TMI Blog2018 (12) TMI 1741X X X X Extracts X X X X X X X X Extracts X X X X ..... e id AR, is identical to the draft order of assessment passed on 14/3/2013 by only incorporating this TPO's proposals and , thereby evidently giving the DRP's mandatory directions issued u/s 144C(5) of the Act a complete go-by. It is factually established that the AO in the final order of assessment dated 17/1/2014 has not given effect to or carried out the binding directions of the DRP as required u/s 144C(10) within the time specified u/s 144C(13) of the Act; which is a clear violation of the binding provisions of sec. 144C(10) and (13) of the Act. Therefore, in our considered opinion, the conduct of the AO/TPO in passing the impugned final order of assessment dated is a clear case of defiance and disregard to the binding direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, based on the facts and circumstances of the present case and in law, the order passed by the learned AO being not in conformity with the directions issued by the Hon ble DRP under section 144C(5) of the Act, is not bad in law and void. 4. The facts with regard to ground No.2 are as follows. The assessee is a company engaged in the business of manufacturing and servicing of electronic components and rendering IT enabled services. The assessee filed a return of income for the AY 2012-13 on 30.11.2012 declaring an income of ₹ 16,00,860. The assessee is a subsidiary of Flextronics International Asia Pacific Ltd., Mauritius. It rendered manufacturing services to the holding company. Since the transaction of rendering manufacturing s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ALP of ₹ 40,11,77,583/-was added to the returned income of the assessee and draft assessment order was passed on 29.03.2016 under the provisions of section 144C of the Income-tax Act, 1961. The assessee based on the draft assessment order filed its objections before the Hon'ble DRP, Bangalore on 29.04.2016. The Hon'ble DRP vide its directions issued u/s. 144C(5) r.w.s.144C(8) of the IT Act dated 28.12.2016 has given relief relating to the TP adjustment. 5. On receipt of direction of Hon'ble DRP a reference was made to TPO for reworking the ALP adjustment as per DRP's direction. The OGE. in respect of DRP's directions connected with the TP adjustments has not been received. As this is a time barring assessment p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rections vide order 28.12.2016. It was pointed out that as per the provisions of section 144C(5) of the Act, the directions given by the DRP are binding on the AO and in terms of section 144C(13) of the Act, the AO was obliged to pass a final order of assessment in accordance with the directions of the DRP. The ld. Counsel for the assessee pointed out that in the present case, the final order of assessment does not incorporate the directions of the DRP and was a verbatim repetition of the draft order of assessment dated 29.3.2016. It was submitted that as per the provisions of section 144C of the Act, a final order of assessment in conformity with the directions of the DRP has to be passed within one month from the end of month in which the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per law, was required to pass the final order of assessment dated 17/1/2014 for asst. year 2009-10 u/s 143(3) r.w.s 144C of the Act in conformity with the directions issued by the DRP u/s 144C(5) of the Act, which are binding on him as per section 144C(10) thereof and within the time prescribed u/s 144C(13) of the Act. We find that instead of passing the final order of assessment as required by law, the AO passed the impugned final order of assessment dated 17/1/2014 u/s 143(3) r.w.s 92CA of the Act; which, as contended by the id AR, is identical to the draft order of assessment passed on 14/3/2013 by only incorporating this TPO's proposals and , thereby evidently giving the DRP's mandatory directions issued u/s 144C(5) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 17/1/2014 in the case on hand. W hold and direct accordingly. Consequently, ground No. 17 of assessee's appeal is allowed. 10. Respectfully following the aforesaid view of the Tribunal, we quash the impugned order of assessment. Since the impugned order of assessment is quashed on the ground that the same is not in conformity with the provisions of section 144C of the Act and further on the ground that the time for passing the final order of assessment is barred by time, we are of the view that the other issues raised by the assessee in its grounds of appeal and the grounds raised by the revenue in its appeal does not require any consideration. As far as the decision cited by the learned DR in the case of H M Hennes Maurit ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
