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TMI Blog2017 (2) TMI 585X X X X Extracts X X X X X X X X Extracts X X X X ..... TPO is not the same as Assessing Officer. No authorization from the Board has been placed on record which equates that the powers vested on TPO as similar to that of an Assessing Officer. Section 92CA of the Act clearly sets out the powers of TPO. He has to determine the Arms Length Price in relation to the international transactions. However, power of making the assessment remains with the Assessing Officer only. Considering argument of DR that by virtue of Sub-Sec. (3) of Sec. 153 of the Act, no fetters on time can be placed on an Assessing Officer for passing a giving effect order by the ld. Assessing Officer cannot be accepted, as for the purpose of a proceedings which come under the ambit Sec.144C of the Act, there can be no application of Sec.153 of the Act. In the case before us, there is no direction given by the ld. DRP to ld. Assessing Officer but the directions were only given to the ld. TPO. This has in our opinion resulted in a procedural defect and not a jurisdictional error that could invalidate the proceedings in toto. It is only a curable defect and when the curing takes place, it puts back the proceedings to the original stage. Viz to a stage when the corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... did not apply. Relying on Sec. 153(2A) of the Act. Ld. Departmental Representative submitted that there was no time limit for passing an order pursuant to the direction of the Tribunal. According to ld. Departmental Representative, the ld. DRP order pursuant to the direction of Tribunal was passed on 12.03.2014. As per the ld. Departmental Representative the directions issued by the ld. DRP in the said order was to the ld. TPO and not to the ld. Assessing Officer. According to him, ld. TPO had pursuant to the directions of the ld. DRP passed a giving effect order on 10.02.2015. As soon as the ld. Assessing Officer received the order of the ld. TPO he had passed final assessment order. According to ld. Departmental Representative, law never required a person to do what is impossible. Ld. Departmental Representative pointed out the directions of ld. DRP was exclusively for ld. TPO and Sec. 144C(13) of the Act had no application. In answer to the query from the bench, ld. Departmental Representative submitted that the directions of ld. DRP though given to ld. TPO, had to be construed as given to ld. Assessing Officer and at best it would only be a procedural lapse which was curable. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ived the order of the ld.DRP. This leads us to ld. DRP order passed pursuant to the above direction of the Tribunal. The directions of the ld. DRP in their order dated 12.03.2014 appears at paragraph 8 9 and this read as under:- 8. On the other issues no fresh objections have been raised before us. The DRP s earlier order would therefore remain effective on all the other issues except the one mentioned above which had remained to the properly adjudicated by the DRP. To sum up the DRP s earlier order is modified to that extent that : (a) TPO would compute margins of the comparables based on the annual reports of the respective comparable company. (b) KALS is excluded from the comparable set. (c) VJIL be included in the comparable set. 9. This order is passed consequent to the order of the honorable Tribunal disposing off the assessee s objections not properly adjudicated in DRP s earlier order . Apart from the above, ld. DRP had given specific directions to ld. TPO in paragraphs 3, 4 6 of the above order. Thus the ld. DRP had given directions only to ld. TPO and not to the ld. Assessing Officer. The Tribunal had set aside the earlier order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n is reproduced hereunder:- For the purposes of this section Transfer Pricing Officer means a Joint Commissioner or Deputy Commissioner or Assistant Commissioner authorised by the Board to perform all or any of the functions of an Assessing Officer specified in sections 92C and 92D in respect of any person or class of persons . A reading of the above, in our opinion clearly indicate that ld. TPO is not the same as Assessing Officer. No authorization from the Board has been placed on record which equates that the powers vested on TPO as similar to that of an Assessing Officer. Section 92CA of the Act clearly sets out the powers of TPO. He has to determine the Arms Length Price in relation to the international transactions. However, power of making the assessment remains with the Assessing Officer only. 9. Now coming to the argument of the ld. Departmental Representative that by virtue of Sub-Sec. (3) of Sec. 153 of the Act, no fetters on time can be placed on an Assessing Officer for passing a giving effect order by the ld. Assessing Officer. In our opinion the argument cannot be accepted, considering the decision of the Cochin Bench of the Tribunal in the case of M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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