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2021 (11) TMI 415 - AT - Income TaxReopening of assessment u/s 147 - Whether re-opening of assessment was done beyond the period of four years without establishing the assessee's failure to disclose fully and truly the material facts relating to the assessment? - Whether re-opening of assessment cannot be done without any new material on the basis of which the Assessing Officer shall form a belief of escapement of income chargeable to tax? - CIT-A quashing the reassessment proceedings - HELD THAT:- In the present case before us is with regard to Section 147/148 of the Act, the guiding principles still is that it is mandatory for the Assessing Officer to conduct independent enquiry and examination of facts to arrive at satisfaction justifying 'reason to believe' that "income has escaped assessment". Considering the totality of facts and circumstances, We are, therefore, of the considered view that the findings of the Ld. CIT(Appeals) needs no interference and the same is upheld. AO passed a final assessment order without issuing a draft assessment order under Section 144C - As per DR mandatory element of Provisions to section 144C of the Act shall apply to eligible assessee only as contained therein but not in every case - DR submitted that on reference to TPO first examination has to be done based on parameters contained in the said provision whether, the assessee is an eligible assessee and only then the mandatory provisions of Section 144C of the Act would apply and not before that - HELD THAT:- It is in respect of each and every case which involves transfer pricing risk parameters and in respect of international transactions or specified domestic transaction or both, they have to be referred to the TPO by the Assessing Officer after obtaining approval of the jurisdictional PCIT or CIT. Therefore, if the reason of selection of case for scrutiny is transfer pricing risk parameters, then the case has to be mandatorily referred to the TPO by the Assessing Officer after obtaining such approval. Thus, the contention of the Ld. DR cannot be entertained since the Instruction No. 3/2016 (supra.) is clearly binding on the department and it is categorically mentioned therein that any case involving transfer pricing risk parameters in respect of either or both international or domestic transaction, the case mandatorily has to be referred to the TPO by the Assessing Officer after obtaining necessary approval. There is as such no distinction of treatment pertaining to the terms as eligible assessee. Considering the totality of facts and circumstances and on examination of facts on record and the judicial decisions, we hold, the re-assessment order passed u/s. 143(3) r.w.s. 147 of the Act as bad in law, void-ab-initio, hence, justified to be quashed
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