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TMI Blog2015 (10) TMI 390X X X X Extracts X X X X X X X X Extracts X X X X ..... te the assessment. Therefore, the final assessment order passed by the AO after rejection of the assessee’s objections by the DRP ‘in limini’ is thus not sustainable. The final assessment order passed by the AO dated 7.1.2015 allegedly u/s 143(3) r.w.s. 92CA(3) r.w.s. 144C(5) is therefore to be quashed. See Bank of America NA Versus Assistant Director of Income-tax (IT) Cir. 3(2), Mumbai [2012 (12) TMI 375 - ITAT MUMBAI ] - Decided in favour of assessee. - ITA No.519/Hyd/2015 - - - Dated:- 4-9-2015 - Smt. P. Madhavi Devi, Judicial Member and Shri B. Ramakotaiah, Accountant Member For The Assessee : Shri P. Murali Mohan Rao For The Revenue : Shri S. Moharana, DR ORDER Per Smt.P. Madhavi Devi, J.M. This is assessee s appeal for the A.Y 2010-11, against the order of the AO passed u/s 143(3) r.w.s. 92CA(3) r.w.s. 144C(5) of the I.T. Act, 1961. Assessee had originally raised 23 grounds of appeal and subsequently, three additional grounds of appeal were also filed vide its application dated 17.8.2015. The additional grounds of appeal filed by the assessee are as under: 1. We would like to submit that as per the ratio laid down by the Hon'ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 7.1.2015 u/s 143(3) r.w.s. 92CA(3) r.w.s. 144C of the Act, against which assessee is in appeal before us. 3. The ld Counsel for the assessee submitted that the assessment order passed by the AO is barred by limitation u/s 144C(2) of the Act and therefore, it was non-est in law. He further submitted that the objections of the assessee were not entertained by the DRP and therefore, the final assessment order passed by the AO u/s 144C(5) of the Act is also not sustainable. 4. The ld DR, on the other hand, supported the orders of the authorities below and submitted that on receipt of the draft assessment order consequent to the transfer pricing order u/s 92CA of the Act, the option was to be exercised by the assessee to file its objections before the DRP or to file an appeal before the CIT (A). Since the assessee has failed to exercise any of these options, AO had not passed the final assessment order and hence the transfer pricing order was very much in force. He submitted that since the objections filed by the assessee before the DRP with delay has been rejected by the DRP, final assessment order has been passed by the AO and therefore, it has to be held as validly passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer shall, notwithstanding anything contained in section 153 75[or section 153B], pass the assessment order under sub-section (3) within one month from the end of the month in which,- (a) the acceptance is received; or (b) the period of filing of objections under sub-section (2) expires. (5) The Dispute Resolution Panel shall, in a case where any objection is received under sub-section (2), issue such directions, as it thinks fit, for the guidance of the Assessing Officer to enable him to complete the assessment .. 7. From a literal reading of the above provisions, it is clear that section 144C of the I.T. Act deals with the circumstances under which the AO can make a reference to the DRP and the procedure to be followed by the AO in making a reference to the Dispute Resolution Panel and also the procedure to be followed by the DRP while dealing with the objections raised before it by the assessee and the passing of the final assessment order by the AO. Sub-section (1) provides that upon the receipt of the order of the Transfer Pricing Officer suggesting the adjustments after determination of the ALP, AO shall pass a draft assessment order and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he AO after rejection of the assessee s objections by the DRP in limini is thus not sustainable. The final assessment order passed by the AO dated 7.1.2015 allegedly u/s 143(3) r.w.s. 92CA(3) r.w.s. 144C(5) is therefore to be quashed. This view has also been expressed by the Coordinate Bench of this Tribunal in the case of Bank of America cited (Supra), we reproduce hereunder the relevant portion for ready reference: 4 Having considered the rival submissions and carefully perusal of the relevant material on record, we find that the Assessing Officer has passed two orders in this case one u/s 144C(3) dt 10.2.2010 and another u/s 144C(13) dt 20.8.2010. Both these orders are identical and with same demand of tax. There is no dispute about the ITA No. 7100/M/2010 Bank of America NA fact as explained by the ld Sr counsel that against the draft order dt 29.12.2009 passed u/s 144C(1), the assessee filed its objection dt 25.1.2010 before the DRP. However, in the meantime, the CBDT issued a clarification dt 20.1.2010 regarding the option of an assessee either to go before the DRP or to prefer the normal appellate channel. It was further clarified by the CBDT that it is the choice of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against which the assessee has filed following objections before the Dispute Resolution Panel vide its letter dated 25.1.2010. .................................................................................. ............................................................................ ..................................................................... Subsequently, vide letter dated 29th January, 2010, the assessee made a request for withdrawal of the objections filed before the DRP mentioning that they intend to opt to proceed to the normal appellate authority i.e. the CJT(A). Assessee was given opportunity of being heard and Shri Virendra A. Mittal, partner Deloitte Harkins Sells, the authorized representative and Mr. Saurabh Doshi, Asst. Vice President, Country Tax Finance Bank of America NA attended the proceedings on 28.4.2010. Assessee confirmed its request for withdrawal of objection. In view of the request of the assessee, the objections filed before the Panel are dismissed as withdrawn. The Assessing Officer is directed to complete assessment as proposed in the draft order. 5. Even otherwise, when the objections filed by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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