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TMI Blog2021 (12) TMI 545X X X X Extracts X X X X X X X X Extracts X X X X ..... e binding directions of the DRP which is a clear violation of the binding provisions of section 144C(13) of the Act. Therefore, in our humble opinion, the impugned assessment orders are non-est. We are of the further opinion that once the assessment orders have been held to be non-est, the ld. CIT could not have assumed jurisdiction u/s 263 of the Act over a non assessment order which can never be erroneous and prejudicial to the interest of the Revenue. The contention of the ld. DR that the Assessing Officer has followed the directions of the DRP but somehow over looked the directions issued. We are of the considered view that there is no choice given to the Assessing Officer to follow one part of the directions of the DRP and not to fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2014-15 framed u/s 263 of the Income-tax Act, 1961 [hereinafter referred to as 'The Act' for short]. 2. Since all these appeals pertain to same assessee and were heard together involving identical issue, these are being disposed of by this common order for the sake of convenience and brevity. 3. The sum and substance of the grievance of the assessee is that the ld. CIT erred in assuming jurisdiction u/s 263 of the Act since the assessment order framed u/s 147 r.w.s 143(3) r.w.s 144C(13) of the Act was neither erroneous nor prejudicial to the interest of the Revenue. 4. Briefly stated, the facts of the case are that the appellant company is a company incorporated under the laws of Korea and is engaged in the business of manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lary paid to the employees of the AE and applying a reasonable markup on such costs to determine the income of the PE in Indian jurisdiction. The factual history of the matter is in the assessment records with the AO. The panel accepts the same in view of the facts of the case. The action of the TPO/AO is upheld., subject to charge on the wages/remuneration paid to the seconded employees at the cost-plus margin of 20% on salary attributed to India operations (being a reasonable attribution basis the work performed for the AE-though the assessee seeks only 10%) and existence of PE conceded by the assessee The assessee has agreed to the issue of PE and the attribution because salary is charged to the PE. The rate offer is not reasonable as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(3) of the Act for Assessment Years 2004-05 to 2006-07, 2008-09 to 2010-11 and 2013-14 and 2014-15 are not only erroneous but also prejudicial to the interest of the Revenue and set aside all the assessment orders on the issue of attribution of income to Indian operation. 11. The representatives of both the sides were heard at length, the case records carefully perused. Judicial decisions relied upon were duly considered. 12. Before proceeding further, it would be necessary to understand the provisions of section 144C of the Act. Section144C(1) read as under: 144C. (1) The Assessing Officer shall, notwithstanding anything to the contrary contained in this Act, in the first instance, forward a draft of the proposed order of assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 92CA. For this class of assessees, it prescribes a collegium of three commissioners, once objections are preferred. Dispute Resolution Panel's powers are co-terminous with the CIT(A), including the power to confirm, reduce or enhance the variation proposed and to consider the issues not agitated by the Assessee in the objections. In fact, under section 144C, the Dispute Resolution Panel can issue directions as it thinks fit for the guidance of the Assessing Officer to enable him to complete the assessment and the Dispute Resolution Panel can confirm, reduce or enhance the variations proposed in the draft order. It is specifically stipulated in Section 144C that every direction issued by the Dispute Resolution Panel shall be binding on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction u/s 263 of the Act over a non assessment order which can never be erroneous and prejudicial to the interest of the Revenue. 17. The contention of the ld. DR that the Assessing Officer has followed the directions of the DRP but somehow over looked the directions issued. We are of the considered view that there is no choice given to the Assessing Officer to follow one part of the directions of the DRP and not to follow the other part. 18. Now the query arises as to whether the assessee can challenge the validity of the assessment order in collateral proceedings u/s 263 of the Act. In our considered opinion, the assessee can challenge the validity of the assessment order in the collateral proceedings u/s 263 of the Act since ..... X X X X Extracts X X X X X X X X Extracts X X X X
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