TaxTMI 
TaxTMI 
2026 (7) TMI 275
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....rt and hence is not binding precedent making the order of the Ld. CIT (A) unsustainable in law? 4. Whether on the facts and in the circumstances of the case, the Ld. CIT (A) is right in allowing the appeal filed by the assessee without awaiting the Supreme Court's decision on identical issue pending in the cited SLP? 5. Whether in the facts and in the circumstances of the case, the Ld. CIT (A) is right in allowing the appeal of the assessee without appreciating the fact that the issue relates to a curable procedural lapse and for the such curable lapse the issue could have been set aside to the file of the Assessing Officer as was done by the Hon'ble Supreme Court in the case of Pr. CIT-4, Mumbai Vs S.G. Asia Holdings (India) P. Ltd. (Civil Appeal No. 6144 of 2019 dated 13.08.2018)? GROUNDS OF APPEAL IN CROSS OBJECTIONS 1. Without prejudice to the relief granted by the Learned Commissioner of Income-Tax (Appeals) ["Ld. CIT (A)"] on technical ground, the Respondent submits that the Ld. CIT (A) erred in not adjudicating the appeal on merits, i.e. on the Grounds raised against the Transfer Pricing adjustment, made by the Ld. Transfer Pricing Officer ('Ld. TPO).....
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....pellant, which was necessitated due to material differences in depreciation between the Appellant and the comparable companies. 11. That the Ld. TPO erred in law and on facts in not granting working capital adjustment to account for material differences between the Appellant and the comparable companies while determining the arm's length price. 12 That the Ld. TPO erred in law and on facts in conducting a fresh benchmarking analysis based on conjectures and surmises, by applying arbitrary filters, using non-contemporaneous data and substituting the Appellant's benchmarking analysis without demonstrating any intent on the part of the Appellant to shift profits outside India, which is a sine qua non for invoking the provisions of Chapter X of the Act. 13. That the Ld. TPO erred in law and on facts in rejecting JMT Auto Ltd. and Showa India Pvt. Ltd. as comparables on the ground of being loss-making at PBIT level, without appreciating that the said companies were not persistent loss-making entities and had earned operating profits. 14. That the Ld. TPO erred in law and on facts in rejecting the functionally comparable company, Toyoda Gosei Minda India Pvt. Ltd., so....
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....sessment order u/s. 144C of the Act and the assessee under consideration is an eligible assessee for the purpose of section 144C (15) of the Act. Here it is pertinent to mention that in case of eligible assessee as prescribed u/s. 144C (15) of the Act, where there is a proposal to make a variation which is prejudicial to the interest of the assessee, the AO is under obligation to issue draft order. So that if the assessee requires to file its objections with Dispute Resolution Panel (DRP) u/s. 144B of the Act. In this case, this mandatory requirement has not been fulfilled and violates the scheme of assessment. 5. It is also observed that in such cases the type of defect involved cannot be cured because once the time elapsed, nothing can be done by the AO by way of issuing corrigendum or providing fresh opportunity to the assessee, as the same is mandatory provision to protect the rights of the assessee applying the principle of Natural justice. In addition to above, we have gone through the grounds taken by the Revenue, they are still arguing on the legality of the order passed by the Ld. CIT (A) and the Ld. CIT (A) while passing the order respectively followed the order of Hon....
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....espondent has got jurisdiction only to entertain such an appeal if the order passed by the second respondent is a pre-assessment order. Therefore, it is evident that the first respondent declined to entertain the objections raised by the petitioner company on the ground that the order passed by the second respondent is not a draft assessment order, rather it is a final order. Thus, the first respondent had treated the order dated 26.03.2013 of the second respondent as a final order and therefore it refused to entertain the objections filed on behalf of the petitioner company. 22. As mentioned supra, as per Section 144C (1) of the Act, the second respondent-assessing officer has no right to pass a final order pursuant to the recommendations made by the TPO. In fact, the second respondent-assessing officer himself has admitted by virtue of the corrigendum dated 15.04.2013, that the order dated 26.03.2013 is only a final order and it was directed to be treated as a draft assessment order. In this context, it is worthwhile to refer to the decision of the Honourable Supreme Court in the decision Deepak Agro Foods (supra) wherein in Para No. 10, the Honourable Supreme Court disc....
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....ng a corrigendum. 25. In the decision rendered by the Honourable Supreme Court of India in the case of (L. Hazari Mal Kuthiala (supra), which was relied on by the learned standing counsel for the respondents, it was held that the mistake or defect on the part of the Commissioner to consult the Central Board of Revenue did not render his order invalid since the provision about consultation in terms of Section 5 (3) of Patiala Act was merely directory and not mandatory. In the present case, the procedure that was required to be followed by the second respondent to pass a draft assessment order is mandatory and it is prescribed by the statute. Therefore, this decision relied on by the learned standing counsel for the respondents cannot be made applicable to this case. 26. The learned senior counsel for the petitioners relied on the decision of the Allahabad High Court in the case of Shital Prasad Kharag Prasad (supra) wherein the Division Bench of the Allahabad High Court held that a notice contemplated under Section 148 of the Income Tax Act is a jurisdictional notice and it is not curable by issuing a notice under Section 292 B of the Act, if it was not served in a....
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....t. R.V. Sarojini Devi (supra), which was relied on by the learned senior counsel for the petitioners, it was held as follows:- "Under Section 158BC of the Act empowers the assessing officer to determine the undisclosed income of the block period in the manner laid down in Section 158BB and 'the provisions of Section 142, subsections (2) and (3) of Section 143, Section 144 and Section 145 shall, so far as may be apply. This indicates that this clause enables the Assessing Officer, after the return is filed, to complete the assessment under Section 143 (2) by following the procedure like issue of notice under Section 143 (2)/142. This does not provide accepting the return as provided under Section 143 (1) (a). The Officer has to complete the assessment order under Section 143 (3) only. If an assessment is to be completed under Section 143 (3) read with Section 158BC, notice under Section 143 (2) should be issued within one year from the date of filing of the block return. Omission on the part of the assessing officer to issue notice under Section 143(2) cannot be a procedural irregularity and is not curable." 30. It is evident from the above decision of the Divi....