and on fact in passing the final assessment order u/s 143(3) without passing a draft assessing order as required u/s 144C of the Act." 8. We find that the additional grounds raised are purely legal in nature and can be decided based on the facts on record. Therefore, by placing reliance on the judgement of Hon'ble Apex Court in the case of CIT vs. National Thermal Power Corporation and Jute Corporation of India (supra), we admit the above two additional grounds for adjudication. The learned A.R. submitted that since no draft assessment order was passed pursuant to ITAT order, the assessee ....
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....inted out in this behalf by the Tribunal. The filing of appeal before the Commissioner of Income-tax (Appeals) cannot be treated as a waiver of an objection available to the assessee in this behalf under section 144C etc. Section 253(1)(d) provides for appeal only when order has been made under section 143(3) read with section 144C of the Act. Annexure E order is an order made under section 143(3) of the Act and not a final revised assessment order made in compliance with the directions issued by the Dispute Resolution Panel. The assessee, hence was justified in moving the Commissioner of Income-tax (Appeals). This court has difficulty in accepting the argument of the Revenue to sustain the order in annexure E. The arguments have been confined to the points considered above and we are of the view that the Tribunal has correctly considered the objections of the assessee against annexure E order and recorded the findings which resulted in the order under appeal. The order of Tribunal is to be understood in the background of what is considered by the Assessing Officer in annexure E and what was not the subject matter before the Assessing Officer, upon the remand in the first round of ....
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....sh on remand, the draft assessment order is not required to be given. Non-issuance of the draft assessment order has thus vitiated the final assessment order. 20. In the case of JCB India, 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." 12. The Bangalore Bench of the Tribunal in the case of Fosroc Chemicals (India) Pvt. Ltd. (supra) and Inatech India Pvt. Ltd. (supra) had also taken a similar view by following the judgement of the Hon'ble Andhra Pradesh High Court in the case of Zuari Cement Ltd. vs. ACIT in Writ Petition (C) No. 5557 of 2012 dated 21.02.2013 and the judgement of the Hon'ble Madras High Court in the case of Vijay Television Pvt. Ltd. vs. Dispute Resolution Panel, Chennai reported in 369 ITR 113 (Mad.). The learned D.R. had contended that the above judicial pronouncements cited supra are distinguishable since in the referred cases the entire assessment order was set aside by the ITAT wherein in the instant case only the comparability of three companies has been set aside by the ITAT. We find this contention of the learned D.R. to be fact....