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TMI Blog2021 (9) TMI 1460X X X X Extracts X X X X X X X X Extracts X X X X ..... DRP has no power to condone the delay in filing objections by the assessee before the Panel. ITAT power to hold that the assessment order is barred by limitation - In this case, the final assessment order dated 30.09.2016 was not pursuant to the direction of DRP. Therefore, the correct course open for the assessee would have been to file an appeal before the CIT(A) and pursue the said issue. The Hon ble Madras High Court in the case of Inno Estates (P.) Ltd [ 2018 (9) TMI 222 - MADRAS HIGH COURT] had also decided the above issue indirectly. In the case considered by the Hon ble High Court, the Advocate for the assessee submitted that the appeal would lie to the ITAT u/s 253(1)(d) of the I.T.Act and not before the CIT(A) u/s 246(1)(a) of the I.T.Act. This contention of the Advocate was rejected by the Hon ble Madras High Court. The Hon ble Madras High Court directed the assessee to file an appeal to the CIT(A) instead of ITAT The plea of the assessee that the assessment order is barred by limitation, is not entertained on account of the reason that ITAT does not have jurisdiction for the same. Tribunal in the case of Yokogawa India Ltd. [ 2021 (4) TMI 151 - ITAT BANGALORE] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its Associate Enterprises (AEs) on a cost plus mark up basis. During the course of assessment proceedings, the matter was referred by the Assessing Officer (AO) to the Transfer Pricing Officer (TPO) to determine the ALP of the international transactions undertaken by the assessee with its AEs. The TPO passed order dated 20.01.2016 u/s 92CA of the I.T.Act. The TPO made a transfer pricing adjustment of Rs.1,06,63,109. Pursuant to the TPO s order, the A.O. passed a draft assessment order on 23.02.2016. The assessee filed objections dated 30.03.2016 before the DRP. Since the assessee s objection had to be filed within 30 days from the date of receipt of the draft assessment order and since the assessee s objection was belatedly filed before the DRP by 3 days, the DRP rejected the objections of the assessee in limine by stating that the DRP does not have power to condone the delay in filing the objections by the assessee before the Panel. Pursuant to the DRP s rejection of objections, final assessment order was passed on 30.09.2016. 4. Aggrieved, the assessee preferred an appeal to the ITAT. The learned AR has filed paper book-I enclosing therein the objections filed before the DRP, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erives its authorities and powers from the provisions of section 144C of the I.T.Act and its procedures are governed by Income Tax (Dispute Resolution Panel) Rules, 2009. The provisions of the Act or Rule do not give power to the DRP to condone any delay in filing the objections by the assessee before the Panel. If the Legislature had intended to give such powers, it had been expressly implied as in the case of powers with the CIT(A) u/s 249(3) of the I.T.Act and ITAT u/s 253(5) of the I.T.Act. Therefore, we are of the view that the DRP does not have powers to condone the delay of filing objections by the assessee before the Panel. This view is also endorsed by the Hon ble Madras High Court in the case of Inno Estates (P.) Ltd. (supra) wherein it was held as follows:- 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. 6.2 In view of the aforesaid reasoning and the judgment of the Hon ble Madras High Court, we hold that the DRP ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ggrieved by any of the following orders may appeal to the Appellate Tribunal d) an order passed by an Assessing Officer under sub-section (3), of section 143 or section 147 or section 153A or section 153C in pursuance of the directions of the Dispute Resolution Panel or an order passed under section 154 in respect of such order. 21. An appeal from an assessment order under Section 143(2) of the 1961 Act lies before Appellate Commissioner of Income Tax, whereas an appeal from an order passed by an Assessing Officer under Section 143(3) or Section 147 or Section 153A or Section 153C in pursuance of the directions of the Dispute Resolution Panel lies before the Income Tax Appellate Tribunal. 22. The question before us is whether the order of assessment impugned is an order in pursuance of directions of the Dispute Resolution Panel. 23. In a case where objection is received, the Dispute Resolution Panel might issue such directions as it might think for the guidance of the Assessing Officer to enable him to complete the assessment [Section 144C(5)]. The directions referred to in Section 144C(5) of the 1961 Act are to be issued after considering (i) the draft order; (i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 144C(13) of the 1961 Act, is not an order in pursuance of the directions of the Dispute Resolution Panel, but an order of assessment simplicitor under Section 143(3) of the 1961 Act 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. 30. However, the time granted to the appellant by the learned Single Bench to file an appeal before the First Appellate Authority as against the impugned order passed by the second respondent is extended for a further period of four weeks from date. Needless to mention that it will be open to the appellant assessee to agitate all questions before the First Appellate Authority. 6.4 In the light of the aforesaid reasoning and the judgment of the Hon ble Madras High Court (supra), the plea of the assessee that the assessment order is barred by limitation, is not entertained on account of the reason that ITAT does not have jurisdiction for the same. The Bangalore Bench of the Tribunal in the case of Yokogawa India Ltd. v. ACIT (supra) relied by the assessee will not have application, sin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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