TMI Blog2021 (6) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... o approach ld. DRP is not sustainable in the eyes of law. Identical issue has been decided in the cases of Turner International India (P) Ltd. vs. DCIT [ 2017 (5) TMI 991 - DELHI HIGH COURT] , DCIT vs. Control Risks India (P) Ltd. [ 2017 (7) TMI 1077 - DELHI HIGH COURT] and JCB India Ltd [ 2017 (9) TMI 673 - DELHI HIGH COURT] whereby final assessment order has been quashed on the ground that no draft assessment order was passed before passing final assessment order. Procedure adopted in this case by the ld. TPO/AO is unheard of. In these circumstances, we are of the considered view that ld. CIT (A) has rightly quashed the final assessment order. So, finding no perversity or illegality in the impugned order, present appeal filed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her in facts and circumstances of the case, the Ld. CIT(A) is justified in treating the appeal effect order as the final assessment order without appreciating the fact that the order of the Ld. TPO dated 20.09.2016 specifically stated in the subject that it is Order Giving PARTIAL EFFECT to the directions of Hon'ble ITA T in the case of M/s Rolls Royce India Pvt. Ltd. A.Y. 2011-12 . Therefore, it was not an order u/s 92CA(3), rather an order giving only partial effect to the directions of the Hon'ble ITAT which was necessary for filing of further appeal before the Hon'ble High Court. Moreover, it gave effect keeping into consideration only those grounds/ comparables that have been deleted/ excluded by the Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under sub-section (3) of section 92CA . It is to be noted here that in this case, the Ld. TPO did not pass any order under section 92CA(3) for giving effect to the directions of the Hon'ble ITAT. The final assessment in this case is still pending. 7. Whether in facts and circumstances of the case, the Ld. CIT(A) is justified in invalidating the order u/s 254/143(3) on the grounds that no Draft Assessment Order was presented to the assessee before passing this order without appreciating the fact that section 144C states that the Draft Assessment Order is to be presented to the eligible assessee when the AO has proposed any variation in income or loss returned which is 'prejudicial' to the interest of such assessee. In this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der. Thereafter, ld. DRP partly accepted the objections raised by the taxpayer and reduced the TP addition to ₹ 3,62,82,532/-. Thereafter, final order was passed u/s 143 (3)/144C/92CA (3) of the Act. 3. Then the taxpayer carried the matter before the ld. CIT (A) who has directed the AO/DRP to reexamine some of the comparables challenged by the taxpayer and to verify and allow the risk adjustment. 4. In other words, this is second round of litigation before the Tribunal challenging the impugned order dated 20.10.2016 passed by the AO in pursuance of the TP order dated 20.09.2016 giving partial effect to the directions of the Tribunal in case of the taxpayer for AY 2011-12. 5. The taxpayer carried the matter before the ld. CIT( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the TPO has never passed a final order after remand of the case by the Tribunal u/s 92CA(3) of the Act. 10. However, on the other hand, Ld. AR for the taxpayer relied upon the order passed by the ld. CIT (A) and contended that any assessment order containing proposed TP adjustment without passing draft assessment order is not sustainable in the eyes of law and as such, ld. CIT (A) has rightly quashed the assessment order passed by the AO and relied upon the judgments of Hon ble Delhi High Court in the cases of Turner International India (P) Ltd. vs. DCIT 82 taxmann.com 125 (Delhi), DCIT vs. Control Risks India (P) Ltd. (2017) TII-56-High Court-Delhi-TP and JCB India Ltd. vs. DCIT in Writ Petition No.3399/2016, 3429/2016 3431/2016 . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13. When assessment order has been framed u/s 154/143(3) of the Act pursuant to the order dated 20.09.2016 passed by the TPO, the taxpayer had the only remedy to approach the ld. CIT (A) by way of filing appeal. Ld. CIT (A) has accepted the appeal and held the assessment order dated 20.10.2016 as invalid. In the entire exercise, ld. TPO/AO have deprived the taxpayer to avail of their remedy to challenge the draft assessment order to be passed by the AO pursuant to the TP order passed by the ld. TPO. 14. When undisputedly the order passed by the Tribunal in the first round of litigation is to be treated under the provisions contained u/s 92CA(3) and section 144C of the Act and in these circumstances, the TP order (supra) is also to be tre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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