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TMI Blog2024 (2) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... draft Assessment Order. Hence, in view of the provisions of Section 144C(13)- [Upon receipt of the directions issued under sub-section(5), the Assessing Officer shall, in conformity with the directions, complete, notwithstanding anything to the contrary contained in section 153 [or section 153B], the assessment without providing any further opportunity of being heard to the assessee, within one month from the end of the month in which such direction is received.], the AO was not empowered to make any other addition which was not proposed in the draft Assessment Order an hence the order of the cannot be sustained. Appeal of the assessee is allowed - Shri Saktijit Dey, Vice President And Dr. B. R. R. Kumar, Accountant Member For the Assessee : Sh. Rajesh Dua, CA For the Revenue : Sh. Rajesh Kumar, CIT(DR) ORDER PER DR. B. R. R. KUMAR:- The present appeal has been filed by the assessee against the order of Assessing Officer dated 30.03.202 1 for the A.Y. 2016-17. 2. The assessee has raised the following grounds: A. General Grounds of Appeal 1. That the Transfer Pricing Order [ TP Order ] dated 26/09/2019 passed by the Transfer Pricing Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to such payment as the payment has been deposited before filing of Income Tax Return as per section 139(1) of the Act. 5.2 The Assessing Officer erred in disallowing the payment of Provident Fund and ESI without considering that out of the total amount of Rs 19.93,460/- A sum of Rs 11,22,959 was employer's contribution and Rs 8,70,501 was received from the employee's for their share of contribution. 6. The Assessing Officer erred in disallowing the expenditure incurred by the assessee amounting to Rs 4,08,267/- towards increase in capital. 7. The Assessing Officer erred in treating Rs 7,66,993 being the profit on sale of fixed assets as income from other source under section 56 of the Act. The Assessing Officer ignored the fact that the assets sold being the depreciable assets, the sale proceeds of the assets is required to be reduced from the WDV of the assets as per the provisions of section 43(6) of the Act, which the assessee has duly done following the provisions of section 43(6). D-Other Grounds 8. Levy of Interest U/s 234B, 234C and 234D of the Income Tax Act 1961 The AO/DRP/National e-Assessment Center New Delhi erred in charging of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 30/03/2021 without first proposing the additions in the Draft Assessment Order u/s 144C. It was argued that this action of AO/NeAC have effectively prevented the assessee from filling an objection before the Dispute Resolution Panel. 8. The Finance (No. 2) Act 2009 inserted the provisions of section 144C in the statute book the scheme of reference to DRP in the case of an eligible assessee. Section 144C (1) obligates an AO/NeAC to forward a draft of the proposed Assessment Order to such eligible assessee if he proposes to make any variation prejudicial to the interest of the eligible assessee. Sec 144C(1) provides that on receipt of such Draft Assessment Order the eligible assessee within 30 day's of receipt of the draft order shall either accept the variation proposed by the AO/NeAC or file his objection to such variation with the Dispute Resolution Panel. The relevant extract of section 144C is reproduced here Reference to dispute resolution panel. 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 (hereafter in this section referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. 10. Further, a careful examination of the above scheme of reference to the Dispute Resolution Panel clearly demonstrates that the AO/NeAC while passing his Draft Assessment Order has to propose all the variations to the income of the assessee, be it arising out of Transfer Pricing matters or regular Corporate Taxation matters. Section 144C(1) states that the Assessing Officer has to forward a Draft Assessment Order in case of eligible assessee if he proposes any variation which is prejudicial to the interest of the eligible assessee. The use of words any variation which is prejudicial to the interest of eligible assessee in the subsection (1) of section 144C clearly demonstrate that the variation proposed are not limited to Transfer Pricing related variations only but every variation which is prejudicial to the interest of eligible assessee. The word any is of wide connotation and would include all the variations which are prejudicial to the interest of eligible assessee. 11. Thus, the AO/NeAC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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