TMI Blog2023 (1) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... de by the AO. In cases to which Section 92CA is attracted, the assessment could be completed only by following the procedure under Section 144C - We do not prefer to burden our judgment with reproducing all the portions relied on by the assessee from the decisions cited at the Bar, except the view taken by the Delhi High Court in Nokia India (P) Ltd. [ 2017 (9) TMI 1838 - DELHI HIGH COURT ] and the Special Leave Petition filed against the said decision [ 2018 (5) TMI 1913 - SC ORDER] . The requirement of re-doing the same procedure upon remand to the AO u/s 144C is held to be mandatory and omission in following the procedure is held to be an incurable defect. The revenue does not dispute the omissions pointed 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 u/s 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 direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al assessment order against law and logic? 2A. Whether the Tribunal is right in law in relying on an order of the Supreme Court dismissing the Special Leave Petition as a binding authority and is not such an approach vitiated in the light of the judgment in (2019)(6) SCC 270? 3. Is not the final assessment order legal and with jurisdiction? 3. Let us refer to the dates which have bearing on the legal question canvassed by both the revenue and the assessee. On 29-09-2009, the assessee filed return for the assessment year 2009-2010. The assessment, since has a few implications in considering Arm's Length Price under Section 92CA of the Act, the assessment was referred to the Transfer Pricing Officer. On 29.12.2011, the Assessing Officer served on the assessee the draft assessment order under Section 144C(1) of the Act. The assessment was referred to the Dispute Resolution Panel keeping in perspective the objections raised by the assessee against the draft assessment order under Section 144C of the Act dated 29.12.2011. The Dispute Resolution Panel through Annexure-B dated 10.12.2013 issued directions to the Assessing Officer. The Assessing Officer through Annexure-C date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law for decision by this Court. He in support thereof relies on the decisions in K.V.Abdul Azeez v Commissioner of Income Tax [2018] 404 ITR 288 (Ker.) , Director of Inspection of Income Tax (Investigation), New Delhi v Pooran Mall and sons [1974] 96 ITR 390 (SC) and Apollo Tyres Ltd., Kochi v Union of India (Judgment dated 20.4.2010 of Delhi High Court in WP(C) No.13338 of 2009) . 5. Mr.Joseph Markos contends that the assessment procedure under Section 144C of the Act is attracted and adherance becomes necessary having regard to a few intricacies envisaged by Section 92B; 92CA etc. Section 92B;92CA etc., are attracted to the case in relation to transfer prising shown by the assessee. The Assessing Officer, by issuing draft assessment order (Annexure-A dated 28.3.2013), had also accepted that the assessment for the subject assessment year is to be completed only in terms of Section 144C(13) of the Act. The Dispute Resolution Panel issued directions and they were carried out by the Assessing Officer in the assessment order made under Section 143(3) read with Section 144C(13) of the Act in Annexure-C. The remedy against the assessment order in Annexure-C is an a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 144C is not a curable defect. The omission is completely illegal, without jurisdiction and an incurable defect, and resultantly there is no waiver of the legal objections available to the assessee against the order in Annexure E dated 2.3.2016. He explains by arguing that the remedy under Section 253(1)(d) of appeal before the Tribunal is available only when the assessment order is made in compliance with the directions issued by DRT. The filing of appeal before the Commissioner (CIT) Appeals does not bar the grounds raised before the Tribunal in C.O.No.57/Coch/2018. He relies on the following citations: Nokia India v CIT (2018) 98 Taxmann.com 373 (Delhi) , SLP order of Supreme Court dismissing SLP (2018) 295 Taxmann 91 (SC) , JCB India Ltd. V Deputy Commissioner of Income Tax (2017) 398 ITR 189 (Del) Asst.Commissioner of Income Tax v Vijay Television Pvt. Ltd. (2018) 407 ITR 642 (Mad) , Turner International India Pvt. Ltd. V Deputy Commissioner of Income Tax (2017) 398 ITR 177 (Del) Commissioner of Income Tax v C-Sam (India) Pvt. Ltd. (2017) 398 ITR 182 (Guj) He prays for answering the issue in favour of assessee and against revenue. 7. This Court has re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decision dated 17th May 2017 passed by this Court in Turner International India (P) Ltd. V Dy.CIT [2017] 82 Taxmann.com 125 (Delhi). There, the Court categorically held that the mandatory requirements under Section 144C(1) of the Act had to be met even where the TPO had passed the order int he second round on remand by the ITAT. This is also the view of the Gujarat High Court in CIT v C-Sam (India) (P) Ltd. [2017] 84 Taxmann.com 261. By a separate order passed in JCB India Ltd. V Dy.CIT [2017] 85 Taxmann.com 155/251 Taxman 143 (Delhi), the Court followed its decision in Turner International India (P) Ltd. (supra) and quashed the final assessment order which was challenged in those cases. Once there is a clear order of setting aside of an assessment order with the requirement of the AO/TPO to undertake a fresh exercise of determining the arm's length price, the failure to pass a draft assessmetn order, would violate Section 144C(1) of the Act result. This is not a curable defect in terms of Section 292B of the Act as held by this Court in its decision dated 17th July, 2015 in ITA No.275/2015 Pr.CIT v Citi Financial Consumer Finance India Pvt.Ltd. In view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revenue does not dispute the omissions pointed 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 Sec.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 DRP. The assessee, hence was justified in moving the CIT(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 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 litigation can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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