2016 (5) TMI 323 - AT - Income Tax

Validity of final order passed by the Assessing Officer - Reference to Dispute Resolution Panel - Held that - There is no doubt as to the fact that the Transfer Pricing Officer has proposed adjustment to be made on account of difference in the arm s length price in his order passed under section 92CA of the Act. Further, under section 144C(2) of the Act, such eligible assessee has the option either to accept the said addition or to file objection before the Dispute Resolution Panel and such option has to be exercised within 30 days of receipt of such draft assessment order. The procedure is if the assessee chooses to raise its objection before the Dispute Resolution Panel, it has to be done within 30 days and if it does not do so, the Assessing Officer has power to pass the final assessment order and then the straight route of the filing appeal before the Commissioner of Income-tax (Appeals) is open to the assessee. Nowhere in any of the provisions the Assessing Officer has been given any option to pass or not to pass the draft assessment order. Further, on a perusal of Circular No. 5 of 2010, dated June 3, 2010 issued by the Central Board of Direct Taxes being explanatory notes to the provision of the Finance (No. 2) Act, 2009, it has been very clearly stated that the provisions are applicable with effect from October 1, 2009. It is also an undisputed fact that the order of the Assessing Officer in the present case is dated December 26, 2011, the order of the Transfer Pricing Officer is dated October 21, 2011. In view of the above, the order passed by the Assessing Officer is without jurisdiction. Reliance placed by the learned counsel of the assessee on the judgment of High Court of Madras in the case of Vijay Television P. Ltd. v. DRP 2014 (6) TMI 540 - MADRAS HIGH COURT is not out of place wherein held that the final order passed by the Assessing Officer without passing a draft assessment order is bad in law. - Decided in favour of assessee.

Summary

Issues Involved:
1. Compliance with Section 144C of the Income-tax Act, 1961.
2. Validity of the Transfer Pricing Officer's (TPO) adjustments.
3. Application of extraordinary expenses in determining arm's length price.

Issue-wise Detailed Analysis:

1. Compliance with Section 144C of the Income-tax Act, 1961:
The primary contention raised by the assessee was that the Assessing Officer (AO) failed to comply with the provisions of Section 144C by not providing a draft order before finalizing the assessment. Section 144C mandates that the AO must forward a draft of the proposed order to the eligible assessee if any variation in income or loss is proposed after October 1, 2009. The assessee argued that this non-compliance deprived them of the opportunity to file objections before the Dispute Resolution Panel (DRP). The Tribunal noted that the order of the TPO was dated October 21, 2011, and the AO's order was dated December 26, 2011. Given these dates, the Tribunal concluded that the AO's failure to issue a draft assessment order rendered the final order void. This position was supported by precedents from the High Court of Madras in Vijay Television P. Ltd. v. DRP and the Andhra Pradesh High Court in Zuari Cement Ltd. v. Asst. CIT, both affirmed by the Supreme Court.

2. Validity of the Transfer Pricing Officer's (TPO) Adjustments:
The Revenue's appeal centered on challenging the deletion of the Rs. 6,16,68,296 addition made by the AO based on the TPO's adjustments. The TPO had rejected the comparables used by the assessee and substituted them with new comparables, resulting in a significant adjustment. The Commissioner of Income-tax (Appeals) [CIT(A)] had provided relief to the assessee by adjusting for certain extraordinary expenses and concluding that the international transactions were at arm's length. However, since the Tribunal set aside the AO's order due to non-compliance with Section 144C, it did not delve into the merits of the TPO's adjustments.

3. Application of Extraordinary Expenses in Determining Arm's Length Price:
The assessee claimed extraordinary expenses amounting to Rs. 5,34,97,190 due to the development and production of a new product, DCX gears. These expenses included premium rates, product rectification charges, and other operational costs. The CIT(A) acknowledged these extraordinary expenses and adjusted the arm's length price accordingly, which was contested by the Revenue. However, the Tribunal did not address this issue in detail due to the primary finding of non-compliance with Section 144C.

Conclusion:
The Tribunal allowed the assessee's cross-objection, setting aside the AO's order due to non-compliance with Section 144C, and dismissed the Revenue's appeal without adjudicating the merits of the TPO's adjustments or the application of extraordinary expenses. The Tribunal emphasized the mandatory nature of issuing a draft assessment order under Section 144C, which the AO failed to do, thus rendering the final assessment order void.