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TMI Blog2023 (5) TMI 1044X X X X Extracts X X X X X X X X Extracts X X X X ..... ment order sought to be appeal against is void and hence liable to be set aside. Decided in favour of assessee. - ITA No. 358/Ahd/2022 - - - Dated:- 8-5-2023 - Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member For the Assessee : Ms. Chandni Shah, A.R. For the Revenue : Shri Sudhendu Das, CIT-D.R. ORDER PER : SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER:- This is an appeal filed by the assessee against the order of the National Faceless Appeal Centre (NFAC), Delhi, in proceeding u/s. 143(3) r.w.s. 144C(13) r.w.s. 144B vide order dated 25th July, 2022 passed for the assessment year 2017-18. 2. The assessee has taken the following grounds of appeal: Each of the grounds of the appeal are independent and without prejudice to the others: General Ground 1. On the facts and in the circumstances of the case and in law, the Learned Dispute Resolution Panel erred in confirming the addition proposed by the Learned. Assessing Officer (Ld. AO)/ Learned Transfer Pricing Officer (Ld. TPO) of INR 16,93,08,9877- to the income of the- Appellant. The Appellant prays that the assessment proceedings be held as bad in law and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred in disregarding the transfer pricing benchmarking analysis carried out by the Appellant in relation to the international transaction of the provision of software development services to its Associated Enterprises ('AEs'). The Appellant prays that the Ld. TPO be directed to accept the transfer pricing benchmarking analysis conducted by the Appellant be accepted and consequently the TP adjustment be deleted. 6. On the facts and in the circumstances of the case, and in law, the Ld. AO / Ld. TPO, following the directions of Ld. DRP, has erred in applying / modifying certain filters while undertaking the transfer pricing benchmarking analysis. In doing so, the Ld. DRP/ Ld. AO/ Ld. TPO has rejected functionally comparable companies and accepted certain functionally dissimilar companies. The Appellant prays that the filters applied / modified by the Ld. TPO be rejected and the transfer pricing benchmarking analysis conducted by the Appellant be accepted and consequently the TP adjustment be deleted. 7. On the facts and in the circumstances of the case, and in law, the Ld. AO / Ld. TPO, following the directions of Ld. DRP, has erred in applying a turnover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellant while determining the arm's length price of the impugned international transaction. The Appellant prays that the Ld. TPO be directed to grant the working capital adjustment sought by the Appellant. 13. On the facts and in the circumstances of the case and in law, Ld. AO / Ld. TPO, following the directions of Ld. DRP, have erred in not granting the economic adjustment with respect to differences on account of risks assumed and differences in functional profile between the comparables companies vis-a-vis the Appellant while determining the arm's length price of the impugned international transaction. The Appellant prays that the Ld. TPO be directed to grant the risk adjustment sought by the Appellant. Corporate Tax Additions 14. On the facts and in the circumstances of the case and in law, the Ld. AO, following the directions of Ld. DRP, erred in applying the rate of depreciation on computer software of 25% instead of 60% and thereby, disallowing the depreciation of INR 7,51,921 claimed in the return of income. The Appellant prays that the Ld. AO be directed to allow the entire claim of depreciation on computer software and the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Appellant prays that the Ld. AO be directed to drop the penalty proceedings under section 270A of the Act. 3. The brief facts of the case are that the assessee filed return of income for ₹ 43,92,20,220/- for the impugned assessment year and the assessing officer proposed addition of ₹ 16,93,08,987/- to the total income of the assessee by way of adjustment to the arm s-length price u/s 92CA of the Act. The assessee preferred objections before DRP who dismissed the objections filed by the assessee. The assessee is in appeal before us against the order passed by DRP/ Final assessment order. 4. At the outset, the Ld. Counsel for the assessee challenged the validity of order passed by DRP on the ground that the TPO had passed order on a non-existent entity. The Ld. Counsel for the assessee submitted that Allscripts India Private Limited (AIPL) was a Private Limited company incorporated in 1988. During Financial Year 2016-17 relevant to assessment year 2017-18, AIPL was converted into Limited Liability Partnership (LLP) on 21 March 2017. The assessee had brought this fact to the notice of the Ld. Assessing Officer (ACIT Circle-1(1)(1), Vadodara) vide letter dated 12 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings based on such an invalid draft assessment order were void ab initio and deserved to be quashed. In the case of BOEING India (P.) Ltd. v. ACIT 121 taxmann.com 276 (Delhi - Trib.) , the ITAT held that where draft assessment order under section 144C was passed in name of amalgamated company which was non-existent company, said order was void ab initio. In the case of PCIT v. Maruti Suzuki India Ltd107 taxmann.com 375 (SC) , the Hon'ble Supreme Court held that where assessee company was amalgamated with another company and thereby lost its existence, assessment order passed subsequently in name of said non-existing entity, would be without jurisdiction and was to be set aside. In the case of Dimension Data Asia Pacific PTE Ltd. v. DCIT 96 taxmann.com 182 (Bombay) , the Hon'ble High Court held that where in case of foreign assessee, Assessing Officer passed final assessment order under section 144C(13), read with section 143(3) without passing a draft assessment order under section 144C(1), said order being violative of provisions of section 144C(1), deserved to be set aside. In the case of Vedanta Ltd. v. ACIT 126 taxmann.com 283 (Delhi - Trib.) , the ITAT held that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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