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TMI Blog2018 (9) TMI 222X X X X Extracts X X X X X X X X Extracts X X X X ..... te Resolution Panel beyond the stipulated time of thirty days from the date of receipt of the order, there is no objection before the Dispute Resolution Panel in the eye of law. An order of rejection of an objection on the ground of the same being barred by limitation is not a direction under sub-section 5 read with sub-section 6 to Section 144C. Though the impugned order dated 10.11.2016 rejecting the objection on the ground of the bar of limitation is captioned as a direction under Section 144C(5)is not in fact a direction under Section 144C(5). The quoting of a wrong provision in an order is a mistake apparent on the face of the record and, therefore, inconsequential. The impugned assessment order though stated as an order under Section 143(3) r.w.s. 144C(13) is not an order in pursuance of the directions of the Dispute Resolution Panel, but an order of assessment simplicitor under Section 143(3) from which an appeal would lie to the Commissioner (Appeals). The learned Single Judge rightly dismissed the writ petition and remitted the appellant to his remedy of appeal before the first appellate authority. The time granted to the appellant by the learned Single Bench to file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rable uncontrolled price method; (ii) resale price method; (iii) costs plus method; (iv) profit split method; (v) transactional net margin method, or any other method as may be prescribed by the Board. The most appropriate method is to be applied for determination of ALP, in any manner as may be prescribed. The proviso makes an exception, where the variation between the ALP determined and the price at which the international transaction has actually been undertaken does not exceed 3%. In such a case, the latter, i.e., price at which the international transaction has actually been undertaken, might be notified. 6. Section 92CA of the 1961 Act provides for reference to the Transfer Pricing Officer for computation of the ALP in relation to the international transaction with previous approval of the Principal Commissioner or Commissioner. Sub-section 3 to Section 92CA requires the Transfer Pricing Officer to determine the ALP by an order in writing. Such order in writing has to be made within the prescribed period of limitation. Under sub-section 4 to Section 92CA, on receipt of an order of the Transfer Pricing Officer, the Assessing Officer is to proceed to compute the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the proposed order of assessment (hereafter in this section referred to as the draft order) to the eligible assessee if he proposes to make, on or after the 1st day of October, 2009, any variation in the income or loss returned which is prejudicial to the interest of such assessee. (2) On receipt of the draft order, the eligible assessee shall, within thirty days of the receipt by him of the draft order,- (a) file his acceptance of the variations to the Assessing Officer; or (b) file his objections, if any, to such variation with,- (i) the Dispute Resolution Panel; and (ii)the Assessing Officer. (3) The Assessing Officer shall complete the assessment on the basis of the draft order, if- (a) the assessee intimates to the Assessing Officer the acceptance of the variation; or (b) no objections are received within the period specified in sub-section (2). (4) The Assessing Officer shall, notwithstanding anything contained in section 153 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e month in which the draft order is forwarded to the eligible assessee. (13) Upon receipt of the directions issued under sub-section (5), the Assessing Officer shall, in conformity with the directions, complete, notwithstanding anything to the contrary contained in section 153 or section 153B, the assessment without providing any further opportunity of being heard to the assessee, within one month from the end of the month in which such direction is received. (14) The Board may make rules for the purposes of the efficient functioning of the Dispute Resolution Panel and expeditious disposal of the objections filed under sub-section (2) by the eligible assessee. (14A) The provisions of this section shall not apply to any assessment or re-assessment order passed by the Assessing Officer with the prior approval of the Principal Commissioner or Commissioner as provided in sub-section (12) of section 144BA. (15) For the purposes of this section,- (a) Dispute Resolution Panel means a collegium comprising of three Principal Commissioners or Commissioners of Income-tax constituted by the Board for this purpose; (b) eligible assessee means,- (i) any per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ess and surcharge and interest was assessed at ₹ 1,76,13,094/-. After adding recoverable interest of ₹ 19,669/-, there was a tax demand of ₹ 1,76,32,760/- which has been challenged in this Court by filing the aforesaid writ petition. 18. The Revenue took an objection to the writ petition on the ground of existence of an alternative remedy of appeal. The learned Single Bench, as observed above, has dismissed the writ petition and remitted the appellant to its alternative remedy of appeal before the learned First Appellate Authority, being the Commissioner of Appeals. 19. It is well settled that this Court exercising jurisdiction under Article 226 of the Constitution of India does not adjudicate the correctness of an order of assessment. Though the order of the learned Single Judge dismissing the writ petition has been challenged in entirety, the learned counsel appearing on behalf of the appellant contends that an appeal would not lie to the First Appellate Authority under Section 246(1)(a) of the 1961 Act, but to the Income Tax Appellate Tribunal under the provisions of Section 253(1)(d) of the 1961 Act. 20. Section 253(1)(d) of the 1961 Act is set out he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the materials stipulated in Section 144C(6) and going through the exercise contemplated, inter alia, under Section 144C(7) of the 1961 Act. 27. As found by the Dispute Resolution Panel, an objection is to be filed by an aggrieved assessee within thirty days from the date of receipt of the draft assessment order. Dispute Resolution Panel has no power and/or authority and/or jurisdiction to condone the delay in filing the objection. 28. When an objection is filed before the Dispute Resolution Panel beyond the stipulated time of thirty days from the date of receipt of the order, there is no objection before the Dispute Resolution Panel in the eye of law. 29. An order of rejection of an objection on the ground of the same being barred by limitation is not a direction under sub-section 5 read with sub-section 6 to Section 144C of the 1961 Act. Though the impugned order dated 10.11.2016 rejecting the objection on the ground of the bar of limitation is captioned as a direction under Section 144C(5) of the 1961 Act, it is not in fact a direction under Section 144C(5). The quoting of a wrong provision in an order is a mistake apparent on the face of the record and, therefore, incon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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