Planet Online Private Limited , Hyderabad V. Income Tax Officer, Ward-16(2), Hyderabad

ITA 1605/Hyd/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1452 (ITAT-HYDERABAD)
• Duration Of Justice: 2 year(s) 10 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB-B
• Assessment Year: 2009-2010
• Appeal Filed On: 30-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M DAYASAGAR
• Assessee Lawyers: P MURALI MOHANA RAO
• Keywords: Transfer pricing
• Section: 144C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD. BEFORE SHRI S.S. GODARA, JUDICIAL MEMBER AND SHRI L . P . SAHU, ACCOUNTANT MEMBER (THROUGH VIRTUAL HEARING) ITA NO. 1605 /HYD/20 18 (ASSESSMENT YEAR : 20 09 - 10 ) M/S. PLANET ONLINE PVT. LTD., HYDERABAD. PAN AAECS1624F ..APPELLANT. VS. INCOME TAX OFFICER, WARD 16(2), HYDERABAD. ..RESPONDENT. APPELLANT BY : SHRI P. MURALI MOHANA RAO. RESPONDENT BY : SHRI M. DAYASAGAR. (D.R.) DATE OF HEARING : 25.05. 2021. DATE OF PRONOUNCEMENT : 29 .0 6 .2021. O R D E R PER SHRI S.S. GODARA, J.M. : THIS ASSESSEE'S APPEAL FOR ASSESSMENT YEAR 2009 - 10 HAS ARISEN AGAINST THE ITO, WARD 16(2), HYDERABAD S ASSESSMENT DT.9.2.2018 FRAMED IN PURSUANCE TO THE TRIBUNALS FIRST ROUND REMAND ORDER/DIRECTION DT.30.01.2015 IN ITS APPEAL ITA 464/HYD/2014 , IN 2 ITA NO. 1605/HYD/2018 PROCEEDINGS U/S.143(3) R.W.S. 144C(13) R.W.S 254 OF THE INCOME TAX ACT, 1961 ('THE ACT'). HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. WE NOTICE AT THE OUTSET THAT THE ASSESSEE HAS RAISED ITS FIRST AND FOREMOST SUBSTANTIVE GRIEVANCE THAT THE ASSESSING OFFICERS CO NSEQUENTIAL ASSESSMENT ORDER DT.9.2.2018 FRAMED IN PURSUANCE TO THE TRIBUNALS FIRST ROUND REMAND DIRECTION S IN ABSENCE OF A DRAFT ASSESSMENT AND NOT SUSTAINABLE IN LAW THEREFORE . 3. LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY CONTENDED IN TUNE WITH THE IMPUGNED ASSESSMENT THAT THE ASSESSING OFFICER HAS FRAMED THE ASSESSMENT UNDER CONSIDERATION STRICTLY AS PER THE TRIBUNALS DIRECTION S WHILE MAKING ARMS LENGTH PRICE (ALP) ADJUSTMENT OF RS.1,96,50,810 UNDER CHAPTER X OF THE ACT . A ND THAT T HE ASSESSEE IS VERY MUCH PRECLUDED FROM RAISING THE INSTANT LEGAL OBJECTION ONCE THIS FACT HAD NOT BEEN RAISED BEFORE THE ASSESSING OFFICER. 3 ITA NO. 1605/HYD/2018 4. WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATION TO THE FOREGOING RIVAL PLEADINGS AGAINST AND IN SUPPORT OF VAL IDITY OF THE IMPUGNED ASSESSMENT. THE CLINCHING FACT THAT HAS SURFACED DURING THE COURSE OF HEARING BEFORE US IS UNDOUBTFUL ABSENCE OF A DRAFT ASSESSMENT ORDER AT THE ASSESSING OFFICERS LEVEL. THE PRECISE QUESTION AS TO WHETHER SUCH A CONSEQUENTIAL ASSE SSMENT ORDER COULD BE PASSED IN ABSENCE OF A DRAFT ASSESSMENT ORDER IS NO MORE RES INTEGRA AS PER HON'BLE APEX COURTS LAND MARK DECISION IN (2018) ADDL. CIT VS. NOKIA INDIA PVT. LTD. 98 TAXMAN.COM 374 (SC) UP HOLDING HON'BLE DELHI HIGH COURT DECISION TO THIS EFFECT IN NOKIA INDIA PVT. LTD. VS. ADDL. CIT (2018) 98 TAXMAN.COM 373 (DEL) AGAINST THE DEPARTMENT AND IN ASSESSEE'S FAVOUR . THIS TRIBUNALS CO - ORDINATE BENCH DECISION IN SREENI PHARMACEUTICALS PVT. LTD. VS. DCIT IN ITA NO.97/HYD/2017 DT.20.6.2018 HAS ALSO ADOPTED THE VERY REASONING WHILE INVALIDATING A SIMILAR CONSEQUENTIAL ASSESSMENT . WE THUS CONCLUDE THAT THE IMPUGNED ASSESSMENT ITSELF IS NOT SUSTAIN ABLE SINCE THE ASSESSING OFFICER HAS FAILED TO COMPLY THE MANDATORY CONDITION OF A DRAFT ASSESSMENT ORDER U/S. 4 ITA NO. 1605/HYD/2018 144C OF THE ACT. ORDERED ACCORDINGLY. ALL OTHER PLEADINGS ON MERIT ARE RENDERED INFRUCTUOUS. 5. THIS ASSESSEE'S APPEAL IS ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE OPEN COURT ON 29TH JU NE , 2021. SD/ - SD/ - (L .P. SAHU) (S.S. GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DT. 29 .0 6 .2021. * REDDY GP COPY TO : 1. M/S. PLANET ONLINE PVT. LTD., 10 - 2 - 287/1/7, MASAB TANK,SHANTI NAGAR, OPP. MAHAVIR HOSPITAL, HYDERABAD. 2. ITO, WARD 16(2), HYDERABAD. 3. PR. C I T , HYDERABAD. 4. CIT(APPEALS) - HYDERABAD. 5. DR, ITAT, HYDERABAD. 6. GUARD FILE. BY ORDER SR. PVT. SECRETARY, ITAT, HYDERABAD.