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TMI Blog2022 (1) TMI 1243X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been made to various provisions of the Act as a result of insertion of section 144C in the Act. Such consequential amendments have been made to section 13 1, section 246A and section 253 of the Act. That however, no amendment is made in section 263 of the Act as a consequence of insertion of section 144C of the Act to deem such orders being capable of being revised. That therefore, the memorandum, circular, etc. support the Assessee s stand that once the Assessing Officer passes an order in accordance with the Directions issued by a superior authority (being DRP) the same cannot be revised by the CIT under section 263 of the Act Scheme of the Act itself does not provide any interference in the direction of the DRP as the law containing section 144C(13) directs that the AO shall pass an order inconformity with the directions of the DRP without providing any further opportunity of being heard to the assessee. When the Act itself provide, that order has to be passed by the AO without providing any opportunity to the assessee pursuant to the direction of the DRP, the direction given in this order u/s. 263 by the Ld.CIT to the AO to call for the details of allowability of various ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in initiating proceedings under section 263 of the Act. 1.1 The CIT has erred in holding that order passed by the Assessing Officer (hereinafter referred to as the 'learned AO') under section 143(3) read with section 144C(13) of the Act dated 27 September 2017 (hereinafter referred to as the Assessment Order) is erroneous and prejudicial to the interest of the Revenue; 1.2 The CIT has erred in not appreciating that where a legally permissible view is adopted while passing the Assessment order, the same cannot be considered as erroneous for the purpose of section 263 of the Act; 1.3 The CIT has erred in setting aside the Assessment Order with directions to the learned AO to make a fresh assessment and examine the taxability of the following issues: • Loss on transfer of retail loan portfolio amounting to INR 65,51,06,135; • Loss on sale of loan portfolios to asset reconstruction company amounting to INR 5,62,20,992; • Service tax credit written off amounting to INR 13,88,97,251; and • Disallowance related to Derivative Sales Credit (DSC) amounting to INR 3,68,30,713 Ground no 2 On the facts and in circumstances of the case in law, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances of the case and in law in holding that the learned AO has not examined the allowability of deduction pertaining to service tax written off amounting to INR 13,88,97,251 and, hence, the same is erroneous and prejudicial to the interest of the Revenue 5.1 The CIT erred in holding that the learned AO has not verified whether the deduction in respect of the service tax written off amounting to INR 13,88,97,251 is allowable under section 37 of the Act; and 5.2 The CIT erred in holding that the learned AO has not verified whether only unavailed credits of the year under consideration have been allowed or cumulative credits of various years has also been allowed. Ground no 6 Without prejudice to Ground nos 1 & 2 above, the learned CIT has erred in fact and in circumstances of the case and in law in holding that the learned AO has not examined the disallowance relating to DSC and, hence, the same is erroneous and prejudicial to the interest of the Revenue 6.1 The CIT erred in holding that the learned AO has not complied with the directions of the Joint Commissioner of Income-tax for verification of DSC claim of the Appellant; and 6.2 The CIT erred in holding that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced, including order passed by the Transfer Pricing Officer, draft order as provided under section 144C(1) of the Income Tax Act 1961 was prepared and sent to the eligible Assesses on 31M December 2016. The Assessee filed objection against the said draft order before the DRP-1, Mumbai. 6. On 6th September 2017, the DRP 1, Mumbai passed order under section 144C (5) of the Income? Tax Act 1961. The DRP-1, Mumbai, vide said order, directed the assessing officer to give effect to the directions contained in the said order. Effect to the directions of the DRP is given as under: 7. Adjustments made by the transfer pricing officer;- 7.1 Barclays Bank PLC had a number of international transactions with its associated enterprises. With respect to these transactions, the bank had submitted an audit report in Form No. 3CEB along with the return of income, which was forwarded to the Transfer Pricing Officer for computation of arm's length price vide letter dated 10.03.2016. The Transfer Pricing Officer has passed order under section 92 CA(3) of the Income-tax Act, 1961 dated 31sl October 2016 and made an adjustment of Rs, 83,04,bl,395. The details of adjustments are as under:- S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ivative products offered to clients typically include foreign exchange, interest rate and equity. The remittance made to Barclays UK is in relation to the origination, coordination and client relationship management activities undertaken with clients/prospective clients outside India, in respect of derivative products of the assessee. This payment for the said activities within the Barclays group is termed as Derivative Sales Credit (DSC). Barclays UK is remunerated for these activities as per the global transfer pricing policy followed by Barclays Group. Barclays UK performs the DSC activities in the ordinary course of its business. Further, we wish to submit that Barclays India also receives from Barclays UK the DSC in relation to the origination. Coordination/liaisoning and client relationship management activities undertaken by Barclays India with client/s prospective clients in India requiring exposure in UK or other overseas markets in respect of derivative products of Barclays UK. Accordingly, Barclays India would receive as well as pay DSC to Barclays UK. The revenue in the books of Barclays UK/India is booked on the basis of Estimated DayI P&L ie difference between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this issue. 8.6 Assessee filed objections before the DRP-1, Mumbai, disputing additions on the above issues. The DRP 1, Mumbai, vide order dated 6'" September 2017, passed under section 144C(5) of the Income Tax Act 1961, has dismissed and rejected all objections raised on the issue. In view of the statutory directions issued under section 144C{5) of the I.I. Act 1961, re computation of DCS expenses, and consequent upward adjustment to the total returned income, as made in the draft order, shall continue. Penalty proceedings initiated on this issue. 9. In view of the order passed under section 144C(1) followed by order passed under section 144C(5) of the I.T. Act 1961, total income, as provided under section 144C(13) read with section 1.43(3) of the Income Tax Act 1961 is computed and assessed as under: Particulars Amount (Rs.) Profits & Gains of Business/Profession as per Profit and Loss Account. -563,809,000 Add; Inadmissible items 5,795,104,378 Less: Admissible Items{without considering deduction under section 36(i)(vii)(a) and section 44C of the Act) -4,524,893,777 Less; Deduction under section 80 G -1,206,122 Add: Total Business Income 705,195,479 A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ), the bank decided not to originate any retail loans pertaining to the retail banking division with effect from 07.12.2011 till the finalisation of a new strategy and focused on servicing the existing retail loans portfolio. Based on a strategic review, during the year, management decided to dispose portfolio comprising of personal instalment loans, business instalment loans, home loans and loans against property. These were sold to unrelated third party banks and not to any Asset Reconstruction Companies. As these loans were purchased by the third party bank, it clearly indicates that these loans were live and recoverable and capable of earning profit. The net loss on account of transfer of the these loans of Rs. 65,51,06,124/- has been debited to the Profit and loss account as loss on disposal of assets. From the records it is seen that the assessing officer had not made any enquiry regarding the loss of Rs.65,51,06,124/- claimed by the assessee. There is no submission of the assessee on record regarding the same except the notes to the financial statements. Further, it is also noticed that the assessee has made sale of the loan portfolio business as one time basis, therefore th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank, wherein he observed that no evidence or supporting documents has been produced by the assessee Bank before him to establish its claim that the transactions in respect of the Indian clients actually originated from UK and Barclays Bank PLC UK referred these case to the assessee bank. The JCIT(11)- 1(2), Mumbai has also directed the AO to ask the assessec to furnish the details in respect of Sale of the Derivative Products for A.Y. 2013-14 in respect of Indian clients with details, production Description, Date of Sale, Amount received and Mode of Payment including the Modus Operandi. Further, he has also directed the AO to take into the consideration of the contents of the letters forwarded to him by the ITO (LT)-1(2)(2), Mumbai dated 09.11.2016 & 11. 11.2016 after verification of DSC Payment from the Form 15CA/CB filed the assessee.Ori a perusal of the draft assessment order, it is seen that although the directions in the order u/s 144A has been made a part of the draft order, no cognizance of the actual directions have been taken. The AO has not verified the claim of the assessee with cogent evidences to corroborate that:- a) The transactions in respect of the Indian clien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepts what the assessec has stated in his return or where he fails to make the requisite enquiries or examine the genuineness of the claim called for. In this case the Assessing Officer merely on the basis of the submissions made by the assessee has passed the assessment order without examining the nature and details of each transactions and the basis of various deductions claimed in the ROt like loss claimed for bad and doubtful debts, the genuineness of the loan portfolio sold to third parties claimed as Bad debts. Further the assessee has sold loan portfolio business as one time sale. The AO has not examined the nature of the said business and has simply accepted the submissions made by the assessee. The assessee has claimed deduction on loss on account of sale of loan to Asset Reconstruction Companies. The nature of such claim is not examined by the A.O. The A.O has allowed deduction u/s 37 for services tax written off without verifying the claim of assessee. The A.O has also failed to examine the incorrect claim of derivative sales credit DSC and has passed the assessment order without conducting any independent enquiry regarding the details of the above claims made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gro Suppliers 100 TTJ 405(Pune)-No enquiry regarding expenditure etc. Mere filing of explanation does not indicate application of mind-Acceptance of explanation without enquiryRevision justified. 11.9. In the case of Shyarn Telelink Ltd vs ITO(2006) 101 TTJ 387(Del)Failure on the part of the AO to make necessary enquiries on certain important points connected with the assessment would certainly make the order erroneous. 11.10. In the case of ITO vs KJMC Capital Market Services Ltd(2006) 156 Taxman 187(Mum)-Order passed by the AO is rendered erroneous if he initiates an enquiry but abandons same half way or does not make requisite enquiries necessary for examination of claim under relevant provisions of law or does not judicially evaluate results of enquiries, 263 was rightly invoked. 11.11. Thus, the legal contentions of the assessee against the revision u/s.263 are not tenable. 8. Thereafter ld CIT held that each of the issues of assessment have been examined in detail as to whether they are actually erroneous and prejudicial to the interest of Revenue. Thereafter he held as under :- "Issue 1: Disallowance u/s 36(1)(viia) As seen the assessee has claimed Loss on transfer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook place. The term 'slump sale' has been defined in Section 2(42C) of the Act as the transfer of one or more undertakings as a result of the sale for a lump sum consideration without values being assigned to the individual assets and liabilities in such sale. Further, the term 'undertaking' is defined in Explanation 1 to Section 2(19AA) of the Act, to include any part of an undertaking, or a unit or division of an undertaking or a business activity taken as a whole but does not include individual assets or liabilities or any combination thereof not constituting a business activity. In the case of Rohan Software Pvt. Ltd v ITO 304 ITR 314 (An (MUM) it has been held that the assessee had transferred its business including intellectual property, codes, formulae and designs, along with all the rights. However, it did not transfer all assets and liabilities pertaining to the undertaking The Hon'ble Income Tax Appellate Tribunal (Tribunal), Mumbal held that if the purchaser could carry on the business, which was carried by the seller prior to the business transfer, without acquiring all assets and liabilities of the undertaking, plea of the revenue that the sel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transaction as slump sale ant not itemised sale, one needs to consider the intention of the parties and facts and documents of each transaction. Even if liabilities are not transferred the transaction can be deemed to be a slump sale provided there is a transfer of an undertaking. In the case of a bank, the "retail loan portfolio" is a complete segment in itself. Media reports indicate that in December 2011, Barclays India decided to exit its retail business, a fact which has not been submitted by the assessee before the AO. Coupled with the fact that no valuation report has been furnished and that there is no iternised sale, it ought to have been examined by the AU whether this was one of slump sale. Nonexamination of this issue by the AU is not only erroneous but also prejudicial to the interests of Revenue. 15. Issue 3: Business Loans sold to ARC debited to P& L Account: It is observed that the assessee has sold loans to Asset Reconstruction Companies (ARC). The aggregate value of such loans in the books was Rs 20,94,91,000/-and the aggregate sale consideration of the said loan portfolio was Rs 15,32,70,000/- resulting in a net loss of Rs 5,62,21,000/. The asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the letter forwarded to him by 1TO(IT) 1(2)(2) Mumbai and the inputs in his letter dated 09.2016 and 11.11.2016 after verification of DSC payments from FORM No I 5CA/CB filed by the assessee. it is a matter of fact that (i) the AO has not fully complied with the directions of the JCIT: (ii) the A.O has not verified the claim of the assessee with cogent evidences to corroborate that (a) the transaction in respect of Indian clients actually originated from UK and Barclays UK referred these cases to Barclays India, (b) whether Barclays UK actually performed any service in respect of such clients other than merely referring them to the assessee, (c) whatever Services that Barclays UK performed can actually be termed as "technical Services". The submissions of the assessee has been carefully perused the fact remains the assessee has not been able to substantiate with evidences that the transaction actually originated in UK for the Indian clients. Whether Barclays has actually performed any service in respect of clients are not supported by any evidences. Further A.O has not examined whether the nature of services rendered by Barclays UK can be termed as "technical servic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned below: "Explanation 1. - For the removal of doubts, it is hereby declared that, for the purposes of this sub-section- (a) an order passed on or before or after the 1st day of June, 1988 by the Assessing Officer shall include- (b) (i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income-tax Officer on the basis of the directions issued by the Joint Commissioner under section 1444- (c) (7i) an order made by the Joint Commissioner in exercise of the powers or in the pemformance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by the Principal Chief Commissioner or Chief Commissioner or Principal Director General or Director General or Principal Commissioner or Commissioner authorised by the Board in this behalf under section 120;" (d) 1.3. From the above explanation, it can be seen that the orders passed by the Assessing Officer pursuant to the directions of a superior officer can be revised under section 263 only in cases covered by clause (1) of the Explanation Ito section 263 of the Act. (e) 1.4. Further, from the Finance Act, 2009, mem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 263 of the Act. In this regard it is submitted that the Kolkata bench of the Tribunal has not considered the decision of the Jurisdictional HC in the case of Virendra Kumar Jhamb v. N.K. Vohra (supra) as well as the fact that corresponding amendments were made in various sections when section 144C was inserted whereas no such amendment was made in section 263 of the Act. 2. DRP has power to consider all issues and, hence, no jurisdiction of CIT under section 263 of the Act. 2.1. The appellant submits that the order passed by the Assessing Officer merges into the order of the higher authority (DRP) and is deemed to become an order passed by the higher authority. The principle is statutorily accepted in Section 144C(13), wherein it is provided that upon receipt of the directions issued by DRP, the Assessing Officer shall, in conformity with the directions, complete the assessment without providing any further opportunity of being heard to the Appellant. 2.2.The power of the DRP is wide enough to even enhance the income computed by the Assessing Officer as can be seen from the Explanation to Section 144C(8) as provided below. "Explanation.-For the removal of doubts, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as being contrary to section 1 44C(1 3) of the Act. Therefore, there is no question of the PCIT holding that the final assessment Order is erroneous so as to come within the ambit of 263. The Appellant submits that the final assessment order can only be erroneous only when the Assessing Officer has not followed the mandate of section 144C(13) of the Act. 3.6. The Appellant submits that if the AO could not have directly made any change in the final assessment order after the direction of the DRP, then the PCIT also cannot indirectly make any change so as to circumvent the provision of section 144C(13) of the Act. Reliance in this regard is placed on the decision of the Apex Court in the case of Supertech Limited v Emerald Court Owner Resident Welfare Association and Ors. (MANU/SC/08643/2021) wherein the Apex Court after considering various decision has in para 12 held as under - "Further, it is a settled legal principle that one cannot do indirectly what one cannot do directly [" Quando aliquidprohibetur ex directo, prohibetur etper obiiquum 7. [Copy of the Supreme Court order is attached] 3.7. The Appellant submits that if at all, the PCIT could have revised the dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act on 30 March 2021 is invalid and cannot be sustained in law for the reason that the learned CIT does not have the power to revise the order passed by the Assessing Officer in conformity with the directions of the DRP under section 144C of the Act using his revisionary powers under section 263 of the Act. 11. The Ld.CIT-DR has made following submission :- This is an appeal by the assessee against the order u/s 263 of the CIT. This case was fixed for hearing on 04.10.2021 before the Hon'ble ITAT. The Hon'ble Bench directed the Ld. AR and DR to address it on the short issue of whether proceeding u/s.263 of the I.T. Act can be initiated when the assessment order is passed u/s. 143(3) r.ws.144C(13) on the direction of the DRP. It was further indicated that if the Hon'ble Bench is able to come to the conclusion that this ground can be allowed, the other grounds will not be adjudicated as infructuous and that in case the conclusion is that this ground cannot be allowed then the case will be fixed for arguments to be heard in respect of the other grounds of this appeal of the assessee. Hence I am only addressing this limited legal issue. 2. The scope of sec. 263 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall be deemed always to have extended to such matters as had not been considered and decided in an appeal. Accordingly, even in respect of the aforesaid three items, the powers of the CIT under s. 263 shall extend and shall be deemed always to have extended to them because the same had not been considered and decided in the appeal filed by the assessee. This is sufficient to answer the question which has been referred. 8. The question referred is, therefore, answered in the negative, in favour of the Revenue and against the assessee." 5. This decision has been followed by several High Courts since then. In CIT vs Indo Persian Rugs 299 ITR 300(All) and CIT v Span International 270 ITR 538 (All), following the Apex Court decision in the case of CIT vs. Shri Arbuda Mills Ltd. (supra), it was held that power of CIT will extend to the matters not considered by the CIT(A), post amendment in 1988. 'Held In view of amendment of s. 263(1) Expln.(c) by the Finance Act, 1989, Tribunal was not justified in holding that since an appeal had been filed against the assessment order, CIT had no power to revise the order under s. 263.' 6. Similar is the decision in the case rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of the DRP may not be appropriate. At the same time, one cannot lose sight off, of a statutory provision like section 263 unless and until section 263 prohibits to examine the final assessment order, pursuant to the DRP decision. One cannot go beyond the statutory provision and so also 'read' or 'add' words by the Courts while interpreting a statutory provision. Time and again, Supreme Court and other Courts have held that in a matter of interpretation of statutory provisions, Court cannot 'add any words or sentence'. Even if there is any ambiguity, at the best Court can read down or struck down such statutory provision. In the present case, reading of section 263, it is crystal clear that there is no bar for the Principal Commissioner to invoke section 263 in order to examine the final assessment order passed by the Assessing Officer pursuant to the DRP decision. [Para 18] 12. It may be pointed out that the Hon'ble High Court has considered the judicial decisions holding that when a statute vests certain power in an authority to be exercised in a particular manner then the only that said authority has to exercise it and only in the manner provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the basis of the directions of the Dispute Resolution Panel(DRP). 15. We may gainfully refer to the provision of section 263 in this regard. "263. (1) The Principal Commissioner or Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the [Assessing] Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. Explanation 1.-For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,- (a) an order passed [ on or before or after the 1st day of June, 1988] by the Assessing Officer shall include (i) an order of assessment made by the Assistant Commissioner [or Deputy Commissioner] or the Income tax officer on the basis of the directions issued by the [Joint] Commissioner under section 144A. (ii) an order made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment order passed pursuant to the direction of DRP u/s. 144(3) is being revised by Ld.CIT. Ld. Counsel of the assessee in this regard submits that from the Finance Act, 2009, memorandum explaining the rationale behind the insertion of section 144C of the Act by the Finance Bill, 2009 as also the CBDT Circular No. 5 of 2010 dated 3 June 2010 issued explaining the said insertion, the notes on clauses, etc., it can be seen that consequential amendments have been made to various provisions of the Act as a result of insertion of section 144C in the Act. Such consequential amendments have been made to section 13 1, section 246A and section 253 of the Act. That however, no amendment is made in section 263 of the Act as a consequence of insertion of section 144C of the Act to deem such orders being capable of being revised. That therefore, the memorandum, circular, etc. support the Assessee's stand that once the Assessing Officer passes an order in accordance with the Directions issued by a superior authority (being DRP) the same cannot be revised by the CIT under section 263 of the Act. The above submission has sufficient cogency as our following discussion will further oxygenate the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be made by any income-tax authority and report the result of the same to it. (8) The Dispute Resolution Panel may confirm, reduce or enhance the variations proposed in the draft order so, however, that it shall not set aside any proposed variation or issue any direction under sub-section (5) for further enquiry and passing of the assessment order. [Explanation.-For the removal of doubts, it is hereby declared that the power of the Dispute Resolution Panel to enhance the variation shall include and shall be deemed always to have included the power to consider any matter arising out of the assessment proceedings relating to the draft order, notwithstanding that such matter was raised or not by the eligible assessee.] (9) If the members of the Dispute Resolution Panel differ in opinion on any point, the point shall be decided according to the opinion of the majority of the members. (10) Every direction issued by the Dispute Resolution Panel shall be binding on the Assessing Officer. (11) No direction under sub-section (5) shall be issued unless an opportunity of being heard is given to the assessee and the Assessing Officer on such directions which are prejudicial to the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nstituted by the Board for this purpose; (b) "eligible assessee" means,- (i) any person in whose case the variation referred to in sub-section (1) arises as a consequence of the order of the Transfer Pricing Officer passed under sub-section (3) of section 92CA; and (ii) any non-resident not being a company, or any foreign company.] 18. A reading of the said section brings to the fore following:- The assessee has option to go to the DRP by filing objection before it. As per the provisions of section 144C(5) of the Act, the Dispute Resolution Panel (DRP) shall in a case where any objection is received under sub-section (2), issue such directions, as it thinks fit, for the guidance of the Assessing Officer to enable him to complete the assessment. Further, the provisions of sub-section (7) of section 144C empowers the DRP to make any further enquiry or cause any further enquiry to be made by the Income-tax authority as it thinks fit. Explanation to sub-section (8) of section 144C duly provides that DRP has power to enhance the variation and the power includes to consider any matter arising out of the assessment proceedings relating to the draft order, notwithstandi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... call for the details of allowability of various deductions claimed by the assessee, in light of the observations discussed by him is quiet contrary to the sanguine provisions of law. Even otherwise, the order passed by the Ld.CIT is an exercise in futility inasmuch as, if the AO proceeds to pass an order by giving the assessee an opportunity of being heard, the same will be against the mandate of section 144C(13). Furthermore, it is also settled law that in assessment u/s. 144C, AO has to invariably pass a draft assessment order and give the same to the assessee for filing objection before DRP. Hence, the direction by the Ld.CIT to the AO to pass an order by-passing the provisions of passing the draft assessment order is also not sustainable in law. 20. Now, we examine the constitution of DRP. As evident from the above, the DRP constitutes a collegium comprising of three Principal Commissioners or Commissioners of Income-tax, the directions given by them is binding upon by the AO. Hon'ble Bombay High Court in the case of Vodafone India Services Pvt.Ltd. vs Union of India & Others 2013 SCC online Bom 1534 has expounded upon the proceedings at DRP as under:- "The proceeding befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssion and case laws, the case laws referred by the Ld.CIT-DR are not applicable on the facts of the case. As, we have already noted that the submission of Ld.CIT-DR are at variance with the exposition by Hon'ble Bombay High Court in Vodafone India Services Pvt.Ltd.(supra). The Ld.CIT-DR in his submission has emphasized that proceeding before DRP is akin to appeal before Ld.CIT(A). This is quiet contrary to the Hon'ble Bombay High Court exposition noted above and the other decisions of Hon'ble Jurisdictional High court referred above. 25. The case of Devas Multimedia Pvt.Ltd.(supra) by the Hon'ble Karnataka High Court was in connection with the writ petition filed by the assessee, where assessee has objected to the notice issued u/s. 263 of the Act. Furthermore, Hon'ble High Court has expounded that writ court cannot examine the validity of notice on merits. Furthermore, the said decision has distinguished following decision of Hon'ble Bombay High Court, i) Vodafone Services Pvt.Ld.(supra) wherein Hon'ble Bombay Court has expounded that proceedings before the DRP is not an appeal proceedings, but correction mechanism in the nature of a second look at the proposed assessment order b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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