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TMI Blog2021 (9) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... he Arms Length Price u/s 92CA (3) in respect of international transactions entered into by the assessee during the Financial Year 2009-10, i.e. Assessment Year 2010-11. The Transfer Pricing Officer ("TPO") passed order u/s 92CA (3) of the Income Tax Act, 1961 on 2/1/2014 determining an upward adjustment of Rs. 72,10,14,453/-. In pursuance to the order of the TPO, the draft assessment order was framed by the AO on 31/3/2014. Thereafter, the assessee filed objections before Dispute Resolution Panel on 29.4.2014. After providing due opportunity to the assessee, the ld. DRP vide order dated 31/12/2014 has disposed off the objections of the assessee. Taking into cognizance, the directions of the ld. DRP, the Assessing Officer passed Assessment Order on 8/1/2015 u/s144C read with Section 143(3) of the Income Tax Act, 1961. 5. Facts in brief: Date of filing of return - 30.09.2010 Date of Order of the TPO - 02.01.2014 Date of Draft Assessment Order - 03.01.2014 Date of filing Objections before DRP - 29.04.2014 Date of Order of the DRP - 31.12.2014 Date of Assessment Order - 08.01.2015 6. Aggrieved with the Assessment Order, the assessee filed appeal before the Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt facts are on record in respect of that item. We do not see any reason to restrict the power of the Tribunal under Section 254 only to decide the grounds which arise from the order of the Commissioner of Income-tax (Appeals). Both the assessee as well as the Department have a right to file an appeal/cross-objections before the Tribunal. We fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier. 6. In the case of Jute Corporation of India Ltd. v. C.I.T. this Court, while dealing with the powers of the Appellate Assistant Commissioner observed that an appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment itself such change is not a mere deposition in procedure but a substantive shift in the manner of framing assessment. Substantive right was ensured to the parties by virtue of the introduction of Section 144C and it is settled position that the law applicable on the first day of assessment year be reckoned as applicable for that year, leads one to the inescapable conclusion that the provisions of Section 144C can be held to be applicable only prospectively, from the Assessment Year 2011-12 only. The Ld. AR also relied upon the decisions of Delhi Tribunal in case of Deputy CIT Vs. Travelport L.P USA in ITA No. 6499/Del/2012 dated 2/11/2020 as well as decision in the case of A.T Kearney Ltd. Vs. ADIT in ITA No. 4405/Del/2011 dated 25/5/2021. The Ld. AR further submitted that the Notification/Circular No. 5/2010 issued by the CBDT was also considered by the Hon'ble Madras High Court in case of Vedanta Ltd. (supra). Thus, in the present Assessment Year Section 144C is not applicable and order u/s 144C is bad in law, void ab-initio and barred by limitation and hence the assessment order should be quashed at the threshold. 10. The Ld. DR submitted that Section 144C was insert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r shall pass the assessment order under Sub- Section 3 within one month from the end of the month in which the acceptance is received or the period of filing of objections under Sub Section (2) expires. Thus, Section 144C has given a mechanism for the assessees to make a reference to Dispute Resolution Panel even before concluding the assessments. The assessee in the present case instead of challenging assessment order before the CIT (A), has preferred the procedural route of DRP and which was duly accepted and adjudicated by the DRP. The ld. DRP duly accepted the reference and adjudicated the matter taking into cognizance the new provision inserted as well as the objections raised by the assessee. The assessee has availed the provisions of Section 144C, voluntarily as per the procedure laid down under Income Tax Statute and the ld. DRP rightly accepted the reference filed and adjudicated the matter. The case laws cited by the Ld. AR in which the decision of the Delhi Tribunal in case of DCIT Vs. M/s Travelport (Supra) for Assessment Year 2010-11 was taken in consolidated appeals for earlier Assessment Years as well. The ratio held by the Tribunal, that the provisions of Section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod of filing of objections under sub-section (2) expires. (5) The Dispute Resolution Panel 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 him to complete the assessment. (6) The Dispute Resolution Panel shall issue the directions referred to in sub-section (5), after considering the following, namely:- (a) draft order; (b) objections filed by the assessee; (c) evidence furnished by the assessee; (d) report, if any, of the Assessing Officer, Valuation Officer or Transfer Pricing Officer or any other authority; (e) records relating to the draft order; (f) evidence collected by, or caused to be collected by, it; and (g) result of any enquiry made by, or caused to be made by, it. (7) The Dispute Resolution Panel may, before issuing any directions referred to in sub-section (5),- (a) make such further enquiry, as it thinks fit; or b) cause any further enquiry to be made by any income-tax authority and report the result of the same to it. (8) The Dispute Resolution Panel may confirm, reduce or enhance the variations proposed in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the variation referred to in subsection (1) arises as a consequence of the order of the Transfer Pricing Officer passed under sub-section (3) of section 92CA; and [(ii) any non-resident not being a company, or any foreign company.]" 14. Section 144C is a self contained provision which carves out a separate class of assesses i.e. "eligible assessee‟ i.e. any person in whose case the variation arises as a consequence of the order of the Transfer Pricing Officer passed under subsection (3) of Section 92CA. For this class of assesses, it prescribes a collegium of three commissioners, once objections are preferred. Dispute Resolution Panel's powers are similar with that of CIT(A), including the power to confirm, reduce or enhance the variation proposed and to consider the issues not agitated by the Assessee in the objections. As per the provisions of Section 144C, the Dispute Resolution Panel can issue directions as it thinks fit for the guidance of the Assessing Officer to enable him to complete the assessment and the Dispute Resolution Panel can confirm, reduce or enhance the variations proposed in the draft order. It is specifically stipulated in Section 144C that every direc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Section 144C(1) and the assessee has also filed his objections to the variation with ld. DRP on 29.04.2014 in accordance with the Section 144C(2). The ld. DRP vide order dated 31.12.2014 has issued directions in accordance with the provisions of Section 144C(6). Subsequently, the assessee upon the receipt of the directions issued under sub-section (5) has completed the assessment on 08.01.2015. Thus, on going through the entire provisions of the law, the judgments quoted, the orders of the Tribunal, the procedure followed by the assessee, TPO, ld. DRP and the Assessing Officer has been found to be correct as per the provisions of the Act inserted by the Finance (No.2) Act, 2009, hence, the additional grounds filed on 8.7.2021 with regard to non-applicability of provisions Section 144C are hereby dismissed. 19. The assessee has filed another application under Rule 11 of the Income Tax(Appellate Tribunal) Rules, 1963 for admission of additional grounds of appeal on 19.04.2019. The additional grounds read as under: "3. That the assessment order passed dated 08.01.2015 for A.Y. 2010-11 by the JCIT is illegal, bad in law and without jurisdiction as the JCIT was not the compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Regarding ******* Kindly refer to your office letter F. No. CIT(DR)/TP/I-1 Bench/ITAT/2019- 20/85 dated 29.01.2020 on the subject cited above. In this connection it is intimated that the then AO i.e. JCIT, Hisar Range, Hisar had passed the order and was having jurisdiction over the case. 2. As per your letter the assessee has raised following additional grounds:- "That the assessment order passed dated 08.01.2015 for AY 2010-11 by the joint Commissioner of Income Tax ("JCIT") is illegal, bad in law and without jurisdiction as the JCIT was not the competent person to pass the said assessment order. That the JCIT who passed the assessment order dated 08.01.2015 for AY 2010-11 was not competent to pass the said order, as such the assessment order is liable to be quashed. 3. As per Order dated 29.07.2019 the Commissioner of Income Tax, Hisar vide its order u/s 120 of I. T. Act assigned this case for completing assessment holding as under:- "In exercise of powers conferred by sub section (1), (2) and (5) of section 120 of the Income Tax Act, 1961 read with CBDT's Notification no. 251/2001 ( F. No. 187/6/2001/IT(A-1) dated 23.08.2001 enabling me in this behalf, I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M, Hisar 2011-12 ITO W-4, Hisar JCIT, Hisar Range, Hisar 8 AAACN5499D Jindal Polybutton Ltd., Delhi Road, Hisar 2011-12 ACIT, Hisar JCIT, Hisar Range, Hisar 9 AACFG5467B Ganesh Roadlines, O.P. Jindal Marg, Hisar 2011-12 ACIT, Hisar JCIT, Hisar Range, Hisar 10 AALPU0923B Sorabh Uthra C/o M/s. V.S. Industries, Near Bhatia Colony, Hansi 2011-12 ITO W-4, Hisar JCIT, Hisar Range, Hisar 11 AABCJ3714G JNB Steel Industries Pvt. Ltd., Sec. 27-28, Hisar 2011-12 ACIT, Hisar JCIT, Hisar Range, Hisar 12 ACEPK8515A Rakesh Kedia Prop. M/s. Sumit Industries, 17, Anaj Mandi, Hisar 2011-12 ITO W-3, Hisar JCIT, Hisar Range, Hisar 13 AAEFH3083N Haryana Guar Gum and Chemicals, Hisar 2011-12 ITO W-2, Hisar JCIT, Hisar Range, Hisar 14 ACPPJ1449K Anil Jindal, A-1, Jindal Industries Ltd., Staff Colony, Model Town, Hisar 2011-12 ITOW-1, Hisar JCIT, Hisar Range, Hisar 15 AIAPG1382Q Pawan Kumar Garg, 1380, U.E.-II, Hisar 2011-12 ITO W-3, Hisar JCIT, Hisar Range, Hisar The jurisdiction in the above stated cases are transferred for the purpose of completing pending scrutiny assessments. The entries in respect of demand raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to time; (c) further also directs that the Assessing Officers subordinate to the -Joint Commissioners of Income-tax referred to in clause (b) shall perform their functions in respect of such territorial areas or such persons or classes of persons or of such incomes or classes of incomes or of such cases or classes of cases in respect of which the said Commissioners of Income-tax were performing their functions immediately before the commencement of the Government of India, Central Board of Direct Taxes Notification number 732(E) dated 31.07.2001, by virtue of the jurisdiction vested in them under notifications issued by the Board or any other Income-tax authority from time to time; (d) further also directs that the Commissioners of Income-tax specified in column (2) of the said Schedule hereto annexed, having their headquarters at the places specified in the corresponding entries in column (3) of the said Schedule, shall exercise the powers and perform the functions in respect of such cases or classes of cases of persons or classes of persons specified in the corresponding entries in column (4) of the said Schedule and in respect of all incomes or classes of income; (e) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Incometax (Central-I), Chennai Chennai All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 10 Commissioner of Incometax (Central- II), Chennai Chennai All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 11 Commissioner of Incometax (Central- III), Chennai Chennai All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 12 Commissioner of Incometax (Central-I), Kolkata Kolkata. All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 13 Commissioner of Incometax (Central- II), Kolkata Kolkata All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 14 Commissioner of Incometax (Central-III), Kolkata Kolkata All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 15 Commissioner of Incometax (Central), Pune Pune All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 16 Commissioner of Incometax (Central), Nagpur Nagpur All cases assigned under section 127 of the Income-tax Act, 1961(43 of 1961). 17 Commissioner of Incometax (Central-I), Ahmadabad Ahmadabad All cases assign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner to be Assessing Officer only when he has been directed under section 120(4)(b) by the Board to act as an Assessing Officer. 29. For the sake of clarity, Section 120 is reproduced as under: "Jurisdiction of income-tax authorities. 120. (1) Income-tax authorities shall exercise all or any of the powers and perform all or any of the functions conferred on, or, as the case may be, assigned to such authorities by or under this Act in accordance with such directions as the Board may issue for the exercise of the powers and performance of the functions by all or any of those authorities. Explanation. - For the removal of doubts, it is hereby declared that any income-tax authority, being an authority higher in rank, may, if so directed by the Board, exercise the powers and perform the functions of the income-tax authority lower in rank and any such direction issued by the Board shall be deemed to be a direction issued under sub-section (1). (2) The directions of the Board under sub-section (1) may authorise any other income-tax authority to issue orders in writing for the exercise of the powers and performance of the functions by all or any of the other income-tax authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m shall exercise the powers and perform the functions as any higher authority amongst them may direct, and, further, references in any other provision of this Act or in any rule made thereunder to the Assessing Officer shall be deemed to be references to such higher authority and any provision of this Act requiring approval or sanction of any such authority shall not apply. (6) Notwithstanding anything contained in any direction or order issued under this section, or in section 124, the Board may, by notification in the Official Gazette, direct that for the purpose of furnishing of the return of income or the doing of any other act or thing under this Act or any rule made thereunder by any person or class of persons, the income-tax authority exercising and performing the powers and functions in relation to the said person or class of persons shall be such authority as may be specified in the notification." 30. The Co-ordinate Bench of ITAT Delhi Benches in the case of Mega Corporation Ltd. vs. Addl. CIT, Range-6, New Delhi [2015] 155 ITD 1019 (Delhi-Trib.) in which it was held as under: "Additional Commissioner of Income Tax can perform functions and, exercise powers of an A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r when jurisdiction have been assigned to him by virtue of the directions or orders issued under section 120(4)(b) of the I.T. Act, 1961. 35. On going through the entire events, we find that the order dated 29.07.2013 passed by the ld. CIT (A) invoking the powers conferred by Sub-Section (1), (2) and (5) of Section 120 would not confer any powers to the CIT to confer the concurrent exercise of powers to the Assessing Officers. Further, when concurrent powers are conferred both the officers namely Joint/Addl. Commissioner along with the ACIT or DCIT/ ITO would exercise the jurisdiction. Whereas the order dated 29.07.2013 of the CIT conferred concurrent exercise from ACIT, Hisar to JCIT, Hisar which effectively culminated in transfer of the assessment for the year 2011-12 from ACIT, Hisar to JCIT, Hisar. When the case is transferred from one Assessing Officer to the other Assessing Officer, JCIT in this case, it is legally mandated to pass order u/s 127 by the ld. CIT invoking the "power to transfer" u/s 127. 36. In the instant case, (1) there is no order by the ld. CIT invoking powers conferred u/s 120(4) wherein sub-Section (b) empowers the CIT to issue orders in writing that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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