TMI Blog2023 (9) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The assessee s appeal before the Tribunal in first round [ 2016 (7) TMI 1682 - ITAT CHENNAI ] the issue was the assessment order passed by A.o u/s . 143(3) rw.s 92CA(3) r.w.s 144C(12) of the Act. Tribunal has set aside the assessment which was before it and the AO failed to understand the order of the Tribunal. We noticed from the observations made by DRP that the Tribunal cannot remit back directly the issue to the DRP and we also agree that before the Tribunal under challenge is the final assessment order passed u/s 143(3) r.w.s.92CA(3) r.w.s. 144C(5) of the Act and tribunal has not set aside the solitary action of the DRP and that also in vacum. Even by going through the findings of tribunal, we noted that the tribunal has not remitted the issue for verification of facts rather it is noted by Tribunal that the order of DRP is a non-speaking order even though, the assessee filed voluminous submissions before the DRP against the draft assessment order. Tribunal also noted that even though DRP accepted that it has to consider every point of dispute and pass a speaking order but contrary to this, the order passed by DRP is cryptic and addresses no issues raised therein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er giving effect to the order of DRP dated 28.12.2017, For this, the assessee has raised following four grounds: 1 The Impugned Order dated 31.12.2017 passed by the Respondent, refers to and relies upon the first assessment order dated 21.01.2016 passed by the Respondent, which order has already been set aside by the Hon'ble ITAT vide its order dated 29.07.2016 in ITA no. 546/Mds/2016. The Impugned Order dated 31.12.2017 which is styled as a 'giving effect order, does not record any reasons, is not traceable to any provisions of the Income Tax Act, 1961 and on the face of it appears to be a continuation of the first assessment order dated 21.01.2016 (which stands set aside). Once the first assessment order dated 21.01.2016 stands set aside, then relying upon the same and conducting an assessment basis an order which stands set aside, is wholly without the authority of law. 2. When the issue stated in Ground 1 above, was taken up in writ proceedings before the Hon'ble Madras High Court in WP No. 4965 and 4696 of 2018, the Hon'ble High Court vide paragraph 7 of the order dated 11.09.2018 noted that the Hon'ble Tribunal is the appropriate authority to cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ALP of the assessee and directed an adjustment to be made at amount of Rs. 1.86 Crores. The A.O framed draft assessment order giving effect to the TPO s order u/s . 143(3) r.w.s. 92CA(3) of the Act dated 31.03.2015. The assessee raised objections before DRP against draft assessment order vide dated 23.04.2015. The DRP after considering objections of assessee passed directions vide order dated 28.12.2015 and directed the AO to confirm the adjustment of ALP made by TPO. The AO following the direction of DRP passed final assessment order dated 21.01.2016. Aggrieved, the assessee preferred appeal before the Tribunal. 4. The Tribunal in ITA No. 546/Mds/2016 for A.Y 2012-12 vide order dated 29.07.2016 remanded the issue of ALP to the file of DRP by observing in para 6 to 8 as under: 6. We find that the DRP in this case, against the above provisions of the Act, passed a very non-speaking order, though the assessee s counsel made a voluminous submission before the DRP against the draft assessment order. It is accepted by the DRP that it has to be considered every point of dispute and pass a speaking order. Contrary to this, the order passed by the DRP very critic and there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CA (5) of the Act. The A.O consequently passed order dated 31.12.2017 in conformity that the DRP direction and the order of ITAT by noting as under: Ref: 1. Order of the ITAT D-Bench, Chennai in ITA No.546/Mds/2016 dated 29-07-2016 for the Asst. Year 2011-12 2. Order of the DRP-2, Bangalore in F.No.17/Set-side/DRP- 2/BNGI201/-18 dated 28-12-2017 -------- ORDER: To give effect to the order of the DRP dated 28-12-2017 and as per the directions of the DRP, deduction u/s .10B is allowed. COMPUTATION OF INCOME Rs. Income as per order dated 21-01-2016 (this order passed u/s . 143(3) r/w 92CA, subjected to appeal before ITAT as above, and undergone change as per DRP direction as above) 1,85,13,359 Less Deduction u/s . 10B allowed as per the directions of the DRP dated 8-12-2017 and also as claimed in the return of income at Rs. 5,64,065 5,64,065 Assessed income as per this giving effect order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is closed. In consequence to the above directions, now the assessee filed this appeal before the Tribunal on 31.10.2018. 8. Now before us, Ld. counsel for the assessee, Shri Karthik Sundaram, Advocate, argued that, the Tribunal has to clarify the order dated 29.07.2016 whether the assessment order passed u/s . 143(3) r.w.s 92CA(3) of the Act dated 21.01.2016 is set aside by the Tribunal or it is not set aside? Further, Ld. counsel for the assessee also argued, that, in the eventuality the Tribunal held that in first round the assessment is set aside, the consequences are that the order giving effect passed by A.O dated 31.12.2017, in view of the DRP directions vide order dated 28.12.2017, is of no consequence, because, the A.O has not followed the procedure prescribed u/s . 144C of the Act. For this, the Ld. counsel for the assessee placed reliance on the decision of Hon ble Delhi High Court in the case of PCIT vs. Headstrong Services India Pvt. Ltd. in ITA No.77/2019 dated 24.12.2020 (Del) as well Hon ble Bombay High Court in the case of PCIT vs. Lionbridge Technologies (P) Ltd. [2019 260 taxman 273 (Bom.) and Hon ble Delhi High Court in the case of JCB India Ltd. vs. DCI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 28.12.2015. The Tribunal accordingly held that, Considering all these facts and circumstances, we are inclined to the remit the issues back to the DRP to pass a speaking order on the disputed issued. 7. Hence, we remit the issue back to the file of DRP to consider the objections of the assessee in proper perspective and pass a speaking order. 8. In the result, the appeal of the assessee is partly allowed for statistical purposes. 12. From the above order of the Tribunal, we are of the view that before tribunal there was issue relating to determination of ALP, which was remitted back to the file of DRP and assessee s appeal is partly allowed for statistical purposes, means that the matter is restored back to the file of A.O. Once, the assessment is partly allowed for statistical purposes means the matter is restored back to the file of A.O, who will follow procedure laid down u/s . 144C of the Act. The assessee s appeal before the Tribunal in first round in ITA No.546/Mad/2016, the issue was the assessment order passed by A.o u/s . 143(3) rw.s 92CA(3) r.w.s 144C(12) of the Act. We have gone through the grounds raised in first round i.e., ground No.1 and 2 whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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