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TMI Blog2021 (1) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld.CIT(A) is justified in deleting the addition of Rs. 2,56,55,638/- made by the AO merely on technical ground without examining in depth the facts of the case and the quantum of international transactions entered into by the assessee. ii) "Whether on the facts and in circumstances of the case and in law, the Ld.CIT(A) is justified in not appreciating the fact that, the findings, of the TPO in making the adjustment is factually correct and that on the basis of adjustment made by the TPO, the AO has re-opened and made the addition". iii) "Whether on the facts and in circumstances of the case and in law, the Id.CIT(A) is justified in deleting the addition of Rs. 2,56,55,638/- made by the AO merely on technical lacune of not taking approva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee the carried the matter in appeal before the learned CIT(A). The learned CIT(A) in a very well reasoned and detailed order took note of the fact that the reference was made without the prior approval of the Chief Commissioner, as admitted by the Assessing Officer in submissions made before her, and also the fact that there were no proceedings pending as on date when the reference to Transfer Pricing Officer was made. In the order the inter alia observed as follows:- 3.4 Decision: I have gone through the facts of the case and the contentions of the appellant. Indeed it is a very peculiar case and the facts need to be seen carefully. The original return of income was filed on 29.09.2007 and the same was processed u/s 143(1). Subsequentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lncome-tax-20, Mumbai was sought for and granted by the respected Commissioner of Income-tax-20, Mumbai u/s. 92CA(1) of the Income-tax Act, 1961." To verify the contention of the appellant that the mandatory approval of the Commissioner has not been obtained a factual report has been sought from the concerned Income tax officer 24(3)(1), Mumbai. It may be noted that post restructuring of the income tax Department in November 2014 the jurisdictions have been re-allocated and that is why the difference in the nomenclature of the concerned income tax officer. A letter from this office dated 7 December 2015 has been issued to ITO 24(3)(1) regarding the seeking of the approval. The said ITO then informed this office that the jurisdictions had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 3 letters to the AO on 3 different occasions in this regard. The transfer pricing officer further notes that indeed no assessment proceedings seem to be pending before the AO. The Transfer Pricing officer then clearly observes that in view of the CBDT instruction number 3, a letter dated 15 October 2007 of the AO cannot be regarded as reference to the TPO for determining the ALP of international transactions with AE. Accordingly, same letter is not treated as reference to the TPO. From the same it is apparent that the mandatory approval of the Commissioner of Income-tax-20 has not been sought for. Considering that the mandatory approval has not been sought it cannot be held that any proper reference has been made to the TPO and therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts above there is no reference received from the ITO concerned. In the light of these facts the adjustment adopted by the AO in the assessment order cannot be held to be valid. The appeal on this ground is hereby dismissed. 5. The assessee is aggrieved and is in further appeal before us. 6. The learned Departmental Representative contends that the reassessment proceedings being valid, there being a reasonable basis on which the Assessing Officer made the addition. He further points out that the defects on the basis on which learned CIT(A) has quashed the assessment order were curable in nature and this could have been cured during the appellate proceeding. He submits that these were technical defects which were curable. The learned ..... X X X X Extracts X X X X X X X X Extracts X X X X
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