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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 ..... contrary, the AO passed the assessment order u/s 143(3) r.w.s. 144C of the Act. From the CBDT Circular No. 5/2010, it is crystal clear that in case the assessee does not file objection, the AO shall pass the assessment order and thereafter the assessee can file an appeal against such assessment order before the ld. CIT(A). In the present case also the assessee did not file any objection before the DRP and filed the appeal before the ld. CIT(A), since it was the choice of the assessee as to whether to file an objection before the DRP or to pursue the normal channel of filing appeal against the assessment order before the ld. CIT(A). Therefore, the appeal filed by the assessee before the ld. CIT(A) was maintainable. We set aside the impugned order and direct the ld. CIT(A) to admit the appeal of the assessee and decide the same in accordance with law after providing due and reasonable opportunity of being heard to the assessee. - ITA No. 4544/Del/2016 - - - Dated:- 28-3-2017 - Sh. N. K. Saini, AM And Sh. Kuldip Singh, JM For The Assessee : Sh. Girish Dave, Adv. Sh. Arta Trana Panda, Adv. For The Revenue : Sh. Neeraj Kumar, Sr. DR ORDER Per. K. Saini, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal herein or submit such further objections as may be considered ecessary at any time either before or during the course of hearing before the Bench of Appellate Tribunal, so as to enable the learned members of the Bench to decide this application and on the objections raised by the appellant, in accordance with the law. 3. From the above grounds, it is gathered that the main grievance of the assessee in this appeal relates to the action of the ld. CIT(A) in dismissing the appeal of the assessee by holding that the appeal was ot maintainable. 4. Facts of the case in brief are that the assessee filed its return of income on 30.09.2009 declaring an income of ₹ 70,102/-. The case was selected for scrutiny. The AO oticed that the assessee company is 100% subsidiary of Samsung Heavy Industries Co. Ltd., Korea whose main business encompasses ship building, off shore floaters, digital devices for ships and construction and engineering services. During the year under consideration, the assessee disclosed total gross receipt of service income of ₹ 24,38,43,186/- and other income of ₹ 47,08,251/-. The assessee entered into international tractions with its Assoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,09,18,721 OP/TC 38.50% Margin (B) 7,35,03,707 Arm's Length Price(A+B)=C 26,44,22,428 Price Charged by the assessee(D) 24,38,43,186 Difference (C-D) 2,05,79,242 % of difference with international transaction 8.44% Adjustment 2,05,79,242 Since the price charged by the assessee vary by more than 5% from the value of international transaction, an adjustment of Rs. 2,05,79,242/- for Provision of IT Enabled Services is to be made to the income of the assessee, being the difference between the arm's length price and the price charged by the assessee from its AEs. The Assessing Officer shall enhance the income of the assessee by an amount of Rs.2,05,79,242/- while computing its total income. The Assessing Officer may examine issue of initiation of penalty u/s 271(1)(c) of the Act in accordance with Explanation 7 of the same. 5. Accordingly, addition of &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al appellate channel. It was submitted that the assessee preferred to file an appeal before the ld. CIT(A). A reference was also made to the Circular o. 5/2010 dated 03.06.2010 which was corrected by Circular o. 5/2010//[F.No.142/13/2010-SO (TPL)] dated 30.09.2010 wherein in para 45.4 it has been clarified that the assessee can file an appeal before the ld. CIT(A) against the assessment order passed by the AO. 9. In his rival submissions the ld. DR supported the impugned order passed by the ld. CIT(A) and reiterated the observations made therein. 10. We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, othing is brought on record to substantiate that the AO had passed a draft assessment order and the assessee filed objection before the DRP against the said draft order. It is oticed that the AO passed the assessment order dated 30.05.2013 u/s 144C r.w.s. 143(3) of the Act but in the said order it is ot stated anywhere that the assessee preferred to file objection before the DRP. It is also ot brought on record to substantiate that the DRP had given any direction to the AO for passing the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny 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 by any income-tax authority and report the result of the same to it. ( 8) The Dispute Resolution Panel may confirm, reduce or enhance the variations proposed in the draft order so, however, that it shall ot set aside any proposed variation or issue any direction under sub-section (5) for further enquiry and passing of the assessment order. ( 9) If the members of the Dispute Resolution Panel differ in opinion on any point, the point shall be decided according to the opinion of the majority of the members. ( 10) Every direction issued by the Dispute Resolution Panel shall be binding on the Assessing Officer. ( 11) o direction under sub-section (5) shall be issued unless an opportunity of being heard is given to the assessee and the Assessing Officer on such directions which are prejudicial to the interest of the assessee or the interest of the revenue, respectively. ( 12) o direction under sub-section (5) shall be issued after ine months from the end of the month in which the draft order is fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 assessment order before the CIT (Appeals). Once the option of filing an objection against the draft assessment order before the DRP has been exercised, the assessee cannot withdraw the objection and opt for the ormal channel of filing appeal before CIT (Appeals). [Emphasis supplied] 13. From the aforesaid para 45.4 of the CBDT Circular o. 5/2010, it is crystal clear that in case the assessee does ot file objection, the AO shall pass the assessment order and thereafter the assessee can file an appeal against such assessment order before the ld. CIT(A). In the present case also the assessee did ot file any objection before the DRP and filed the appeal before the ld. CIT(A), since it was the choice of the assessee as to whether to file an objection before the DRP or to pursue the ormal channel of filing appeal against the assessment order before the ld. CIT(A). Therefore, the appeal filed by the assessee before the ld. CIT(A) was maintainable. 14. In view of the aforesaid di ..... X X X X Extracts X X X X X X X X Extracts X X X X
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