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2020 (3) TMI 1197 - AT - Income TaxRevision u/s 263 - failure to adhere to requirement under 144C (1) - HELD THAT:- For assessment year 2008-09, Ld.AO passed final assessment order immediately within 2 days of receipt of report from Ld. TPO whereas for assessment year 2009-10 final assessment order was passed after a period of 6 months from the date of receipt of transfer pricing report. Admittedly, present assessee is an eligible assessee, as defined in section 144C (15) (b) of the Act. On perusal of section 144C of the Act, non-compliance with section in case of an eligible assessee cannot be considered to be a mere irregularity as has been argued by Ld. CIT-DR. Plethora of decisions referred to herein above and relied upon by Ld.AR supports this view. Admittedly, in present facts of the case, for years under consideration, the Ld.AO has not followed the mandate required under section 144C (1), wherein he is required to forward draft of proposed order of assessment to the eligible assessee, if he proposes to make any variation in the income or loss returned, which is prejudicial to the interest of assessee. This is a non-obstinate clause that gives an overriding effect to the procedure. Various Hon’ble Court’s in decisions relied upon like TURNER INTERNATIONAL INDIA PVT. LTD.[2017 (5) TMI 991 - DELHI HIGH COURT], LIONBRIDGE TECHNOLOGIES PVT. LTD., [2018 (12) TMI 764 - BOMBAY HIGH COURT], JCB INDIA LTD. [2017 (9) TMI 673 - DELHI HIGH COURT], CONTROL RISKS INDIA PVT. LTD. [2017 (7) TMI 1077 - DELHI HIGH COURT]and M/S ESPN STAR SPORTS MAURITIUS [2016 (4) TMI 45 - DELHI HIGH COURT] has held that procedure laid down u/s 144C of the Act is of great importance. When an assessing officer proposes to make variation to the returned income declared by an eligible assessee, he has to first pass draft order, provide a copy thereof to assessee and only thereupon the assessee could exercise the right under 144C (2) of the Act to raise objections before DRP on proposed variations. This requirement the courts has been held to be mandatory that gives substantive rights to assessee to object to any additions, before they are made, and such objections have to be considered not by the assessing officer but by the DRP. We therefore reject the argument of Ld. CIT DR that failure to adhere to requirement under 144C (1) is curable defect u/s. 292B of the Act. - Decided in favour of assessee.
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