APTAR BEAUTY AND HOME INDIA PRIVATE LIMITED (SUCCESSOR OF APTAR PHARMA INDIA PRIVATE LIMITED),HYDERABAD vs. DY. COMMISSIONER OF INCOME TAX , CIRCLE-1(1), HYDERABAD

We notice during the course of hearing that the assessee’s appeal hardly carries any merit as the learned PCIT has exercised his section 263 revision jurisdiction on the ground that the Assessing Officer had framed his corresponding regular assessment dt.23.03.2015 without awaiting / considering. The Transfer Pricing Officer “TPO’s” order in section 92CA reference so as to determine arms length price of this taxpayer’s international transactions with its overseas associated enterprises “AEs”. This clinching fact has gone unrebutted from the assessee side. We thus conclude in these facts and circumstances that the PCIT has assumed section 263 revision jurisdiction on account of the Assessing Officer’s clinching failure rendering the impugned assessment as an erroneous one causing prejudice to interest of the revenue. The assessee’s instant former appeal ITA No.946/Hyd/2017 stands rejected.

Suffice to say, it transpires during the course of hearing that the Assessing Officer has framed this assessment herein dt.23.06.2017 without any draft assessment forming a mandatory condition u/s 144C(1) of the Act. Learned CIT-DR fails to dispute that there is no such draft assessment framed as per the assessment order itself forming part of the case file. We thus quote Zuari Cement Ltd. Vs. ACIT W.P.No.5557/2012 dt.21.02.2013 (A.P) (upheld in Revenue’s special leave petition “SLP” filed in hon’ble apex court), Vijay Television (P) Ltd. Vs. DRP (2014) 369 ITR 113 (Mad) and JCB India Limited Vs. DCIT (2017) 398 ITR 189 (Delhi) that such an assessment involving transfer pricing proceedings without a draft assessment is a nullity. We accordingly quash the assessment herein dt.26.03.2017. All other pleadings on merits stand rendered infructuous. The assessee succeeds in its latter appeal . Ordered accordingly.

The assessee’s former appeal is dismissed and its latter appeal is allowed in above terms. A copy of this common order be placed in respective case files.