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TMI Blog2021 (1) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... as much as neither any proceedings were pending before the Assessing Officer nor any approval of the Commissioner or the Principal Commissioner of the Income Tax was taken in the present case. Once we come to conclusion that the assumption of jurisdiction for making a reference to TPO itself was vitiated in law, no other valid legal consequences can flow from the same. The conclusions arrived at by the learned CIT(A), therefore cannot be faulted. We therefore, confirm the well reasoned conclusion arrived at by the learned CIT(A) decline to interfere in the matter. - ITA No. 4639/Mum/2016 - - - Dated:- 4-1-2021 - Pramod Kumar (Vice President) And Saktijit Dey (Judicial Member)] Lovish Kumar for the appellant Madhur Agarwal for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the TPO and the AO. v) Whether on the facts and in the circumstances of the case and in law, the Id. CIT(A) is justified in not appreciating the fact that AO had giving a copy of order u/s 92CA(3) of the Act and provided opportunity to the assessee to furnish an explanation as to why the addition proposed by the Transfer Pricing Officer should not be made in the assessment order for which the assessee has not raised any objection at the assessment stage . 3. To adjudicate on this appeal only a few material facts need to be taken note of. The assessee before us is a manufacture and exporter of diamond studded gold jewellery and had entered into certain international transaction. The case of the assessee was not selected for any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erence from the AO was received on 19.10.2007. Naturally this cannot have been in response to the return filed in response to notice u/s 147. The notice u/s 147 is issued almost 5 months after the TPO order is passed. The argument of the appellant is that the AO needed to take previous approval of the Commissioner before referring the it to the TPO and that the same has not been done. The section as it stood in 2009-10 is reproduced here: (1) Where any person, being the assessee, has entered into an international transaction for specified domestic transaction) in any previous year, the assessing officer considers it necessary or expedient so to do, he may, with the previous approval of the Commissioner, refer the computation of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commissioner's approval referring the case to the transfer pricing officer was found to be available and therefore she sent a request to the transfer pricing officer 3 (2)-2, Mumbai for providing a copy of the approval letter if any available on their records. In response the transfer pricing officer has sent a letter dated 28 May 2010 written by the then additional Commissioner of income tax transfer pricing to-(3), Mumbai to the Additional Commissioner of Income tax Range 20 (2) Mumbai wherein he clearly states that .. If you still feel that the case is to be referred to the TPO for determining the ALP, then a proper and valid reference is to be made after obtaining the approval of the honorable Commissioner of income tax in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner for referring the case to the transfer pricing officer. It is also an important fact of the case that in the assessment order against which the assessee is in appeal in the present instance while the AO mentions that the case was reopened by issuance of notice under section 148 however there is no mention as to the reasons for which the said notice has been issued. Interestingly in his letter dated 9th of June 2010 the ITO 20 (2) (2) returned to the Additional Commissioner of his range, the ITO mentions that since there were no negative remarks in the form number 3CEB considering the peculiar nature of business, the same has not been selected/ recommended for scrutiny and hence no approval of CIT obtained as the case was not selecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power to make any reference to the Transfer Pricing Officer. He further submits that in any event he did so without taking prior approval of the Commissioner or the Principal Commissioner of Income Tax and this is evident by the remand report submitted to the Commissioner of Appeals during the appellate proceeding. It is further submitted that the very foundation of the impugned assessment order vitiated in law and very assumption on jurisdiction in this case is wholly incorrect. 8. The learned counsel further submitted that once Transfer Pricing Officer reference is held to be invalid, no legally sustainable consequences can from the same, and, therefore, the reassessment proceedings must also be quashed. In any event he submits that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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