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2020 (6) TMI 153 - AT - Income TaxOrder passed u/s 144C - whether the order passed on 27/11/2015 is a draft assessment order or a final assessment order? - HELD THAT:- The attachment of a Notice of Demand in Form No. 7 cannot be taken as the deciding circumstances, which leads us to a conclusion that the order in question is a Final Assessment Order passed u/s 143(3) of the Act. In fact at para 1 of the Notice of Demand u/s 156 of the Act, the AO has clearly stated “has been determined to be payable by you u/s 144C of the I.T. Act 1961”. Non-striking of para 6 or para 7 in Form No. 7, does not take us to conclusive proof that the order is not a draft assessment order. In fact it is a Draft Notice of Demand attached to the Draft Assessment Order. This notice of demand is non-est in law as no demand can be created by an order passed u/s 144C of the Act. Hence such notice has not bearing on the order. Levy of penalty u/s 274 - HELD THAT:- We find that none of the columns in the notice have been struck off by the Assessing Officer. Under such circumstances such a notice is illegal and bad in law. This notice is also non-est in law. AO has not even mentioned whether he proposed to levy penalty for non-filing of a return of income u/s 139(1) of the Act by the assessee, or for failing to comply with the notice issued u/s 142(1)/143(2) of the Act etc. Thus, such non-est notice cannot be a basis for coming to a conclusion that the assessment order is a final assessment order and not a draft assessment order. Grant of relief u/s 199 - HELD THAT:- In respect of credit of tax withheld in foreign countries, we agree with the submissions of the ld. D/R that the matter cannot be remanded to the file of the AO. The assessee has not furnished any details in support of his claim either before the AO or the DRP or before us. When no details are furnished till date, we are not in a position to accept the request of the assessee. Thus, this ground of the assessee is dismissed. Short credit of TDS - HELD THAT:- No reconciliation statement has been filed by the assessee before us nor has it demonstrated as to how the AO has erred in granting the tax deducted at source. If there is a mistake in granting of tax, the AO may be approached with a suitable application for rectifications. In the result, this ground of the assessee is dismissed. Granting of tax credit of taxes paid in USA - We find that the facts are not on record either before the Assessing Officer or before the DRP or before us. We cannot admit the additional ground of appeal when the facts are on record. As the facts supporting the claim of the assessee are not on record, we do not admit this ground of the assessee. Assessee after considerable arguments, has not pressed his claim that the foreign AE to be made the tested party. Hence, we dismiss this ground of the assessee. No arguments were made on the question of adjustment, Most Appropriate Method (MAM), Comparables etc. The Transfer Pricing adjustments made by the TPO on facts is not disputed by the assessee. As already stated, no arguments were advanced on the same. Hence, we uphold the same. Appeal of the assessee is allowed in part.
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