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TMI Blog2017 (11) TMI 1551X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-2017 - SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER For The Assessee : Shri Girish Dave For The Revenue : Shri Jayant Kumar ORDER PER RAMIT KOCHAR, Accountant Member This appeal, filed by the assessee, being ITA No. 4703/Mum/2013 for assessment year 2009-10, is directed against the appellate order dated 25-04-2013 passed by learned Commissioner of Income Tax (Appeals)-15, Mumbai (hereinafter called the CIT(A) ), for assessment year 2009-10, appellate proceedings had arisen before learned CIT(A) from the assessment order dated 29.12.2011 passed by learned Assessing Officer (hereinafter called the AO ) u/s 143(3) of the Income-tax Act, 1961 (hereinafter called the Act ). 2. The grounds of appeal raised by the assessee in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called the tribunal ) read as under:- The appellant objects to the appellate order dated 25 April 2013 passed by the Commissioner of Income tax (Appeals) - 15, Mumbai ['learned CIT(A)'] under section 250 of the Income Tax Act, 1961 ('the Act') and received on 6 May 2013 for the aforesaid ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said grounds, the learned AO / learned CIT(A) has erred in not granting the benefit of the variation / reduction of 5 percent from the arithmetic mean as provided in proviso to Section 92C(2) of the Act, while determining the arm's length price for the adjustments made to the international transactions of the Appellant. 4.3 The learned AO erred in initiating penalty proceedings under section 271(1)( c) of the Act. 4.4 The appellant submits that each grounds of appeal is without prejudice to one another. 4.5 The appellant craves leave to add, alter, amend, substitute and / or modify in any manner whatsoever all or any of the foregoing grounds of appeal at or before the hearing of the appeal. 3. The assessee has also raised additional grounds before the tribunal as under:- 1) On the facts and circumstances of the case and in law, the assessment order passed by the Assistant Commissioner of Income Tact-6(1) ( AO ) under section 143(3) of the Income Tax Act, 1961 (the Act) dated 29 December, 2011 is contrary to the provisions of law and void ab initio and therefore, is liable to be quashed. The A.O erred in passing assessment order u/s. 143(3) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al is adjudicated, the controversy between rival parties can be set right. The learned counsel for the assessee submitted and conceded that keeping in view peculiar factual matrix of the case, issue s arising out of this appeal need to be set aside and restored to the file of the A.O for denovo determination of the issue on merits in accordance with law which will sub-serve the interest of justice . Ld. CIT-DR on the other hand submitted that several opportunities were given to the assessee by the AO vide notices issued u/s. 143(2) dated 06.09.2010 along with notice u/s. 142(1) dated 06.09.2010 and also further notices dated 02.02.2011 and 19.07.2011 were also issued but the assessee did not co-operated with the AO and dragged the matter to the last stage when the assessment was getting time barred. The learned CIT-DR drew our attention to the various notices which are placed in paper book/ page no. 34 to 42 and it was submitted that detailed questionnaire were issued by the AO to the assessee but the assessee failed to give reply in time which led to the matter being dragged to the fag end when the assessment was getting time barred due to the limitation period, wherein the A.O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in this appeal on merits including making reference to TPO for determination of the ALP of the transactions with AE s. 5. We have considered rival contentions and have perused the material on record including orders of the authorities below and the cited case laws. We have observed that the assessee is engaged in the business of Manufacturing of Plastic Closures. We have observed that the A.O had passed an assessment order dated 29.12.2011 u/s. 143(3) wherein TP adjustments to the tune of ₹ 13,28,82,442/- has been made by the AO without referring the matter to TPO . The AO has however followed the TPO order for AY 2007-08 as a base for making TP additions for the impugned assessment year. We have observed that during the course of assessment proceedings u/s. 143(3) r.w.s 143(2), the A.O has issued notices u/s. 143(2) dated 06.09.2010 along with notices u/s. 142(1) dated 06.09.2010. Further notices u/s 142(1) were also issued on 02.02.2011 and 19.07.2011 . We have observed that the assessee has not given any reply to these notices which led to the dragging of the assessment proceedings close to the limitation period for framing assessment wherein the assessment was gettin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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