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TMI Blog2017 (7) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and in the circumstances of the case and in law, the Learned Commissioner of Income Tax (Appeals) ('Ld. CIT (A)') has erred in making irrelevant and uncalled for observations on the conduct of the appellant and the observations are required to be expunged for the reason that having held the appeal as ot maintainable, he ought ot to have decided any issue relating to the appeal. 4. On the facts and in the circumstances of the case and in law, the Assessment order passed by Learned Assessing officer ('Ld. AO') was barred by limitation and be declared as on-est in law. 5. On the facts and circumstances of the case and in law, the Learned Assessing officer ('Ld. AO') has erred in charging interest under sections 234A, 234B and 234C of the Act. 6. On the facts and circumstances of the case and in law, the Learned Assessing officer ('Ld. AO') has erred in initiating penalty proceedings under Section 271(1)(c) of the Act. Prayer of the applicant The appellant hereby prays your honor as under: 1) The Assessment order passed by Learned Assessing officer ('Ld. AO') was barred by limitation. Hence, the order passed by the Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pricing study explained the reason for applicability of filter. The assessee also objected the use of certain comparables with high margins and use of the financial data pertaining to a single year i.e. financial year 2008-09. The AO dealt with the objection in paras 7, 7.1, 7.4 & 7.5 of the assessment order, for the cost of repetition, the findings given therein are ot reproduced. The assessee also objected the application of 25% related party comparables by the TPO and also objected inclusion of certain filters by the TPO which are claimed to be dissimilar. The assessee stated that the risk analysis of the assessee had been ignored by the TPO. The AO discussed the relevant objection and gave his findings in pages 20 to 34 of the assessment order and thereafter, computed the adjustment on account of arm's length price at Rs. 2,05,79,242/- in para 11 of the assessment order which reads as under: "11. COMPUTATION OF ARMS LENGTH PRICE: The arithmetic mean of the Profit Level indicators is taken as the arms length margin. Based on this, the arms length price of I T Enabled services rendered by the taxpayer to its AE(s) is computed by taking PLI as OP/TC. The arithmetic mean of Op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution Panel. Admittedly, the present appeal is against an order which is passed u/s. 144C of I.T. Act, 1961 and even though the ld. A.O. had invoked the provisions of section 143(3) of I.T. Act, 1961 the effect of section 144C is ot removed and cannot be ignored. In view of this the present appeal is ot maintainable before me." 7. In the present case, the ld. CIT(A) although held that the appeal before him was ot maintainable. However, he decided the issue raised by the assessee relating to limitation of the assessment order passed by the AO in paras 4 to 23 of the impugned order for the cost of repetition, the same is ot reproduced herein. 8. ow the assessee is in appeal. The ld. Counsel for the assessee submitted that order was passed by the AO u/s 143(3) r.w.s. 144C of the Act and it was ot a draft assessment order. It was further submitted that the assessee did ot prefer to file the objection before the Dispute Resolution Panel, rather preferred an appeal before the ld. CIT(A). It was submitted that the provisions of Clause (2) of Sub-section (v) of Section 144C of the Act gives a choice to the assessee either to go before the DRP or preferred to ormal appellate channel. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 53B), 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 subsection (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. (6) The Dispute Resolution Panel shall issue the directions referred to in sub-section (5), after considering the following, amely:- (a ) draft order; (b ) objections filed by the assessee; (c ) evidence furnished by the assessee; (d ) report, if any, of the Assessing Officer, Valuation Officer or Transfer Pricing Officer or any other authority; (e ) records relating to the draft order; (f ) evidence collected by, or caused to be collected by, it; and (g ) result of any enquiry made by, or caused to be made by, it. (7) The Dispute Resolution Panel may, before issuing any directions referred to in sub-section (5),- (a ) make such further enquiry, as it thinks fit; or (b ) cause any further enquiry to be made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, the ld. CIT(A) was ot justified in observing that the assessment order has been passed by the AO on the direction of the ld. DRP. On the contrary, the AO passed the assessment order u/s 143(3) r.w.s. 144C of the Act. 12. ow question arises as to whether the assessee can file the appeal in such type of cases where objections were ot filed before the ld. DRP. In this regard, CBDT's Circular o. 5/2010 dated 03.06.2010 and corrected by Corrigendum o. 5/2010/[F.No.142/13/2010-SO (TPL)] dated 30.09.2010 oticed in Finance (No. 2) Act, 2009 is clear wherein explanatory ote has been given in para 45.4 which reads as under: 45.4 It would be the choice of the assessee whether to file an objection against the draft assessment order before the Dispute Resolution Panel (DRP) or to pursue the ormal channel of filing an appeal against the assessment order before the Commissioner of Income-tax (Appeals). In order to approach the DRP, the assessee must file an objection against the draft assessment order within the prescribed time-limit. In case the assessee does ot file an objection, the Assessing Officer shall pass the assessment order. The assessee can file an appeal against such asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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