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TMI Blog2023 (11) TMI 998X X X X Extracts X X X X X X X X Extracts X X X X ..... as under :- "Hitachi Astemo Haryana Private Limited (formerly Showa India Private Limited) (hereinafter referred to as 'Hitachi Astemo or 'Appellant') craves leave to prefer an appeal against the order passed by the National Faceless Assessment Centre, Delhi [hereinafter referred to as "NFAC" or "AO"] pursuant to directions issued by the Hon'ble Dispute Resolution Panel [hereinafter referred to as 'DRP'] under Section 143(3) read with Section 144C(13) and Section 1448 of the Income-tax Act, 1961 (hereinafter referred to as the 'Act') on the following grounds 1 On the facts and circumstances of the case, the final assessment order is bad in law and void as it does not conform to binding directions of Id. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith the provisions of the Act read with the Income Tax Rules, 1962, for determination of the Arm's length price using Comparable Uncontrolled Price ('CUP') method as the most appropriate method. 9. Without prejudice to any of the grounds, the Ld. AO/NFAC//TPO/DRP has erred in law and on facts by selecting comparable agreements based on inconsistent, inappropriate and unreasonable criteria. GROUNDS PERTAINING TO PENALTY PROCEEDINGS 10 That on acts and In laws, the Ld AO!. FAC / TPO / DRP erred in holding that the Appellant has furnished Inaccurate particulars of income in respect of each item of disallowance/ additions and in initiating penalty proceedings under section 270A of the Act." 3. At the outset, ld. Counsel of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rection passed by the TPO is also dated 30.03.2022, the same was not received by the AO. AO could not incorporate the same in the assessment order. However, he passed the order subject to the modified order of the TPO which is yet to be passed and the necessary modification with regard TP adjustment which would be made by passing rectification order on receipt of the TPO order in due course. Thus, in the above facts, it is emanating that the final assessment order is without incorporating of DRP's directions. As stated above, the reason is that DRP has given certain directions which were to be given effect by the TPO. The AO till passing the final assessment order has not received the order giving effect by the TPO. In this regard, stating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se laws cited are similar. AO in these cases passed the order without incorporating the DRP's direction. In all the above cases, the Hon'ble High Courts did not quash the entire proceedings and only the final assessment order along with the demand notice were set aside and proceedings restored to the level of DRP/AO. He reiterated that even though the assessment orders have been passed without incorporating the DRP's directions and in complete violation of mandatory procedure u/s 144C of the Act, but still the Hon'ble jurisdictional High Court did not treat it as fatal error which cannot be corrected. Ld. DR for the Revenue further pleaded that from the orders of Hon'ble High Court, it can be inferred that the Hon'ble High Court treated it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 144C of the Act. Thereafter, it was directed that the assessment order shall be passed in accordance with the procedure stipulated under section 144B(1) as well as section 144(C) of the Act. 7.2 In the case of Fibrehome India Pvt. Ltd. (supra) also, the final assessment order was passed without incorporating the directions of the DRP. In that case also, Hon'ble jurisdictional High Court remitted the matter to DRP keeping in view of the scheme of section 144C of the Act. In this decision, Hon'ble jurisdictional High Court inter alia referred to the decisions of Hon'ble jurisdictional High Court in the cases of Anand NVH Products Pvt. Ltd. and SRF Ltd. (supra). 8. Thus, from the above reading of Hon'ble jurisdictional High Court deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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