2018 (12) TMI 1655 - AT - Income Tax

Transfer pricing proceedings. u/s. 143(3) r.w.s. 144C without passing draft assessment order - Order of TPO u/s. 92CA(3) and proposed addition in respect of international transactions entered into by the assessee - HELD THAT - When the demand notice u/s 156 of the Act is issued and served on the assessee the same constitutes an assessment order final in all respects. After the appeals were filed before the CIT(A) Aurangabad the Assessing Officer made a mistake of undoing the same by making good of said mistake i.e. not making a draft assessment order in accordance with the provisions of section 144C of the Act. The attempts of making correction by issue of letters/notices the Assessing Officer made a mistake of not withdrawing original demand notices and penalty notices. AO made the assessment order and issued demand notice and penalty notices as if the same is the final assessment order. Normally the draft assessment order is never issued along with demand notice and penalty notice. Assessing Officer wanted the assessee to treat the said order as draft assessment order. Demand notice and penalty notices are issued only at the time of issue of the assessment order. Thus Assessing Officer violated the provision of section 144C. Further in the process of making/correcting the lapses Assessing Officer made another mistake of not withdrawing the said demand notice and penalty notices. Thus the Assessing Officer made a mess of the statutory procedures and the same renders to the illegality of the order made by the Assessing Officer. - Decided in favour of assessee.

Summary

Issues involved:
1. Validity of assessment order under section 144C of the Income-tax Act, 1961.
2. Consideration of economic adjustments and comparables for determining companies comparable to the Assessee.

Issue 1: Validity of assessment order under section 144C of the Income-tax Act, 1961:

The case involved cross-appeals with the assessee filing a Cross Objection challenging the assessment order for the year 2003-04. The main contention was the validity of the assessment order issued by the Assessing Officer, alleging non-compliance with section 144C of the Act. The Assessing Officer passed the assessment order on 29.12.2009, including adjustments recommended by the Transfer Pricing Officer (TPO). However, the order was treated as final, accompanied by demand and penalty notices, without following the procedure for a draft assessment order as required by law. The issue was whether the order constituted a final assessment order or a draft assessment order. The assessee argued that the Assessing Officer's actions violated statutory provisions, rendering the order invalid. The legal issue was extensively discussed, referencing relevant case laws such as the Pr.CIT vs. M/s. Lionbridge Technologies Pvt. Ltd. and ACIT vs. M/s. East West Seeds Ltd. The Tribunal found the Assessing Officer's actions to be in violation of section 144C, leading to the conclusion that the legal issue raised by the assessee was valid. Consequently, the other grounds raised by the assessee and the Revenue were considered academic exercises, and the Cross Objection of the assessee was partly allowed.

Issue 2: Consideration of economic adjustments and comparables for determining companies comparable to the Assessee:

The Revenue filed an appeal against the CIT(A)'s order for the Assessment Year 2003-04, challenging various aspects, including the treatment of General Motors as a comparable company, economic adjustments, and underutilization of capacity. However, in light of the decision regarding the validity of the assessment order under section 144C, the Tribunal deemed the adjudication of these issues as academic exercises. The grounds raised by the Revenue were dismissed as academic, and the appeal of the Revenue was ultimately dismissed, with the Cross Objection filed by the assessee being allowed.

In conclusion, the Tribunal's judgment primarily focused on the validity of the assessment order under section 144C of the Income-tax Act, 1961, and its implications on the overall appeal. The decision highlighted the importance of procedural compliance in assessment proceedings and its impact on the validity of the final order. The Tribunal's detailed analysis and reference to relevant case laws provided a comprehensive understanding of the legal issue at hand, leading to the partial allowance of the Cross Objection filed by the assessee and the dismissal of the Revenue's appeal.