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TMI Blog2020 (12) TMI 855X X X X Extracts X X X X X X X X Extracts X X X X ..... sment order. It was held by the Hon'ble Supreme Court that the final assessment order which is passed without a draft assessment order depriving the assessee an opportunity of questioning the draft assessment order before the DRP is in contravention of the provisions of section 144C of the I.T. Act. Also see JCB INDIA LTD [ 2017 (9) TMI 673 - DELHI HIGH COURT ] . Appeal filed by the Revenue is dismissed. - ITA No. 2285/Bang/2019 - - - Dated:- 8-12-2020 - George George K., Member (J) And B.R. Baskaran, Member (A) For the Appellant : R. Premi, JCIT-DR For the Respondents : Tanamayee Rajkumar, Advocate ORDER George George K., Member (J) 1. This appeal at the instance of the Revenue is directed against CIT(A)' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aves leave to add, to alter or to delete any of the grounds that may be urged at the time of hearing of the appeal. 3. Brief facts of the case are as follow: The assessee is a company engaged in providing software development services to its AE. For the assessment year 2007-2008, the return of income was filed on 30.10.2007 declaring loss of ₹ 3,98,49,431. The assessment was completed vide order dated 28.10.2011 u/s. 143(3) r.w.s. 144C(1) of the I.T. Act, wherein the Transfer Pricing Adjustment u/s. 92CA of the I.T. Act of ₹ 4,60,42,886 was incorporated. The Dispute Resolution Panel (DRP) confirmed the TP adjustment. On appeal, the ITAT in IT(TP) A No. 1364/Bang/2011 (order dated 19.08.2016) set aside the issue of adjus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cements relied on by the CIT(A) in his impugned order. 6. We have heard the rival submissions and perused the material on record. Admittedly, in this case, subsequent to the ITAT's remand for re-determination of the ALP, the A.O. had merely incorporated the TP adjustment made by the TPO without passing a draft assessment order. The Hon'ble Delhi High Court in the case of Turner International India Pvt. Ltd. v. DCIT [ (2017) 398 ITR 177 (Delhi)] was considering a case, wherein the ITAT had set aside to the AO/TPO for redetermination of ALP and the AO in the said case had not passed a draft assessment order. In such circumstances, the Hon'ble Delhi High Court had held that final assessment order passed by the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gendum after the final assessment order was passed. Consequently, not only the final assessment order but also the corrigendum issued thereafter was challenged. Following the decision of the Andhra Pradesh High Court in Zuari Cement Ltd. v. Asst. CIT (supra) and a number of other decisions, the Madras High Court in Vijay Television P. Ltd. v. DRP (supra) quashed the final order of the Assessing Officer and the demand notice. Interestingly, even as regards the corrigendum issued, the Madras High Court held that it was beyond the time permissible for issuance of such corrigendum and, therefore, it could not be sustained in law. Recently, this court in ESPN Star Sports Mauritius S.N.C. ET Compagnie v. Union of India [2016] 388 ITR 383 (De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court in the case of DCIT v. Control Risks India (P.) Ltd. reported in 107 taxmann.com 83, had held that when TPO proposes additions to assessee's ALP, the AO is duty bound to pass a draft assessment order. It was held by the Hon'ble Supreme Court that the final assessment order which is passed without a draft assessment order depriving the assessee an opportunity of questioning the draft assessment order before the DRP is in contravention of the provisions of section 144C of the I.T. Act. The relevant finding of the Hon'ble Supreme Court reads as follow:- 7. That consequent upon an order of the TPO under Section 92CA(3) of the Act, it is incumbent upon the AO to pass a draft assessment order under Section 144C of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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