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2023 (11) TMI 1097 - ITAT MUMBAIValidity of assessment u/s 144C - issuing the demand notice and the penalty notice along with the draft assessment order - HELD THAT:- As per the provisions of the Act, the draft assessment order in no way culminates to arriving at the demand and also the levy of penalty. It can be inferred from the act of the A.O. in issuing the demand notice along with the draft assessment order that the demand got crystalised on passing of the draft assessment order thereby converting the draft assessment order to be the final assessment order passed by the A.O. The intention of the legislature is clear where it has proposed a draft assessment order for the purpose to show cause the assessee whether he accepts or objects to the proposed addition. Assessee has placed reliance on the decision of the Tribunal in the case of Aker Powergas P. Ltd. [2022 (6) TMI 1118 - ITAT MUMBAI] wherein the Tribunal by placing reliance on the decision of Atlas Copco India Ltd. [2019 (8) TMI 1415 - ITAT PUNE] has held that on identical facts, the assessment order was held to be null and void. As decided in the case of Vijay Television (P.) Ltd. vs. DRP [2014 (6) TMI 540 - MADRAS HIGH COURT] held that the omission on the part of the A.O. to follow the mandatory procedures is not a curable defect nor was it a procedural irregularity. We would also like to place reliance on the decision of Lion Bridge Technologies Private Limited [2018 (12) TMI 764 - BOMBAY HIGH COURT] wherein it was held that failure to follow the mandatory procedures will render the assessment order null and void. We hereby hold the assessment order to be null and void. As the assessment order has been held to be invalid, we do not find it necessary to adjudicate the other grounds raised by the assessee and the Revenue. TP Adjustment - comparable selection - assessee has objected to the inclusion of the comparable namely Eclerx Services Ltd. selected by the TPO for the reason that the said comparable company was a KPO - HELD THAT:- As decided B C Management Services P. Ltd. [2017 (5) TMI 1501 - ITAT DELHI] wherein it was held that the comparables with different business model and no segmental business available, was to be rejected. Eclerx Services Ltd. is not held to be a comparable for the reason that it is functionally different from that of the assessee. Thus to exclude Eclerx Services Ltd. from the list of comparables while benchmarking the international transaction of the assessee for the year under consideration. Appeal filed by the assessee is allowed.
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