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TMI Blog2018 (12) TMI 1741X X X X Extracts X X X X X X X X Extracts X X X X ..... ation to assessment year 2012-13. 2. There is a delay of 7 days in filing the appeal by the assessee which has been explained as owing to the absence of the Managing Director in the country at the time when the appeal was due to be filed before the Tribunal. The director of assessee has filed an affidavit in this regard. We accept the reasons for the delay of 7 days in filing the appeal and condone the same. 3. As far as merits of the appeal of the assessee is concerned, the preliminary point that needs to be decided is ground No.2 raised by the assessee in its appeal which reads as follows:- "Further, based on the facts and circumstances of the present case and in law, the order passed by the learned AO being not in conformity wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 83. The AO passed a draft order of assessment dated 29.03.2016 incorporating the addition suggested by the TPO on account of determination of ALP. The assessee preferred objections before the DRP. 5. The DRP by its order dated 28.12.2016 gave certain directions to the TPO. The AO thereafter passed the impugned order without incorporating the directions given by the DRP dated 28.12.2016. The following were the relevant observations of the AO in the final order of assessment dated 31.01.2017, which is the order impugned in this appeal. "Accordingly, adjustments as determined by the TPO to ALP of Rs. 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 sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.2017 is bad in law. In this regard, our attention was drawn to the fact that the AO originally passed a draft assessment order on 29.03.2016 wherein he incorporated the TP adjustment as suggested by the TPO in the order passed u/s. 92CA of the Act for the relevant assessment year. 7. The assessee preferred objections before the DRP against the draft order of assessment and the DRP gave its directions 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that on identical facts, this Tribunal in the case of Software Paradigms Infotech (P.) Ltd. (supra) has quashed the final order of assessment observing as follows:- "3.3.1 We have heard the rival contention of both parties in the matter and perused and carefully considered the material on record. The undisputed facts on record, as brought out by the discussions above, is that the AO, as 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y not passing the impugned order in pursuance of and in conformity with the binding directions of the DRP issued u/s 144C(5) of the Act, within the time specified for this purpose, has rendered the said impugned final order of assessment unsustainable in law. We, therefore, quash the impugned final order of assessment for asst. year 2009-10 passed by the AO u/s 143(3) r.w.s 92CA of the Act 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 provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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