TMI Blog2019 (6) TMI 1300X X X X Extracts X X X X X X X X Extracts X X X X ..... the DRP exceeded its jurisdiction in passing the order. In any event, the order passed by the DRP was not impugned before the Tribunal rather what was impugned was the assessment order dated 28.12.2015 passed under Section 144C(13) r/w Section 143(3) of the Act. Therefore, the Tribunal was required to consider on merits whether the said assessment order was justified or not. The Revenue was clear in their mind in the challenge before the Tribunal which was an final order of assessment passed under Section 144C(13) and therefore, on facts we found that the DRP has granted relief to the assessee and the correctness of relief granted to the assessee which has translated into a final assessment order which was questioned by the Revenue befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... construction of the provisions of sub-sections (5), (7) and (8) of Section 144C of the Act even though the issues before the DRP were decided by them based on the materials furnished for reaching their conclusions in para 3.2.1 and para 3.3.4 of the order dated 24.11.2015? (ii) Whether the Appellate Tribunal is correct in law in exceeding the grounds canvassed by the Revenue at the time of filing the appeal, at the time of the hearing as well as based on the report furnished by the TPO in the hearing conducted by them whereby the excessive use of jurisdiction by the DRP was not canvassed in so far as the decisions rendered in para 3.2.1 and para 3.3.4 of the order dated 24.11.2015? (iii) Whether the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... troversy raised, it may be necessary for us to take note of Section 144C of the Act and the relevant sub sections which are quoted herein below: 144C (1) The Assessing Officer shall, notwithstanding anything to the contrary contained in this Act, in the first instance, forward a draft of the proposed order of assessment (hereafter in this section referred to as the draft order) to the eligible assessee if he proposes to make, on or after the 1st day of October, 2009, any variation in the income or loss returned which is prejudicial to the interest of such assessee. (2)...... (3)..... (4)..... (5) The Dispute Resolution Panel shall, in a case wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) r/w Section 143(3) of the Act on 25.02.2015. On receipt of the draft order, the appellant/ assessee submitted their objections in terms of sub section 2 of Section 144(C), in terms of sub section 5 of Section 144C. The DRP shall, in a case where any objection is received under sub section 2, issue such directions, as it thinks fit, for the guidance of the Assessing Officer to enable them to complete the assessment. 7. In terms of sub section 7, the DRP may, before issuing any directions referred to in sub-section 5 make such further enquiry, as it thinks fit; or cause any further enquiry to be made by any income tax authority and report the result of the same to it. 8. Sub Section 8 of Section 144C empo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was no basis for the TPO to reject M/s.Ashnoor Textiles Mills Ltd., holding it as loss making. 3. The Hon'ble DRP erred in holding that the assessee has furnished the details of break-up of employee cost for itself as well as for comparables and directing that appropriate adjustment should be allowed to the assessee. 4. The Hon'ble DRP failed to note that the assessee while calculating the PLI of M/s.Ashnoor Textiles Mills Ltd., has not included other operational expenditure of the industry amounting to ₹ 4.17 crores thereby ending with a positive operating profit, whereas the TPO has included this operational expenditure and arrived at a negative OP/OC at (-) 5.13% 13. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt should be allowed to the assessee. Hence, the TPO is directed to decide the percentage of risk adjustment to be calculated in this issue after taking into account all the relevant facts and details. 15. Thus, the order dated 24.11.2015 passed by the DRP is an order reducing the variation proposed in the draft assessment order dated 25.02.2015. Thus, in our considered view, the Tribunal was not right in holding that the DRP exceeded its jurisdiction in passing the order. In any event, the order passed by the DRP was not impugned before the Tribunal rather what was impugned was the assessment order dated 28.12.2015 passed under Section 144C(13) r/w Section 143(3) of the Act. Therefore, the Tribunal was required to consid ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
