BIRLA CARBON INDIA PRIVATE LIMITED,MUMBAI V. THE PRINCIPAL COMMISSIONER OF INCOME TAX, MUMBAI - 5, MUMBAI

ITA 3768/MUM/2025

AI Insights

The case involves Birla Carbon India Private Limited appealing against the order of the Principal Commissioner of Income Tax (PCIT), which sought to revise the final assessment order for the assessment year 2018-19. The final assessment order had been passed following the directions of the Dispute Resolution Panel (DRP) under section 144C(13) of the Income Tax Act, 1961, after the assessee objected to the draft assessment order. The PCIT's revision was based on the grounds that the final assessment was erroneous and prejudicial to the interests of the revenue. However, the Tribunal found that the PCIT lacked the jurisdiction to revise the order as it was passed in conformity with the DRP's directions, which are binding and final.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 773497 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-09-2025
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2018-2019
• Appeal Filed On: 28-05-2025
• Other Referred Cases: Barclays Bank vs. CIT, Accenture Solutions Private Limited vs. PCIT, Devas Multimedia (P.) Ltd. Vs. Pr. CIT, Vodafone India Services Pvt.Ltd. vs Union of India & Others, Virendra Kumar Jhamb vs. N.K.Vohra
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATYAPRAKASH R.SINGH
• Assessee Lawyers: MADHUR AGARWAL
• Keywords: Set aside; Opportunity of being heard; Transfer pricing; International transaction; Retrospective amendment; Assessment record; Revision of order
• Section: 147; 143(3); 263

Judgement Text

" IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, VICE PRESIDENT AND SHRI NARENDRA KUMAR BILLAIYA, ACCOUNTANT MEMBER ITA No. 3768/Mum/2025 (Assessment Year: 2018-19) Birla Carbon India Private Limited Ground Floor, Aditya Birla Centre, S. K. Ahire Marg, Worli, Mumbai-400 030 Vs. The Principal Commissioner of Income Tax Room No. 515, 5th Floor, Aaykar Bhavan, M. K. Road, Mumbai-400 020 PAN/GIR No. AASCS 9916 L (Appellant) : (Respondent) Appellant by : Shri Madhur Agarwal Respondent by : Shri Satyaprakash R. Singh Date of Hearing : 16.09.2025 Date of Pronouncement : 22.09.2025 O R D E R Per Saktijit Dey, Vice President: In the present appeal, the assessee has called into question the validity of the order dated 25.03.2025, passed u/s. 263 of the Income Tax Act, 1961 (‘the Act’ for short) by learned Principal Commissioner of Income Tax (‘ld.PCIT’ for short), pertaining to the assessment year (A.Y.) 2018-19. 2. Thought multiple grounds have been raised in the memorandum of appeal, however, the assessee has raised a pertinent preliminary issue, challenging the competence and jurisdiction of ld. PCIT to invoke powers u/s. 263 of the Act to revise an assessment order passed u/s. 144C(13) of the Act, in pursuance to the directions of learned Dispute Resolution Panel (ld. DRP). Printed from counselvise.com 2 ITA No. 3768/Mum/2025 (A.Y.2018-19) Birla Carbon India Private Limited vs. Pr. CIT 3. At the outset, we propose to deal with the aforesaid preliminary issue and, if warranted, we may deliberate upon the other issues raised by the assessee. For adjudicating the preliminary issue noted above, few relevant facts need to be discussed. The assessee is a resident corporate entity, stated to be engaged in the business of manufacturing and selling of carbon block. For the assessment year under dispute, the assessee had filed its return of income on 29.11.2018, declaring total income at Rs.216,88,44,430/-. The return of income so filed by the assessee was picked up for scrutiny. 4. In course of assessment proceeding, the Assessing Officer (‘A.O.’ for short) having noticed that in the previous year relevant to assessment year under dispute, the assessee had entered into international transactions with its Associated Enterprises (AEs) made a reference to the Transfer Pricing Officer (‘TPO’ for short) to determine the arm’s length price (‘ALP’ for short) of the international transactions and Specified Domestic Transactions (‘SDT’ for short) as well. While undertaking the transfer pricing analysis u/s. 92CA(3) of the Act, the TPO having found that the price at which the assessee has undertaken transactions with AEs is not at arm’s length had suggested an adjustment of Rs.94,58,84,979/-. In terms with the adjustment suggested by the TPO, the A.O. framed a draft assessment order u/s. 144C(1) of the Act on 22.09.2021. 5. After receiving the draft assessment order as aforesaid, the assessee raised objections before ld. DRP. On 11.07.2022, ld. DRP disposed of the objections of the assessee by issuing certain directions to the A.O. in the matter of transfer pricing adjustment in relation to SDT. In terms with the directions issued by ld. DRP, the A.O. passed the final assessment order on 29.07.2022 u/s. 143(3) r.w.s. 144C(13) of the Act. Printed from counselvise.com 3 ITA No. 3768/Mum/2025 (A.Y.2018-19) Birla Carbon India Private Limited vs. Pr. CIT Subsequent to passing of the final assessment order, ld. PCIT called for and examined the assessment records of the assessee. While doing so, ld. PCIT was of the view that while completing the assessment, the A.O. has failed to examine certain issues resulting in loss of revenue. Thus, he was of the view that the final assessment order passed is erroneous and prejudicial to the interest of the Revenue, hence, is required to be revised u/s. 263 of the Act. Accordingly, he issued a show cause notice to the assessee. In response to the show cause notice, the assessee furnished its reply, objecting to the assumption of jurisdiction u/s. 263 of the Act. However, ld. PCIT did not find merit in the objections of the assessee. Ultimately, he held that the final assessment order passed, being erroneous and prejudicial to the interest of the Revenue, has to be revised. Therefore, he set aside the assessment order with a direction to modify the assessment by passing a speaking order, after providing opportunity of being heard to the assessee. 6. Before us, ld. Counsel appearing for the assessee submitted that the final assessment order passed u/s. 144C(13) of the Act, cannot be subjected to revisionary jurisdiction u/s. 263 of the Act. In support of such contention ld. Counsel relied upon the following decisions: 1. Barclays Bank vs. CIT (in ITA No. 827/Mum/2021 vide order dated 03.01.2022) 2. Accenture Solutions Private Limited vs. PCIT (TS-524-ITAT-2025(MUM-TP). 7. Whereas ld. Departmental Representative (ld.DR) strongly relied upon the observations of ld. PCIT, referring to the decision of Hon’ble Karnataka High Court in case of Devas Multimedia (P.) Ltd. Vs. Pr. CIT [WP No. 11618 of 2016 dated 27.09.2019 (Kar). Printed from counselvise.com 4 ITA No. 3768/Mum/2025 (A.Y.2018-19) Birla Carbon India Private Limited vs. Pr. CIT 8. Having considered rival submission in light of the judicial precedent cited before us and perused the materials on record, we are of the view that the issue is squarely covered by the decisions of the co-ordinate bench cited by ld. Counsel for the assessee. In a recent decision in case of Accenture Solutions Private Limited (supra), the coordinate bench relying upon the decision of another Bench in case of Barclays Bank (supra) has held as under: 7. We have considered rival submissions and perused the materials on record. We have also applied our mind to the decisions relied upon. Factual position relating to the issue in dispute are undisputed. As observed elsewhere in the order, the short issue arising for consideration is, whether ld. PCIT can validly assume jurisdiction u/s. 263 of the Act to revise an assessment order passed in pursuance to the directions of the DRP. Pertinently, section 144C of the Act providing the alternate dispute resolution mechanism by way of reference to ld. DRP was incorporated in the Act by Finance (No. 2) Act, 2009 with retrospective effect from 01.04.2009. Undisputedly, not only the present assessment year is covered u/s. 144C of the Act, but the assessee has subjected itself to such procedure. Now, it is well established that section 144C is a self-contained code and provides the mechanism of not only the procedure of assessment in case of an eligible assessee, but also the remedy available to the assessee against the assessment framed u/s. 144C of the Act. Section 144C of the Act gives an option to the assessee to either approach the Commissioner (Appeals) or the ld. DRP against an assessment order. Once the assessee approaches ld. DRP, in terms with section 144C(2)(b) of the Act, ld. DRP in terms with section 5 of section 144C of the Act issues directions to the A.O. for completing the final assessment. Sub-section 7 of section 144C of the Act, empowers the DRP to make further enquiry if it thinks fit and sub-section 8 of section 144C of the Act empowers the DRP to confirm, reduce or enhance the variation proposed in the draft order. Sub-section 8 of section 147 of the Act even empowers ld. DRP to enhance the valuation on issues which the assessee may or may not have raised. Once ld. DRP issues a direction for the guidance of the A.O. to pass the final assessment order, in terms with sub-section 13 of section 144C, the A.O. has to pass the final assessment order in conformity with the directions of ld. DRP without providing any further opportunity of being heard to the assessee. Thus, a reading of sub-section 13 of section 144C makes it clear that at the stage of final assessment, the A.O. has no mandate to deviate from the directions of ld. DRP, that is why at that stage, the A.O. is not required to give an opportunity of being heard to the assessee. 8. Keeping in view the aforesaid statutory provision, if we look at the legal position, it can be seen that in case of Barclays Bank PLC (supra), the co-ordinate bench, while seized with the identical issue, has held as under: 12. We have carefully gone through the submissions in the case laws and the records. 13. First, we note that in this case, the assessment order was passed after transfer pricing adjustment were made by the TPO. These have been detailed in the assessment order para '7' of the assessment order referred above. The TP adjustment made by TPO were in total Rs. 83,045,395/-. Assessee had made objection before the DRP and pursuant to DRP direction, the assessment was framed as per section 144C(13). 14. As against the above, Ld.CIT has noted that in this case TPO has not proposed any adjustment. This is contrary to the facts in this case, the above shows that Ld.CIT has exercised his jurisdiction u/s 263 without properly appreciating the assessment order passed. He also seems to be ignoring the fact that assessee has chosen to file objection before the DRP. When the assessment order has been passed pursuant to the direction of Printed from counselvise.com 5 ITA No. 3768/Mum/2025 (A.Y.2018-19) Birla Carbon India Private Limited vs. Pr. CIT DRP, the appeal from the said assessment order does not lie with the ld.CIT(A), but lies directly to the ITAT as per provision of section 253(d). Now, the issue to be addressed in this case is whether, the Ld.CIT has erred in initiating proceedings u/s. 263 of the Act, when the original assessment order has been passed u/s. 143(3) r.w.s. 144C(13), on the basis of the directions of the Dispute Resolution Panel(DRP). 15. We may gainfully refer to the provision of section 263 in this regard. \"263. (1) The Principal Commissioner or Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the [Assessing] Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. Explanation 1.--For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,-- (a) an order passed [ on or before or after the 1st day of June, 1988] by the Assessing Officer shall include (i) an order of assessment made by the Assistant Commissioner [or Deputy Commissioner] or the Income tax officer on the basis of the directions issued by the [Joint] Commissioner under section 144A. (ii) an order made by the [Joint] Commissioner in exercise of the powers or in the performance of the functions of an Assessing officer conferred on, or assigned to, him under the orders or directions issued by he Board or by the [Principal ] Chief Commissioner or] Chief Commissioner or[Principal Director General or] Director General or[ Principal Commissioner or] Commissioner authorized by the Board in this behalf under section 120. (b) \"record\" [ shall include and shall be deemed always to have included] all records relating to any proceeding under this Act available at the time of examination by the [Principal [Chief Commissioner or Chief Commissioner or Principal] Commissioner or] Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal [filed on or before or after the 1st day of June, 1988], the powers of the [Principal Commissioner or] Commissioner under this sub-section shall extend [and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal.]\" 16. A reading of the above shows that the Principal Chief Commissioner or Chief commissioner may revise order passed by the AO, if the same is erroneous in so far as prejudicial to the interest of the revenue. The Explanation 1(a) of the Act referred above explains the order passed by the AO which can be subject matter of section 263 revision. The above explanation explains/clarifies that order of the AO in certain cases passed on the direction of certain superior officers can also be subject matter of section 263. The above explanation does not include the order passed under the direction of DRP u/s. 144C(13) of the Act. The legislature in its wisdom has thought it appropriate to include orders passed by the AO under direction u/s. 144A, but not under direction u/s. 144C(13). This is also in accordance with the provisions of the Act contained in section 144C, which we shall detailed at a later stage. The Ld.CIT in this case seems to be quiet conscious of this fact as he has mentioned on one of the issues, that AO has not properly followed the direction u/s. 144A. But, he is quiet silent and has nowhere mentioned that the final assessment order is passed after the direction of DRP. Admittedly, this is not a case, where draft assessment order is being revised. This is a case where final assessment order passed pursuant to the direction of DRP u/s. 144(3) is being revised by Ld.CIT. Ld. Counsel of the assessee in this regard submits that from Printed from counselvise.com 6 ITA No. 3768/Mum/2025 (A.Y.2018-19) Birla Carbon India Private Limited vs. Pr. CIT the Finance Act, 2009, memorandum explaining the rationale behind the insertion of section 144C of the Act by the Finance Bill, 2009 as also the CBDT Circular No. 5 of 2010 dated 3 June 2010 issued explaining the said insertion, the notes on clauses, etc., it can be seen that consequential amendments have been made to various provisions of the Act as a result of insertion of section 144C in the Act. Such consequential amendments have been made to section 13 1, section 246A and section 253 of the Act. That however, no amendment is made in section 263 of the Act as a consequence of insertion of section 144C of the Act to deem such orders being capable of being revised. That therefore, the memorandum, circular, etc. support the Assessee's stand that once the Assessing Officer passes an order in accordance with the Directions issued by a superior authority (being DRP) the same cannot be revised by the CIT under section 263 of the Act. The above submission has sufficient cogency as our following discussion will further oxygenate the same. 17. It will also be gainful to refer to the provision of section 144C dealing with the reference to DRP (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 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. (2) On receipt of the draft order, the eligible assessee shall, within thirty days of the receipt by him of the draft order,-- (a) file his acceptance of the variations to the Assessing Officer; or (b) file his objections, if any, to such variation with,-- (i) the Dispute Resolution Panel; and (ii) the Assessing Officer. (3) The Assessing Officer shall complete the assessment on the basis of the draft order, if-- (a) the assessee intimates to the Assessing Officer the acceptance of the variation; or (b) no objections are received within the period specified in sub-section (2). (4) The Assessing Officer shall, notwithstanding anything contained in section 153 [or section 153B], pass the assessment order under sub-section (3) within one month from the end of the month in which,-- (a) the acceptance is received; or (b) the period of filing of objections under sub-section (2) expires. (5) The Dispute Resolution Panel shall, in a case where any objection is received under sub-section (2), issue such directions, as it thinks fit, for the guidance of the Assessing Officer to enable him to complete the assessment. (6) The Dispute Resolution Panel shall issue the directions referred to in sub-section (5), after considering the following, namely:-- (a) draft order; (b) objections filed by the assessee; (c) evidence furnished by the assessee; (d) report, if any, of the Assessing Officer, Valuation Officer or Transfer Pricing Officer or any other authority; (e) records relating to the draft order; (f) evidence collected by, or caused to be collected by, it; and (g) result of any enquiry made by, or caused to be made by, it. (7) The Dispute Resolution Panel may, before issuing any directions referred to in sub-section (5),-- (a) make such further enquiry, as it thinks fit; or (b) cause any further enquiry to be made by any income-tax authority and report the result of the same to it. Printed from counselvise.com 7 ITA No. 3768/Mum/2025 (A.Y.2018-19) Birla Carbon India Private Limited vs. Pr. CIT (8) The Dispute Resolution Panel may confirm, reduce or enhance the variations proposed in the 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. [Explanation.--For the removal of doubts, it is hereby declared that the power of the Dispute Resolution Panel to enhance the variation shall include and shall be deemed always to have included the power to consider any matter arising out of the assessment proceedings relating to the draft order, notwithstanding that such matter was raised or not by the eligible assessee.] (9) If the members of the Dispute Resolution Panel differ in opinion on any point, the point shall be decided according to the opinion of the majority of the members. (10) Every direction issued by the Dispute Resolution Panel shall be binding on the Assessing Officer. (11) No direction under sub-section (5) shall be issued unless an opportunity of being heard is given to the assessee and the Assessing Officer on such directions which are prejudicial to the interest of the assessee or the interest of the revenue, respectively. (12) No direction under sub-section (5) shall be issued after nine months from the end of the month in which the draft order is forwarded to the eligible assessee. (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. (14) The Board may make rules for the purposes of the efficient functioning of the Dispute Resolution Panel and expeditious disposal of the objections filed under sub- section (2) by the eligible assessee. (14A) The provisions of this section shall not apply to any assessment or reassessment order passed by the Assessing Officer with the prior approval of the Commissioner as provided in sub-section (12) of section 144BA. (14b) The central Government may make a scheme, by notification in the Official Gazette, for the purposes of issuance of directions by the dispute resolution panel, so as to impart greater efficiency, transparency and account ability by- (a) eliminating the interface between the dispute resolution panel and the eligible assessee or any other person to the extent technologically feasible; (b) optimizing utilization of the resources through economies of scale and functional specialization; (c) introducing a mechanism with dynamic jurisdiction for issuance of directions by dispute resolution panel (14C) The Central Government may, for the purpose of giving effect to the scheme made under sub-section(14B), by notification in the Official Gazette direct that any of the provisions of this act shall not apply or shall apply with such exceptions, modifications and adaptations as may be specified in the notifications. Provided that no direction shall be issued after the 31st day of March, 2022 (14D) Every notification issued under sub-section(14B) and sub-section (14C) shall, as soon as may be after the notification issued, be laid before each House of parliament] (15) For the purposes of this section,-- (a) \"Dispute Resolution Panel\" means a collegium comprising of three Commissioners of Income-tax constituted by the Board for this purpose; (b) \"eligible assessee\" means,-- (i) any person in whose case the variation referred to in sub-section (1) arises as a consequence of the order of the Transfer Pricing Officer passed under sub- section (3) of section 92CA; and (ii) any non-resident not being a company, or any foreign company.] 18. A reading of the said section brings to the fore following:- Printed from counselvise.com 8 ITA No. 3768/Mum/2025 (A.Y.2018-19) Birla Carbon India Private Limited vs. Pr. CIT The assessee has option to go to the DRP by filing objection before it. As per the provisions of section 144C(5) of the Act, the Dispute Resolution Panel (DRP) shall in a case where any objection is received under sub-section (2), issue such directions, as it thinks fit, for the guidance of the Assessing Officer to enable him to complete the assessment. Further, the provisions of sub-section (7) of section 144C empowers the DRP to make any further enquiry or cause any further enquiry to be made by the Income- tax authority as it thinks fit. Explanation to sub-section (8) of section 144C duly provides that DRP has power to enhance the variation and the power includes to consider any matter arising out of the assessment proceedings relating to the draft order, notwithstanding that such matter was raised or not by the eligible assessee. Section 144C(13) provides that upon receipt of the directions issued by DRP, the Assessing Officer shall, in conformity with the directions, complete the assessment without providing any further opportunity of being heard to the Appellant. As noted above, it is now nobody's case that the Assessing Officer has not followed the direction of the DRP and completed the assessment not in conformity with the direction of the DRP. Therefore, the final Assessment order cannot be said to be erroneous. In fact, if the Assessing Officer had made any addition in the final assessment order which were not as per the direction of the DRP, the said assessment order would be held to be invalid and contrary to law. of the Act. \"Further, it is a settled legal principle that one cannot do indirectly what one cannot do directly [\" Quando aliquidprohibetur ex directo, prohibetur etper obiiquum] If the AO could not have directly made any change in the final assessment order after the direction of the DRP, then the PCIT also cannot indirectly make any change so as to circumvent the provision of section 144C(13) of the Act. Reliance in this regard is placed on the decision of the Apex Court in the case of Supertech Limit ed v Emerald Court Owner Resident Welfare Association and Ors. (MANU/SC/08643/2021). 19. Further, the scheme of the Act itself does not provide any interference in the direction of the DRP as the law containing section 144C(13) directs that the AO shall pass an order inconformity with the directions of the DRP without providing any further opportunity of being heard to the assessee. When the Act itself provide, that order has to be passed by the AO without providing any opportunity to the assessee pursuant to the direction of the DRP, the direction given in this order u/s. 263 by the Ld.CIT to the AO to call for the details of allowability of various deductions claimed by the assessee, in light of the observations discussed by him is quiet contrary to the sanguine provisions of law. Even otherwise, the order passed by the Ld.CIT is an exercise in futility inasmuch as, if the AO proceeds to pass an order by giving the assessee an opportunity of being heard, the same will be against the mandate of section 144C(13). Furthermore, it is also settled law that in assessment u/s. 144C, AO has to invariably pass a draft assessment order and give the same to the assessee for filing objection before DRP. Hence, the direction by the Ld.CIT to the AO to pass an order by-passing the provisions of passing the draft assessment order is also not sustainable in law. 20. Now, we examine the constitution of DRP. As evident from the above, the DRP constitutes a collegium comprising of three Principal Commissioners or Commissioners of Income-tax, the directions given by them is binding upon by the AO. Hon'ble Bombay High Court in the case of Vodafone India Services Pvt.Ltd. vs Union of India & Others 2013 SCC online Bom 1534 has expounded upon the proceedings at DRP as under:- \"The proceeding before the DRP is not an appeal proceeding but a correcting mechanism in the nature of a second look at the proposed assessment order by high functionaries of Printed from counselvise.com 9 ITA No. 3768/Mum/2025 (A.Y.2018-19) Birla Carbon India Private Limited vs. Pr. CIT the revenue keeping in mind the interest of the assessee. It is a continuation of the Assessment proceedings till such time a final order of assessment which is appelable is passed by the Assessing Officer. This also finds support from Section 144C(6) which enables the DRP to collect evidence or cause any enquiry to be made before giving directions to the Assessing Officer under Section 144C(5). The DRP procedure can only be initiated by an assessee objecting to the draft assessment order. This would enable correction in the proposed order (draft assessment order) before a final assessment order is passed. Therefore, we are of the view that in the present facts this issue could be agitated before and rectified by the DRP.\" [underline ours] 21. The above exposition duly elaborates upon the provisions of the Act contained under section 144C. 22. From the above, it is also apparent that members of the DRP are three in numbers and are individually equivalent in rank to the CIT, who is initiating proceedings u/s. 263 against the order passed by the AO pursuant to their direction. Now as far as equivalence of single CIT to a 'colliguem of 3 CIT is concerned, it is settled law that bench comprising single persons is not higher/superior than a collegiums of three persons. Hence, it is abundantly clear that the DRP stands at a higher pedestal than the CIT passing an order alone. 23. Furthermore, we may refer to the decision of Hon'ble Bombay High court in the case of Virendra Kumar Jhamb vs. N.K.Vohra (supra). In this case, the Jurisdictional High Court held that the assessee had approached the DDIT (investigation) under the Direct tax Amnesty Scheme. The CIT had accepted that the taxable income be computed at 8 percent of the total receipts. A second CIT, on scrutiny and verification of the assesses records, found the decision of the earlier CIT to be fair and justifiable. A subsequent CIT, sought to revise the order under section 263, and tax income at 9 percent of the receipts. The Bombay High Court inter alia held that the assessment orders were solely based on the directives of the earlier CITs, and the same could not be revised by the subsequent CIT under section 263. 24. In light of the above discussion and case laws, the case laws referred by the Ld.CIT-DR are not applicable on the facts of the case. As, we have already noted that the submission of Ld.CIT-DR are at variance with the exposition by Hon'ble Bombay High Court in Vodafone India Services Pvt.Ltd.(supra). The Ld.CIT-DR in his submission has emphasized that proceeding before DRP is akin to appeal before Ld.CIT(A). This is quiet contrary to the Hon'ble Bombay High Court exposition noted above and the other decisions of Hon'ble Jurisdictional High court referred above. 25. The case of Devas Multimedia Pvt.Ltd.(supra) by the Hon'ble Karnataka High Court was in connection with the writ petition filed by the assessee, where assessee has objected to the notice issued u/s. 263 of the Act. Furthermore, Hon'ble High Court has expounded that writ court cannot examine the validity of notice on merits. Furthermore, the said decision has distinguished following decision of Hon'ble Bombay High Court, i) Vodafone Services Pvt.Ld.(supra) wherein Hon'ble Bombay Court has expounded that proceedings before the DRP is not an appeal proceedings, but correction mechanism in the nature of a second look at the proposed assessment order by high functionaries of revenue (ii)Vodafone India Services Pvt.Ltd. vs. Union of India (2014) 368 ITR 1(Bom.). In the present case, this Tribunal is under the jurisdiction of Hon'ble Bombay High Court. Hence, we do not have any authority whatsoever to deviate from the exposition of the Hon'ble jurisdictional High Court that the proceedings at DRP is not an appeal proceedings, but a correcting mechanism. Furthermore, the ratio from the Hon'ble Bombay High Court in the case of Virendra Kumar Jamb(supra) also support this view. Printed from counselvise.com 10 ITA No. 3768/Mum/2025 (A.Y.2018-19) Birla Carbon India Private Limited vs. Pr. CIT Hence, the submission of Ld. DR that subject under discussion here has not been subject matter of Hon'ble jurisdictional High Court elaboration is not acceptable. Once, this is accepted, that the assessment order having been corrected by colligeum of three commissioner of income tax, the same can by no stretch of imagination be subject to revision by commissioner of income tax sitting alone. More so, in light of provision of section 144C(13) which clearly mandates that AO has to pass an order in accordance with the direction of the DRP without giving any opportunity to the assessee to so in the present case. If this order passed by the Ld.CIT is upheld and AO starts giving opportunity of hearing to the AO in accordance with the direction of the CIT, the same will be in violation of the sanguine provision of section 144C(13). 26. Hence, in light of the aforesaid discussions and precedents from Hon'ble jurisdictional High Court, we set aside the orders of Ld.CIT and hold that he cannot legally assume jurisdiction u/s. 263 of the act on an order passed by the AO pursuant to the direction of DRP. This is over and above our other observations in para '14' of this order, where we have noted that Ld.CIT has passed this order without properly appreciating the assessment order. Since, we have quashed assessment order on jurisdiction itself, we are not dealing with the merits of the case. 9. Identical view has been expressed by the co-ordinate benches in case of Bharti Axa Life Insurance Co. Ltd. (supra) and M/s. Cambridge Technology Enterprises Limited (supra) as well. The ratio laid down in these decisions squarely apply to the facts of the present case. No contrary decision has been brought to our notice by the Department. Therefore, respectfully following the ratio laid down in the judicial precedents referred to above, we hold that ld. PCIT has no authority to assume jurisdiction u/s. 263 of the Act to revise the final assessment order passed in pursuance to the direction of ld. DRP. Accordingly, we quash the impugned order passed u/s. 263 of the Act and restore the final assessment order. 9. Pertinently, in case of Barclays Bank (supra), the co-ordinate bench after taking note of the decision of Hon’ble Karanataka High Court in case of Devas Multimedia (P.) Ltd. (supra) has decided the issue in favour of the assessee following the decision of Hon’ble Bombay High Court. In view of the aforesaid, respectfully following the decisions of the co-ordinate benches cited before us by ld. Counsel for the assessee, we hold that the exercise of jurisdiction u/s. 263 of the Act to revise the final assessment order passed in pursuance to the directions of ld. DRP is invalid. Consequently, the impugned order passed u/s. 263 of the Act is declared as invalid and squashed. Resultantly, the final assessment order dated 29.07.2022 stands restored. The other issues raised in appeal but not deliberated upon in the present order are kept open. Printed from counselvise.com 11 ITA No. 3768/Mum/2025 (A.Y.2018-19) Birla Carbon India Private Limited vs. Pr. CIT 10. In the result, the appeal is allowed as indicated above. Order pronounced in the open court on 22.09.2025 Sd/- Sd/- (N. K. Billaiya) (Saktijit Dey) Accountant Member Vice President Mumbai; Dated : 22.09.2025 Roshani, Sr. PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent 3. The CIT(A) 4. CIT - concerned 5. DR, ITAT, Mumbai 6. Guard File BY ORDER, (Dy./Asstt. Registrar) ITAT, Mumbai Printed from counselvise.com "