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TMI Blog2014 (5) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... Amit Shukla The present appeals have been preferred by the assessee assailing the impugned separate orders dated 28th December 2013, passed under section 263 of the Income Tax Act, 1961 (for short the Act ) by the Commissioner of Income Tax-1, Mumbai, thereby setting aside the assessment order as well as the Transfer Pricing Officer's order (for short TPO ) for the assessment years 2005 06 and 2006 07 respectively. 2. Besides various grounds taken by the assessee to challenge the impugned orders, one legal ground which has been taken in both the appeals are that the learned Commissioner, under the revisionary jurisdiction under section 263 of the Act, cannot set aside the order passed by the TPO under section 92CA(3) of the Act. 3. Since the issues involved in both the years under appeal are common and inter related, therefore, as a matter of convenience, these appeals were heard together and are being disposed off by way of this consolidated order. 4. Facts in brief: The Assessing Officer made a reference under section 92CA(1) of the Act to the TPO for the computation of arm's length price (for short ALP ) in relation to the international transactions. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6-07 apparently found to be erroneous and appears to be prejudicial to the interest of the revenue and therefore the assessment order passed by the Assessing Officer u/s 143(3) read with section 147 dated 22/10/2010 is erroneous in as much as the adjustments made in the A.Y. 2007-08 under the similar heads of expenses. The assessment order u/s 143(3) r.w.s. 147 date 28/12/2010 is therefore, is set aside with direction to refer the issue of adjustment of arm length value of international transactions to the TPO for re-consideration and to apss the appropriate assessment order in view of the findings and directions from the Transfer Pricing Officer. 7. Before us, the learned Senior Counsel, Mr. Dinesh Vyas, on behalf of the assessee, submitted that the co-ordinate bench of the Tribunal, Mumbai Benches, in Essar Steels Ltd. v/s ACIT, [2013] 152 TTJ 265 (Mum.) has held that the Commissioner has no jurisdiction over the TPO administratively and, therefore, the Commissioner could not have revised the order under section 92CA(3) passed by the TPO. Thus, when the TPO's order cannot be revised by the Commissioner under section 263, then the impugned order cancelling the TPO's or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ysis of various provisions: Provisions of Section 263 are reproduced below: 263. (1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may Section 263 of the Act empowers the Commissioner to (i) examine the records of any proceedings under the Act and (ii) if the Commissioner considers that an order passed by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, the Commissioner may revise the order. 6. The transfer pricing proceedings are also under the Act and the Commissioner is empowered to examine the records of transfer pricing proceedings. 7. Section 263(1) refers to the order passed by the Assessing Officer. The phrase Assessing Officers is defined in Section 2(7 A) of the Act. However an explanation has been placed below Section 92CA(7) of the Act which is reproduced hereunder: Explanation. For the purposes of this section, Transfer Pricing Officer means a Joint Commissioner or Deputy Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In view of the above discussion, my humble request is that the order passed by the Commissioner U/s 263 of the Act is a good order and may kindly be upheld. 9. We have heard the rival contentions, perused the findings of the authorities below as well as the order of the Tribunal relied upon by the learned Senior Counsel. In this case, the Commissioner has held that the order passed by the TPO is erroneous inasmuch as it is prejudicial to the interests of Revenue and, therefore, the assessment order passed by the Assessing Officer is also erroneous. Accordingly, he set aside the assessment order with direction to refer the issue of adjustment of arm's length value of international transaction to the TPO for re consideration and then to pass assessment order afresh in view of the findings and the directions of the TPO. We find that the co ordinate bench of the Tribunal, Mumbai Benches, in Essar Steel Ltd. (supra) has held that the Commissioner has no jurisdiction over the TPO administratively and he could not have revised the order passed under section 92CA(3) passed by the TPO. The relevant observations of the Tribunal in Essar Steel Ltd. (supra) are as under: 13 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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