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TMI Blog2015 (1) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... rder relatable to the order of the Transfer Pricing Officer dated 28.10.2010 - That matter was pending before the Tribunal for more than two years - Thereafter, additional grounds have been raised, which was objected to by the assessee saying that new plea was sought to be raised and that issue has not been addressed by the Tribunal. The core issue raised by the assessee is with regard to the order passed by the AO u/s 143(3) r.w. Section 92CA(3) – assessee contended that the requirement u/s 144C(1) has not been followed and the CIT(A) has accepted such a stand and it is for the Tribunal to consider the objection of the assessee in the light of the objection filed in relation to the non-compliance of Section 144C of the Income Tax Act - that aspect has not been considered by the Tribunal and therefore the question of law which is raised by the assessee ought to have considered by the Tribunal and there was no scope for passing a non-speaking remand order; and the Tribunal ought to have considered the scope of such appeal, the additional grounds raised and the objections of the assessee and should have given a ruling on the same – thus, the order of the Tribunal is a non-speaking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering and for passing the order setting aside the assessment framed by the respondent for adhering to the prescriptions of section 144C of the Act in spite of the non consideration of the arguments of both sides on the plea for admission of the additional grounds of appeal filed which proved perversity in the order passed by them? 2. The following facts as found in the assessment order will be relevant in disposing the above appeals. The appellant/assessee is a wholly owned subsidiary of Conso International Corporation, USA and is engaged in the manufacture of Decorative Trimming, such as, Tie Backs, Tassels, Trimmings etc. and is a 100% Export Oriented Unit. The assessee company has filed their return of income for the assessment year 2007-08 on 31.10.2007 admitting a total income of ₹ 1,37,520/- and value of fringe benefits of ₹ 16,16,630/-. The book profit under Section 115JB, as returned by the assessee, worked out to ₹ 1,50,066/-. After processing the return under Section 143(1), as the case was selected for scrutiny through CASS, notice under Section 143(2) was issued to the assessee. 3. As international transactions were involved in this case, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2010 without giving a draft of the proposed order of assessment to the assessee, since there was a variation in the income which is prejudicial to the interest of the assessee. The Assessing Officer has directly passed the Order u/s 143(3) thereby denying an opportunity to the appellant to file his objections before the Dispute Resolution Panel and also the Assessing Officer. Since the Assessing Officer has not followed the provisions of section 144 C thereby denying the opportunity to the appellant to approach the Dispute Resolution Panel, the order u/s 143(3) is bad in law. In view of this, the grounds of appeal as per additional grounds are allowed. 6. Aggrieved by the order of the Commissioner of Income Tax (Appeals), the Department filed an appeal on 18.11.2011 before the Income Tax Appellate Tribunal raising the following grounds: 1. The order of the learned Commissioner of Income-tax (Appeals) is against facts and circumstances of the case. 2. The learned Commissioner of Income-tax (Appeals) erred in deleting the entire additions made in the assessment on the ground that the order was not passed in pursuance of the directions of DRP u/s 144C of the Act. 3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the grounds of appeal by the Department is that the jurisdiction of the Commissioner of Income Tax (Appeals) to set aside the assessment order passed under Section 143(3) dated 30.12.2010 should be limited to the issue with regard to the order of the Transfer Pricing Officer and not otherwise. Nevertheless, it is also the contention of the appellant that they are entitled to object the appeal filed by the Department on the ground of violation of the procedure and requirement under Section 144C of the Income Tax Act. 9. This issue that was canvassed vehemently by the appellant was brushed aside by the Tribunal and we find that the first order of the Tribunal dated 02.05.2014 is merely proceeded on the basis that there was a concession by the Authorised Representative of the assessee and magnanimously agreed by the Department Representative in remanding the matter and therefore, the Tribunal passed the following order: 4. At the time of hearing the Ld. A.R., conceded for remitting the case back to the file of Ld. Assessing Officer for hearing the case afresh. The Ld. D.R. magnanimously agreed for the same. 5. Considering the facts and circumstances of the case, and in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration (since the Ld. Assessing Officer had not followed the provisions of Sec.144C of the Act). We also make it clear that the assessee shall co-operate with the Revenue in their proceedings promptly without seeking unnecessary adjustment in order to expedite the order of the Revenue. 6. In the result, the Miscellaneous Petition of the assessee is allowed to the extent indicated herein above. 13. Aggrieved by this Miscellaneous order, the assessee filed an appeal before this Court T.C.(A)No.875 of 2014 raising the above-mentioned substantial questions of law. 14. Heard Mr.S.Sridhar, learned counsel appearing for the appellant and Mr.T.R.Senthilkumar, learned Standing Counsel appearing for the Revenue and perused the materials placed before this Court. 15. At the outset we have to point out that there is totally non-application of mind by the Tribunal. The core issue raised in the appeal, the objections of the appellant and the non-consideration of the issue raised in appeal clearly makes the order of the Tribunal a non-speaking order. 16. We find from the arguments advanced by the appellant and the respondent that there is no scope for passing such a non-speaking ..... X X X X Extracts X X X X X X X X Extracts X X X X
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