TMI Blog2023 (11) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... till passing the final assessment order has not received the order giving effect by the TPO. In the case of Anand NVH Products Pvt. Ltd. [ 2021 (8) TMI 1262 - DELHI HIGH COURT ] we noted that assessment order has been passed under section 143(3) read with section 144C of the Act without waiting for the decision of the DRP, thus in this case set aside the final assessment order along with notice of demand and restored the matter to the level of DRP. In the case of SRF Ltd. [ 2021 (7) TMI 1298 - DELHI HIGH COURT ], the final assessment order was passed without incorporating the DRP s directions. Thus in such a situation, quashed the final assessment order and the demand of notice and remitted the matter to DRP for consideration u/s 144 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt') craves leave to prefer an appeal against the order passed by the National Faceless Assessment Centre, Delhi [hereinafter referred to as NFAC or AO ] pursuant to directions issued by the Hon'ble Dispute Resolution Panel [hereinafter referred to as 'DRP'] under Section 143(3) read with Section 144C(13) and Section 1448 of the Income-tax Act, 1961 (hereinafter referred to as the 'Act') on the following grounds 1 On the facts and circumstances of the case, the final assessment order is bad in law and void as it does not conform to binding directions of Id. DRP. 2. On facts and circumstances of the case and in law, DRP directions cannot be incorporated in the assessment order by passing a rectification order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice ('CUP') method as the most appropriate method. 9. Without prejudice to any of the grounds, the Ld. AO/NFAC//TPO/DRP has erred in law and on facts by selecting comparable agreements based on inconsistent, inappropriate and unreasonable criteria. GROUNDS PERTAINING TO PENALTY PROCEEDINGS 10 That on acts and In laws, the Ld AO!. FAC / TPO / DRP erred in holding that the Appellant has furnished Inaccurate particulars of income in respect of each item of disallowance/ additions and in initiating penalty proceedings under section 270A of the Act. 3. At the outset, ld. Counsel of the assessee pressed legal grounds taken. The legal ground is that the final assessment order is bad in law and void as it does not conform to bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. However, he passed the order subject to the modified order of the TPO which is yet to be passed and the necessary modification with regard TP adjustment which would be made by passing rectification order on receipt of the TPO order in due course. Thus, in the above facts, it is emanating that the final assessment order is without incorporating of DRP s directions. As stated above, the reason is that DRP has given certain directions which were to be given effect by the TPO. The AO till passing the final assessment order has not received the order giving effect by the TPO. In this regard, stating that such an order passed by the AO is not legal in the eyes of law, ld. Counsel of the assessee has placed reliance on the following Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Hon ble High Courts did not quash the entire proceedings and only the final assessment order along with the demand notice were set aside and proceedings restored to the level of DRP/AO. He reiterated that even though the assessment orders have been passed without incorporating the DRP s directions and in complete violation of mandatory procedure u/s 144C of the Act, but still the Hon ble jurisdictional High Court did not treat it as fatal error which cannot be corrected. Ld. DR for the Revenue further pleaded that from the orders of Hon ble High Court, it can be inferred that the Hon ble High Court treated it as technical/ procedural default and to cure the same, restored the proceedings at the level of DRP and given Department, the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure stipulated under section 144B(1) as well as section 144(C) of the Act. 7.2 In the case of Fibrehome India Pvt. Ltd. (supra) also, the final assessment order was passed without incorporating the directions of the DRP. In that case also, Hon ble jurisdictional High Court remitted the matter to DRP keeping in view of the scheme of section 144C of the Act. In this decision, Hon ble jurisdictional High Court inter alia referred to the decisions of Hon ble jurisdictional High Court in the cases of Anand NVH Products Pvt. Ltd. and SRF Ltd. (supra). 8. Thus, from the above reading of Hon ble jurisdictional High Court decisions, it is emanating that in the final assessment order passed without incorporating the DRP s directions, the matt ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
