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2017 (9) TMI 1838 - HC - Income TaxTP Adjustment - AMP expenses addition - violation of Section 144 C - challenge by the Petitioner is that the impugned final order of the AO has been passed in violation of Section 144C of the Act inasmuch as it was not preceded by a draft assessment order as was mandatory in terms of Section 144C (1) - HELD THAT:- The principal ground of challenge should succeed as it is squarely covered in favour of the Assessee and against the Revenue by the decision of Turner International India Pvt. Ltd. v. Deputy Commissioner of Income Tax, Circle 25(2), New Delhi [2017 (5) TMI 991 - DELHI HIGH COURT]. 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 in the second round on remand by the ITAT. 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 assessment 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 in Pr. Commissioner of Income Tax, Delhi-2, New Delhi v. Citi Financial Consumer Finance India Pvt. Ltd. [2015 (8) TMI 53 - DELHI HIGH COURT] - Decided in favour of assessee.
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