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Before: Shri Duvvuru RL Reddy & Shri S. Jayaraman
O R D E R
PER DUVVURU RL REDDY, JUDICIAL MEMBER:
This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals) 3, Chennai dated 31.05.2017 relevant to the assessment year 2008-09. Besides raising various grounds in the appeal of the assessee, the ld. Counsel for the assessee has mainly contended that the Assessing Officer without passing a draft assessment order as envisaged under section 144C of the Income Tax Act, 1961 [“Act” in short] and the ld. CIT(A) has failed to adjudicate the said issue as raised before him under ground No. 2 & 3.
Brief facts of the case are that the assessee is engaged in manufacture, trade and export of chemicals used in oil and gas exploration industry. The assessee filed its return of income on 27.092008 declaring total income at ₹.4,56,64,700/-. The case of the assessee was selected for scrutiny and notice under section 143(2) of the Act was issued to the assessee on 11.09.2008. Since the assessee had entered into certain international transactions, the case of the assessee was referred to the Transfer Pricing Officer to determine the Arm’s Length Price. The TPO vide order dated 31.10.2011 made adjustment of ₹.3.24 crores in the ALP of AE. Against the order passed under section 92CA of the Act of TPO, the assessee filed objections before the Dispute Resolution Panel. In pursuance to the directions of the DRP dated 31.08.2012, the Assessing Officer, vide his impugned order made the additions on the income returned by the assessee. The assessee carried the matter in appeal before the Tribunal and the Tribunal set aside and remitted the issue to the Assessing Officer to decide the issue afresh. In the second round of litigation, after considering the submissions of the assessee vide its letter dated 24.03.2016 filed on 28.03.2016, the Assessing Officer completed the assessment under section 143(3) r.w.s. 254 of the Act by making addition of TP adjustment of ₹.3.24 crores.
On appeal, besides raising various grounds, the assessee has raised the following grounds before the ld. CIT(A) in ground No. 2 & 3 and reproduced as under: “2. The Learned Assessing officer has erred in passing an order u/s. 143(3) without adhering to section 144C of the Income Tax Act, 1961.
3. The Learned Assessing Officer should have passed a draft order u/s. 144C in a case involving transfer pricing adjustment. As the Learned Assessing Officer has failed to adhere to the impugned mandatory provisions of law, the order passed by the Assessing Officer has void ab initio.” Without adjudicating the above grounds, the ld. CIT(A) proceeded to decide the appeal on merits and dismissed the appeal filed by the assessee.
On being aggrieved, the assessee is in appeal before the Tribunal. The ld. Counsel for the assessee has submitted that the ld. CIT(A) has not assigned any valid reason for non-adjudication of the grounds raised before him during the course of appellate proceedings and prayed that suitable directions may be given to the ld. CIT(A) for adjudication of the ground raised before him. On the other hand, the ld. DR has expressed no objection if the matter is remitted back to the file of the ld. CIT(A) for adjudication.
We have heard both sides, perused the materials available on record and gone through the orders of authorities below. In this case, during the course of appellate proceedings, the assessee has raised various grounds including the grounds as reproduced above and on perusal of the appellate order, we find that the ld. CIT(A) has not adjudicated the ground raised by the assessee in terms of section 144C of the Act.
6. As per sub-section (1) to section 144C of the Act, the Assessing Officer is required to forward a draft of the proposed order of assessment to the assessee. In this case, in fact, the Assessing Officer forwarded the draft assessment order under section 143(3) r.w.s. 144C of the Act dated 05.12.2011 and thereafter, after considering the submissions of the assessee, the Assessing Officer passed the final assessment order under section 143(3) r.w.s. 144C(13) of the Act dated 19.10.2012 and fulfil the requirements as enunciated under section 144C of the Act. In the first round of litigation, for limited purpose, the Tribunal remitted the matter back to the file of the Assessing Officer to verify the relationship of AE with the assessee on the basis of the documentary evidence and not with regard to TP adjustment. Further, in the second round of litigation, despite giving opportunity to file supporting documents in favour of assessee’s claim, the assessee has not filed the same before the Assessing Officer and accordingly, he passed the assessment order under section 143(3) r.w.s. 254 of the Act without enhancing the original assessment. Even though, the Tribunal shall assume jurisdiction to adjudicate any legal issue, if the same was not raised before the authorities below or the authorities below have omitted to address to the issue specifically raised in view of the law laid down by Hon'ble Apex Court in the case of National Thermal Power Corporation Ltd v. CIT 229 ITR 383 SC, with due regards to the hierarchy prevailing in the judicial system, for limited purpose, we remit the matter back to the file of the ld. CIT(A) to adjudicate the grounds raised in terms of provisions of section 144C of the Act as raised before him during the course of appellate proceedings and reproduced hereinabove, which was also reproduced in the appellate order but not adjudicated by him. Accordingly, the appeal filed by the assessee is allowed for statistical purposes. No other argument has been raised by the ld. Counsel for the assessee on merits.
In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced on the 30th November, 2017 at Chennai.