M/S MANN & HUMMEL FILTER PRIVATE LIMITED ,BANGALORE vs. DEPUTY COMMISSIONER OF INCOME TAX CIRCLE-4(1)(2), BANGALORE

This appeal by the assessee is against the order dated 13.02.2019 of the CIT(Appeals)-4, Bengaluru relating to assessment year 2013-14.

The assessee is a company incorporated under the provisions of the Companies Act, 1956 and is a wholly owned subsidiary of Mann & Hummel Filter Technology (S.E.A) PTE Limited, Singapore. It is engaged in the business of manufacturing and trading in air intake systems and filters for the automotive and heavy engineering industry. It provides Engineering Design Services ("EDS") using Computer Aided Design ("CAD") and Computer Aided Manufacturing ("CAM") tools to its Associated Enterprises ("AEs"). In terms of the provisions of Sec.92A of the Act, the Assessee and IT(TP)A No.793/Bang/2019 Page 2 of 9 its wholly owned holding company were AEs. In terms of Sec.92B(1) of the Act, the transaction of providing EDS was an “international transaction” i.e., a transaction between two or more associated enterprises, either or both of whom are non-residents, in the nature of purchase, sale or lease of tangible or intangible property, or provision of services, or lending or borrowing money, or any other transaction having a bearing on the profits, income, losses or assets of such enterprises, and shall include a mutual agreement or arrangement between two or more associated enterprises for the allocation or apportionment of, or any contribution to, any cost or expense incurred or to be incurred in connection with a benefit, service or facility provided or to be provided to any one or more of such enterprises. In terms of Sec.92(1) of the Act, any income arising from an international transaction shall be computed having regard to the arm’s length price.

As far as the provision of EDS are concerned, the Assessee filed a Transfer Pricing Study (TP Study) to justify the price paid in the international Transaction as at ALP by adopting the Transaction Net Margin Method (TNMM) as the Most Appropriate Method (MAM) of determining ALP. The Assessee selected Operating Profit/Operating Cost (OP/OC) as the Profit Level Indicator (PLI) for the purpose of comparison. The net mark-up on cost earned by the assessee as recomputed by the TPO in his order is as follows:- (Rs.) Operating Income 15,14,52,299 Operating Cost 14,01,15,250 Operating Profit 1,13,37,049 (Operating Income – Operating Cost) Operating Profit / Operating Cost 8.09% (OP/OC) 4. The comparables selected by the assessee and its arithmetic mean are as follows:-

The comparables selected by the TPO and its arithmetic mean are as under:- SI. Mark-up on Mark-up on No. Total Costs Total Costs Name of the Company (WC—unadj) (WC—adj) (in %) (in %) 1 Acropetal Technologies Ltd. 37.79 35.09 2 Neil Soft Ltd. — 15.61 13.66 3 Cades Digitech Pvt Ltd. 3.91 -0.20 4 Tata Elxsi 10.53 8.65 AVERAGE MARK-UP 16.96 14.30

The computation of arm’s length price and adjustment made by the TPO are as follows:- Arm's Length Mean Margin on cost 16.96% Less: Working Capital Adjustment 2.66% Adjusted mean mark-up of the comparables 14.30% Operating Cost (`OC') Rs. 14,01,15,250/- Arm's Length Price (ALP') = 114.30% of OC Rs. 16,01,49,031/- Price Received Rs. 15,14,52,299/- Shortfall being adjustment u/S. 92CA Rs. 86,96,732/-

In appeal, the CIT(A) rejected the contentions of the assessee on all issues relating to transfer pricing and passed an order upholding the order passed by the TPO on the basis that the assessee had accepted the draft assessment order and therefore, no objections could be raised before him.

Aggrieved by the order of the CIT(Appeals), the assessee is in appeal before the Tribunal. Briefly, the grounds in the appeal which are pressed are as follows:- • That Acropetal Technologies Ltd. ought to stand excluded from the final list of comparables [Ground No. 2(e)]; • That Akshay Software Technologies Ltd. and Cigniti Technologies Limited ought to be included in the final list of comparables [Ground No. 2(d)]; • That the TPO has erroneously computed the margins of Neilsoft Limited and Cades Digitech Private Limited. [Ground No. 4(a)].

We have heard the rival submissions. The main basis of the conclusions of the CIT(A), vide paragraphs 5.2 & 5.3 of the impugned order, for not interfering with the order of the AO incorporating the adjustment to the ALP which was added to the total income of the Assessee was that the Assessee did not file any objections to the draft order of the AO incorporating the adjustment to the ALP suggested by the TPO. The ld. counsel for the assessee submitted that the conclusion of the CIT(A) that the assessee not having filed objections against the draft assessment order, it is not entitled to final assessment order before him is wholly erroneous and contrary to the provisions of Section 144C of the Income-tax Act, 1961 [the Act]. In terms of the said provision, an Assessee has an option either to file objections before the DRP against the draft assessment order or obtain a final assessment order and challenge the same before the CIT(A) and adopting the second option by no means would mean that the adjustments made in the draft assessment order are accepted. It was therefore submitted that the CIT(A) ought to have IT(TP)A No.793/Bang/2019 Page 5 of 9 adjudicated on the grounds raised before him. The learned DR relied on the order of the CIT(A).

We have considered the submission of the learned counsel for the Assessee. Section 144C was inserted in the Act by the Finance Act, 2009 and came into effect from 1st October, 2009. In the Notes on Clauses to the Finance Bill, 2009 [Budget 2009-2010] the reason for insertion of Section 144C was given as under:- "The subject of transfer pricing audit and the taxation of foreign company are at nascent stage in India. Often the Assessing Officers and Transfer Pricing Officers tend to take a conservative view. The correction of such view take very long time with the existing appellate structure. With a view to provide speedy disposal, it is proposed to amend the Income-tax Act so as to create an alternative dispute resolution mechanism within the income-tax department and accordingly, section 144C has been proposed to be inserted so as to provide inter alia the Dispute Resolution Panel as an alternative dispute resolution mechanism."

Prior to the formation of Dispute Resolution Panel (DRP) the assessee had to approach the CIT(A) against the Assessment Order, if the assessee wanted to raise objections against the Assessment Order. However, after the formation of DRP the assessee has an additional option to approach DRP on the basis Draft Order issued by AO, in whose case, there is variation in the income or loss returned which arises as a consequence of the order of the Transfer Pricing Officer (TPO) passed under 92CA(3) or otherwise. In above case, Assessing Officer (AO) in the first instance, forwards a draft of the proposed order of assessment to the assessee before making any final order. On receipt of the direction from DRP U/s 144C(5), the AO will pass an order which is called as an order passed U/s 143(3) r.w.s. 144C(13) of the said Act. If there is variation in IT(TP)A No.793/Bang/2019 Page 6 of 9 the income or loss returned by virtue of addition u/s.92CA(3) of the Act or otherwise, an Assessee can approach DRP. The advantage of approaching DRP is that AO cannot press for demand, if any, arising in the draft order till the final order is passed U/s 143(3) r.w.s. 144C(13) and the assessee can approach to ITAT for further relief faster.

Section 144C(2) provides that on receipt of the draft order, assessee shall within thirty days of the receipt of the order – • file his acceptance of the variation to the AO, or • file his objection , if any, to such variation with the DRP ; and the DRP, on receipt of any objection, shall issue such directions, as it think fit, for guidance of the AO to enable him to complete the assessment. On receipt of the directions, the AO shall, complete the assessment order within one month from the end of the month in which such direction is issued. Assessee has an option not to press any objection raised originally, in DRP hearing. Any demand arising on account of draft order will not be pressed by the AO during this period. On receipt of the assessment order, if assessee has still some grievance, he is free to file an appeal directly to the ITAT against the final order of assessment.

However, when the Assessee does not file his objection within 30 days as prescribed Under Section 144C(2) of the Act, he has a right to file appeal against the final order of assessment to the CIT(A). The CBDT in Circular bearing No. 9/2013 issued on 19-11-2013, has clarified that Section 144C is applicable to any order which proposed to make variation in income or loss returned by an eligible assessee on or after 01-10-2009, irrespective of the assessment year to which it pertains. In paragraphs 45.1 to 45.4 of Circular No. 5/2010 dated 03-6-2010, CBDT explained the substance of the provisions of Section 144C. It has been made clear by the Circular that an order passed under Section 143(3) or Section 147 in IT(TP)A No.793/Bang/2019 Page 7 of 9 pursuance of the directions of the DRP, is not made appealable under Section 246A(1) to the Commissioner or under Section 253(1) to the Appellate Tribunal. It means a finality was sought to be attached to the directions issued by the Dispute Resolution Panel vis-à-vis powers of CIT(A). Since the Dispute Resolution Panel is provided as an alternative mechanism for the resolution of disputes, the choice is upon the assessee whether to file an objection against the draft assessment order before the DRP or to pursue the normal channel of filing of appeal against the assessment order before the Commissioner (Appeals). Paragarph 45.4 of the Circular clarifies the position as follows:- “45.4 It would be the choice of the assessee whether to file an objection against the draft assessment order before the Dispute Resolution Panel (DRP) or to pursue the normal channel of filing an appeal against the assessment order before the Commissioner of Income-tax (Appeals). In order to approach the DRP, the assessee must file an objection against the draft assessment order within the prescribed time-limit. In case the assessee does not file an objection, the Assessing Officer shall pass the assessment order. The assessee can file an appeal against such assessment order before the CIT (Appeals). Once the option of filing an objection against the draft assessment order before the DRP has been exercised, the assessee cannot withdraw the objection and opt for the normal channel of filing appeal before CIT (Appeals).”

Paragraph 45.4 of the Circular makes it clear that, "once the option of filing an objection against the draft assessment order before the DRP has been exercised, the assessee cannot withdraw the objection and opt for the normal channel of filing an appeal before CIT (Appeals)". The understanding of the CBDT in para 45.4 of Circular No. 5/2010 is that, the availing of the remedy to go before the DRP, would not take away the right of appeal. Therefore, it is clear that an Assessee has the option to avail the IT(TP)A No.793/Bang/2019 Page 8 of 9 alternative mechanism of filing appeal before the CIT(A) against the final order of assessment where there is no objection to the draft order of assessment filed by the Assessee before DRP.

We agree with the submission of the assessee that the CIT(Appeals) was not right in holding that since the assessee has not filed objections to the draft assessment order before the Disputes Resolution Panel [DRP] u/s. 144C of the Act, the assessee was precluded from raising objection against the final assessment order before him. As rightly contended by the ld. counsel for the assessee, in terms of provisions of section 144C, the assessee has an option either to file the objection before the DRP against the draft assessment order or obtain a final assessment order and challenge the same before the CIT(Appeals).

Since the CIT(A) has not decided the appeal on merits, we deem it fit and proper to remit the issues raised in this appeal to the CIT(A) for consideration afresh. Though the Assessee has not raised a specific ground of appeal praying for setting aside the order of CIT(A) for consideration de novo by him on merits, yet we are of the view that the opinion of the first appellate authority on the issue on merits would be of utmost importance. The scheme of the Act is that the Assessing Officer passes the order of assessment. A first appellate authority within the department expresses his opinion on the order of assessment. Thereafter the appeal is provided to the Tribunal against the order of the first appellate authority. In the absence of opinion of the first appellate authority on merits, the tribunal will be handicapped. We therefore set aside the order of CIT(A) and remand the issues raised before CIT(A) for adjudication, in so far as the grounds of appeal raised by the Assessee in this appeal are concerned. The CIT(Appeals) will afford opportunity of being heard to the Assessee before deciding the issues afresh.

Since the issues raised in the appeal are set aside to CIT(Appeals) for consideration afresh on merits, we deem it unnecessary to deal with the various grounds of appeal on merits.

In the result, appeal of the Assessee is treated as allowed for statistical purposes.