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Income Tax Appellate Tribunal, “K” BENCH, MUMBAI
This appeal is filed by Aker Power gas private limited [ the Assessee/Appellant] for assessment year 2013 – 14 against the order passed u/s 143 (3) read with Section 14C (13) of The Income Tax Act 1961, (The Act) dated 27th of October 2017 passed by The Deputy Commissioner Of Income Tax, Range 15 (1) (1), Mumbai (The Learned Assessing Officer/ AO) raising following grounds of appeal:-
“The appellant objects to the order under section 143(3) r.w.s. 144C(13) of the Income-tax Act, 1961 dated 27 October 2017 (received on 02 November 2017) passed by the Deputy Commissioner of
1. Transfer pricing adjustment under section 92CA (3)
1.1 The learned DCIT/ Dispute Resolution Panel ('DRP') has erred on facts and in law in completing assessment under section 144C/143(3) of the Income-tax Act, 1961 ('the Act') at an income of Rs.14,14,21,940 as against the income of Rs.7,20,05,269 returned by the appellant.
1.2 The learned DCIT / DRP has erred on facts and in law by rejecting the benchmarking approach adopted by the appellant and thereby making an addition of Rs.6,94,16,669 of the alleged difference in the arm's length price of the 'international transactions of provision of engineering design services on the basis of the order passed under section 92CA(3) of the Act by the TPO.
1.3 The learned DCIT/ DRP has erred on facts and in law by selecting only non-associated enterprise ('non- AE') export segment while applying internal transactional net margin method (TNMM') instead of non-AE segment as a whole for determining arm's length price of international transaction pertaining to provision of engineering design services entered into by the Appellant during FY 2012-13.
1.4 The learned DCIT/ DRP has erred in law by disregarding the fact that the quantum of revenue from transactions with non-AE export segment of 1.5 The learned DCIT/ DRP has not given any cogent reasons for rejection of domestic segment while undertaking the benchmarking analysis under internal TNMM.
1.6 The learned DCIT / DRP has erred in computing the profit level indicator (PLI) of the non-AE export segment without considering the segmental profitability of the appellant in correct perspective.
1.7 The learned DCIT/ DRP has failed to appreciate the fact that though APA signed between the appellant and CBDT pertains to subsequent financial years, it has a persuasive value and can be considered for the year under consideration.
1.8 The learned DCIT / DRP did not take into account appellant's submissions regarding reliance placed on Indian and international jurisprudence for justification on insignificant sale in non-AE export segment.
Short credit of tax deducted at source The learned DCIT erred in granting credit of taxes deducted at source [TDS] of Rs. 8,61,17,614 as against Rs. 11,25,94,590 claimed in the return of income without providing any reasons for not granting TDS credit of Rs. 2,64,76,976.
3. Interest under section 244A
4. Initiation of penalty proceedings The learned DCIT erred in initiating penalty proceedings under section 271(1)(c) against the appellant.
5. Each one of the above grounds of appeal is without prejudice to the other.”
2. At the time of hearing assessee moved an application for admission of additional ground on 29th of July 2021 by which it has challenged the validity of order as Under:-
i. The assessing officer has erred in passing the draft assessment order dated 21st of December 2016 without following the procedures laid down in Section 144C of The Income Tax Act 1961 (The Act), and therefore the said order is to be held as void ab initio, and consequently the entire assessment proceedings ought to be quashed. ii. The appellant submits that the assessing officer has erred in issuing the notice of demand dated 21 December 2016 u/s 156 of the act and a penalty notice dated 21 December 2016 u/s 274 read with Section 271 (1) (C) of the act along with the draft assessment order thereby iii. The appellant submits that the draft assessment order passed u/s 143 (3) read with Section 144C (1) of the act be struck down as void ab initio and bad in law as such consequently the entire assessment proceedings ought to be quashed.
Assessee submitted that the above grounds are purely legal in nature and goes to the root of the matter and therefore they should be admitted. It was further stated that during the course of preparation of the appeal the appellant was advised to raise this additional ground of appeal. It was also claimed that it does not require production of any fresh facts for its adjudication.
The learned authorised representative vehemently supported and reiterated all the grounds mentioned in the application for additional ground and stated that same should be admitted.
The learned departmental representative vehemently objected to the additional ground raised by the assessee stating that those grounds have not been raised before the lower authorities and therefore they do not deserve to be admitted.
We have carefully considered the rival contentions with respect to the additional ground
The facts of the case shows that assessee company is engaged in the business of engineering consultancy services. It is part of a leading global oil service company specialising in oil and gains. The assessee provides engineering design services to the entities of the whole group.
Assessee filed its return of income on ₹ 29/11/2013 declaring a total income of 72,005,269. The case of the assessee was picked up for scrutiny. The learned assessing officer found that assessee has entered into an international transactions with its associated enterprises and therefore these international transactions are required to be tested on arm’s-length principle, therefore the matter was referred to the learned transfer pricing officer.
9. The learned TPO found that assessee has entered into six different kind of international transactions. All these transactions are related to
In its transfer pricing study report assessee used Internal Transactional Net Margin Method (TNMM) as the most appropriate method. Assessee selected return on total cost i.e. OP/OC as the profit level indicator, it computed its PLI on transactions with associated parties at 22.41%. It also bifurcated transactions with unrelated parties and stated that its gross profit margin with third party transaction is 24.53% and therefore as the operating margin earned by the assessee on transactions with its associated enterprises is more than the margin earned from third parties the international transactions are at arm’s-length.
11. The learned transfer pricing officer examined the transfer pricing study report of the assessee and found that assessee has adopted internal transactional net margin method as the most appropriate method. He found that revenue from engineering design services from associated enterprise segment is 57% whereas from non- AE
Based on this, the learned assessing officer passed a draft assessment order on 21/12/2016 wherein the total income returned of the assessee of ₹ 72,005,269/– was assessed at ₹ 141,821,938/– and transfer pricing adjustment of ₹ 69,416,669/- was made.
13. Assessee preferred an objection before the Dispute Resolution Panel – I, Mumbai [ the Ld DRP] who passed direction on 05/9/2017 and rejected the objections of the assessee. Consequently, on 27/10/2017, the learned assessing officer passed a final assessment order u/s 143 (3) read with Section 144C (13 ) of the Act wherein the
14. The learned authorised representative , in the additional ground stated that the assessment order passed on 21 December 2016 is accompanied with a notice of demand u/s 156 of the act and also a show cause notice of penalty u/s 274 read with Section 271 (1) (C) of the act along with the draft assessment order and therefore the procedure of passing the draft assessment order has not been followed and instead of that the assessing officer has passed the final assessment order. Therefore, it was stated that the draft assessment order passed by the learned assessing officer is void ab initio and deserves to be quashed.
For this proposition he referred to the paper book and took us to page number 203 – 216 of the paper book wherein the draft assessment order is placed. He also submitted that notice of demand u/s 156 of The Income Tax Act along with the income tax computation form and showcause notice u/s 274 read with Section 271 (1) © of the income tax act of the same date.
16. To support his contention that the assessment order passed by the learned assessing officer is void ab initio and deserves to be quashed, he referred to the several judicial precedents as Under:- i. Atlas Copco India Ltd versus DCIT (ITA number 649/PU 1/2013 and 1726/UN/2014
17. He referred to all those decision to show that on identical facts and circumstances the assessment orders have been quashed where the learned assessing officer has failed to follow the procedures prescribed for passing a draft assessment order but instead of that passed draft assessment order along with the notice of demand and show cause notice for penalty.
18. The learned departmental representative vehemently stated that it is merely an irregularity and not an invalidity of the assessment order. He further stated that assessee has already taken the objection route before the
We have carefully considered the rival contentions and perused the orders of the lower authorities. Admittedly the draft assessment order passed by the learned assessing officer on 21/12/2016 is accompanied with the notice of demand as well as show cause notice u/s 274 read with Section 271 (1) ( c) of the act of the even date. Issue that arises is Whether draft assessment order accompanied with [1] Notice of Demand, [2] tax Computation sheet and [3] Show Cause Notice for penalty u/s 271 (1) (C) of the act, can it be considered as draft assessment order or a final assessment order. If it is a final assessment order then naturally the procedure laid down under the act has not been followed by the ld AO. In such circumstances, the assessment order passed by the ld AO becomes void ab intio and to be quashed.
We find that identical issue has been considered by the coordinate bench in 649/ Pun / 2013 in case of Atlas corpo India Ltd vide order dated 29/8/2019 wherein it has been held as Under:-
Thereafter, he passed the final assessment order again characterizing it as `Assessment order’ on 27- 2-2012. Under such circumstances, the assessee has raised the issue that the final assessment order lacked validity and hence should be quashed as the AO/TPO failed to follow the statutorily prescribed procedure u/s.144C of the Act.
Section 144C of the Act with the marginal note “Reference to Dispute Resolution Panel” provides through sub-section (1) of section 144C that: “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 as the draft order) to the eligible assessee if he proposes to make, on or after the 1st day of October, 2009, any variation in the income or loss returned which is prejudicial to the interest of such assessee.’ Sub- section (2) of section 144C states that the assessee shall either file his acceptance to the AO on the variations proposed in the draft order or file his objections, if any, with the DRP. In case, the assessee accepts the variation in the draft order or no objections are received within 30 days, then subsection (3) states that: `The Assessing Officer
10. An overview of section 144C of the Act deciphers that a draft order passed under sub-section (1) is only a tentative order which does not fasten any tax liability on the assessee. In case variations to the income in the draft order are accepted by the assessee or no objections are received within 30 days, the AO completes the assessment under section 144C(3) on the basis of draft order and the matter ends. In case the assessee objects to the variations in the income as proposed in the draft order and approaches the DRP, the final assessment order is passed by the AO u/s.144C (13) giving effect to the directions given by the DRP under sub-section (5). In case the assessee seeks to take the route of seeking redressal of its grievances through the channel of the CIT(A), in that case, again the AO has to pass a separate assessment order, which is obviously distinct from the draft order. So, it is only on the finalization of the variation in the income as per the draft order, to the extent specified in the provision, that the AO is obliged to pass an assessment order, either under sub-section (3) or (13) of section 144C of the Act, determining the tax liability, pursuant to
The Hon’ble Apex Court in Kalyan Kumar Ray (1991) 191 ITR 634 (SC) has held that assessment order involves determination of income and tax. It laid down that: `‘Assessment' is one integrated process involving not only the assessment of the total income but also the determination of the tax. The latter is as crucial for the assessee as the former.’ Again the Hon’ble Summit Court in Auto and Metal Engineers vs. UOI (1998) 229 ITR 399 (SC) has held that the process of assessment involves (i) filing of the return of income under s. 139 or under s. 142 in response to a notice issued under s. 142(1) ; (ii) inquiry by the AO in accordance with the provisions of ss. 142 and 143 ; (iii) making of the order of assessment by the AO under s. 143(3) or s. 144; and (iv) issuing of the notice of demand under s. 156 on the basis of the order of assessment. The process of assessment thus commences with the filing of the return or where the return is not filed, by the issuance by the AO of notice to file the return under s. 142(1) and it culminates with the issuance of the notice of demand under s. 156.
The Hon’ble Madras High Court in Vijay Television (P) Ltd. Vs. DRP (2014) 369 ITR 113 (Mad.) was confronted with a situation in which the AO, pursuant to the order of the TPO, passed a final assessment order instead of a draft order. A question arose as to whether the order so passed could be treated as a valid order.
Accepting the contention of the assessee, the Hon’ble High Court set aside the order passed by the AO by observing that: “where there was omission on the part of the AO to follow the mandatory procedures prescribed in the Act, such omission cannot be Resultantly, the assessment order was quashed. Almost similar issue came up for consideration before the Hon’ble jurisdictional High Court in Pr. CIT Vs. Lionbridge Technologies Pvt. Lt. (2019) 260 Taxman 273 (Bom.) in which the Tribunal in the first round restored the matter to the AO on the ground that the DRP failed to deal with the assessee’s objections. During the remand proceedings, a reference was made to the TPO. On receipt of the TPO’s order, the AO straightaway passed an order u/s.143(3) r.w.s. 144C(13), which action came to be disapproved by the Hon’ble High Court. It, ergo, follows that the statutorily mandated procedure must be adhered to by the authorities, non-observance of which renders the assessment order null and void.
Similar issue came up for consideration before the Pune Benches of the Tribunal in Skoda Auto India Ltd. Vs. ACIT. In that case also the AO passed the draft order and simultaneously issued notice of demand and initiated penalty proceedings by issuing notice u/s 274 of the Act. It was thereafter that the final assessment order was passed. The assessee challenged the legality of the final assessment order. Vide its order dated 02-07-2019, the Tribunal in has held that the demand got crystallised on passing of the draft order pursuant to issue of demand notice which is contrary to the relevant provision of the Act. Ex Consequenti, the
15. The ld. DR buttressed his point of view by relying on an order passed by the Hyderabad Benches in BS Ltd. Vs. ACIT (2018) 94 taxmann.com 346 (Hyderabad-Trib.) in which it has been held that the issuance of demand notice along with the draft order is only a procedural mistake. In our considered opinion, this case does not advance the Departmental stand. Unlike the assessee in the instant case not raising objections before the DRP and pursuing the appeal straight away before the ld. CIT(A), the assessee in that case adopted the route of the DRP. Be that as it may, it is found that similar issue came up for consideration before the Pune Benches of the Tribunal in series of cases including Eaton Fluid Power Ltd. Vs. DCIT (2018) 96 taxmann.com 512 (Pune Trib.). In that case also, the AO passed the draft order u/s.143(3) r.w.s. 144C(1) of the Act. Thereafter, he issued notice of demand u/s.156 and initiated penalty proceedings u/s.271(1)(c) of the Act. When this infirmity in not following the statutorily mandated procedure was pointed out, the Tribunal declared the assessment order to be without jurisdiction and hence, null and void.
It is observed that the facts and circumstances of the instant case are similar to those considered by the Pune Benches of the Tribunal in the case of Skoda Auto India Ltd. Vs. ACIT (supra) and Eaton Fluid Power Ltd. Vs. DCIT (supra). As the AO in the extant
Before parting, we would like to clarify that for the assessment year 2006-07 also, the assessee took similar argument urging that the assessment order be declared null and void. We have noted above that the assessment proceedings get completed on the issue of notice of demand only. On examination of facts, the Tribunal for such earlier year found that even though penalty notice was issued u/s 274 but no notice of demand was issued u/s 156 of the Act pursuant to the draft order. It was under such circumstances that the Tribunal in vide its order dated 21.08.2019 did not accept the contention of the assessee to the effect that the assessment got concluded on the passing of the draft order and hence the final assessment order was a nullity. It is an altogether different matter that the initiation of penalty through the draft order carried some infirmity, but that would not impinge upon the validity of the assessment order.
To sum up, we set-aside the assessment order by declaring it to be null and void. Thus, the income
We do not find any reason to multiply the several judicial precedents on the facts of the present case. Therefore, respectfully following the decision of the coordinate bench, we also hold that the present assessment order passed is null and void. Thus, the income offered in the return becomes total income of the assessee.
In the result we allow the additional ground raised by the assessee and quash the assessment order.
In view of our above decision, all other grounds of appeal becomes infructuous and do not deserve any merit. Therefore, they are left unadjudicate.
In the result, appeal filed by the assessee is allowed.
Order pronounced in the open court on 23.06.2022.