M/s Pricewaterhouse Coopers Pvt. Ltd., Kolkata V. ACIT, Circle-2(2), Kolkata, Kolkata

ITA 2298/KOL/2016

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1148 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-05-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2011-2012
• Appeal Filed On: 05-12-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: BIKASH KR JAIN
• Keywords: Invalid notice; Transfer pricing; Double taxation relief; Principle of natural justice; International transaction; Period of limitation; Additional evidence; Question of law; Initiation of penalty proceedings; TDS; Set aside; FORM 26AS
• Section: 271(1)(c); 143(3); 153A; 144C; 274; 139(1); 13; 153; 22; 153C; 147; 263; 90

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. GODARA, JUDICIAL MEMBER) ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED.....................................APPELLANT BLOCK-EP, PLOT Y14 SALT LAKE CITY SECTOR-V KOLKATA 700 091 [PAN : AABCP 9181 H] VS. DEPUTY COMMISSIONER OF INCOME TAX (IT), CIRCLE-2(1), KOLKATA..............................APPELLANT APPEARANCES BY: SHRI KANCHUN KAUSHAL, A/R & SHRI BIKASH KR. JAIN, CA, APPEARED ON BEHALF OF THE ASSESSEE. SHRI VIJAY SHANKAR, CIT, D/R, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : FEBRUARY 25 TH , 2020 DATE OF PRONOUNCING THE ORDER : MAY 29 TH , 2020 ORDER PER J. SUDHAKAR REDDY, AM :- THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE ASSESSING OFFICER U/S 144C(13) R.W.S. 143(3) OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 29/09/2016, FOR THE ASSESSMENT YEAR 2011-12. THIS ORDER WAS COMMUNICATED TO THE ASSESSEE ON 7 TH OCTOBER, 2016. 2. FACTS IN BRIEF:- IN THE TRANSFER PRICING (TP) ANALYSIS AND REPORT ISSUED BY THE ASSESSEE, AT PAGE 5, POINT NOS. 1.2 TO 1.4, READ AS FOLLOWS:- 1.2.1. PRICEWATERHOUSECOOPERS (P) LTD. PWC INDIA, AN INDIAN COMPANY, WAS INCORPORATED IN 1982. IT STARTED OPERATIONS ON A FULL SCALE ONLY IN THE YEAR 2000. PWC INDIA IS A MEMBER OF PWC INTERNATIONAL LIMITED, UK, A COMPANY INCORPORATED IN UK AND LIMITED BY GUARANTEE. PWC INTERNATIONAL LIMITED, UK IS AKIN TO ASSOCIATION OF WHICH THE PWC ENTITIES ACROSS VARIOUS COUNTRIES IN THE WORLD ARE MEMBERS. BY VIRTUE OF BEING A MEMBER OF THE ASSOCIATION, NAMELY, PWC INTERNATIONAL LIMITED, UK, PWC INDIA IS ENTITLED TO USE THE NAME OF 'PRICEWATERHOUSECOOPERS' UNDER A ROYALTY FREE NON-EXCLUSIVE LICENSE GRANTED BY THE SAID UK COMPANY/ ASSOCIATION. IT IS INDEPENDENTLY INVOLVED IN THE BUSINESS OF MANAGEMENT CONSULTANCY SERVICES AND BUSINESS ADVISORY SERVICES. THE COMPANY HAS BEEN RENDERING SERVICES TO BOTH OVERSEAS AND DOMESTIC CLIENTS SINCE APRIL 2000. PWC INDIA OWNS ONLY ROUTINE INTANGIBLES AS IT ACTS AS A MANAGEMENT CONSULTANT IN EXCHANGE FOR A SERVICE FEE. 1.2.2. PRICEWATERHOUSECOOPERS LANKA (P) LTD. PRICEWATERHOUSECOOPERS LANKA (PVT) LIMITED (PWC LANKA) IS THE TECHNOLOGY ADVISORY ARM OF PWC IN SRI LANKA AND EMPLOYS OVER 30 PROFESSIONALS. PWC LANKA PROVIDES SERVICES TO GOVERNMENT, LARGE MULTINATIONAL ORGANISATIONS, AS WELL AS TO SMALL PRIVATE SECTOR COMPANIES. PRICEWATERHOUSECOOPERS SRI LANKA IS AN ISO 27001 CERTIFIED COMPANY. PRICEWATERHOUSECOOPERS EMPLOYS MORE THAN 140,000 PEOPLE IN 149 COUNTRIES ACROSS THE GLOBE AND SHARE THEIR THINKING, EXPERIENCE AND SOLUTIO AND PRACTICAL ADVICE. 1.2.3. PRICEWATERHOUSECOOPERS DEVELOPMENT ASSOCIATES LTD. PRICEWATERHOUSECOOPERS DEVELOPMENT ASSOCIATES LTD., UK (,PWC DA') IS AN ASSOCIATED ENTERPRISE OF PWC INDIA AND IS INCORPORATED UNDER THE COMP KINGDOM. THE REGISTERED OFFICE OF PWC DA IS SITUATED AT 35 ST. THOMAS STREET, LONDON SE 1 9SN. PWC DA IS ENGAGED IN PROVIDING MANAGEMENT CONSULTANCY SERVICES TO CLIENTS ESPECIALLY ENGAGED IN THE DEVELOPMENT PROJECTS FUNDED BY WORLD BANK, DFID, ADB ETC. THE DEVELOPMENT OF THE ARMS LENGTH PRICE IN THIS ANALYSIS RECOGNISES THAT PWC DA PERFORMS THE ROLE OF A ROUTINE MANAGEMENT CONSULTANT MERELY ACTING AS A DISTRIBUTOR OF SERVICES, WHICH ARE PERFORMED BY BASED ON THE FUNCTIONAL ANALYSIS, PWC DA HAS LEAST COMPLEX OPERATIONS AND BEARS LESSER SHARE OF RISKS AND WAS ACCORDINGLY SELECTED AS THE TESTED PARTY FOR THE ECONOMIC ANALYSIS. 1.3. ECONOMIC ANALYSIS THE INDIAN REGULATIONS REQUIRE THE USE OF WHICH CAN BE SUPPORTED BY UNCONTROLLED COMPARABLES. THE TABLE BELOW SUMMARISES THE OUTCOME OF THE ECONOMIC ANALYSIS: NATURE OF INTERNATIONAL TRANSACTION MOST APPROPRIATE METHOD RECEIPT FOR MANAGEMENT CONSULTANCY SERVICES FROM PWC DA RESALE PRICE METHOD (RPM) RECEIPT FOR MANAGEMENT CONSULTANCY SERVICES FROM PWC LANKA TRANSACTION NET MARGIN METHOD (TNMM) RECOVERY OF EXPENSES REIMBURSEMENT OF EXPENSES 1.4. CONCLUSION THE ABOVE ANALYSIS INDICATES THAT THE INTERNATIONAL TRANSACTIONS OF PWC INDIA WERE IN ACCORDANCE WITH ARM'S LENGTH STANDARD REQUIRED UNDER THE INDIAN REGULATIONS. IT IS IMPORTANT TO NOTE THAT THE RESULTS OF OUR TRANSFER PRICING ANALYSIS ARE BASED ON FACTS FINANCIAL DATA AS OF MARCH 31, 2011 AND ARE PERTINENT TO THE FINANCIAL YEAR ENDED MARCH 31, 2011. ON A GOING FORWARD BASIS, THE RESULTS WOULD NEED TO BE ALTERED SO AS TO INCORPORATE LATEST FINANCIAL RESULTS AND ANY CHANGES IN THE FUNCTIONS PERFORMED, LEVEL OF TANGIBLE AND INTANGIBLE ASSETS OWNED AND EMPLOYED BY PWC INDIA AND ITS ASSOCIATED ENTERPRISE. ALSO, WE RECOMMEND THAT PWC INDIA REVIEWS AND UPDATES ITS TRANSFER PRICING ARRANGEMENTS TO REFLECT CHANGES IN THE MARKET OR CHANGES TRANSACTION. 2 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED PRICEWATERHOUSECOOPERS EMPLOYS MORE THAN 140,000 PEOPLE IN 149 COUNTRIES ACROSS THE GLOBE AND SHARE THEIR THINKING, EXPERIENCE AND SOLUTIO NS TO DEVELOP FRESH PERSPECTIVES 1.2.3. PRICEWATERHOUSECOOPERS DEVELOPMENT ASSOCIATES LTD. PRICEWATERHOUSECOOPERS DEVELOPMENT ASSOCIATES LTD., UK (,PWC DA') IS AN ASSOCIATED ENTERPRISE OF PWC INDIA AND IS INCORPORATED UNDER THE COMP ANIES ACT, 1985 IN THE UNITED KINGDOM. THE REGISTERED OFFICE OF PWC DA IS SITUATED AT 35 ST. THOMAS STREET, LONDON SE 1 9SN. PWC DA IS ENGAGED IN PROVIDING MANAGEMENT CONSULTANCY SERVICES TO CLIENTS ESPECIALLY ENGAGED IN THE DEVELOPMENT PROJECTS FUNDED BY INTERNATIONAL AGENCIES LIKE WORLD BANK, DFID, ADB ETC. THE DEVELOPMENT OF THE ARMS LENGTH PRICE IN THIS ANALYSIS RECOGNISES THAT PWC DA PERFORMS THE ROLE OF A ROUTINE MANAGEMENT CONSULTANT MERELY ACTING AS A DISTRIBUTOR OF SERVICES, WHICH ARE PERFORMED BY PWC INDIA. BASED ON THE FUNCTIONAL ANALYSIS, PWC DA HAS LEAST COMPLEX OPERATIONS AND BEARS LESSER SHARE OF RISKS AND WAS ACCORDINGLY SELECTED AS THE TESTED PARTY FOR THE ECONOMIC ANALYSIS. THE INDIAN REGULATIONS REQUIRE THE USE OF THE MOST APPROPRIATE TRANSFER PRICING METHOD WHICH CAN BE SUPPORTED BY UNCONTROLLED COMPARABLES. THE TABLE BELOW SUMMARISES THE OUTCOME OF THE ECONOMIC ANALYSIS: APPROPRIATE METHOD NET PROFIT INDICATOR (NPI) TESTED PARTY TESTED PARTYS NPI RESALE PRICE METHOD (RPM) GROSS PROFIT/SALES (GP/SALES) PWC DA - 06.84% TRANSACTION MARGIN METHOD (TNMM) OPERATING PROFIT/TOTAL COST (OP/TC) PWC INDIA 23.03% COMPARABLE UNCONTROLLED PRICE METHOD (CUP) THE ABOVE ANALYSIS INDICATES THAT THE INTERNATIONAL TRANSACTIONS OF PWC INDIA WERE IN ACCORDANCE WITH ARM'S LENGTH STANDARD REQUIRED UNDER THE INDIAN REGULATIONS. IT IS IMPORTANT TO NOTE THAT THE RESULTS OF OUR TRANSFER PRICING ANALYSIS ARE BASED ON FACTS FINANCIAL DATA AS OF MARCH 31, 2011 AND ARE PERTINENT TO THE FINANCIAL YEAR ENDED MARCH 31, 2011. ON A GOING FORWARD BASIS, THE RESULTS WOULD NEED TO BE ALTERED SO AS TO INCORPORATE LATEST FINANCIAL RESULTS AND ANY CHANGES IN THE FUNCTIONS PERFORMED, RISKS ASSUMED AND THE LEVEL OF TANGIBLE AND INTANGIBLE ASSETS OWNED AND EMPLOYED BY PWC INDIA AND ITS ASSOCIATED ENTERPRISE. ALSO, WE RECOMMEND THAT PWC INDIA REVIEWS AND UPDATES ITS TRANSFER PRICING ARRANGEMENTS TO REFLECT CHANGES IN THE MARKET OR CHANGES IN THE NATURE OF ITS INTRA ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED PRICEWATERHOUSECOOPERS EMPLOYS MORE THAN 140,000 PEOPLE IN 149 COUNTRIES ACROSS THE NS TO DEVELOP FRESH PERSPECTIVES PRICEWATERHOUSECOOPERS DEVELOPMENT ASSOCIATES LTD., UK (,PWC DA') IS AN ASSOCIATED ANIES ACT, 1985 IN THE UNITED KINGDOM. THE REGISTERED OFFICE OF PWC DA IS SITUATED AT 35 ST. THOMAS STREET, LONDON SE 1 9SN. PWC DA IS ENGAGED IN PROVIDING MANAGEMENT CONSULTANCY SERVICES TO CLIENTS INTERNATIONAL AGENCIES LIKE THE DEVELOPMENT OF THE ARMS LENGTH PRICE IN THIS ANALYSIS RECOGNISES THAT PWC DA PERFORMS THE ROLE OF A ROUTINE MANAGEMENT CONSULTANT MERELY ACTING AS A DISTRIBUTOR OF BASED ON THE FUNCTIONAL ANALYSIS, PWC DA HAS LEAST COMPLEX OPERATIONS AND BEARS LESSER SHARE OF RISKS AND WAS ACCORDINGLY SELECTED AS THE TESTED PARTY FOR THE ECONOMIC ANALYSIS. THE MOST APPROPRIATE TRANSFER PRICING METHOD CO MPARABLES NPI 19.70% 12.29% COMPARABLE UNCONTROLLED PRICE METHOD (CUP) THE ABOVE ANALYSIS INDICATES THAT THE INTERNATIONAL TRANSACTIONS OF PWC INDIA WERE IN ACCORDANCE WITH ARM'S LENGTH STANDARD REQUIRED UNDER THE INDIAN REGULATIONS. IT IS IMPORTANT TO NOTE THAT THE RESULTS OF OUR TRANSFER PRICING ANALYSIS ARE BASED ON FACTS AND FINANCIAL DATA AS OF MARCH 31, 2011 AND ARE PERTINENT TO THE FINANCIAL YEAR ENDED MARCH 31, 2011. ON A GOING FORWARD BASIS, THE RESULTS WOULD NEED TO BE ALTERED SO AS TO INCORPORATE RISKS ASSUMED AND THE LEVEL OF TANGIBLE AND INTANGIBLE ASSETS OWNED AND EMPLOYED BY PWC INDIA AND ITS ASSOCIATED ENTERPRISE. ALSO, WE RECOMMEND THAT PWC INDIA REVIEWS AND UPDATES ITS TRANSFER PRICING IN THE NATURE OF ITS INTRA -GROUP 2.1. THE ISSUE OF DETERMINATION OF ARMS LENGTH PRICE (ALP) WAS REFERRED BY THE ASSESSING OFFICER TO THE TRANSFER PRICING OFFICER (TPO). THE TPO PASSED AN ORDER U/S 92CA(3) OF THE ACT ON 27/ INTERNATIONAL TRANSACTION HAS BEEN DETERMINED AS FOLLOWS: 7.0. SINCE THE ADJUSTMENT IS MORE THAN +/ ADJUSTMENT OF RS. 570,31,878/ THAT THE INTERNATIONAL TRANSACTIONS UNDERTAKEN BY THE COMPANY ARE AT ARM'S L 3 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED THE ISSUE OF DETERMINATION OF ARMS LENGTH PRICE (ALP) WAS REFERRED BY THE ASSESSING OFFICER TO THE TRANSFER PRICING OFFICER (TPO). THE TPO PASSED AN ORDER U/S 92CA(3) OF THE ACT ON 27/ 01/2015. AT PAR A 6 OF THIS ORDER, THE ALP OF THE INTERNATIONAL TRANSACTION HAS BEEN DETERMINED AS FOLLOWS: - 7.0. SINCE THE ADJUSTMENT IS MORE THAN +/ - 5% LIMIT, IN VIEW OF THE FACTS OF THE CASE, AN ADJUSTMENT OF RS. 570,31,878/ - - IS TO BE MADE TO THE TOTAL INCOME OF THE ASSESSEE IN ORDER THAT THE INTERNATIONAL TRANSACTIONS UNDERTAKEN BY THE COMPANY ARE AT ARM'S L ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED THE ISSUE OF DETERMINATION OF ARMS LENGTH PRICE (ALP) WAS REFERRED BY THE ASSESSING OFFICER TO THE TRANSFER PRICING OFFICER (TPO). THE TPO PASSED AN ORDER U/S A 6 OF THIS ORDER, THE ALP OF THE 5% LIMIT, IN VIEW OF THE FACTS OF THE CASE, AN IS TO BE MADE TO THE TOTAL INCOME OF THE ASSESSEE IN ORDER THAT THE INTERNATIONAL TRANSACTIONS UNDERTAKEN BY THE COMPANY ARE AT ARM'S L ENGTH. CONSEQUENCE TO THIS ADJUSTMENT, THE TOTAL INCOME OF THE ASSESSEE IS REVISED UPWARDS BY RS. 570,31,878/-. 2.1.1. SUBSEQUENTLY, THE ASSESSING OFFICER PASSED AN ORDER DT. 27/11/2015 U/S 144C OF THE ACT, WHICH WAS TITLED ISSUED A NOTICE OF DEMAND U/S 156 OF THE ACT, 27/11/2015, WHEREIN THE NOTICE STATES AS FOLLOWS:- .., HAS BEEN DETERMINED TO BE PAYABLE BY YOU U/S 144C OF THE I.T. ACT 1961. HE ALSO ISSUED A NOTICE U/S 274 R.W.S. 271 OF THE ACT, DT. 2 2.1.2. THE ASSESSEE REPLIED ON 23/12/2015, STATING THAT THE SAID NOTICE ISSUED U/S 274/271 OF THE ACT, RECEIVED ALONG WITH THE ORDER PASSED U/S 144C OF THE ACT, IS BAD IN LAW, AS THE ORDER PASSED U/S 144C OF THE ACT, IS BARRED BY LIMITATION. TH FILED A LETTER BEFORE THE ASSESSING OFFICER I.E., DCIT CIRCLE 21/12/2015, WHEREIN, THE FOLLOWING CONTENTION WERE RAISED: A) ISSUANCE OF NOTICE U/S 156 OF THE ACT, IS NOT IN CONFORMITY OF THE PROVISIONS OF SECTION 144C OF THE ACT A CREATED ON THE PROPOSED VARIATION OF INCOME. B) THAT THE ASSESSING OFFICER HAS THE ACT AND THAT IN ACCORDANCE TO SECTION 144C(2) OF THE ACT, THE ASSESSEE HAS THE OPTION TO ACCEPT THE VARIATION T OBJECTIONS BEFORE THE DRP. C) THAT THE PASSING OF SUCH ORDER U/S 144C OF THE ACT IS BEYOND JURISDICTION AND BARRED BY LIMITATION. D) AS THERE WAS EXCHANGE OF INFORMATION UNDER THE DTAA BETWEEN INDIA AND NETHERLANDS, IN TERMS OF EXPLANATION 1 ACT, THE ORDER OF ASSESSMENT SHOULD HAVE BEEN PASSED ON OR BEFORE 9 OCTOBER, 2015 AND AS THE SAME WAS PASSED ON 27 IS BEYOND THE PERIOD OF LIMITATION. 2.2. THEREAFTER, THE ASSESSEE FILED OBJECTIONS IN FORM 35A BEFORE THE DRP ON 21/12/2015 I.E., THE SAME DAY ON WHICH THE OBJECTIONS WERE RAISED BEFORE THE ASSESSING OFFICER. IN FORM 35A, THE ASSESSEE STATES UNDER COLUMN 5 4 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED CONSEQUENCE TO THIS ADJUSTMENT, THE TOTAL INCOME OF THE ASSESSEE IS REVISED UPWARDS BY SUBSEQUENTLY, THE ASSESSING OFFICER PASSED AN ORDER DT. 27/11/2015 U/S 144C OF THE ACT, WHICH WAS TITLED DRAFT ASSESSMENT ORDER . THE ASSESSING OFFICER ISSUED A NOTICE OF DEMAND U/S 156 OF THE ACT, 27/11/2015, WHEREIN THE NOTICE STATES .., HAS BEEN DETERMINED TO BE PAYABLE BY YOU U/S 144C OF THE I.T. ACT 1961. HE ALSO ISSUED A NOTICE U/S 274 R.W.S. 271 OF THE ACT, DT. 2 7/11/2015. THE ASSESSEE REPLIED ON 23/12/2015, STATING THAT THE SAID NOTICE ISSUED U/S 274/271 OF THE ACT, RECEIVED ALONG WITH THE ORDER PASSED U/S 144C OF THE ACT, IS BAD IN LAW, AS THE ORDER PASSED U/S 144C OF THE ACT, IS BARRED BY LIMITATION. TH FILED A LETTER BEFORE THE ASSESSING OFFICER I.E., DCIT CIRCLE - 2(2), KOLKATA ON 21/12/2015, WHEREIN, THE FOLLOWING CONTENTION WERE RAISED: - ISSUANCE OF NOTICE U/S 156 OF THE ACT, IS NOT IN CONFORMITY OF THE PROVISIONS OF SECTION 144C OF THE ACT A ND HENCE NO DEMAND CAN BE CREATED ON THE PROPOSED VARIATION OF INCOME. THAT THE ASSESSING OFFICER HAS PASSED AN ASSESSMENT ORDER THE ACT AND THAT IN ACCORDANCE TO SECTION 144C(2) OF THE ACT, THE ASSESSEE HAS THE OPTION TO ACCEPT THE VARIATION T O INCOME OR TO FILE OBJECTIONS BEFORE THE DRP. THAT THE PASSING OF SUCH ORDER U/S 144C OF THE ACT IS BEYOND JURISDICTION AND BARRED BY LIMITATION. AS THERE WAS EXCHANGE OF INFORMATION UNDER THE DTAA BETWEEN INDIA AND NETHERLANDS, IN TERMS OF EXPLANATION 1 (VII) TO SECTION 153 OF THE ACT, THE ORDER OF ASSESSMENT SHOULD HAVE BEEN PASSED ON OR BEFORE 9 OCTOBER, 2015 AND AS THE SAME WAS PASSED ON 27 TH NOVEMBER, 2015, IT IS BEYOND THE PERIOD OF LIMITATION. THEREAFTER, THE ASSESSEE FILED OBJECTIONS IN FORM 35A BEFORE THE DRP ON 21/12/2015 I.E., THE SAME DAY ON WHICH THE OBJECTIONS WERE RAISED BEFORE THE ASSESSING OFFICER. IN FORM 35A, THE ASSESSEE STATES UNDER COLUMN 5 DRAFT ASSESSMENT ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED CONSEQUENCE TO THIS ADJUSTMENT, THE TOTAL INCOME OF THE ASSESSEE IS REVISED UPWARDS BY SUBSEQUENTLY, THE ASSESSING OFFICER PASSED AN ORDER DT. 27/11/2015 U/S 144C ASSESSING OFFICER ISSUED A NOTICE OF DEMAND U/S 156 OF THE ACT, 27/11/2015, WHEREIN THE NOTICE STATES .., HAS BEEN DETERMINED TO BE PAYABLE BY YOU U/S 144C OF THE I.T. ACT 1961. 7/11/2015. THE ASSESSEE REPLIED ON 23/12/2015, STATING THAT THE SAID NOTICE ISSUED U/S 274/271 OF THE ACT, RECEIVED ALONG WITH THE ORDER PASSED U/S 144C OF THE ACT, IS BAD IN LAW, AS THE ORDER PASSED U/S 144C OF THE ACT, IS BARRED BY LIMITATION. TH E ASSESSEE 2(2), KOLKATA ON ISSUANCE OF NOTICE U/S 156 OF THE ACT, IS NOT IN CONFORMITY OF THE ND HENCE NO DEMAND CAN BE PASSED AN ASSESSMENT ORDER U/S 144C OF THE ACT AND THAT IN ACCORDANCE TO SECTION 144C(2) OF THE ACT, THE O INCOME OR TO FILE THAT THE PASSING OF SUCH ORDER U/S 144C OF THE ACT IS BEYOND AS THERE WAS EXCHANGE OF INFORMATION UNDER THE DTAA BETWEEN INDIA (VII) TO SECTION 153 OF THE ACT, THE ORDER OF ASSESSMENT SHOULD HAVE BEEN PASSED ON OR BEFORE 9 TH NOVEMBER, 2015, IT THEREAFTER, THE ASSESSEE FILED OBJECTIONS IN FORM 35A BEFORE THE DRP ON 21/12/2015 I.E., THE SAME DAY ON WHICH THE OBJECTIONS WERE RAISED BEFORE THE DRAFT ASSESSMENT ORDER UNDER SECTION 14 4C OF THE INCOME NOVEMBER 27, 2015 . IN THE GROUNDS OF OBJECTIONS, THE ASSESSEE OBJECTED TO THE PROPOSALS OF THE ASSESSING OFFICER TO ASSESS INCOME OF THE ASSESSEE AT RS.235,07,36,930/- . BEFORE THE DRP, THE ASSESSEE BY LIMITATIO N. OBJECTIONS WERE RAISED ON THE PROPOSED ADDITIONS MADE IN DRAFT ASSESSMENT ORDER. THE DRP CALLED FOR A REMAND REPORT FROM THE ACIT AND THEREAFTER ISSUED DIRECTIONS ON 11/08/2016. BEFORE THE DRP, THE FOLLOWI SUBMISSIONS WERE MADE:- THE LD. AR RAISED THE ISSUE OF THE ORDER BEING VOID AB INITIO DUE TO ALLEGED VIOLATION OF LIMITATION PER SECTION 153. THE LD. AR DID NOT MAKE ANY DETAILED SUBMISSIONS AS THE SCOPE OF SECTION 144C DOES NOT EMPOWER THE THE VERY ROOT OF SUCH ISSUES NOR IS IT EMPOWERED TO HOLD AN ASSESSMENT AS NULLITY. THE SECTION IS ENABLING SECTION AND DRP IS CANNOT ISSUE DIRECTIONS OF SUCH OBJECTIONS. THE PANEL, HENCE, DECLINES TO INTERFERE ON THE COUNT OF LIMITATION ISSUE IN THIS CASE. 3. AGGRIEVED THE ASSESSEE HAS FILED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING GROUNDS:- 1. ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN PASSING AN IMPUGNED DRAFT ASSESSMENT ORDER DATED 27 NOVEMB SECTION 143(3) R.W.S 144C OF THE INCOME TAX ACT, 1961 ('THE ACT') BEYOND THE PERIOD OF LIMITATION PROVIDED UNDER SECTION 153 OF THE ACT READ WITH EXPLANATION 1(VIII) AND PROVISO APPENDED BELOW TO EXPLANATION 1 OF THAT SECTION. 2.1. ON THE FA CTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN MAKING THE DISALLOWANCE OF FOREIGN EXCHANGE LOSS ON MATURITY OF MARKED TO MARKET (MTM) CONTRACTS AMOUNTING TO RS. 3,45,06,888 ALLEGING IT TO BE NOTIONAL AND CONTINGENT IN NATURE WITHO REVERSED DURING THE AY UNDER CONSIDERATION. 2.2. ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN MAKING THE DISALLOWANCE OF FOREIGN EXCHANGE LOSS ON MATURITY OF MTM CONTRA CTS AMOUNTING TO RS. 3,45,06,888 WITHOUT APPRECIATING THAT THE CLAIM OF SUCH LOSS O N PROVISION BASIS WAS DISALLOWED IN AY 2008 LD. COMMISSIONER 2.3. ON THE FACTS AND IN LAW AND IN THE MAKING DISALLOWANCE OF FOREIGN EXCHANGE LOSS ON MATURITY OF MTM CONTRACTS AMOUNTING TO RS. 3,45,06,888 WITHOUT APPRECIATING THAT THE LD. CIT (APPEALS) IN HIS ORDER PASSED FOR AY 2008 SUCH LOSS ON MATURITY OF MTM CONTRACTS. 2.4. ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN MAKING DISALLOWANCE OF FOREIGN EXCHANGE LOSS ON MATURITY OF MTM CONTRACTS AMOUNTING TO RS.3,45,06,888 WIT DIRECTED TO ALLOW THE CLAIM OF SUCH LOSS ON MATURITY OF MTM CONTRACTS AND THAT ALL THE NECESSARY DOCUMENTS RELATING TO VERIFICATION OF THE FIGURES OF SUCH FOREIGN EXCHANGE LOSS WERE DULY SUBMITTED. 5 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED 4C OF THE INCOME - TAX ACT, 1961 (THE ACT) DATE OF ORDER: IN THE GROUNDS OF OBJECTIONS, THE ASSESSEE OBJECTED TO THE PROPOSALS OF THE ASSESSING OFFICER TO ASSESS INCOME OF THE ASSESSEE AT . BEFORE THE DRP, THE ASSESSEE CONTENDED THAT THE ORDER IS BARRED N. OBJECTIONS WERE RAISED ON THE PROPOSED ADDITIONS MADE IN DRAFT ASSESSMENT ORDER. THE DRP CALLED FOR A REMAND REPORT FROM THE ACIT AND THEREAFTER ISSUED DIRECTIONS ON 11/08/2016. BEFORE THE DRP, THE FOLLOWI THE LD. AR RAISED THE ISSUE OF THE ORDER BEING VOID AB INITIO DUE TO ALLEGED VIOLATION OF LIMITATION PER SECTION 153. THE LD. AR DID NOT MAKE ANY DETAILED SUBMISSIONS AS THE SCOPE OF SECTION 144C DOES NOT EMPOWER THE DRP TO GO AT THE VERY ROOT OF SUCH ISSUES NOR IS IT EMPOWERED TO HOLD AN ASSESSMENT AS NULLITY. THE SECTION IS ENABLING SECTION AND DRP IS CANNOT ISSUE DIRECTIONS OF SUCH OBJECTIONS. THE PANEL, HENCE, DECLINES TO INTERFERE ON THE COUNT OF IN THIS CASE. AGGRIEVED THE ASSESSEE HAS FILED THIS APPEAL BEFORE THE TRIBUNAL ON THE ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN PASSING AN IMPUGNED DRAFT ASSESSMENT ORDER DATED 27 NOVEMB SECTION 143(3) R.W.S 144C OF THE INCOME TAX ACT, 1961 ('THE ACT') BEYOND THE PERIOD OF LIMITATION PROVIDED UNDER SECTION 153 OF THE ACT READ WITH EXPLANATION 1(VIII) AND PROVISO APPENDED BELOW TO EXPLANATION 1 OF THAT SECTION. CTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN MAKING THE DISALLOWANCE OF FOREIGN EXCHANGE LOSS ON MATURITY OF MARKED TO MARKET (MTM) CONTRACTS AMOUNTING TO RS. 3,45,06,888 ALLEGING IT TO BE NOTIONAL AND CONTINGENT IN NATURE WITHO UT APPRECIATING THAT THE SAID LOSS GOT MATURED/ REVERSED DURING THE AY UNDER CONSIDERATION. ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN MAKING THE DISALLOWANCE OF FOREIGN EXCHANGE LOSS ON MATURITY OF MTM CTS AMOUNTING TO RS. 3,45,06,888 WITHOUT APPRECIATING THAT THE CLAIM OF N PROVISION BASIS WAS DISALLOWED IN AY 2008 - 09 AND CONFIRMED BY THE LD. COMMISSIONER OF I NCOME TAX (APPEALS)['LD. CIT (APPEALS)']. ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN MAKING DISALLOWANCE OF FOREIGN EXCHANGE LOSS ON MATURITY OF MTM CONTRACTS AMOUNTING TO RS. 3,45,06,888 WITHOUT APPRECIATING THAT THE LD. CIT (APPEALS) IN HIS ORDER PASSED FOR AY 2008 -09 HAS DIRECTED THE LD. A O TO ALLOW THE CLAIM OF SUCH LOSS ON MATURITY OF MTM CONTRACTS. ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN MAKING DISALLOWANCE OF FOREIGN EXCHANGE LOSS ON MATURITY OF MTM CONTRACTS AMOUNTING TO RS.3,45,06,888 WIT HOUT APPRECIATING THAT THE HONBLE DRP HAS DIRECTED TO ALLOW THE CLAIM OF SUCH LOSS ON MATURITY OF MTM CONTRACTS AND THAT ALL THE NECESSARY DOCUMENTS RELATING TO VERIFICATION OF THE FIGURES OF SUCH FOREIGN EXCHANGE LOSS WERE DULY SUBMITTED. ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED TAX ACT, 1961 (THE ACT) DATE OF ORDER: IN THE GROUNDS OF OBJECTIONS, THE ASSESSEE OBJECTED TO THE PROPOSALS OF THE ASSESSING OFFICER TO ASSESS INCOME OF THE ASSESSEE AT CONTENDED THAT THE ORDER IS BARRED N. OBJECTIONS WERE RAISED ON THE PROPOSED ADDITIONS MADE IN DRAFT ASSESSMENT ORDER. THE DRP CALLED FOR A REMAND REPORT FROM THE ACIT AND THEREAFTER ISSUED DIRECTIONS ON 11/08/2016. BEFORE THE DRP, THE FOLLOWI NG ADDITIONAL THE LD. AR RAISED THE ISSUE OF THE ORDER BEING VOID AB INITIO DUE TO ALLEGED VIOLATION OF LIMITATION PER SECTION 153. THE LD. AR DID NOT MAKE ANY DETAILED DRP TO GO AT THE VERY ROOT OF SUCH ISSUES NOR IS IT EMPOWERED TO HOLD AN ASSESSMENT AS NULLITY. THE SECTION IS ENABLING SECTION AND DRP IS CANNOT ISSUE DIRECTIONS OF SUCH OBJECTIONS. THE PANEL, HENCE, DECLINES TO INTERFERE ON THE COUNT OF AGGRIEVED THE ASSESSEE HAS FILED THIS APPEAL BEFORE THE TRIBUNAL ON THE ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN PASSING AN IMPUGNED DRAFT ASSESSMENT ORDER DATED 27 NOVEMB ER 2015 UNDER SECTION 143(3) R.W.S 144C OF THE INCOME TAX ACT, 1961 ('THE ACT') BEYOND THE PERIOD OF LIMITATION PROVIDED UNDER SECTION 153 OF THE ACT READ WITH EXPLANATION 1(VIII) AND PROVISO APPENDED BELOW TO EXPLANATION 1 OF THAT SECTION. CTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN MAKING THE DISALLOWANCE OF FOREIGN EXCHANGE LOSS ON MATURITY OF MARKED TO MARKET (MTM) CONTRACTS AMOUNTING TO RS. 3,45,06,888 ALLEGING IT TO BE NOTIONAL UT APPRECIATING THAT THE SAID LOSS GOT MATURED/ ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN MAKING THE DISALLOWANCE OF FOREIGN EXCHANGE LOSS ON MATURITY OF MTM CTS AMOUNTING TO RS. 3,45,06,888 WITHOUT APPRECIATING THAT THE CLAIM OF 09 AND CONFIRMED BY THE NCOME TAX (APPEALS)['LD. CIT (APPEALS)']. CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN MAKING DISALLOWANCE OF FOREIGN EXCHANGE LOSS ON MATURITY OF MTM CONTRACTS AMOUNTING TO RS. 3,45,06,888 WITHOUT APPRECIATING THAT THE LD. CIT (APPEALS) IN O TO ALLOW THE CLAIM OF ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN MAKING DISALLOWANCE OF FOREIGN EXCHANGE LOSS ON MATURITY OF MTM CONTRACTS HOUT APPRECIATING THAT THE HONBLE DRP HAS DIRECTED TO ALLOW THE CLAIM OF SUCH LOSS ON MATURITY OF MTM CONTRACTS AND THAT ALL THE NECESSARY DOCUMENTS RELATING TO VERIFICATION OF THE FIGURES OF SUCH FOREIGN 3. ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN NOT GRANTING RELIEF UNDER SECTION 90 IN RESPECT OF CREDIT FOR TAX WITHHELD IN FOREIGN COUNTRY AMOUNTING TO RS.3,33,66,706. 4. ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE GRANTING CREDIT OF TAX DEDUCTED AT SOURCE OF RS.58,65,90,555 INSTEAD OF RS.59,29,15,190 AS REFLECTED UNDER FORM 26AS STATEMENT, THEREBY RESULTING IN SHORT GRANT OF CREDIT OF RS.63,24,635/ 3.1. THE ASSESSEE FILED THE FOLLOWING ADDI CORPORATE TAX GROUNDS 1.1. ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED ASSESSING OFFICER ('THE LD. AO') ERRED IN LAW IN ISSUING DEMAND NOTICE UNDER SECTION 156 OF THE ACT AND PENALTY NOTICE UNDER SECTION 274 READ WITH SECTION 271(1)(C) OF THE ACT ALONG WITH THE DRAFT ASSESSMENT ORDER DATED 27 NOVEMBER 2015, WHICH RENDERS THE PROCEEDINGS BEFORE THE LD. AO AND SUBSEQUENT FINAL ASSESSMENT ORDER DATED 29 SEPTEMBER 2016 BAD IN LAW AND NON PROVISION OF SECTION 144C OF THE ACT. TRANSFER PRICING GROUNDS 5. ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED TRANSFER PRICING OFFICER ('LD. TPO') AND CONSEQUENTLY, THE LD. AO/ HON'BLE DRP GROSSLY ERRED IN MAKIN PRICING ADJUSTMENT OF RS. 5,70,31,878 TO THE INTERNATIONAL TRANSACTION OF THE APPELLANT WITH ITS ASSOCIATED ENTERPRISE (AE') WITHOUT CONSIDERING THE FACTS OF THE PRESENT CASE AND THEREBY MAKING AN ARBITRARY ASSESSMENT. SPECIFIC GROUNDS IN RELATION TO INTERNATIONAL TRANSACTION WITH PRICEWATERHOUSECOOPERS DEVELOPMENT ASSOCIATES LTD., UK ('PWC DA') 6. THE LD. TPO AND THE LD. AO/ HON'BLE DRP ERRED IN SELECTING THE APPELLANT AS THE TESTED PARTY AS AGAINST THE AE (I.E., PWC DA) IN RESPECT OF TH TRANSACTION. 7. THE LD. TPO AND THE LD. AO/ HON'BLE DRP ERRED IN REJECTING RESALE PRICE METHOD ('RPM') SELECTED BY THE APPELLANT AS THE MOST APPROPRIATE METHOD ('MAM') FOR DETERMINING THE ARM'S LENGTH PRI CE OF 'RECEIPT FOR CONSULTANCY SERVICES' INTERNATIONAL TRANSACTION. 8. THE LD. TPO AND THE LD. AO/ HON'BLE DRP HAVE ERRED IN APPLICATION OF ENTITY LEVEL TRANSACTIONAL NET MARGIN METHOD ('TNMM') CONSIDERING APPELLANT AS THE TESTED PARTY (APPELLANT HAVING A TURNOVER OF RS. 1,013.1 CRS. VIS TRANSACTION BEING TESTED). 9. WITHOUT PREJUDICE TO ABOVE GROUNDS, EVEN IF TNMM IS SELECTED AS THE MAM, PROFIT OF THE APPELLANT FROM THE TRANSACTION WITH PWC DA, I.E., SEGMENT PR THE ENTITY LEVEL MARGIN OF THE APPELLANT. 10. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE COMPARABLE COMPANIES SELECTED BY THE LD. TPO AND LD. AO ARE NOT COMPARABLE TO THE APPELLANT. SPECIFIC GROUNDS IN RELATION TO I LANKA PRIVATE LIMITED ('PWC LANKA') 11. THE LD. TPO AND THE LD. AO/ HON'BLE DRP HAVE ERRED IN CLUBBING TWO DIFFERENT TRANSACTION, I.E., TRANSACTIONS WITH PWC LANKA AND WITH PWC DA, OF THE APPELLANT FOR MARKING. 6 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN NOT GRANTING RELIEF UNDER SECTION 90 IN RESPECT OF CREDIT FOR TAX WITHHELD IN FOREIGN COUNTRY AMOUNTING TO RS.3,33,66,706. ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE , THE LD. AO ERRED IN GRANTING CREDIT OF TAX DEDUCTED AT SOURCE OF RS.58,65,90,555 INSTEAD OF RS.59,29,15,190 AS REFLECTED UNDER FORM 26AS STATEMENT, THEREBY RESULTING IN SHORT GRANT OF CREDIT OF RS.63,24,635/ - THE ASSESSEE FILED THE FOLLOWING ADDI TIONAL GROUNDS ON 30/07/2018: ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED ASSESSING OFFICER ('THE LD. AO') ERRED IN LAW IN ISSUING DEMAND NOTICE UNDER SECTION 156 OF THE ACT AND PENALTY NOTICE SECTION 274 READ WITH SECTION 271(1)(C) OF THE ACT ALONG WITH THE DRAFT ASSESSMENT ORDER DATED 27 NOVEMBER 2015, WHICH RENDERS THE PROCEEDINGS BEFORE THE LD. AO AND SUBSEQUENT FINAL ASSESSMENT ORDER DATED 29 SEPTEMBER 2016 BAD IN LAW AND NON - EST IN VIEW OF PROVISION OF SECTION 144C OF THE ACT. 5. ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED TRANSFER PRICING OFFICER ('LD. TPO') AND CONSEQUENTLY, THE LD. AO/ HON'BLE DRP GROSSLY ERRED IN MAKIN PRICING ADJUSTMENT OF RS. 5,70,31,878 TO THE INTERNATIONAL TRANSACTION OF THE APPELLANT WITH ITS ASSOCIATED ENTERPRISE (AE') WITHOUT CONSIDERING THE FACTS OF THE PRESENT CASE AND THEREBY MAKING AN ARBITRARY ASSESSMENT. RELATION TO INTERNATIONAL TRANSACTION WITH PRICEWATERHOUSECOOPERS DEVELOPMENT ASSOCIATES LTD., UK ('PWC DA') 6. THE LD. TPO AND THE LD. AO/ HON'BLE DRP ERRED IN SELECTING THE APPELLANT AS THE TESTED PARTY AS AGAINST THE AE (I.E., PWC DA) IN RESPECT OF TH E 'RECEIPT FOR CONSULTANCY SERVICES' INTERNATIONAL THE LD. TPO AND THE LD. AO/ HON'BLE DRP ERRED IN REJECTING RESALE PRICE METHOD ('RPM') SELECTED BY THE APPELLANT AS THE MOST APPROPRIATE METHOD ('MAM') FOR DETERMINING THE CE OF 'RECEIPT FOR CONSULTANCY SERVICES' INTERNATIONAL TRANSACTION. 8. THE LD. TPO AND THE LD. AO/ HON'BLE DRP HAVE ERRED IN APPLICATION OF ENTITY LEVEL TRANSACTIONAL NET MARGIN METHOD ('TNMM') CONSIDERING APPELLANT AS THE TESTED PARTY TURNOVER OF RS. 1,013.1 CRS. VIS -A- VIS RS. 16.53 CRS. OF RELATED PARTY SALES TRANSACTION BEING TESTED). 9. WITHOUT PREJUDICE TO ABOVE GROUNDS, EVEN IF TNMM IS SELECTED AS THE MAM, PROFIT OF THE APPELLANT FROM THE TRANSACTION WITH PWC DA, I.E., SEGMENT PR OFITABILITY, SHOULD BE TESTED AND NOT THE ENTITY LEVEL MARGIN OF THE APPELLANT. 10. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE COMPARABLE COMPANIES SELECTED BY THE LD. TPO AND LD. AO ARE NOT COMPARABLE TO THE APPELLANT. SPECIFIC GROUNDS IN RELATION TO I NTERNATIONAL TRANSACTION WITH PRICEWATERHOUSECOOPERS LANKA PRIVATE LIMITED ('PWC LANKA') 11. THE LD. TPO AND THE LD. AO/ HON'BLE DRP HAVE ERRED IN CLUBBING TWO DIFFERENT TRANSACTION, I.E., TRANSACTIONS WITH PWC LANKA AND WITH PWC DA, OF THE APPELLANT FOR THE PURPOSE OF BENCH ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. AO ERRED IN NOT GRANTING RELIEF UNDER SECTION 90 IN RESPECT OF CREDIT FOR TAX WITHHELD IN , THE LD. AO ERRED IN GRANTING CREDIT OF TAX DEDUCTED AT SOURCE OF RS.58,65,90,555 INSTEAD OF RS.59,29,15,190 AS REFLECTED UNDER FORM 26AS STATEMENT, THEREBY RESULTING IN TIONAL GROUNDS ON 30/07/2018: - ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED ASSESSING OFFICER ('THE LD. AO') ERRED IN LAW IN ISSUING DEMAND NOTICE UNDER SECTION 156 OF THE ACT AND PENALTY NOTICE SECTION 274 READ WITH SECTION 271(1)(C) OF THE ACT ALONG WITH THE DRAFT ASSESSMENT ORDER DATED 27 NOVEMBER 2015, WHICH RENDERS THE PROCEEDINGS BEFORE THE LD. AO AND SUBSEQUENT FINAL EST IN VIEW OF THE EXPRESS 5. ON THE FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED TRANSFER PRICING OFFICER ('LD. TPO') AND CONSEQUENTLY, THE LD. AO/ HON'BLE DRP GROSSLY ERRED IN MAKIN G A TRANSFER PRICING ADJUSTMENT OF RS. 5,70,31,878 TO THE INTERNATIONAL TRANSACTION OF THE APPELLANT WITH ITS ASSOCIATED ENTERPRISE (AE') WITHOUT CONSIDERING THE FACTS OF THE PRESENT CASE AND THEREBY RELATION TO INTERNATIONAL TRANSACTION WITH PRICEWATERHOUSECOOPERS 6. THE LD. TPO AND THE LD. AO/ HON'BLE DRP ERRED IN SELECTING THE APPELLANT AS THE TESTED PARTY AS E 'RECEIPT FOR CONSULTANCY SERVICES' INTERNATIONAL THE LD. TPO AND THE LD. AO/ HON'BLE DRP ERRED IN REJECTING RESALE PRICE METHOD ('RPM') SELECTED BY THE APPELLANT AS THE MOST APPROPRIATE METHOD ('MAM') FOR DETERMINING THE CE OF 'RECEIPT FOR CONSULTANCY SERVICES' INTERNATIONAL TRANSACTION. 8. THE LD. TPO AND THE LD. AO/ HON'BLE DRP HAVE ERRED IN APPLICATION OF ENTITY LEVEL TRANSACTIONAL NET MARGIN METHOD ('TNMM') CONSIDERING APPELLANT AS THE TESTED PARTY VIS RS. 16.53 CRS. OF RELATED PARTY SALES 9. WITHOUT PREJUDICE TO ABOVE GROUNDS, EVEN IF TNMM IS SELECTED AS THE MAM, PROFIT OF THE OFITABILITY, SHOULD BE TESTED AND NOT 10. WITHOUT PREJUDICE TO THE ABOVE GROUNDS, THE COMPARABLE COMPANIES SELECTED BY THE LD. TPO NTERNATIONAL TRANSACTION WITH PRICEWATERHOUSECOOPERS 11. THE LD. TPO AND THE LD. AO/ HON'BLE DRP HAVE ERRED IN CLUBBING TWO DIFFERENT TRANSACTION, THE PURPOSE OF BENCH 12. THE LD. TPO AND THE LD. AO/ HON'BLE DRP HAVE ERRED IN TAKING THE ENTITY LEVEL MARGIN OF THE APPELLANT INSTEAD OF SEGMENT LEVEL MARGIN OF THE APPELLANT WITH RESPECT TO TRANSACTIONS WITH PWC LANKA. 3.1.1. ON 30 TH JULY, 2018, THE ASSESSEE FILED THE FOLLOWING LETTER: 7 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED 12. THE LD. TPO AND THE LD. AO/ HON'BLE DRP HAVE ERRED IN TAKING THE ENTITY LEVEL MARGIN OF THE APPELLANT INSTEAD OF SEGMENT LEVEL MARGIN OF THE APPELLANT WITH RESPECT TO TRANSACTIONS WITH PWC JULY, 2018, THE ASSESSEE FILED THE FOLLOWING LETTER: - ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED 12. THE LD. TPO AND THE LD. AO/ HON'BLE DRP HAVE ERRED IN TAKING THE ENTITY LEVEL MARGIN OF THE APPELLANT INSTEAD OF SEGMENT LEVEL MARGIN OF THE APPELLANT WITH RESPECT TO TRANSACTIONS WITH PWC 8 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED 3.1.2. THE ASSESSEE FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS OF APPEAL ON 22/10/2018, UNDER RULE 11 OF THE ITAT RULES, 1963, WHICH IS EXTRACTED FOR READY REFERENCE:- 9 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED THE ASSESSEE FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS OF APPEAL ON 22/10/2018, UNDER RULE 11 OF THE ITAT RULES, 1963, WHICH IS EXTRACTED FOR READY ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED THE ASSESSEE FILED AN APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS OF APPEAL ON 22/10/2018, UNDER RULE 11 OF THE ITAT RULES, 1963, WHICH IS EXTRACTED FOR READY 10 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED 11 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED 12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED 3.2. M ULTIPLE APPLICATIONS HAVE BEEN FILED ON THE VERY SAME MATTER ADDITIONAL GROUNDS/ADDITIONAL EVIDENCE ETC., COURSE. 4. THE LD. COUNSEL FOR THE ASSESSEE, SHRI KANCHAN KAUSHAL, MADE DE SUBMISSIONS BOTH ORAL AND IN WRITING. FOR THE SAKE OF BREVITY, WE SUMMARISE THE SAME. A) THE ADDITIONAL GROUNDS OF APPEAL RAISED BEFORE THE TRIBUNAL ARE ALL LEGAL GROUNDS, NOT REQUIRING ENQUIRY INTO ANY FACTS AND HENCE MAY BE ADMITTED. HE RELIED ON THE THE CASE OF NATIONAL THERMAL POWER CO. LTD. V. COMMISSIONER OF INCOME TAX, [1998] 229 ITR 383 B) THAT THE ORDER PASSED BY THE ASSESSING OFFICER ON 27/11/2015, IS A FINAL ASSESSMENT ORDER, AS A NOTICE OF DEMAND U 27/11/2015, WAS ISSUED TO THE ASSESSEE AND A PENALTY NOTICE U/S 271(1)(C) OF THE ACT, WAS ALSO ISSUED TO THE ASSESSEE. THIS ORDER VIOLATES THE PROVISION OF SECTION 144C OF THE ACT AS THE ASSESSING OFFICER CANNOT CREAT VARIATIONS/ADDITIONS DEMAND NOTICE AND PENALTY NOTICE ALONG WITH ORDER DT. 27/11/2015 AND THAT 144C(1) OF THE ACT, WERE JURISDICTION AND, THEREFORE, NULL AND VOID. C) THAT THE INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND THE NOTICE REQUIRING THE ASSESSEE TO RESPOND/APPEAR BEFORE THE ASSESSING OFFICER ON 27/11/2015, ASSESSING OFFICER THAT HE I 27/11/2015. FOR THIS PROPOSITION R RELIANCE WAS ALSO PLACED ON OTHER CASE NECESSARY. 13 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED ULTIPLE APPLICATIONS HAVE BEEN FILED ON THE VERY SAME MATTER FOR ADMISSION OF ADDITIONAL GROUNDS/ADDITIONAL EVIDENCE ETC., WHICH WE WOULD BE DEALING WITH IN DUE THE LD. COUNSEL FOR THE ASSESSEE, SHRI KANCHAN KAUSHAL, MADE DE SUBMISSIONS BOTH ORAL AND IN WRITING. FOR THE SAKE OF BREVITY, WE SUMMARISE THE SAME. THE ADDITIONAL GROUNDS OF APPEAL RAISED BEFORE THE TRIBUNAL ARE ALL LEGAL GROUNDS, NOT REQUIRING ENQUIRY INTO ANY FACTS AND HENCE MAY BE ADMITTED. HE RELIED ON THE JUDGMENT OF THE HONBLE SUPREME COURT IN NATIONAL THERMAL POWER CO. LTD. V. COMMISSIONER OF INCOME TAX, [1998] 229 ITR 383 (SC). THAT THE ORDER PASSED BY THE ASSESSING OFFICER ON 27/11/2015, IS A FINAL ASSESSMENT ORDER, AS A NOTICE OF DEMAND U /S 156 OF THE ACT, DT. 27/11/2015, WAS ISSUED TO THE ASSESSEE AND A PENALTY NOTICE U/S 271(1)(C) OF THE ACT, WAS ALSO ISSUED TO THE ASSESSEE. HE ARGUED VIOLATES THE PROVISION OF SECTION 144C OF THE ACT AS THE ASSESSING OFFICER CANNOT CREAT E A TAX DEMAND ON ANY PROPOSED VARIATIONS/ADDITIONS TO THE RETURNED INCOME OF THE YEAR BY ISSUING A DEMAND NOTICE AND PENALTY NOTICE ALONG WITH THE DRAFT ASSESSMENT ORDER DT. 27/11/2015 AND THAT THE MANDATORY PROVISIONS OF SECTION 144C(1) OF THE ACT, WERE NOT FOLLOWED AND HENCE THAT ORDER IS WITHOUT JURISDICTION AND, THEREFORE, NULL AND VOID. INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND THE NOTICE REQUIRING THE ASSESSEE TO RESPOND/APPEAR BEFORE THE ASSESSING OFFICER ON 27/11/2015, CLEARLY BRINGS OUT THE INTENTION OF THE ASSESSING OFFICER THAT HE I NTENDED TO PASS A FINAL ASSESSMENT ORDER ON FOR THIS PROPOSITION R ELIANCE WAS PLACED ON THE FOLLOWING CASE LAW: SHRI CHANDANMAL NAGARAJ VS. ACIT [I.T. (TP)A. NO. 80/CHNY/2018) DT. 13 TH MARCH, 2019 RELIANCE WAS ALSO PLACED ON OTHER CASE - LAW, WHICH WE WOULD DEAL AS AND WHEN ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED FOR ADMISSION OF WHICH WE WOULD BE DEALING WITH IN DUE THE LD. COUNSEL FOR THE ASSESSEE, SHRI KANCHAN KAUSHAL, MADE DE TAILED SUBMISSIONS BOTH ORAL AND IN WRITING. FOR THE SAKE OF BREVITY, WE SUMMARISE THE SAME. THE ADDITIONAL GROUNDS OF APPEAL RAISED BEFORE THE TRIBUNAL ARE ALL LEGAL GROUNDS, NOT REQUIRING ENQUIRY INTO ANY FACTS AND HENCE MAY BE JUDGMENT OF THE HONBLE SUPREME COURT IN NATIONAL THERMAL POWER CO. LTD. V. COMMISSIONER OF INCOME THAT THE ORDER PASSED BY THE ASSESSING OFFICER ON 27/11/2015, IS A FINAL /S 156 OF THE ACT, DT. 27/11/2015, WAS ISSUED TO THE ASSESSEE AND A PENALTY NOTICE U/S HE ARGUED , THAT VIOLATES THE PROVISION OF SECTION 144C OF THE ACT AS THE E A TAX DEMAND ON ANY PROPOSED YEAR BY ISSUING A THE DRAFT ASSESSMENT THE MANDATORY PROVISIONS OF SECTION NOT FOLLOWED AND HENCE THAT ORDER IS WITHOUT INITIATION OF PENALTY PROCEEDINGS U/S 271(1)(C) OF THE ACT AND THE NOTICE REQUIRING THE ASSESSEE TO RESPOND/APPEAR BEFORE THE CLEARLY BRINGS OUT THE INTENTION OF THE NTENDED TO PASS A FINAL ASSESSMENT ORDER ON ELIANCE WAS PLACED ON THE FOLLOWING CASE LAW: - SHRI CHANDANMAL NAGARAJ VS. ACIT [I.T. (TP)A. NO. LAW, WHICH WE WOULD DEAL AS AND WHEN 4.1. WITHOUT PREJUDICE TO THE ABOVE ARGUMENTS, IF IT IS CONCLUDED THAT THE ASSESSMENT ORDER PASSED ON 27/11/2015, IS A DRAFT ASSESSMENT ORDER AND NOT THE FINAL ASSESSMENT ORDER, THEN, THE ASSESSMENT ORDER DT. 29/09/2016 IS BARRED BY LIMITATION AS THE CBDT MADE HE SUBMITTED THAT VIDE LETTER DT. 21/12/2015, THE DCIT, CENTRAL STATED THAT :- I. DATE OF REFERENCE MADE TO NETHERLAND TAX AUTHORITY BY FT&TR EXCHANGE OF INFORMATION CELL, INDIA, WAS ON 18/03/2015. II. DATE ON WHICH THE KOLKATA, WAS 10/08/2015 4.1.1. HE RELIES ON EXPLANATION 1(VIII) TO SECTION 153 READ WITH PROVISO TO EXPLANATION 1 OF THE ACT, AS IT THEN EXISTED AND ARGUED THAT THE ORDER IN QUESTION SHOULD HAVE BEEN PASSED ON OR BEFORE 9 PERIOD OF 145 DAYS I.E., FROM 18/03/2015 TO 10/08/2015 AND WHEREAS THE ORDER WAS PASSED ON 27/11/2015. THUS, HE SUBMITS THAT BOTH THE ORDERS PASSED ON 27/11/2015 IS BARRED BY LIMITATION AND CONSEQU VOID, AND HENCE HAS TO BE QUASHED. 5. ON MERITS, HE SUBMITTED THAT GROUND NO. 2.1. TO 2.4. IS NOT PRESSED. 6. ON GROUND NO. 3, FOREIGN TAX CREDITED, THE LD. COUNSEL FOR THE ASSESSEE REQUESTED THAT THE ISSUE BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER, TO ENABLE THE ASSESSEE TO PRODUCE EVIDENCE AS CALLED FOR 7. ON GROUND NO. 4, HE SUBMITTED THAT THE DIRECTIONS MAY BE ISSUED TO THE ASSESSING OFFICER TO GIVE AN OPPORTUNITY TO THE ASS AT SOURCE FIGURES SO THAT THE CORRECT CREDIT MAY BE GIVEN 8. ON ADDITIONAL GROUND NO. 3.1., HE SUBMITTED THAT INCOME EARNED BY THE ASSESSEE FROM UNITED STATES WAS INCLUDED IN INCOME EARNED IN INDIA AS NO RETURN OF INCOME WAS FILED IN U.S.A. AT THAT POINT OF TIME INCOME WAS FILED IN UNITES STATES AND TAXES PAID THEREON AND HENCE HE REQUESTED THAT DIRECTIONS BE GIVEN TO THE ASSESS 14 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED WITHOUT PREJUDICE TO THE ABOVE ARGUMENTS, IF IT IS CONCLUDED THAT THE ASSESSMENT ORDER PASSED ON 27/11/2015, IS A DRAFT ASSESSMENT ORDER AND NOT THE FINAL ASSESSMENT ORDER, THEN, THE ASSESSMENT ORDER DT. 29/09/2016 IS BARRED BY LIMITATION AS THE CBDT MADE A REFERENCE TO FT & TR. HE SUBMITTED THAT VIDE LETTER DT. 21/12/2015, THE DCIT, CENTRAL DATE OF REFERENCE MADE TO NETHERLAND TAX AUTHORITY BY FT&TR EXCHANGE OF INFORMATION CELL, INDIA, WAS ON 18/03/2015. DATE ON WHICH THE REPLY WAS RECEIVED BY THE LD. PR. CIT, KOLKATA KOLKATA, WAS 10/08/2015 HE RELIES ON EXPLANATION 1(VIII) TO SECTION 153 READ WITH PROVISO TO EXPLANATION 1 OF THE ACT, AS IT THEN EXISTED AND ARGUED THAT THE ORDER IN QUESTION ON OR BEFORE 9 TH OCTOBER, 2015, AFTER EXCLUDING THE ABOVE PERIOD OF 145 DAYS I.E., FROM 18/03/2015 TO 10/08/2015 AND WHEREAS THE ORDER WAS PASSED ON 27/11/2015. THUS, HE SUBMITS THAT BOTH THE ORDERS PASSED ON 27/11/2015 IS BARRED BY LIMITATION AND CONSEQU ENTLY THE ORDER PASSED ON 29/09/2016 IS NULL AND VOID, AND HENCE HAS TO BE QUASHED. ON MERITS, HE SUBMITTED THAT GROUND NO. 2.1. TO 2.4. IS NOT PRESSED. ON GROUND NO. 3, FOREIGN TAX CREDITED, THE LD. COUNSEL FOR THE ASSESSEE BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER, TO ENABLE THE ASSESSEE TO PRODUCE EVIDENCE AS CALLED FOR AND PROVE ITS CLAIM. ON GROUND NO. 4, HE SUBMITTED THAT THE DIRECTIONS MAY BE ISSUED TO THE ASSESSING OFFICER TO GIVE AN OPPORTUNITY TO THE ASS ESSEE TO RECONCILE THE TAX DEDUCTED FIGURES SO THAT THE CORRECT CREDIT MAY BE GIVEN . ON ADDITIONAL GROUND NO. 3.1., HE SUBMITTED THAT INCOME EARNED BY THE ASSESSEE FROM UNITED STATES WAS INCLUDED IN INCOME EARNED IN INDIA AS NO RETURN OF U.S.A. AT THAT POINT OF TIME . HE SUBMITTED THAT LATER A RETURN OF INCOME WAS FILED IN UNITES STATES AND TAXES PAID THEREON AND HENCE HE REQUESTED THAT DIRECTIONS BE GIVEN TO THE ASSESS ING OFFICER TO GRANT TAX CREDIT AS CLAIMED. ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED WITHOUT PREJUDICE TO THE ABOVE ARGUMENTS, IF IT IS CONCLUDED THAT THE ASSESSMENT ORDER PASSED ON 27/11/2015, IS A DRAFT ASSESSMENT ORDER AND NOT THE FINAL ASSESSMENT ORDER, THEN, THE ASSESSMENT ORDER DT. 29/09/2016 IS BARRED BY HE SUBMITTED THAT VIDE LETTER DT. 21/12/2015, THE DCIT, CENTRAL -2(2), KOLKATA, DATE OF REFERENCE MADE TO NETHERLAND TAX AUTHORITY BY FT&TR -I, EXCHANGE OF INFORMATION CELL, INDIA, WAS ON 18/03/2015. REPLY WAS RECEIVED BY THE LD. PR. CIT, KOLKATA -1, HE RELIES ON EXPLANATION 1(VIII) TO SECTION 153 READ WITH PROVISO TO EXPLANATION 1 OF THE ACT, AS IT THEN EXISTED AND ARGUED THAT THE ORDER IN QUESTION OCTOBER, 2015, AFTER EXCLUDING THE ABOVE PERIOD OF 145 DAYS I.E., FROM 18/03/2015 TO 10/08/2015 AND WHEREAS THE ORDER WAS PASSED ON 27/11/2015. THUS, HE SUBMITS THAT BOTH THE ORDERS PASSED ON 27/11/2015 ENTLY THE ORDER PASSED ON 29/09/2016 IS NULL AND ON MERITS, HE SUBMITTED THAT GROUND NO. 2.1. TO 2.4. IS NOT PRESSED. ON GROUND NO. 3, FOREIGN TAX CREDITED, THE LD. COUNSEL FOR THE ASSESSEE BE SET ASIDE TO THE FILE OF THE ASSESSING OFFICER, TO ENABLE THE ON GROUND NO. 4, HE SUBMITTED THAT THE DIRECTIONS MAY BE ISSUED TO THE ESSEE TO RECONCILE THE TAX DEDUCTED ON ADDITIONAL GROUND NO. 3.1., HE SUBMITTED THAT INCOME EARNED BY THE ASSESSEE FROM UNITED STATES WAS INCLUDED IN INCOME EARNED IN INDIA AS NO RETURN OF . HE SUBMITTED THAT LATER A RETURN OF INCOME WAS FILED IN UNITES STATES AND TAXES PAID THEREON AND HENCE HE REQUESTED THAT ING OFFICER TO GRANT TAX CREDIT AS CLAIMED. 8.1. THE LD. COUNSEL FOR THE ASSESSEE HAS NOT ARGUED ANY OTHER MATTER AND HAS IN FACT SUBMITTED THAT HE WILL NOT BE PRESSING ALL THE OTHER ISSUES SPECIFICALLY ARGUED BEFORE THE BENCH, WHICH WAS RAISED BY WAY OF GROUNDS AND ADDITIONAL GROUNDS OF APPEAL DISMISSED. HE LEAD NO ARGUMENTS FOR THE ADMISSION OF ADDITIONAL EVIDENCE. HENCE, WE DISMISS THE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE 9. THE LD. D/R, SHRI SUBMISSIONS OF THE ASSESSEE AND SUBMITTED THAT THE ORDER PASSED ON 27/11/2015 WAS ONLY A DRAFT ASSESSMENT ORDER. HIS SUBMISSIONS ARE SUMMARISED AS FOLLOWS: A) THE ORDER WAS PASSED U/S 144C OF THE ACT, AND T IS DRAFT ASSESSMENT ORDER ASSESSMENT ORDER U/S 144C OF THE ACT PASSED U/S 143(3) OF THE ACT WHICH COULD BE SAID TO BE ORDER MUCH LESS A ON THE ASSESSEE IN PURSUANCE OF SECTION 144C OF THE ACT AND IN FACT UNDER THE STATUTE NO SUCH DEMAND CAN BE CREATED HENCE, THE NOTICE OF DEMAND U/S 156 OF THE ACT IN FORM 7 WAS ALSO A DRAFT NOTICE AND THIS IS CLEAR FROM PARA 1 OF THE NOTICE, WHICH STATES THAT TO BE PAYABLE BY YOU U/S 144C NOTICE WAS ILLEGAL AND HENCE WAS REFUTED THE CONTENTIONS OF THE LD. COUNSE INTENTION OF THE ASSESSING OFFICER IS TO PASS A FINAL ASSESSMENT ORDER ON 27/11/2015. B) THE NOTICE ISSUED U/S 271(1)(C) OF THE ACT, IS NON REASON THAT, THE PENALTY NOTICE DID NOT MENTION THE SPECIFIC CHARGE I.E. WHETHER IT WAS ISSUED FOR FURNISHING OF INACCURATE PARTICULARS OR CONCEALMENT OF INCOME OR WHETHER IT WAS ISSUE NON- FILING OF RETURN KOLKATA BENCH OF THE TRIBUNAL AFTER APPLYING THE JU HONBLE JURISDICTIONAL HIGH COURT AND HONBLE SUPREME COURT, SUCH NOTICES ARE INVALID AND NON LEAD TO A CONCLUSION THAT THE ORDER PASSED ON 27/11/2015 IS IN FACT A 15 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED COUNSEL FOR THE ASSESSEE HAS NOT ARGUED ANY OTHER MATTER AND HAS IN FACT SUBMITTED THAT HE WILL NOT BE PRESSING ALL THE OTHER ISSUES , EXCLUDING THOSE SPECIFICALLY ARGUED BEFORE THE BENCH, WHICH WAS RAISED BY WAY OF GROUNDS AND ADDITIONAL GROUNDS OF APPEAL . HENCE ALL THESE GROUNDS, NOT SPECIFICALLY ARGUED ARE HE LEAD NO ARGUMENTS FOR THE ADMISSION OF ADDITIONAL EVIDENCE. HENCE, WE THE APPLICATION FOR ADMISSION OF ADDITIONAL EVIDENCE . VIJAY SHANKAR, ON THE OTHER HAND, CONTROVERTED THE SUBMISSIONS OF THE ASSESSEE AND SUBMITTED THAT THE ORDER PASSED ON 27/11/2015 WAS ONLY A DRAFT ASSESSMENT ORDER. HIS SUBMISSIONS ARE SUMMARISED AS FOLLOWS: THE ORDER WAS PASSED U/S 144C OF THE ACT, AND T HE HEADING OF THE ORDER DRAFT ASSESSMENT ORDER AND IN THE ORDER IT WAS CONCLUDED AS ASSESSMENT ORDER U/S 144C OF THE ACT . THUS, NO ORDER WHATSOEVER, WAS PASSED U/S 143(3) OF THE ACT WHICH COULD BE SAID TO BE ORDER MUCH LESS A FIN AL ASSESSMENT ORDER. THAT NO DEMAND WAS CREATED ON THE ASSESSEE IN PURSUANCE OF SECTION 144C OF THE ACT AND IN FACT UNDER THE STATUTE NO SUCH DEMAND CAN BE CREATED HENCE, THE NOTICE OF DEMAND U/S 156 OF THE ACT IN FORM 7 WAS ALSO A DRAFT NOTICE AND THIS IS CLEAR FROM PARA 1 OF THE NOTICE, WHICH STATES THAT HAS BEEN DETERMINED TO BE PAYABLE BY YOU U/S 144C OF THE I.T. ACT, 1961 . HENCE, THE DEMAND ILLEGAL AND HENCE WAS NEVER ENFORCED UPON THE ASSESSEE. HE REFUTED THE CONTENTIONS OF THE LD. COUNSE L FOR THE ASSESSEE THAT THE INTENTION OF THE ASSESSING OFFICER IS TO PASS A FINAL ASSESSMENT ORDER ON THE NOTICE ISSUED U/S 271(1)(C) OF THE ACT, IS NON - EST IN LAW FOR THE REASON THAT, THE PENALTY NOTICE DID NOT MENTION THE SPECIFIC CHARGE I.E. WHETHER IT WAS ISSUED FOR FURNISHING OF INACCURATE PARTICULARS OR CONCEALMENT OF INCOME OR WHETHER IT WAS ISSUE D FOR FILING OF RETURN OF INCOME . HENCE, IN VIEW OF THE DECISION OF THE KOLKATA BENCH OF THE TRIBUNAL AFTER APPLYING THE JU HONBLE JURISDICTIONAL HIGH COURT AND HONBLE SUPREME COURT, SUCH NOTICES ARE INVALID AND NON - EST IN LAW. HENCE SUCH INVALID NOTICE CANNOT LEAD TO A CONCLUSION THAT THE ORDER PASSED ON 27/11/2015 IS IN FACT A ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED COUNSEL FOR THE ASSESSEE HAS NOT ARGUED ANY OTHER MATTER AND HAS IN EXCLUDING THOSE SPECIFICALLY ARGUED BEFORE THE BENCH, WHICH WAS RAISED BY WAY OF GROUNDS AND GROUNDS, NOT SPECIFICALLY ARGUED ARE HE LEAD NO ARGUMENTS FOR THE ADMISSION OF ADDITIONAL EVIDENCE. HENCE, WE VIJAY SHANKAR, ON THE OTHER HAND, CONTROVERTED THE SUBMISSIONS OF THE ASSESSEE AND SUBMITTED THAT THE ORDER PASSED ON 27/11/2015 WAS ONLY A DRAFT ASSESSMENT ORDER. HIS SUBMISSIONS ARE SUMMARISED AS FOLLOWS: - HE HEADING OF THE ORDER CONCLUDED AS DRAFT . THUS, NO ORDER WHATSOEVER, WAS PASSED U/S 143(3) OF THE ACT WHICH COULD BE SAID TO BE AN ASSESSMENT AL ASSESSMENT ORDER. THAT NO DEMAND WAS CREATED ON THE ASSESSEE IN PURSUANCE OF SECTION 144C OF THE ACT AND IN FACT UNDER THE STATUTE NO SUCH DEMAND CAN BE CREATED HENCE, THE NOTICE OF DEMAND U/S 156 OF THE ACT IN FORM 7 WAS ALSO A DRAFT NOTICE AND THIS IS HAS BEEN DETERMINED . HENCE, THE DEMAND NEVER ENFORCED UPON THE ASSESSEE. HE L FOR THE ASSESSEE THAT THE INTENTION OF THE ASSESSING OFFICER IS TO PASS A FINAL ASSESSMENT ORDER ON EST IN LAW FOR THE REASON THAT, THE PENALTY NOTICE DID NOT MENTION THE SPECIFIC CHARGE I.E. , WHETHER IT WAS ISSUED FOR FURNISHING OF INACCURATE PARTICULARS OR LEVYING PENALTY . HENCE, IN VIEW OF THE DECISION OF THE KOLKATA BENCH OF THE TRIBUNAL AFTER APPLYING THE JU DGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT AND HONBLE SUPREME COURT, SUCH EST IN LAW. HENCE SUCH INVALID NOTICE CANNOT LEAD TO A CONCLUSION THAT THE ORDER PASSED ON 27/11/2015 IS IN FACT A FINAL ASSESSMENT ORDER, FOR THE R U/S 271(1)(C) OF THE ACT C) THAT FROM THE FACT THAT THE ASSESSEE HAS FILED OBJECTIO HONBLE DRP, LEADS TO A CONCLUSIONS THAT THE ASSESSEE BELIEVED THAT THE ORDER DT. 27/11/2015 WAS A DR ASSESSMENT ORDER. WHEN THE ASSESSEE HAS UNDERSTOOD THAT THIS IS A DRAFT ASSESSMENT ORDER AND HAS INSTEAD OF FILING AN APPEAL BEFORE THE LD. CIT(A), CHOSEN TO CHALLENGE THE SAME BEFORE THE DRP OTHERWIS E AND IT CANNOT APPROBATE AND REPOBRATE THE LD. COUNSEL OF THE ASSESSEE THAT THIS ORDER DT. 27/11/2015, IS THE FINAL ASSESSMENT ORDER IS TO BE UPHELD, THEN NEITHER THE DRP NOR THE ITAT HAVE JURISDICTION TO ENTERTAIN THE APPEAL OF THE ASSESSEE SHOULD HAVE APPROACHED THE LD. CIT(A) WITH AN APPEAL. HE DISTINGUISHED THE DECISIONS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE THAT ISSUANCE OF NOTICE U/S 156 OF THE ACT AND PENALTY U/S 271(1)(C) OF THE ACT ALO TO A CONCLUSION THAT THE DRAFT ASSESSMENT ORDER PASSED U/S 144C OF THE ACT, IS IN FACT A FINAL ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT. SUBMITS THAT AT BEST IT IS A MISTAKE. D) ON THE ISSUE OF LIMITATION, THE LD. D/ THE ACT IS COMPLETE CODE IN ITSELF. HE RELIED ON THE FOLLOWING CASE I. 10. HE SUBMITTED THAT THE BENCHES OF THE ACT, DOES NOT APPLY TO THE DRAFT ASSESSMENT ORDERS. HE RELIED ON THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF DCIT IN ITA NO. 1132/KOL/2015, ORDER DT. 15/0 HELD THAT THERE IS NO TIME LIMIT PRESCRIBED FOR PASSING OF THE DRAFT ASSESSMENT O AND THAT, SUCH ORDER IS REQUIRED TO BE PASSED WITHIN REASONABLE TIME. SIX MONTHS 16 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED FINAL ASSESSMENT ORDER, FOR THE R EASON THAT THE NOTICE FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT IS NON-EST IN LAW. THAT FROM THE FACT THAT THE ASSESSEE HAS FILED OBJECTIO HONBLE DRP, LEADS TO A CONCLUSIONS THAT THE ASSESSEE BELIEVED THAT THE ORDER DT. 27/11/2015 WAS A DR AFT ASSESSMENT ORDER AND NOT A FINAL ASSESSMENT ORDER. WHEN THE ASSESSEE HAS UNDERSTOOD THAT THIS IS A DRAFT ASSESSMENT ORDER AND HAS INSTEAD OF FILING AN APPEAL BEFORE THE LD. CIT(A), CHOSEN TO CHALLENGE THE SAME BEFORE THE DRP , IT CANNOT CONTEND E AND IT CANNOT APPROBATE AND REPOBRATE . IF THE CONTENTIONS OF THE LD. COUNSEL OF THE ASSESSEE THAT THIS ORDER DT. 27/11/2015, IS THE FINAL ASSESSMENT ORDER IS TO BE UPHELD, THEN NEITHER THE DRP NOR THE ITAT HAVE JURISDICTION TO ENTERTAIN THE APPEAL OF THE ASSESSEE SHOULD HAVE APPROACHED THE LD. CIT(A) WITH AN APPEAL. HE DISTINGUISHED THE DECISIONS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE THAT ISSUANCE OF NOTICE U/S 156 OF THE ACT AND U/S 271(1)(C) OF THE ACT ALO NG WITH THE DRAFT ASSESSMENT LEAD TO A CONCLUSION THAT THE DRAFT ASSESSMENT ORDER PASSED U/S 144C OF THE ACT, IS IN FACT A FINAL ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT. SUBMITS THAT AT BEST IT IS A MISTAKE. ON THE ISSUE OF LIMITATION, THE LD. D/ R SUBMITTED THAT SECTION 144C OF THE ACT IS COMPLETE CODE IN ITSELF. HE RELIED ON THE FOLLOWING CASE RELIGARE CAP ITAL MARKETS LIMITED VS. DCIT [ 1881/DEL/2014, ASSESSMENT YEAR 2009 1583/DEL/2015, ASSESSMENT YEAR 2010 753/DEL/2016, ASSESSMENT YEAR 2011 1763/DEL/2017, ASSESSMENT YEAR 2012 - 10/10/2019 HE SUBMITTED THAT THE BENCHES HAVE HEL D THAT THE LIMITATION PROVIDED U/S 156 OF THE ACT, DOES NOT APPLY TO THE DRAFT ASSESSMENT ORDERS. HE RELIED ON THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF HONDA TRADING CORPORATION, JAPAN VS. DCIT IN ITA NO. 1132/KOL/2015, ORDER DT. 15/0 9/2015 AND SUBMITTED THAT THE BENCH HELD THAT THERE IS NO TIME LIMIT PRESCRIBED FOR PASSING OF THE DRAFT ASSESSMENT O SUCH ORDER IS REQUIRED TO BE PASSED WITHIN REASONABLE TIME. SIX MONTHS ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED NOTICE FOR LEVY OF PENALTY THAT FROM THE FACT THAT THE ASSESSEE HAS FILED OBJECTIO NS BEFORE THE HONBLE DRP, LEADS TO A CONCLUSIONS THAT THE ASSESSEE BELIEVED THAT THE AFT ASSESSMENT ORDER AND NOT A FINAL ASSESSMENT ORDER. WHEN THE ASSESSEE HAS UNDERSTOOD THAT THIS IS A DRAFT ASSESSMENT ORDER AND HAS INSTEAD OF FILING AN APPEAL BEFORE THE LD. , IT CANNOT CONTEND . IF THE CONTENTIONS OF THE LD. COUNSEL OF THE ASSESSEE THAT THIS ORDER DT. 27/11/2015, IS THE FINAL ASSESSMENT ORDER IS TO BE UPHELD, THEN NEITHER THE DRP NOR THE ASSESSEE AS THE ASSESSEE SHOULD HAVE APPROACHED THE LD. CIT(A) WITH AN APPEAL. HE DISTINGUISHED THE DECISIONS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE THAT ISSUANCE OF NOTICE U/S 156 OF THE ACT AND INITIATION OF NG WITH THE DRAFT ASSESSMENT LEAD S TO A CONCLUSION THAT THE DRAFT ASSESSMENT ORDER PASSED U/S 144C OF THE ACT, IS IN FACT A FINAL ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT. HE R SUBMITTED THAT SECTION 144C OF THE ACT IS COMPLETE CODE IN ITSELF. HE RELIED ON THE FOLLOWING CASE -LAW:- ITAL MARKETS LIMITED VS. DCIT [ ITA NO. 1881/DEL/2014, ASSESSMENT YEAR 2009 -10; ITA NO. 1583/DEL/2015, ASSESSMENT YEAR 2010 -11; ITA NO. 753/DEL/2016, ASSESSMENT YEAR 2011 -12; ITA NO. - 13], ORDER DT. D THAT THE LIMITATION PROVIDED U/S 156 OF THE ACT, DOES NOT APPLY TO THE DRAFT ASSESSMENT ORDERS. HE RELIED ON THE DECISION OF HONDA TRADING CORPORATION, JAPAN VS. AND SUBMITTED THAT THE BENCH HELD THAT THERE IS NO TIME LIMIT PRESCRIBED FOR PASSING OF THE DRAFT ASSESSMENT O RDER SUCH ORDER IS REQUIRED TO BE PASSED WITHIN REASONABLE TIME. SIX MONTHS PERIOD WAS CONSIDERED AS REASONABLE TIME. IN THE CASE ORDER WAS PASSED WITHIN SIX MONTHS FROM THE DATE OF RECEIPT OF INFORMATION BY THE LD. PR. CIT I.E., 18/03/2015. THUS, HE SUBMITS THAT 11. ON MERITS, THE LD. D/R SUBMITTED GROUND NO. 2.1 AS THE LD. COUNSEL FOR THE ASSESSEE IS NOT PRESSING 12. ON GROUND NO. 3 FOR NON GRANT OF RELIEF U/S EVIDENCE HAS BEEN PRODUCED BY THE ASSESSEE AND HENCE HIS CLAIM FOR CREDIT OF T RIGHTLY REJECTED BY THE LOWER AUTHORITIES. ON THE REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE TO REMAND THE MATTER FOR FRESH ADJUDICATION, HE SUBMITTED THAT NO EVIDENCE HAS BEEN FILED TILL DATE, EVEN BEFORE THE ITAT AND HENCE SUCH A CLAIM OF ASSESSING OFFICER SHOULD NOT BE ENTERTAINED. ON CLAIM OF CREDIT OF TAXES PAID TO UNITED STATES, HE SUBMITTED THAT THE FACTS ARE ADMITTEDLY NOT ON RECORD AND UNDER SUCH CIRCUMSTANCES, NO ADDITIONAL GROUND CAN BE ADMITTED ON THIS ISSUE. HE RELIED O JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF (SUPRA) AND SUBMITTED THAT ONLY QUESTION OF LAW WHEN FACTS ARE ON RECORD AND WHEN NO FRESH INVESTIGATION INTO FACTS IS REQUIRED. 13. ON THE ISSUE OF SHORT CREDIT OF TDS, HE SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER TO GRANT APPROPRIATE TAX CREDIT AFTER DUE VERIFICATION OF THE FORM NO. 26AS OF THE ASSESSEE. 14. IN REPLY, THE LD. COUNSEL FOR THE ASSES D/R AND MADE LENGTHY SUBMISSIONS BOTH ORAL AND WRITTEN. FOR THE SAKE OF BREVITY, THEY ARE NOT EXTRACTED. WE HAVE CAREFULLY CONSIDERED ALL THESE SUBMISSIONS AS WELL AS THE CASE LAW CITED BY BOTH THE PARTIES. THESE WIL 15. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: 16. THE F IRST ISSUE THAT HAS TO BE ADJUDICATED IS WHETHER THE ORDER PASSED ON 27/11/2015 IS A DRAFT ASSESSMENT ORDER OR A FINAL ASSESSMENT ORDER. 17. APPARENTLY , THE ORDER PASSED ON 27/11/2015 IS A U/S 144C OF THE ACT. IT IS SAID SO ON PAGE SPECIFICALLY STATES THAT THE SECTION AND SUB 17 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED PERIOD WAS CONSIDERED AS REASONABLE TIME. IN THE CASE ON HAND, THE DRAFT ASSESSMENT ORDER WAS PASSED WITHIN SIX MONTHS FROM THE DATE OF RECEIPT OF INFORMATION BY THE LD. PR. CIT I.E., 18/03/2015. THUS, HE SUBMITS THAT THIS ORDER IS NOT BARRED BY LIMITATION. ON MERITS, THE LD. D/R SUBMITTED GROUND NO. 2.1 . TO 2.4. HAVE TO BE DISMISSED AS THE LD. COUNSEL FOR THE ASSESSEE IS NOT PRESSING THE SAME. ON GROUND NO. 3 FOR NON GRANT OF RELIEF U/S 90 OF THE ACT, HE SUBMITTED THAT NO EVIDENCE HAS BEEN PRODUCED BY THE ASSESSEE AND HENCE HIS CLAIM FOR CREDIT OF T RIGHTLY REJECTED BY THE LOWER AUTHORITIES. ON THE REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE TO REMAND THE MATTER FOR FRESH ADJUDICATION, HE SUBMITTED THAT NO EVIDENCE EVEN BEFORE THE ITAT AND HENCE SUCH A CLAIM OF SHOULD NOT BE ENTERTAINED. ON CLAIM OF CREDIT OF TAXES PAID TO UNITED STATES, HE SUBMITTED THAT THE FACTS ARE ADMITTEDLY NOT ON RECORD AND UNDER SUCH CIRCUMSTANCES, NO ADDITIONAL GROUND CAN BE ADMITTED ON THIS ISSUE. HE RELIED O JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. AND SUBMITTED THAT ONLY QUESTION OF LAW CAN BE ENTERTAINED IN THE BENCH, WHEN FACTS ARE ON RECORD AND WHEN NO FRESH INVESTIGATION INTO FACTS IS REQUIRED. ON THE ISSUE OF SHORT CREDIT OF TDS, HE SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER TO GRANT APPROPRIATE TAX CREDIT AFTER DUE VERIFICATION OF THE FORM NO. 26AS OF THE ASSESSEE. THE LD. COUNSEL FOR THE ASSES SEE REBUTTED THE CONTENTIONS OF THE LD. D/R AND MADE LENGTHY SUBMISSIONS BOTH ORAL AND WRITTEN. FOR THE SAKE OF BREVITY, WE HAVE CAREFULLY CONSIDERED ALL THESE SUBMISSIONS AS WELL AS THE CASE LAW CITED BY BOTH THE PARTIES. THESE WIL L BE DISCUSSED IF REQUIRED. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES BELOW AS WELL AS CASE LAW CITED, WE HOLD AS FOLLOWS: - IRST ISSUE THAT HAS TO BE ADJUDICATED IS WHETHER THE ORDER PASSED ON 27/11/2015 IS A DRAFT ASSESSMENT ORDER OR A FINAL ASSESSMENT ORDER. , THE ORDER PASSED ON 27/11/2015 IS A DRAFT ASSESSMENT ORDER U/S 144C OF THE ACT. IT IS SAID SO ON PAGE 1 OF THE ORDER. WHEN THE ASSESSING OFFICER SPECIFICALLY STATES THAT THE SECTION AND SUB -SECTION UNDER WHICH THE ORDER ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED ON HAND, THE DRAFT ASSESSMENT ORDER WAS PASSED WITHIN SIX MONTHS FROM THE DATE OF RECEIPT OF INFORMATION BY THE LD. ORDER IS NOT BARRED BY LIMITATION. . TO 2.4. HAVE TO BE DISMISSED OF THE ACT, HE SUBMITTED THAT NO EVIDENCE HAS BEEN PRODUCED BY THE ASSESSEE AND HENCE HIS CLAIM FOR CREDIT OF T AX WAS RIGHTLY REJECTED BY THE LOWER AUTHORITIES. ON THE REQUEST OF THE LD. COUNSEL FOR THE ASSESSEE TO REMAND THE MATTER FOR FRESH ADJUDICATION, HE SUBMITTED THAT NO EVIDENCE EVEN BEFORE THE ITAT AND HENCE SUCH A CLAIM OF SETTING ASIDE TO SHOULD NOT BE ENTERTAINED. ON CLAIM OF CREDIT OF TAXES PAID TO UNITED STATES, HE SUBMITTED THAT THE FACTS ARE ADMITTEDLY NOT ON RECORD AND UNDER SUCH CIRCUMSTANCES, NO ADDITIONAL GROUND CAN BE ADMITTED ON THIS ISSUE. HE RELIED O N NATIONAL THERMAL POWER CO. LTD. CAN BE ENTERTAINED IN THE BENCH, WHEN FACTS ARE ON RECORD AND WHEN NO FRESH INVESTIGATION INTO FACTS IS REQUIRED. ON THE ISSUE OF SHORT CREDIT OF TDS, HE SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE ASSESSING OFFICER TO GRANT APPROPRIATE TAX CREDIT AFTER DUE SEE REBUTTED THE CONTENTIONS OF THE LD. D/R AND MADE LENGTHY SUBMISSIONS BOTH ORAL AND WRITTEN. FOR THE SAKE OF BREVITY, WE HAVE CAREFULLY CONSIDERED ALL THESE SUBMISSIONS AS WELL AS L BE DISCUSSED IF REQUIRED. WE HAVE HEARD RIVAL CONTENTIONS. ON CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, PERUSAL OF THE PAPERS ON RECORD, ORDERS OF THE AUTHORITIES IRST ISSUE THAT HAS TO BE ADJUDICATED IS WHETHER THE ORDER PASSED ON DRAFT ASSESSMENT ORDER 1 OF THE ORDER. WHEN THE ASSESSING OFFICER ORDER IS MADE IS SECTION 144C OF THE ACT AND GIVES THE HEADING OF THE ORDER ORDER , IN OUR VIEW, IT WOULD BE LEGALLY INCOR U/S 144C OF THE ACT, BUT WAS ACTUALLY AN ORDER PASSED U/S 143(3) OF THE ACT. THE POWER TO CHANGE THE SECTION UNDER WHICH AN ORDER IS PASSED. NOTICE OF DEMAND IN FORM NO. 7 CANNOT BE TAK LEADS US TO A CONCLUSION THAT THE ORDER IN QUESTION IS A U/S 143(3) OF THE ACT . IN FACT AT PARA 1 OF THE ASSESSING OFFICER HAS CLEARLY STATED U/S 144C OF THE I.T. ACT 1961 TAKE US TO CONCLUSIVE PROOF THAT THE ORDER IS NOT A DRAFT ASSESSMENT ORDER. IN FACT IT IS A DRAFT NOTICE OF DEMAND ATTACHE DEMAND IS NON- EST IN LAW AS NO DEMAND CAN BE CREATED BY AN ORDER PASSED U/S 144C OF THE ACT. HENCE SUCH NOTICE HAS NOT BEARING ON THE ORDER. 18. COMING TO THE NOTICE ISSUED FOR LEVY OF PENALTY U/S 274 OF THE NONE OF THE COLUMNS IN THE NOTICE SUCH CIRCUMSTANCES SUCH A NOTICE IS ILLEGAL AND BAD IN LAW. THIS NOTICE IS ALSO NON IN LAW. T HIS BENCH OF THE TRIBUNAL 2044/KOL/2018, ASSESSMENT YEAR: 2008 THE JUDGMENT OF T HE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF MURARI MOHAN KOLEY IN ITAT NO. 306 OF 2017, G.A. NO. 2968 OF 2017 JULY, 2018, AND HELD AS FOLLOWS: 10. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF DATED 23.11.2015 WHEREIN THE HON'BLE KARNATAKA HIGH COURT FOLLOWING ITS OWN DECISION IN THE CASE OF C IT VS MANJUNATHA COTTON AND GINNING THAT IMPOSING OF PENALTY U/S. 271(1)(C) OF THE ACT IS BAD IN LAW AND INVALID FOR THE REASON THAT THE SHOW CAUSE NOTICE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASS ESSEE AS TO WHETHER IT IS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE LD. COUNSEL FURTHER BROUGHT TO OUR NOTICE THAT AS AGAINST THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT THE REVENUE PREFERRED AN AP IN SLP IN CC NO.11485 OF 2016 AND THE HON'BLE SUPREME COURT BY ITS ORDER DATED 05.08.2016 DISMISSED THE SLP PREFERRED BY THE DEPARTMENT. THE LD. COUNSEL ALSO BROUGHT TO OUR NOTICE THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS SHR IN ITA NO.1154 OF 2014 DATED 05.01.2017 WHEREIN THE HON'BLE BOMBAY HIGH COURT FOLLOWING THE DECISION OF THE THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF OF COTTON AND GINNING FACTORY (SUPRA) CAME TO THE CONCLUSION THAT IMPOSITION OF PENALTY ON DEFECTIVE SHOW CAUSE NOTICE WITHOUT SPECIFYING THE CHARGE AGAINST THE ASSESSEE CANNOT BE SUSTAINED. OUR ATTENTION WAS ALSO DRAWN TO THE DECISION OF ITAT IN THE CASE OF SUVAPRA 18 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED SECTION 144C OF THE ACT AND GIVES THE HEADING OF THE ORDER AS DRAFT ASSESSMENT , IN OUR VIEW, IT WOULD BE LEGALLY INCOR RECT TO HOLD THAT THE ORDER IS NOT PASSED U/S 144C OF THE ACT, BUT WAS ACTUALLY AN ORDER PASSED U/S 143(3) OF THE ACT. THE POWER TO CHANGE THE SECTION UNDER WHICH AN ORDER IS PASSED. THE ATTACHMENT OF A IN FORM NO. 7 CANNOT BE TAK EN AS THE DECIDING CIRCUMSTANCES, WHICH LEADS US TO A CONCLUSION THAT THE ORDER IN QUESTION IS A FINAL A SSESSMENT . IN FACT AT PARA 1 OF THE NOTICE OF D EMAND U/S 156 OF THE ACT, THE ASSESSING OFFICER HAS CLEARLY STATED .., HAS BEEN DETERMINED TO BE PAYABLE BY YOU U/S 144C OF THE I.T. ACT 1961 . NON- STRIKING OF PARA 6 OR PARA 7 IN FORM NO. 7, DOES NOT TAKE US TO CONCLUSIVE PROOF THAT THE ORDER IS NOT A DRAFT ASSESSMENT ORDER. IN FACT IT IS A ATTACHE D TO THE DRAFT ASSESSMENT ORDER. EST IN LAW AS NO DEMAND CAN BE CREATED BY AN ORDER PASSED U/S 144C OF THE ACT. HENCE SUCH NOTICE HAS NOT BEARING ON THE ORDER. COMING TO THE NOTICE ISSUED FOR LEVY OF PENALTY U/S 274 OF THE ACT, WE FIND THAT IN THE NOTICE HAVE BEEN STRUCK OFF BY THE ASSESSING OFFICER. UNDER SUCH A NOTICE IS ILLEGAL AND BAD IN LAW. THIS NOTICE IS ALSO NON HIS BENCH OF THE TRIBUNAL IN THE CASE OF ARUN KUMAR BO SE VS. ITO IN I ASSESSMENT YEAR: 2008 -09, ORDER DT. FEBRUARY 19 TH , 2020 HE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF IN ITAT NO. 306 OF 2017, G.A. NO. 2968 OF 2017 , JUDGMENT DT. 18 JULY, 2018, AND HELD AS FOLLOWS: - 10. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF CIT VS. SSA 'S EMERALD MEADOWS IN ITA NO.380 OF 2015 DATED 23.11.2015 WHEREIN THE HON'BLE KARNATAKA HIGH COURT FOLLOWING ITS OWN DECISION IN IT VS MANJUNATHA COTTON AND GINNING FACTORY (2013) 359 ITR 565 TOOK A VIEW THAT IMPOSING OF PENALTY U/S. 271(1)(C) OF THE ACT IS BAD IN LAW AND INVALID FOR THE REASON THAT THE SHOW CAUSE NOTICE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ESSEE AS TO WHETHER IT IS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE LD. COUNSEL FURTHER BROUGHT TO OUR NOTICE THAT AS AGAINST THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT THE REVENUE PREFERRED AN AP IN SLP IN CC NO.11485 OF 2016 AND THE HON'BLE SUPREME COURT BY ITS ORDER DATED 05.08.2016 DISMISSED THE SLP PREFERRED BY THE DEPARTMENT. THE LD. COUNSEL ALSO BROUGHT TO OUR NOTICE THE DECISION OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS SHR I SAMSON PERINCHERY IN ITA NO.1154 OF 2014 DATED 05.01.2017 WHEREIN THE HON'BLE BOMBAY HIGH COURT FOLLOWING THE DECISION OF THE THE HON'BLE KARNATAKA HIGH COURT IN THE CASE OF OF CIT VS MANJUNATHA FACTORY (SUPRA) CAME TO THE CONCLUSION THAT IMPOSITION OF PENALTY ON DEFECTIVE SHOW CAUSE NOTICE WITHOUT SPECIFYING THE CHARGE AGAINST THE ASSESSEE CANNOT BE SUSTAINED. OUR ATTENTION WAS ALSO DRAWN TO THE DECISION OF ITAT IN THE CASE OF SUVAPRA ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED DRAFT ASSESSMENT RECT TO HOLD THAT THE ORDER IS NOT PASSED U/S 144C OF THE ACT, BUT WAS ACTUALLY AN ORDER PASSED U/S 143(3) OF THE ACT. NONE HAS THE ATTACHMENT OF A AS THE DECIDING CIRCUMSTANCES, WHICH SSESSMENT ORDER PASSED EMAND U/S 156 OF THE ACT, THE .., HAS BEEN DETERMINED TO BE PAYABLE BY YOU STRIKING OF PARA 6 OR PARA 7 IN FORM NO. 7, DOES NOT TAKE US TO CONCLUSIVE PROOF THAT THE ORDER IS NOT A DRAFT ASSESSMENT ORDER. IN FACT IT IS A THIS NOTICE OF EST IN LAW AS NO DEMAND CAN BE CREATED BY AN ORDER PASSED U/S 144C ACT, WE FIND THAT HAVE BEEN STRUCK OFF BY THE ASSESSING OFFICER. UNDER SUCH A NOTICE IS ILLEGAL AND BAD IN LAW. THIS NOTICE IS ALSO NON -EST SE VS. ITO IN I TA NO. , 2020 , HAS FOLLOWED HE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF PR. CIT VS. DR. , JUDGMENT DT. 18 TH 10. THE LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO THE DECISION OF THE HON'BLE 'S EMERALD MEADOWS IN ITA NO.380 OF 2015 DATED 23.11.2015 WHEREIN THE HON'BLE KARNATAKA HIGH COURT FOLLOWING ITS OWN DECISION IN FACTORY (2013) 359 ITR 565 TOOK A VIEW THAT IMPOSING OF PENALTY U/S. 271(1)(C) OF THE ACT IS BAD IN LAW AND INVALID FOR THE REASON THAT THE SHOW CAUSE NOTICE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ESSEE AS TO WHETHER IT IS FOR CONCEALMENT OF PARTICULARS OF INCOME OR FURNISHING OF INACCURATE PARTICULARS OF INCOME. THE LD. COUNSEL FURTHER BROUGHT TO OUR NOTICE THAT AS AGAINST THE DECISION OF THE HON'BLE KARNATAKA HIGH COURT THE REVENUE PREFERRED AN AP PEAL IN SLP IN CC NO.11485 OF 2016 AND THE HON'BLE SUPREME COURT BY ITS ORDER DATED 05.08.2016 DISMISSED THE SLP PREFERRED BY THE DEPARTMENT. THE LD. COUNSEL ALSO BROUGHT TO OUR NOTICE I SAMSON PERINCHERY IN ITA NO.1154 OF 2014 DATED 05.01.2017 WHEREIN THE HON'BLE BOMBAY HIGH COURT FOLLOWING CIT VS MANJUNATHA FACTORY (SUPRA) CAME TO THE CONCLUSION THAT IMPOSITION OF PENALTY ON DEFECTIVE SHOW CAUSE NOTICE WITHOUT SPECIFYING THE CHARGE AGAINST THE ASSESSEE CANNOT BE SUSTAINED. OUR ATTENTION WAS ALSO DRAWN TO THE DECISION OF ITAT IN THE CASE OF SUVAPRA SANNA BHATTACHARYA VS ACIT IN ITA NO 1303/KOL/2010 DATED 06.11.2015 WHEREIN IDENTICAL PROPOSITION HAS BEEN FOLLOWED BY THE TRIBUNAL. THE LEARNED DR RELIED ON THE ORDER OF THE CIT(A). 11. WE HAVE ALREADY OBSERVED THAT THE SHOW CAUSE NOTICE ISSUED IN THE PR OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALING PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE SHOW CAUSE NOTICE U/S 274 OF THE ACT DOES NOT STRIKE OUT THE INAPPRO IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT IMPOSITION OF PENALTY CANNOT BE SUSTAINED. THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE WHICH IS BASED ON THE DECISIONS REFERRED TO IN THE EARLIER PART OF THIS ORDER HAS TO BE ACCEPTED. WE THER THE PRESENT CASE CANNOT BE SUSTAINED AND THE SAME IS DIRECTED TO BE CANCELLED. ' MR. CHOWDHURY IN COURSE OF ARGUMENT HAS URGED US TO REMAND THE MATTER BEFORE THE ASSESSING OFFICER. ACCORDING TO HIM, THIS WAS A TECH GIVEN A CHANCE TO CURE. THE REASON WHY THE PENALTY ORDER WAS NOT SUSTAINED BY THE TRIBUNAL APPEARS FROM THE PASSAGES OF THE DECISION OF THE TRIBUNAL QUOTED EARLIER IN THIS JUDGEMENT. WE FIND THAT THERE WAS NO SPECIFIC MISSED OUT THEIR OPPORTUNITY TO SUBJECT THE ASSESSEE TO THE PENALTY PROCEEDING BY NOT ISSUING A PROPER NOTICE. NO SPECIFIC CASE HAS BEEN MADE OUT BY THE REVENUE AS TO WHY THE MATTER SHOULD BE REMANDED EXCEPT THAT THE ASSESSEE HAD NOT PARTICIPATED PROPERLY IN THE ASSESSMENT PROCEEDINGS BUT FOR THAT REASON BEST JUDGMENT ASSESSMENT HAS BEEN MADE AND THE INCOME, WHICH HAD ESCAPED ASSESSMENT HAS BEEN ADDED TO THE INCOME OF THE ASSESSEE. IT WAS INCUMBENT UPO N THE REVENUE TO MAKE OUT A SPECIFIC CASE FOR IMPOSITION OF PENALTY, ON WHICH COUNT THE REVENUE HAS FAILED. UNDER SUCH CIRCUMSTANCES, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE TRIBUNAL'S ORDER. THE TRIBUNAL'S ORDER DOES NOT SUFFER FROM ANY ERROR OF INVOLVED IN THIS APPEAL. HENCE, THE SAME IS DISMISSED. HENCE, STAY PETITION IS ALSO DISMISSED. THERE SHALL BE NO ORDER AS TO COSTS. 19. IN THIS CASE, THE ASSESSING OFFICER HAS NOT EVEN MENTIONED WHETHER HE PROPOSED TO LEVY PENALTY FOR NON THE ASSESSEE, OR FOR FAILING TO COMPLY WITH THE NOTICE ISSUED U/S 142(1)/143(2) OF THE ACT ETC. THUS, SUCH NON-E ST NOTICE CANNOT BE A BASIS FOR COMING TO A CONCLUSION THAT THE AS SESSMENT ORDER IS A FINAL ASSESSMENT ORDER AND NOT A DRAFT ASSESSMENT ORDER. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON A NUMBER OF DECISION HIS CONTENTIONS. FOR THE SAKE OF BREVITY, WE DO NOT DEAL WITH ALL OF THEM SEPARATELY. OUR VIEW, THESE CASE- LAW ARE DISTINGUISHABLE ON FACTS DEMAND U/S 156 OF THE ACT AND THE NOTICE FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT ARE ILLEGAL NOTICES AND ARE COUNSEL, THESE NOTICES U/S 156 AND 274 OF THE ACT, MIGHT HAVE BEEN HELD TO BE VALID 19 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED BHATTACHARYA VS ACIT IN ITA NO 1303/KOL/2010 DATED 06.11.2015 WHEREIN IDENTICAL PROPOSITION HAS BEEN FOLLOWED BY THE TRIBUNAL. THE LEARNED DR RELIED ON THE ORDER OF THE 11. WE HAVE ALREADY OBSERVED THAT THE SHOW CAUSE NOTICE ISSUED IN THE PR ESENT CASE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALING PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE SHOW CAUSE NOTICE U/S 274 OF THE ACT DOES NOT STRIKE OUT THE INAPPRO PRIATE WORDS. IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT IMPOSITION OF PENALTY CANNOT BE SUSTAINED. THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE WHICH IS BASED ON THE DECISIONS REFERRED TO IN THE EARLIER PART OF THIS ORDER HAS TO BE ACCEPTED. WE THER EFORE HOLD THAT IMPOSITION OF PENALTY IN THE PRESENT CASE CANNOT BE SUSTAINED AND THE SAME IS DIRECTED TO BE CANCELLED. ' MR. CHOWDHURY IN COURSE OF ARGUMENT HAS URGED US TO REMAND THE MATTER BEFORE THE ASSESSING OFFICER. ACCORDING TO HIM, THIS WAS A TECH NICAL FLAW, WHICH THE REVENUE MUST BE GIVEN A CHANCE TO CURE. THE REASON WHY THE PENALTY ORDER WAS NOT SUSTAINED BY THE TRIBUNAL APPEARS FROM THE PASSAGES OF THE DECISION OF THE TRIBUNAL QUOTED EARLIER IN THIS JUDGEMENT. WE FIND THAT THERE WAS NO SPECIFIC CHARGE AGAINST THE ASSESSEE IN THE NOTICE. REVENUE HAS MISSED OUT THEIR OPPORTUNITY TO SUBJECT THE ASSESSEE TO THE PENALTY PROCEEDING BY NOT ISSUING A PROPER NOTICE. NO SPECIFIC CASE HAS BEEN MADE OUT BY THE REVENUE AS TO WHY THE MATTER EXCEPT THAT THE ASSESSEE HAD NOT PARTICIPATED PROPERLY IN THE ASSESSMENT PROCEEDINGS BUT FOR THAT REASON BEST JUDGMENT ASSESSMENT HAS BEEN MADE AND THE INCOME, WHICH HAD ESCAPED ASSESSMENT HAS BEEN ADDED TO THE INCOME OF THE ASSESSEE. IT N THE REVENUE TO MAKE OUT A SPECIFIC CASE FOR IMPOSITION OF PENALTY, ON WHICH COUNT THE REVENUE HAS FAILED. UNDER SUCH CIRCUMSTANCES, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE TRIBUNAL'S ORDER. THE TRIBUNAL'S ORDER DOES NOT SUFFER FROM ANY ERROR OF LAW. NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL. HENCE, THE SAME IS DISMISSED. HENCE, STAY PETITION IS ALSO DISMISSED. THERE SHALL BE NO ORDER AS TO COSTS. IN THIS CASE, THE ASSESSING OFFICER HAS NOT EVEN MENTIONED WHETHER HE TO LEVY PENALTY FOR NON -FILING OF A RETURN OF INCOME U/S 139(1) OF THE ACT FAILING TO COMPLY WITH THE NOTICE ISSUED U/S 142(1)/143(2) OF THE ST NOTICE CANNOT BE A BASIS FOR COMING TO A CONCLUSION THAT THE SESSMENT ORDER IS A FINAL ASSESSMENT ORDER AND NOT A DRAFT ASSESSMENT ORDER. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON A NUMBER OF DECISION FOR THE SAKE OF BREVITY, WE DO NOT DEAL WITH ALL OF THEM SEPARATELY. LAW ARE DISTINGUISHABLE ON FACTS AS IN THIS CASE BOTH THE NOTICE OF U/S 156 OF THE ACT AND THE NOTICE FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT ARE ILLEGAL NOTICES AND ARE VOID-AB-INITIO . IN THE CASE- LAW RELIED UPON BY THE LD. COUNSEL, THESE NOTICES U/S 156 AND 274 OF THE ACT, MIGHT HAVE BEEN HELD TO BE VALID ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED BHATTACHARYA VS ACIT IN ITA NO 1303/KOL/2010 DATED 06.11.2015 WHEREIN IDENTICAL PROPOSITION HAS BEEN FOLLOWED BY THE TRIBUNAL. THE LEARNED DR RELIED ON THE ORDER OF THE ESENT CASE U/S 274 OF THE ACT DOES NOT SPECIFY THE CHARGE AGAINST THE ASSESSEE AS TO WHETHER IT IS FOR CONCEALING PARTICULARS OF INCOME OR FURNISHING INACCURATE PARTICULARS OF INCOME. THE SHOW CAUSE NOTICE IN THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT IMPOSITION OF PENALTY CANNOT BE SUSTAINED. THE PLEA OF THE LD. COUNSEL FOR THE ASSESSEE WHICH IS BASED ON THE DECISIONS REFERRED TO IN THE EFORE HOLD THAT IMPOSITION OF PENALTY IN THE PRESENT CASE CANNOT BE SUSTAINED AND THE SAME IS DIRECTED TO BE CANCELLED. ' MR. CHOWDHURY IN COURSE OF ARGUMENT HAS URGED US TO REMAND THE MATTER BEFORE THE NICAL FLAW, WHICH THE REVENUE MUST BE GIVEN A CHANCE TO CURE. THE REASON WHY THE PENALTY ORDER WAS NOT SUSTAINED BY THE TRIBUNAL APPEARS FROM THE PASSAGES OF THE DECISION OF THE TRIBUNAL QUOTED EARLIER IN THIS JUDGEMENT. CHARGE AGAINST THE ASSESSEE IN THE NOTICE. REVENUE HAS MISSED OUT THEIR OPPORTUNITY TO SUBJECT THE ASSESSEE TO THE PENALTY PROCEEDING BY NOT ISSUING A PROPER NOTICE. NO SPECIFIC CASE HAS BEEN MADE OUT BY THE REVENUE AS TO WHY THE MATTER EXCEPT THAT THE ASSESSEE HAD NOT PARTICIPATED PROPERLY IN THE ASSESSMENT PROCEEDINGS BUT FOR THAT REASON BEST JUDGMENT ASSESSMENT HAS BEEN MADE AND THE INCOME, WHICH HAD ESCAPED ASSESSMENT HAS BEEN ADDED TO THE INCOME OF THE ASSESSEE. IT N THE REVENUE TO MAKE OUT A SPECIFIC CASE FOR IMPOSITION OF PENALTY, ON UNDER SUCH CIRCUMSTANCES, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE TRIBUNAL'S ORDER. LAW. NO SUBSTANTIAL QUESTION OF LAW IS INVOLVED IN THIS APPEAL. HENCE, THE SAME IS DISMISSED. HENCE, STAY PETITION IS ALSO DISMISSED. IN THIS CASE, THE ASSESSING OFFICER HAS NOT EVEN MENTIONED WHETHER HE RETURN OF INCOME U/S 139(1) OF THE ACT BY FAILING TO COMPLY WITH THE NOTICE ISSUED U/S 142(1)/143(2) OF THE ST NOTICE CANNOT BE A BASIS FOR COMING TO A CONCLUSION THAT THE SESSMENT ORDER IS A FINAL ASSESSMENT ORDER AND NOT A DRAFT ASSESSMENT ORDER. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON A NUMBER OF DECISION S IN SUPPORT OF FOR THE SAKE OF BREVITY, WE DO NOT DEAL WITH ALL OF THEM SEPARATELY. IN AS IN THIS CASE BOTH THE NOTICE OF U/S 156 OF THE ACT AND THE NOTICE FOR LEVY OF PENALTY U/S 271(1)(C) OF THE ACT LAW RELIED UPON BY THE LD. COUNSEL, THESE NOTICES U/S 156 AND 274 OF THE ACT, MIGHT HAVE BEEN HELD TO BE VALID NOTICES IN LAW. THE SUBSTANTIAL NATURE AND CHARACTER OF THE MAIN ORDER DOES NOT CHANGE JUST BECAUSE IT WAS ANNEXED WITH ILLEGAL, VOI CERTAIN ACTION WHICH WERE NEVER TAKEN OR IMPLEMENTED. THE PITH AND SUBSTANCE OF THE MAIN ORDER CANNOT BE CHANGED. THE 144C OF THE ACT, CANNOT BE HELD AS PASSED U/S 143(3) O DEFECTIVE AND ILLEGAL NOTICES ARE ISSUED ALONG WITH ITS. 19.1. IN SOME OF THE CASE- LAW RELIED UPON BY THE LD. A/R STATED THAT THE ORDER WAS PASSED U/S 143(3)/144C(1) OF THE ACT, THOUGH HE TERMED IT AS A DRA FT ASSESSMENT ORDER. IN THIS CASE, SECTION 143(3) OF THE ACT, HAS NOT BEEN MENTIONED AT ANY PLACE IN THE ORDER DT. 27/11/2015 HAS BEEN MENTIONED . EVEN IN THE NOTICE OF DEMAND IT IS STATED THAT THE ORDER WAS PASSED/S 144C OF THE ACT. WE ALSO DO NOT KNOW WHETHER THE PENALTY NOTICE ISSUE THAT CASE, WAS A VALID SHOW WITH EACH OF THE CASE LAW CITED BY THE LD. COUNSEL FOR THE ASSESSEE, AS IN OUR VIEW, IT IS NOT NECESSARY AS THE FACTS OF THIS CASE CONCLUSION. 20. WE, HOWEVER, FIND FORCE IN THE ARGUMENTS OF THE LD. UNDERSTOOD THIS ORDER DT. 27/11/2015 AS A DRAFT ASSESSMENT ORDER AND FILED OBJECTIONS WI TH THE HONBLE DRP. IF IT WAS ASSESSMENT ORDER, THEN HE WOULD HAVE FILED AN APPEAL BEFORE THE LD. CIT(A) AND NOT BEFORE THE HONBLE DRP. IF THE CONTENTIONS OF THE ASSESSEE IS ACCEPTED THEN THE APPEAL IS NOT M AINTAINABLE BEFORE US FOR THE REASON THAT NO OBJECTION IS MAINTAINABLE BEFORE THE DRP ON A FINAL ASSESSMENT ORDER ORDER IS PASSED OTHER THAN U/S 143(3)/144C OF THE ACT, THEN THE APPEAL LIES WITH THE LD. CIT(A ) AND NOT WITH THE ITAT. MAINTAINABLE. THUS, WE DISMISS THESE GROUNDS OF THE ASSESSEE AND HOLD THAT THE ORDER PASSED ON 27/11/2015 IS A DRAFT ASSESSMENT ORDER 21. WE NOW CONS IDER THE ISSUE OF LIMITATION. THIS ISSUE IS COVERED AGAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE BY THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF RELIGARE CAPITAL MARKETS LIMITED AS FOLLOWS:- 20 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED THE SUBSTANTIAL NATURE AND CHARACTER OF THE MAIN ORDER DOES NOT CHANGE JUST BECAUSE IT WAS ANNEXED WITH ILLEGAL, VOI D AND DEFECTIVE NOTICES PROPOSING CERTAIN ACTION WHICH WERE NEVER TAKEN OR IMPLEMENTED. THE PITH AND SUBSTANCE OF THE MAIN ORDER CANNOT BE CHANGED. THE TAIL CANNOT WAG THE DOG . THE ORDER PASSED U/S 144C OF THE ACT, CANNOT BE HELD AS PASSED U/S 143(3) O F THE ACT BECAUSE SOME DEFECTIVE AND ILLEGAL NOTICES ARE ISSUED ALONG WITH ITS. LAW RELIED UPON BY THE LD. A/R , THE ASSESSING OFFICER HAD PASSED U/S 143(3)/144C(1) OF THE ACT, THOUGH HE TERMED IT FT ASSESSMENT ORDER. IN THIS CASE, SECTION 143(3) OF THE ACT, HAS NOT BEEN MENTIONED AT ANY PLACE IN THE ORDER DT. 27/11/2015 AND ONLY SECTION 144C OF THE ACT . EVEN IN THE NOTICE OF DEMAND IT IS STATED THAT THE ORDER WAS THE ACT. WE ALSO DO NOT KNOW WHETHER THE PENALTY NOTICE ISSUE WAS A VALID SHOW - CAUSE NOTICE FOR LEVY OF PENALTY OR NOT. WITH EACH OF THE CASE LAW CITED BY THE LD. COUNSEL FOR THE ASSESSEE, AS IN OUR VIEW, IT IS AS THE FACTS OF THIS CASE ON HAND ARE CLEAR AND CANNOT LEAD TO ANY OTHER WE, HOWEVER, FIND FORCE IN THE ARGUMENTS OF THE LD. CIT D/R THAT THE, ASSESSEE UNDERSTOOD THIS ORDER DT. 27/11/2015 AS A DRAFT ASSESSMENT ORDER AND FILED TH THE HONBLE DRP. IF IT WAS THE BELIEF OF THE ASSESSEE THAT THIS IS A FINAL ASSESSMENT ORDER, THEN HE WOULD HAVE FILED AN APPEAL BEFORE THE LD. CIT(A) AND NOT BEFORE THE HONBLE DRP. IF THE CONTENTIONS OF THE ASSESSEE IS ACCEPTED THEN THE APPEAL AINTAINABLE BEFORE US FOR THE REASON THAT NO OBJECTION IS MAINTAINABLE BEFORE THE DRP ON A FINAL ASSESSMENT ORDER . IF THE CONTENTIONS OF THE ASSESSEE IS THAT THE ORDER IS PASSED OTHER THAN U/S 143(3)/144C OF THE ACT, THEN THE APPEAL LIES WITH THE ) AND NOT WITH THE ITAT. IN SUCH A CASE THIS APPEAL HAS TO BE DISMISSED AS NOT THUS, WE DISMISS THESE GROUNDS OF THE ASSESSEE AND HOLD THAT THE ORDER PASSED ON 27/11/2015 IS A DRAFT ASSESSMENT ORDER PASSED U/S 144C OF THE ACT IDER THE ISSUE OF LIMITATION. THIS ISSUE IS COVERED AGAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE BY THE DECISION OF THE DELHI BENCH OF THE RELIGARE CAPITAL MARKETS LIMITED (SUPRA) , WHEREIN IT WAS HELD ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED THE SUBSTANTIAL NATURE AND CHARACTER OF THE MAIN ORDER DOES NOT D AND DEFECTIVE NOTICES PROPOSING CERTAIN ACTION WHICH WERE NEVER TAKEN OR IMPLEMENTED. THE PITH AND SUBSTANCE OF THE . THE ORDER PASSED U/S F THE ACT BECAUSE SOME THE ASSESSING OFFICER HAD PASSED U/S 143(3)/144C(1) OF THE ACT, THOUGH HE TERMED IT FT ASSESSMENT ORDER. IN THIS CASE, SECTION 143(3) OF THE ACT, HAS NOT BEEN ONLY SECTION 144C OF THE ACT . EVEN IN THE NOTICE OF DEMAND IT IS STATED THAT THE ORDER WAS THE ACT. WE ALSO DO NOT KNOW WHETHER THE PENALTY NOTICE ISSUE D IN CAUSE NOTICE FOR LEVY OF PENALTY OR NOT. WE DO NOT DEAL WITH EACH OF THE CASE LAW CITED BY THE LD. COUNSEL FOR THE ASSESSEE, AS IN OUR VIEW, IT IS ARE CLEAR AND CANNOT LEAD TO ANY OTHER D/R THAT THE, ASSESSEE UNDERSTOOD THIS ORDER DT. 27/11/2015 AS A DRAFT ASSESSMENT ORDER AND FILED BELIEF OF THE ASSESSEE THAT THIS IS A FINAL ASSESSMENT ORDER, THEN HE WOULD HAVE FILED AN APPEAL BEFORE THE LD. CIT(A) AND NOT BEFORE THE HONBLE DRP. IF THE CONTENTIONS OF THE ASSESSEE IS ACCEPTED THEN THE APPEAL AINTAINABLE BEFORE US FOR THE REASON THAT NO OBJECTION IS MAINTAINABLE BEFORE . IF THE CONTENTIONS OF THE ASSESSEE IS THAT THE ORDER IS PASSED OTHER THAN U/S 143(3)/144C OF THE ACT, THEN THE APPEAL LIES WITH THE IN SUCH A CASE THIS APPEAL HAS TO BE DISMISSED AS NOT THUS, WE DISMISS THESE GROUNDS OF THE ASSESSEE AND HOLD THAT THE ORDER PASSED U/S 144C OF THE ACT . IDER THE ISSUE OF LIMITATION. THIS ISSUE IS COVERED AGAINST THE ASSESSEE AND IN FAVOUR OF THE REVENUE BY THE DECISION OF THE DELHI BENCH OF THE , WHEREIN IT WAS HELD 10. WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AS WELL AS THE TIME LINES WHICH ARE UNDER CHALLENGE BEFORE US. WE DO NOT HAVE ANY HESITATION IN HOLDING THAT THE ISSUES ARGUED BY THE LD. AR ARE SQ UARELY COVERED AGAINST THE ASSESSEE BY THE DECISION OF COORDINATE BENCH IN ITA NO. 1132/DEL/2015. THE ABOVE ORDER OF THE COORDINATE BENCH HAS CLEARLY COVERS FROM PARA NO. 5.22 ONWARDS THAT IN SUCH CASES THE PASSING OF THE FINAL ASSESSMENT ORDER PURSUANT TO 144C(4) AND (13), THE TIME LIMIT GIVEN U/S 153 HAS NO RELATION WHATSOEVER WITH THE PASSING OF THE DRAFT ORDER, WHICH SHOULD BE PASSED WITHIN A REASONABLE TIME AND THE TIME LIMIT GIVEN U/S 153 OF THE ACT IS TIME AVAILABLE WITH THE TPO FOR PASSING ORDER U/S 92CA(3). THE FACTS BEFORE THE COORDINATE BENCH WAS THAT THE ASSESSMENT ORDER U/S 143(3) WAS PASSED ON 29.01.2015 WHICH IS WELL WITHIN THE PERIOD OF ONE MONTH IN WHICH THE D WAS RECEIVED FROM THE LD. DRP ON 24.12.2014, THUS, THE FINAL ORDER PASSED BY THE LD. AO IS WITHIN THE TIME PRESCRIBED U/S 144C(13). AS THE DRAFT ORDER WAS ALSO PASSED WITHIN A REASONABLE TIME SAME IS ALSO NOT BARRED BY LIMITATION. AGAINST THIS DEC ISION NO FURTHER APPEAL IS FILED BY THE ASSESSEE. HOWEVER, THE LD. AR HAS GIVEN A DETAIL REBUTTAL TO THE SUBMISSION OF THE REVENUE. 11. THE FIRST ARGUMENT OF THE LD. AR WAS THAT ARGUMENT OF THE LD. CIT DR THAT DRP PROCEEDINGS ARE SUBSTITUTION OF THE THE LD. DRP LIKE AN APPEAL ORDER THEREFORE, PROVISION OF SECTION 153 OF THE ACT DOES NOT APPLY. THE LD. AUTHORIZED REPRESENTATIVE REFERRED TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN 361 ITR 531 WHERE IT IS ARE NOT APPELLATE PROCEEDINGS. THE HONBLE BOMBAY HIGH COURT HAS HELD THAT THE PROCESS BEFORE THE LD. DRP PANEL IS CONTINUATION OF ASSESSMENT PROCEEDINGS AS ONLY THEREAFTER WOULD A FINAL APPEALABLE ASSESSMENT ORDER BE PASSED. HOW HONBLE HIGH COURT FURTHER HELD THAT PROCESS BEFORE THE LD. DRP IS A CORRECTING MECHANISM IN THE NATURE OF A SECOND LOOK AT THE PROPOSED ASSESSMENT ORDER BY HIGH FUNCTIONARIES OF THE REVENUE KEEPING IN MIND THE INTEREST OF THE ASSESSEE. 12. THE LD. AUTHORIZED REPRESENTATIVE FURTHER STATED THAT AS THE COORDINATE BENCH HAS HELD THAT THE DRAFT ORDER IS ACTUALLY DIFFERENT IN AMBIT FROM THE ASSESSMENT ORDER AND THUS IT IS NOT APPRECIATED THAT THE DRAFT ASSESSMENT ORDER IS A PROPOSED ORDER OF ASSE LAW. IT IS NOT ACCOMPANIED BY NOTICE OF DEMAND, NOT APPEALABLE AND CANNOT BE THE BASIS OF INITIATION OF PENALTY. HE THEREFORE, SUBMITTED THAT DRAFT ORDER OF ASSESSMENT CANNOT BE EQUATED WITH THE ASSESSM DIRECTION OF DRP U/S 143(3) READ WITH SECTION 144C(13) OF THE ACT. THE ARGUMENT OF THE LD. AR THOUGH LOOKS ATTRACTIVE BUT ON CAREFUL EXAMINATION OF THE SAME WE ARE NOT IMPRESSED. THE PROVISIONS OF THE INCOME TAX ACT 1961 SETS SCHEME FOR THE ASSESSMENT OF AN ENTITY ENGAGED IN INTERNATIONAL TRANSACTION UNDER CHAPTER X OF THE INCOME TAX ACT IN TERMS OF SECTION 144C (1) TO SECTION 144C (14) OF THE INCOME TAX ACT. THEREFORE IT IS APPARENT THAT IT IS NOT AN ASSESSMENT S AS APPLICABLE TO OTHER ASSESSES. IT IS A SCHEME OF ASSESSMENT IN RESPECT OF MATTERS THAT INCLUDED THE TRANSFER PRICING ADJUSTMENT. ACCORDING TO THE PROVISIONS OF SECTION 144C (1) AND ORDER OF THE DRAFT ASSESSMENT PROPOSING A VARIATION TO THE INCOME O R LOSS AS RETURNED BY THE ASSESSEE IS TO BE FORWARDED TO THE ASSESSEE BY THE ASSESSING OFFICER. ON RECEIPT OF THAT ORDER ASSESSEE IS GIVEN 2 OPTIONS TO BE EXERCISED WITHIN 30 DAYS OF THE RECEIPT OF THE DRAFT ORDER EITHER TO ACCEPT THE DRAFT ORDER AND INTIM ATE THE ASSESSING OFFICER ACCORDINGLY OR TO FILE OBJECTIONS TO THE PROPOSED VARIATIONS WITH THE DISPUTE RESOLUTION PANEL AND THE ASSESSING OFFICER. IF 21 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AS WELL AS THE TIME LINES WHICH ARE UNDER CHALLENGE BEFORE US. WE DO NOT HAVE ANY HESITATION IN HOLDING THAT THE ISSUES ARGUED BY THE LD. AR UARELY COVERED AGAINST THE ASSESSEE BY THE DECISION OF COORDINATE BENCH IN ITA NO. 1132/DEL/2015. THE ABOVE ORDER OF THE COORDINATE BENCH HAS CLEARLY COVERS FROM PARA NO. 5.22 ONWARDS THAT IN SUCH CASES THE PASSING OF THE FINAL ASSESSMENT ORDER PURSUANT TO THE ORDER OF THE LD. TPO AS CONTAINED IN SECTION 144C(4) AND (13), THE TIME LIMIT GIVEN U/S 153 HAS NO RELATION WHATSOEVER WITH THE PASSING OF THE DRAFT ORDER, WHICH SHOULD BE PASSED WITHIN A REASONABLE TIME AND THE TIME LIMIT GIVEN U/S 153 OF THE ACT IS RELEVANT FOR THE DETERMINATION OF TIME AVAILABLE WITH THE TPO FOR PASSING ORDER U/S 92CA(3). THE FACTS BEFORE THE COORDINATE BENCH WAS THAT THE ASSESSMENT ORDER U/S 143(3) WAS PASSED ON 29.01.2015 WHICH IS WELL WITHIN THE PERIOD OF ONE MONTH IN WHICH THE D WAS RECEIVED FROM THE LD. DRP ON 24.12.2014, THUS, THE FINAL ORDER PASSED BY THE LD. AO IS WITHIN THE TIME PRESCRIBED U/S 144C(13). AS THE DRAFT ORDER WAS ALSO PASSED WITHIN A REASONABLE TIME SAME IS ALSO NOT BARRED BY LIMITATION. AGAINST THIS ISION NO FURTHER APPEAL IS FILED BY THE ASSESSEE. HOWEVER, THE LD. AR HAS GIVEN A DETAIL REBUTTAL TO THE SUBMISSION OF THE REVENUE. THE FIRST ARGUMENT OF THE LD. AR WAS THAT ARGUMENT OF THE LD. CIT DR THAT DRP PROCEEDINGS ARE SUBSTITUTION OF THE APPELLANT PROCEEDINGS, THUS, DIRECTION OF THE LD. DRP LIKE AN APPEAL ORDER THEREFORE, PROVISION OF SECTION 153 OF THE ACT DOES NOT APPLY. THE LD. AUTHORIZED REPRESENTATIVE REFERRED TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN 361 ITR 531 WHERE IT IS HELD THAT DRP PROCEEDINGS ARE NOT APPELLATE PROCEEDINGS. THE HONBLE BOMBAY HIGH COURT HAS HELD THAT THE PROCESS BEFORE THE LD. DRP PANEL IS CONTINUATION OF ASSESSMENT PROCEEDINGS AS ONLY THEREAFTER WOULD A FINAL APPEALABLE ASSESSMENT ORDER BE PASSED. HOW HONBLE HIGH COURT FURTHER HELD THAT PROCESS BEFORE THE LD. DRP IS A CORRECTING MECHANISM IN THE NATURE OF A SECOND LOOK AT THE PROPOSED ASSESSMENT ORDER BY HIGH FUNCTIONARIES OF THE REVENUE KEEPING IN MIND THE INTEREST OF THE ASSESSEE. THE LD. AUTHORIZED REPRESENTATIVE FURTHER STATED THAT AS THE COORDINATE BENCH HAS HELD THAT THE DRAFT ORDER IS ACTUALLY DIFFERENT IN AMBIT FROM THE ASSESSMENT ORDER AND THUS IT IS NOT APPRECIATED THAT THE DRAFT ASSESSMENT ORDER IS A PROPOSED ORDER OF ASSE SSMENT AND DOES NOT HAVE ANY INDEPENDENT EXISTENCE IN LAW. IT IS NOT ACCOMPANIED BY NOTICE OF DEMAND, NOT APPEALABLE AND CANNOT BE THE BASIS OF INITIATION OF PENALTY. HE THEREFORE, SUBMITTED THAT DRAFT ORDER OF ASSESSMENT CANNOT BE EQUATED WITH THE ASSESSM ENT COMPLETED IN PURSUANCE OF DIRECTION OF DRP U/S 143(3) READ WITH SECTION 144C(13) OF THE ACT. THE ARGUMENT OF THE LD. AR THOUGH LOOKS ATTRACTIVE BUT ON CAREFUL EXAMINATION OF THE SAME WE ARE NOT IMPRESSED. THE PROVISIONS OF THE INCOME TAX ACT 1961 SETS OUT A SPECIAL SCHEME FOR THE ASSESSMENT OF AN ENTITY ENGAGED IN INTERNATIONAL TRANSACTION UNDER CHAPTER X OF THE INCOME TAX ACT IN TERMS OF SECTION 144C (1) TO SECTION 144C (14) OF THE INCOME TAX ACT. THEREFORE IT IS APPARENT THAT IT IS NOT AN ASSESSMENT S AS APPLICABLE TO OTHER ASSESSES. IT IS A SCHEME OF ASSESSMENT IN RESPECT OF MATTERS THAT INCLUDED THE TRANSFER PRICING ADJUSTMENT. ACCORDING TO THE PROVISIONS OF SECTION 144C (1) AND ORDER OF THE DRAFT ASSESSMENT PROPOSING A VARIATION TO THE R LOSS AS RETURNED BY THE ASSESSEE IS TO BE FORWARDED TO THE ASSESSEE BY THE ASSESSING OFFICER. ON RECEIPT OF THAT ORDER ASSESSEE IS GIVEN 2 OPTIONS TO BE EXERCISED WITHIN 30 DAYS OF THE RECEIPT OF THE DRAFT ORDER EITHER TO ACCEPT THE DRAFT ATE THE ASSESSING OFFICER ACCORDINGLY OR TO FILE OBJECTIONS TO THE PROPOSED VARIATIONS WITH THE DISPUTE RESOLUTION PANEL AND THE ASSESSING OFFICER. IF ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED WE HAVE CAREFULLY CONSIDERED THE RIVAL CONTENTIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AS WELL AS THE TIME LINES WHICH ARE UNDER CHALLENGE BEFORE US. WE DO NOT HAVE ANY HESITATION IN HOLDING THAT THE ISSUES ARGUED BY THE LD. AR UARELY COVERED AGAINST THE ASSESSEE BY THE DECISION OF COORDINATE BENCH IN ITA NO. 1132/DEL/2015. THE ABOVE ORDER OF THE COORDINATE BENCH HAS CLEARLY COVERS FROM PARA NO. 5.22 ONWARDS THAT IN SUCH CASES THE PASSING OF THE FINAL THE ORDER OF THE LD. TPO AS CONTAINED IN SECTION 144C(4) AND (13), THE TIME LIMIT GIVEN U/S 153 HAS NO RELATION WHATSOEVER WITH THE PASSING OF THE DRAFT ORDER, WHICH SHOULD BE PASSED WITHIN A REASONABLE TIME RELEVANT FOR THE DETERMINATION OF TIME AVAILABLE WITH THE TPO FOR PASSING ORDER U/S 92CA(3). THE FACTS BEFORE THE COORDINATE BENCH WAS THAT THE ASSESSMENT ORDER U/S 143(3) WAS PASSED ON 29.01.2015 WHICH IS WELL WITHIN THE PERIOD OF ONE MONTH IN WHICH THE D IRECTION WAS RECEIVED FROM THE LD. DRP ON 24.12.2014, THUS, THE FINAL ORDER PASSED BY THE LD. AO IS WITHIN THE TIME PRESCRIBED U/S 144C(13). AS THE DRAFT ORDER WAS ALSO PASSED WITHIN A REASONABLE TIME SAME IS ALSO NOT BARRED BY LIMITATION. AGAINST THIS ISION NO FURTHER APPEAL IS FILED BY THE ASSESSEE. HOWEVER, THE LD. AR HAS GIVEN A THE FIRST ARGUMENT OF THE LD. AR WAS THAT ARGUMENT OF THE LD. CIT DR THAT APPELLANT PROCEEDINGS, THUS, DIRECTION OF THE LD. DRP LIKE AN APPEAL ORDER THEREFORE, PROVISION OF SECTION 153 OF THE ACT DOES NOT APPLY. THE LD. AUTHORIZED REPRESENTATIVE REFERRED TO THE DECISION OF THE HELD THAT DRP PROCEEDINGS ARE NOT APPELLATE PROCEEDINGS. THE HONBLE BOMBAY HIGH COURT HAS HELD THAT THE PROCESS BEFORE THE LD. DRP PANEL IS CONTINUATION OF ASSESSMENT PROCEEDINGS AS ONLY THEREAFTER WOULD A FINAL APPEALABLE ASSESSMENT ORDER BE PASSED. HOW EVER, THE HONBLE HIGH COURT FURTHER HELD THAT PROCESS BEFORE THE LD. DRP IS A CORRECTING MECHANISM IN THE NATURE OF A SECOND LOOK AT THE PROPOSED ASSESSMENT ORDER BY HIGH FUNCTIONARIES OF THE REVENUE KEEPING IN MIND THE INTEREST OF THE ASSESSEE. THE LD. AUTHORIZED REPRESENTATIVE FURTHER STATED THAT AS THE COORDINATE BENCH HAS HELD THAT THE DRAFT ORDER IS ACTUALLY DIFFERENT IN AMBIT FROM THE ASSESSMENT ORDER AND THUS IT IS NOT APPRECIATED THAT THE DRAFT ASSESSMENT ORDER IS SSMENT AND DOES NOT HAVE ANY INDEPENDENT EXISTENCE IN LAW. IT IS NOT ACCOMPANIED BY NOTICE OF DEMAND, NOT APPEALABLE AND CANNOT BE THE BASIS OF INITIATION OF PENALTY. HE THEREFORE, SUBMITTED THAT DRAFT ORDER OF ENT COMPLETED IN PURSUANCE OF DIRECTION OF DRP U/S 143(3) READ WITH SECTION 144C(13) OF THE ACT. THE ARGUMENT OF THE LD. AR THOUGH LOOKS ATTRACTIVE BUT ON CAREFUL EXAMINATION OF THE SAME WE OUT A SPECIAL SCHEME FOR THE ASSESSMENT OF AN ENTITY ENGAGED IN INTERNATIONAL TRANSACTION UNDER CHAPTER X OF THE INCOME TAX ACT IN TERMS OF SECTION 144C (1) TO SECTION 144C (14) OF THE INCOME TAX ACT. THEREFORE IT IS APPARENT THAT IT IS NOT AN ASSESSMENT S CHEME AS APPLICABLE TO OTHER ASSESSES. IT IS A SCHEME OF ASSESSMENT IN RESPECT OF MATTERS THAT INCLUDED THE TRANSFER PRICING ADJUSTMENT. ACCORDING TO THE PROVISIONS OF SECTION 144C (1) AND ORDER OF THE DRAFT ASSESSMENT PROPOSING A VARIATION TO THE R LOSS AS RETURNED BY THE ASSESSEE IS TO BE FORWARDED TO THE ASSESSEE BY THE ASSESSING OFFICER. ON RECEIPT OF THAT ORDER ASSESSEE IS GIVEN 2 OPTIONS TO BE EXERCISED WITHIN 30 DAYS OF THE RECEIPT OF THE DRAFT ORDER EITHER TO ACCEPT THE DRAFT ATE THE ASSESSING OFFICER ACCORDINGLY OR TO FILE OBJECTIONS TO THE PROPOSED VARIATIONS WITH THE DISPUTE RESOLUTION PANEL AND THE ASSESSING OFFICER. IF THE ASSESSEE EXERCISED AN OPTION TO ACCEPT THE DRAFT ORDER NOTHING ELSE IS REQUIRED TO BE DONE EXCEPT TO COMPLETE THE ASSESSMENT ON THE BASIS OF THE DRAFT ORDER. SUCH ORDER I.E. THE DRAFT ORDER BECOMES THE FINAL ORDER WHEN ACCEPTANCES RECEIVED OR THE PERIOD FOR FILING OF THE OBJECTION EXPIRES. IF THE OBJECTIONS ARE FILED BY THE ASSESSEE THE DISPUTE RESOLUTION THE ASSESSING OFFICER TO COMPLETE AND ISSUE THE ORDER OF FINAL ASSESSMENT. PROVISIONS OF SUBSECTION 6, 7, 8 AND 9 OF SECTION 144C SETS OUT THE PROCEDURE TO BE FOLLOWED BY THE DISPUTE RESOLUTION PANEL IN FURTHER PROVIDES THAT EVERY DIRECTION ISSUED BY THE DISPUTE RESOLUTION PANEL SHALL BE BINDING ON THE ASSESSING OFFICER. THUS IT SEEN THAT AO CANNOT TINKER OR APPLY ANYTHING FURTHER THAN WHAT WAS MENTIONED IN THE DRAFT A WHAT IS DIRECTED BY THE LEARNED DISPUTE RESOLUTION PANEL. THE PROVISIONS OF PRINCIPLES OF NATURAL JUSTICE ARE INGRAINED IN THE PROVISIONS OF SECTION 144C OF THE ACT. IT FURTHER SAYS A TIME LIMIT OF 9 MONTHS FROM THE END OF THE MONTH DRAFT ORDER IS FORWARDED TO THE ASSESSEE FOR PASSING OF ISSUE OF ANY DIRECTIONS. UPON RECEIPT OF THE DIRECTION THE AO SHALL PASS AN ORDER OF FINAL ASSESSMENT WHICH IS IN CONFORMITY WITH THE DIRECTION OF THE DISPUTE RESOLUTION PANEL WITHIN ONE MONT H FROM THE END OF THE MONTH IN WHICH THE DIRECTIONS ARE RECEIVED. THERE IS NO FURTHER PROVISION OF GRANTING ANY OPPORTUNITY TO THE ASSESSEE OF FURTHER HEARING. THUS THE ABOVE PROVISIONS ARE A SELF ASSESSING OFF ICER ENDS THE MOVEMENT, THE OBJECTIONS ARE FILED BY THE ASSESSEE OR DRAFT ORDER IS ACCEPTED BY THE ASSESSEE. THEREFORE, THE LEARNED ASSESSING OFFICER CANNOT MAKE ANY UPWARD ADJUSTMENT TO THE INCOME OF THE ASSESSEE AFTER PASSING OF THE DRAFT ASSESSMENT ORDE ARE ATTACHED TO THE ASSESSMENT ORDER IF SAME ARE NOT INITIATED IN THE DRAFT ORDER. THE RIGHTS OF THE VARIATION TO THE INCOME OF THE ASSESSEE ARE SOLELY REST WITH THE DISPUTE RESOLUTION PANEL. THEREFORE POWER TO THE DRAFT ASSESSMENT ORDER. AO DOES NOT HAVE ANY POWER TO DO SO. THEREFORE IT IS APPARENT THAT ON THE PLAIN READING OF THE ABOVE PROVISIONS FOR ALL PRACTICAL PURPOSES THE ROLE OF THE ASSESSING OFFICER HE PASSES THE DRAFT ORDER. HE IS ONLY AUTHORIZED TO PASS THE FINAL ASSESSMENT ORDER WHICH IS ACCORDING TO THE DIRECTIONS OF THE LEARNED DISPUTE RESOLUTION PANEL. THE ABOVE PROVISIONS ALSO CONTAINED THE SEPARATE TIME LIMITS AND TIMELINES WHICH BINDS THE REVENUE AS WELL AS THE ASSESSEE. THE HONOURABLE MADRAS HIGH COURT IN 398 ITR 645 (2017) CIT VS SANMINA SCI INDIA PRIVATE LIMITED IN PARA NUMBER 7 HAS HELD THAT IT IS A SELF PROVI SIONS CONTAINED THEREIN ONLY DETERMINE THE TIMELINES OF THE PASSING OF SUCH ORDER AND NOT AS PROVIDED U/S 153 OF THE ACT. THUS THIS ARGUMENT OF THE ASSESSEE DESERVES TO BE REJECTED. 13. FURTHER ACCORDING TO THE PROVISIONS OF SECTION 253 OF THE ACT PE APPEALS TO THE TRIBUNAL, CLAUSE (D) OF SUBSECTION 1 ALSO SEPARATELY CARVES OUT THE APPEALABLE ORDER AS ORDER PASSED BY THE ASSESSING OFFICER UNDER SUBSECTION 3 OF SECTION 143 OF SECTION 147 OF SECTION 153A OR SECTION 153C IN PURSUANCE OF THE DI RECTIONS OF THE DISPUTE RESOLUTION PANEL. FURTHER, IT MAY ALSO BE POSSIBLE THAT IN CERTAIN CIRCUMSTANCES THE PROVISIONS OF SECTION 263 OF THE INCOME TAX ACT ALSO DO NOT APPLY TO ORDERS PASSED UNDER DIRECTIONS OF THE DISPUTE RESOLUTION PANEL. THUS LAW HAS S EEN THE ASSESSMENT PASSED IN PURSUANCE OF DIRECTION U/S 144C OF THE ACT DIFFERENT FROM THE REGULAR ASSESSMENT AS ENVISAGED U/S 153 OF THE ACT. 14. THE FURTHER ARGUMENT OF THE LEARNED AUTHORIZED REPRESENTATIVE IS THAT THERE IS NO TIME LIMIT FOR PASSIN 22 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED THE ASSESSEE EXERCISED AN OPTION TO ACCEPT THE DRAFT ORDER NOTHING ELSE IS REQUIRED COMPLETE THE ASSESSMENT ON THE BASIS OF THE DRAFT ORDER. SUCH ORDER I.E. THE DRAFT ORDER BECOMES THE FINAL ORDER WHEN ACCEPTANCES RECEIVED OR THE PERIOD FOR FILING OF THE OBJECTION EXPIRES. IF THE OBJECTIONS ARE FILED BY THE ASSESSEE THE DISPUTE RESOLUTION PANEL ISSUE DIRECTIONS AS IT THINKS FIT AND ENABLING THE ASSESSING OFFICER TO COMPLETE AND ISSUE THE ORDER OF FINAL ASSESSMENT. PROVISIONS OF SUBSECTION 6, 7, 8 AND 9 OF SECTION 144C SETS OUT THE PROCEDURE TO BE FOLLOWED BY THE DISPUTE RESOLUTION PANEL IN ISSUE OF THE DIRECTION. THE SECTION FURTHER PROVIDES THAT EVERY DIRECTION ISSUED BY THE DISPUTE RESOLUTION PANEL SHALL BE BINDING ON THE ASSESSING OFFICER. THUS IT SEEN THAT AO CANNOT TINKER OR APPLY ANYTHING FURTHER THAN WHAT WAS MENTIONED IN THE DRAFT A SSESSMENT ORDER EXCEPT WHAT IS DIRECTED BY THE LEARNED DISPUTE RESOLUTION PANEL. THE PROVISIONS OF PRINCIPLES OF NATURAL JUSTICE ARE INGRAINED IN THE PROVISIONS OF SECTION 144C OF THE ACT. IT FURTHER SAYS A TIME LIMIT OF 9 MONTHS FROM THE END OF THE MONTH DRAFT ORDER IS FORWARDED TO THE ASSESSEE FOR PASSING OF ISSUE OF ANY DIRECTIONS. UPON RECEIPT OF THE DIRECTION THE AO SHALL PASS AN ORDER OF FINAL ASSESSMENT WHICH IS IN CONFORMITY WITH THE DIRECTION OF THE DISPUTE RESOLUTION PANEL WITHIN ONE H FROM THE END OF THE MONTH IN WHICH THE DIRECTIONS ARE RECEIVED. THERE IS NO FURTHER PROVISION OF GRANTING ANY OPPORTUNITY TO THE ASSESSEE OF FURTHER HEARING. THUS THE ABOVE PROVISIONS ARE A SELF - CONTAINED CODE. IN THIS CODE, THE ROLE OF THE ICER ENDS THE MOVEMENT, THE OBJECTIONS ARE FILED BY THE ASSESSEE OR DRAFT ORDER IS ACCEPTED BY THE ASSESSEE. THEREFORE, THE LEARNED ASSESSING OFFICER CANNOT MAKE ANY UPWARD ADJUSTMENT TO THE INCOME OF THE ASSESSEE AFTER PASSING OF THE DRAFT ASSESSMENT ORDE R. HE ALSO CANNOT INITIATE ANY FURTHER PENALTIES WHICH ARE ATTACHED TO THE ASSESSMENT ORDER IF SAME ARE NOT INITIATED IN THE DRAFT ORDER. THE RIGHTS OF THE VARIATION TO THE INCOME OF THE ASSESSEE ARE SOLELY REST WITH THE DISPUTE RESOLUTION PANEL. THEREFORE THE DISPUTE RESOLUTION PANEL HAS A CORRECTING POWER TO THE DRAFT ASSESSMENT ORDER. AO DOES NOT HAVE ANY POWER TO DO SO. THEREFORE IT IS APPARENT THAT ON THE PLAIN READING OF THE ABOVE PROVISIONS FOR ALL PRACTICAL PURPOSES THE ROLE OF THE ASSESSING OFFICER COMES TO AN AND THE MOVEMENT HE PASSES THE DRAFT ORDER. HE IS ONLY AUTHORIZED TO PASS THE FINAL ASSESSMENT ORDER WHICH IS ACCORDING TO THE DIRECTIONS OF THE LEARNED DISPUTE RESOLUTION PANEL. THE ABOVE PROVISIONS ALSO CONTAINED THE SEPARATE TIME LIMITS AND IT HAS ITS OWN TIMELINES WHICH BINDS THE REVENUE AS WELL AS THE ASSESSEE. THE HONOURABLE MADRAS HIGH COURT IN 398 ITR 645 (2017) CIT VS SANMINA SCI INDIA PRIVATE LIMITED IN PARA NUMBER 7 HAS HELD THAT IT IS A SELF - CONTAINED CODE IN ITSELF. THUS, THE SIONS CONTAINED THEREIN ONLY DETERMINE THE TIMELINES OF THE PASSING OF SUCH ORDER AND NOT AS PROVIDED U/S 153 OF THE ACT. THUS THIS ARGUMENT OF THE ASSESSEE FURTHER ACCORDING TO THE PROVISIONS OF SECTION 253 OF THE ACT PE APPEALS TO THE TRIBUNAL, CLAUSE (D) OF SUBSECTION 1 ALSO SEPARATELY CARVES OUT THE APPEALABLE ORDER AS ORDER PASSED BY THE ASSESSING OFFICER UNDER SUBSECTION 3 OF SECTION 143 OF SECTION 147 OF SECTION 153A OR SECTION 153C IN PURSUANCE OF THE RECTIONS OF THE DISPUTE RESOLUTION PANEL. FURTHER, IT MAY ALSO BE POSSIBLE THAT IN CERTAIN CIRCUMSTANCES THE PROVISIONS OF SECTION 263 OF THE INCOME TAX ACT ALSO DO NOT APPLY TO ORDERS PASSED UNDER DIRECTIONS OF THE DISPUTE RESOLUTION PANEL. THUS EEN THE ASSESSMENT PASSED IN PURSUANCE OF DIRECTION U/S 144C OF THE ACT DIFFERENT FROM THE REGULAR ASSESSMENT AS ENVISAGED U/S 153 OF THE ACT. THE FURTHER ARGUMENT OF THE LEARNED AUTHORIZED REPRESENTATIVE IS THAT THERE IS NO TIME LIMIT FOR PASSIN G OF THE DRAFT ASSESSMENT ORDER UNDER THE SCHEME ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED THE ASSESSEE EXERCISED AN OPTION TO ACCEPT THE DRAFT ORDER NOTHING ELSE IS REQUIRED COMPLETE THE ASSESSMENT ON THE BASIS OF THE DRAFT ORDER. SUCH ORDER I.E. THE DRAFT ORDER BECOMES THE FINAL ORDER WHEN ACCEPTANCES RECEIVED OR THE PERIOD FOR FILING OF THE OBJECTION EXPIRES. IF THE OBJECTIONS ARE FILED BY THE PANEL ISSUE DIRECTIONS AS IT THINKS FIT AND ENABLING THE ASSESSING OFFICER TO COMPLETE AND ISSUE THE ORDER OF FINAL ASSESSMENT. PROVISIONS OF SUBSECTION 6, 7, 8 AND 9 OF SECTION 144C SETS OUT THE PROCEDURE TO BE ISSUE OF THE DIRECTION. THE SECTION FURTHER PROVIDES THAT EVERY DIRECTION ISSUED BY THE DISPUTE RESOLUTION PANEL SHALL BE BINDING ON THE ASSESSING OFFICER. THUS IT SEEN THAT AO CANNOT TINKER OR APPLY SSESSMENT ORDER EXCEPT WHAT IS DIRECTED BY THE LEARNED DISPUTE RESOLUTION PANEL. THE PROVISIONS OF PRINCIPLES OF NATURAL JUSTICE ARE INGRAINED IN THE PROVISIONS OF SECTION 144C OF THE ACT. IT FURTHER SAYS A TIME LIMIT OF 9 MONTHS FROM THE END OF THE MONTH WHEN THE DRAFT ORDER IS FORWARDED TO THE ASSESSEE FOR PASSING OF ISSUE OF ANY DIRECTIONS. UPON RECEIPT OF THE DIRECTION THE AO SHALL PASS AN ORDER OF FINAL ASSESSMENT WHICH IS IN CONFORMITY WITH THE DIRECTION OF THE DISPUTE RESOLUTION PANEL WITHIN ONE H FROM THE END OF THE MONTH IN WHICH THE DIRECTIONS ARE RECEIVED. THERE IS NO FURTHER PROVISION OF GRANTING ANY OPPORTUNITY TO THE ASSESSEE OF FURTHER HEARING. CONTAINED CODE. IN THIS CODE, THE ROLE OF THE ICER ENDS THE MOVEMENT, THE OBJECTIONS ARE FILED BY THE ASSESSEE OR DRAFT ORDER IS ACCEPTED BY THE ASSESSEE. THEREFORE, THE LEARNED ASSESSING OFFICER CANNOT MAKE ANY UPWARD ADJUSTMENT TO THE INCOME OF THE ASSESSEE AFTER PASSING R. HE ALSO CANNOT INITIATE ANY FURTHER PENALTIES WHICH ARE ATTACHED TO THE ASSESSMENT ORDER IF SAME ARE NOT INITIATED IN THE DRAFT ORDER. THE RIGHTS OF THE VARIATION TO THE INCOME OF THE ASSESSEE ARE SOLELY REST WITH THE THE DISPUTE RESOLUTION PANEL HAS A CORRECTING POWER TO THE DRAFT ASSESSMENT ORDER. AO DOES NOT HAVE ANY POWER TO DO SO. THEREFORE IT IS APPARENT THAT ON THE PLAIN READING OF THE ABOVE PROVISIONS FOR ALL COMES TO AN AND THE MOVEMENT HE PASSES THE DRAFT ORDER. HE IS ONLY AUTHORIZED TO PASS THE FINAL ASSESSMENT ORDER WHICH IS ACCORDING TO THE DIRECTIONS OF THE LEARNED DISPUTE RESOLUTION PANEL. THE IT HAS ITS OWN TIMELINES WHICH BINDS THE REVENUE AS WELL AS THE ASSESSEE. THE HONOURABLE MADRAS HIGH COURT IN 398 ITR 645 (2017) CIT VS SANMINA SCI INDIA PRIVATE LIMITED IN CONTAINED CODE IN ITSELF. THUS, THE SIONS CONTAINED THEREIN ONLY DETERMINE THE TIMELINES OF THE PASSING OF SUCH ORDER AND NOT AS PROVIDED U/S 153 OF THE ACT. THUS THIS ARGUMENT OF THE ASSESSEE FURTHER ACCORDING TO THE PROVISIONS OF SECTION 253 OF THE ACT PE RTAINING TO APPEALS TO THE TRIBUNAL, CLAUSE (D) OF SUBSECTION 1 ALSO SEPARATELY CARVES OUT THE APPEALABLE ORDER AS ORDER PASSED BY THE ASSESSING OFFICER UNDER SUBSECTION 3 OF SECTION 143 OF SECTION 147 OF SECTION 153A OR SECTION 153C IN PURSUANCE OF THE RECTIONS OF THE DISPUTE RESOLUTION PANEL. FURTHER, IT MAY ALSO BE POSSIBLE THAT IN CERTAIN CIRCUMSTANCES THE PROVISIONS OF SECTION 263 OF THE INCOME TAX ACT ALSO DO NOT APPLY TO ORDERS PASSED UNDER DIRECTIONS OF THE DISPUTE RESOLUTION PANEL. THUS EEN THE ASSESSMENT PASSED IN PURSUANCE OF DIRECTION U/S 144C OF THE ACT THE FURTHER ARGUMENT OF THE LEARNED AUTHORIZED REPRESENTATIVE IS THAT G OF THE DRAFT ASSESSMENT ORDER UNDER THE SCHEME OF SECTION 144C AND THEN SAME CAN BE PASSED WITHIN A REASONABLE TIME IS FLAWED. THE ARGUMENT ADVANCED IS THAT LEGISLATIVE INTENT IS TO PROGRESSIVELY REDUCE THE LIMITATIONS FOR PASSING THE ASSESSMENT ORDER TO PROCESS AND IMPART CERTAINTY & FINALITY TO ASSESSMENT PROCEEDINGS. AS WE HAVE ALREADY HELD THAT IT IS A COMPLETE CODE IN ITSELF THEREFORE IT IN FACT IT SUPPORTS THE INTENTION OF THE LEGISLATURE IN PROVIDING EXPEDITIOUS RESO BETWEEN THE TAXPAYER AND TAX GATHERER. THUS THIS ARGUMENT DESERVES TO BE REJECTED. 15. NO DOUBT, THE FINAL ORDER OF ASSESSMENT IS PASSED PURSUANT TO THE DIRECTION OF THE LEARNED DISPUTE RESOLUTION PANEL BUT IT CANNOT BE SAID THA PROVIDED UNDER SECTION 153 APPLIES TO IT. AS WE HAVE ALREADY HELD THAT IT IS A COMPLETE CODE IN ITSELF AS HELD BY THE HONOURABLE MADRAS HIGH COURT, WHICH ALSO PROVIDES FOR SPECIFIC LIMITATIONS, IF A PARTICULAR PROCEDURE ADOPTED BY THE AS THEN TIMELINES PROVIDED THEREIN WILL ONLY APPLY. 16. FURTHER, OVER AND ABOVE THE ABOVE DECISION OF THE HONDA TRADING CORP, JAPAN VS DCIT IN ITA NUMBER 1132/DEL/2015 DATED 15/9/2015 WE ALSO DRAW SUPPORT FROM DECISION OF THE COORDINATE BENCH IN LIMITED VS ACIT IT (TP) A NO. 1537/BANG/2012 DATED 8/5/2019 AND ACER INDIA PVT LTD V DCIT 502/BANG/ 2017 DATED 10/5/2019 WHICH HAS ALSO TAKEN SIMILAR VIEW AGAINST THE ASSESSEE HOLDING THAT IF THE ASSESSMENT ORDERS ARE PASSED WI TIMELINES PROVIDED UNDER SECTION 144C OF THE INCOME TAX ACT, IRRESPECTIVE OF THE TIMELINES PRESCRIBED UNDER SECTION 153 OF THE INCOME TAX ACT, THEY ARE PASSED WITHIN THE TIMELINES PROVIDED UNDER THE LAW AND ARE NOT TIME BARRED. 17. IN VIEW O F THE ABOVE REASONS WE DISMISS THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. WE DIRECT THE REGISTRY TO POST THE HEARING OF THE APPEAL ON OTHER GROUNDS BEFORE THE REGULAR BENCH IN DUE COURSE. 22. RESPECTFULLY FOLLOWING THE SAME, WE DISMISS THIS GROUND OF T 23. WE NOW TAKE UP THE GROUNDS ON MERITS. 24. GROUND NOS. 2.1. TO 2.4., ARE DISMISSED AS NOT PRESSED. 25. REGARDING GROUND NO. 3 ON THE ISSUE OF GRANT OF RELIEF U/S 19 OF THE ACT, IN RESPECT OF CREDIT OF TAX WITHHELD IN FOREIGN COUNTRIES, WE A OF THE LD. D/R THAT THE MATTER CANNOT BE REMANDED TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSEE HAS NOT FURNISHED ANY DETAILS IN SUPPORT OF HIS CLAIM EITHER BEFORE THE ASSESSING OFFICER OR THE DRP OR BEFORE US. ARE NOT IN A POSITION TO ACCEPT THE REQUEST OF THE ASSESSEE. ASSESSEE IS DISMISSED. 26. ON THE ISSUE OF SHORT CREDIT OF TDS NO RECONCILIATION STATEMENT HAS BEEN FILED BY THE ASSESSEE BEFORE US NOR HAS 23 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED OF SECTION 144C AND THEN SAME CAN BE PASSED WITHIN A REASONABLE TIME IS FLAWED. THE ARGUMENT ADVANCED IS THAT LEGISLATIVE INTENT IS TO PROGRESSIVELY REDUCE THE LIMITATIONS FOR PASSING THE ASSESSMENT ORDER TO EXPEDITE THE DISPUTE RESOLUTION PROCESS AND IMPART CERTAINTY & FINALITY TO ASSESSMENT PROCEEDINGS. AS WE HAVE ALREADY HELD THAT IT IS A COMPLETE CODE IN ITSELF THEREFORE IT IN FACT IT SUPPORTS THE INTENTION OF THE LEGISLATURE IN PROVIDING EXPEDITIOUS RESO LUTION OF THE DISPUTE BETWEEN THE TAXPAYER AND TAX GATHERER. THUS THIS ARGUMENT DESERVES TO BE NO DOUBT, THE FINAL ORDER OF ASSESSMENT IS PASSED PURSUANT TO THE DIRECTION OF THE LEARNED DISPUTE RESOLUTION PANEL BUT IT CANNOT BE SAID THA T THAT LIMITATIONS PROVIDED UNDER SECTION 153 APPLIES TO IT. AS WE HAVE ALREADY HELD THAT IT IS A COMPLETE CODE IN ITSELF AS HELD BY THE HONOURABLE MADRAS HIGH COURT, WHICH ALSO PROVIDES FOR SPECIFIC LIMITATIONS, IF A PARTICULAR PROCEDURE ADOPTED BY THE AS THEN TIMELINES PROVIDED THEREIN WILL ONLY APPLY. FURTHER, OVER AND ABOVE THE ABOVE DECISION OF THE HONDA TRADING CORP, JAPAN VS DCIT IN ITA NUMBER 1132/DEL/2015 DATED 15/9/2015 WE ALSO DRAW SUPPORT FROM DECISION OF THE COORDINATE BENCH IN CASE OF VOLVO INDIA PRIVATE LIMITED VS ACIT IT (TP) A NO. 1537/BANG/2012 DATED 8/5/2019 AND ACER INDIA PVT LTD V DCIT 502/BANG/ 2017 DATED 10/5/2019 WHICH HAS ALSO TAKEN SIMILAR VIEW AGAINST THE ASSESSEE HOLDING THAT IF THE ASSESSMENT ORDERS ARE PASSED WI TIMELINES PROVIDED UNDER SECTION 144C OF THE INCOME TAX ACT, IRRESPECTIVE OF THE TIMELINES PRESCRIBED UNDER SECTION 153 OF THE INCOME TAX ACT, THEY ARE PASSED WITHIN THE TIMELINES PROVIDED UNDER THE LAW AND ARE NOT TIME BARRED. F THE ABOVE REASONS WE DISMISS THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. WE DIRECT THE REGISTRY TO POST THE HEARING OF THE APPEAL ON OTHER GROUNDS BEFORE THE REGULAR BENCH IN DUE COURSE. RESPECTFULLY FOLLOWING THE SAME, WE DISMISS THIS GROUND OF T HE ASSESSEE. WE NOW TAKE UP THE GROUNDS ON MERITS. GROUND NOS. 2.1. TO 2.4., ARE DISMISSED AS NOT PRESSED. REGARDING GROUND NO. 3 ON THE ISSUE OF GRANT OF RELIEF U/S 19 OF THE ACT, IN RESPECT OF CREDIT OF TAX WITHHELD IN FOREIGN COUNTRIES, WE A GREE WITH THE SUBMISSIONS OF THE LD. D/R THAT THE MATTER CANNOT BE REMANDED TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSEE HAS NOT FURNISHED ANY DETAILS IN SUPPORT OF HIS CLAIM EITHER BEFORE THE ASSESSING OFFICER OR THE DRP OR BEFORE US. WHEN NO DETAIL S ARE FURNISHED TILL DATE, WE ARE NOT IN A POSITION TO ACCEPT THE REQUEST OF THE ASSESSEE. THUS, THIS GROUND OF THE ON THE ISSUE OF SHORT CREDIT OF TDS NO RECONCILIATION STATEMENT HAS BEEN FILED BY THE ASSESSEE BEFORE US NOR HAS IT DEMONSTRATED AS TO HOW THE ASSESSING OFFICER HAS ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED OF SECTION 144C AND THEN SAME CAN BE PASSED WITHIN A REASONABLE TIME IS FLAWED. THE ARGUMENT ADVANCED IS THAT LEGISLATIVE INTENT IS TO PROGRESSIVELY REDUCE THE EXPEDITE THE DISPUTE RESOLUTION PROCESS AND IMPART CERTAINTY & FINALITY TO ASSESSMENT PROCEEDINGS. AS WE HAVE ALREADY HELD THAT IT IS A COMPLETE CODE IN ITSELF THEREFORE IT IN FACT IT SUPPORTS THE LUTION OF THE DISPUTE BETWEEN THE TAXPAYER AND TAX GATHERER. THUS THIS ARGUMENT DESERVES TO BE NO DOUBT, THE FINAL ORDER OF ASSESSMENT IS PASSED PURSUANT TO THE DIRECTION T THAT LIMITATIONS PROVIDED UNDER SECTION 153 APPLIES TO IT. AS WE HAVE ALREADY HELD THAT IT IS A COMPLETE CODE IN ITSELF AS HELD BY THE HONOURABLE MADRAS HIGH COURT, WHICH ALSO PROVIDES FOR SPECIFIC LIMITATIONS, IF A PARTICULAR PROCEDURE ADOPTED BY THE AS SESSEE, FURTHER, OVER AND ABOVE THE ABOVE DECISION OF THE HONDA TRADING CORP, JAPAN VS DCIT IN ITA NUMBER 1132/DEL/2015 DATED 15/9/2015 WE ALSO DRAW CASE OF VOLVO INDIA PRIVATE LIMITED VS ACIT IT (TP) A NO. 1537/BANG/2012 DATED 8/5/2019 AND ACER INDIA PVT LTD V DCIT 502/BANG/ 2017 DATED 10/5/2019 WHICH HAS ALSO TAKEN SIMILAR VIEW AGAINST THE ASSESSEE HOLDING THAT IF THE ASSESSMENT ORDERS ARE PASSED WI THIN THE TIMELINES PROVIDED UNDER SECTION 144C OF THE INCOME TAX ACT, IRRESPECTIVE OF THE TIMELINES PRESCRIBED UNDER SECTION 153 OF THE INCOME TAX ACT, THEY ARE PASSED F THE ABOVE REASONS WE DISMISS THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. WE DIRECT THE REGISTRY TO POST THE HEARING OF THE APPEAL ON OTHER GROUNDS HE ASSESSEE. REGARDING GROUND NO. 3 ON THE ISSUE OF GRANT OF RELIEF U/S 19 OF THE ACT, IN GREE WITH THE SUBMISSIONS OF THE LD. D/R THAT THE MATTER CANNOT BE REMANDED TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSEE HAS NOT FURNISHED ANY DETAILS IN SUPPORT OF HIS CLAIM EITHER BEFORE THE S ARE FURNISHED TILL DATE, WE THIS GROUND OF THE ON THE ISSUE OF SHORT CREDIT OF TDS NO RECONCILIATION STATEMENT HAS BEEN FILED IT DEMONSTRATED AS TO HOW THE ASSESSING OFFICER HAS ERRED IN GRANTING THE TAX DEDUCTED AT SOURCE. IF THERE IS A MISTAKE IN GRANTING OF TAX, THE ASSESSING OFFICER MAY BE APPROACHED WITH A SUITABLE APPLICATION IN THE RESULT, THIS GROUND O F THE ASSESSEE IS DISMISSED. 27. ON THE ADDITIONAL GROUND OF GRANTING OF TAX CREDIT OF TAXES PAID IN USA, WE FIND THAT THE FACTS ARE NOT ON RECORD EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE DRP OR BEFORE US. WE CANNOT ADMIT THE ADDITIONAL GROUND OF APPEAL WHEN THE FACTS ARE ON RECORD. AS THE FACTS SUPPORTING THE CLAIM OF THE ASSESSEE ARE NOT ADMIT THIS GROUND OF THE ASSESSEE. 28. T HE LD. COUNSEL FOR THE ASSESSEE AFTER CONSIDERABLE ARGUMENTS, HAS N HIS CLAIM THAT THE FOREIGN AE TO BE MADE THE TESTED PARTY. HENCE, WE DISMISS THIS GROUND OF THE ASSESSEE. NO ARGUMENTS WERE MADE ON THE QUESTION OF ADJUSTMENT, MOST APPROPRIATE METHOD (MAM), COMPARABLES ETC. THE TRANSFER PRICING ADJUSTMENTS MADE BY THE TPO ON FACTS IS NOT DISPUTED BY THE ARGUMENTS WERE ADVANCED ON THE SAME. 29. ALL THE O THER GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED AS NOT ARGUED. 30. BEFORE PARTING, IT IS NOTED DAYS OF HEARING. HOWEVER, TAKING NOTE OF THE EXTRAORDINARY SITUATION IN THE LIGHT OF THE COVID- 19 PANDEMIC AND LOCKDOWN, THE PERIOD OF LOCKDOWN DAYS NEED TO BE EXCLUDED FOR THE PURPOSE OF COMPUTATION OF RELY UPON THE DECISION OF THE CO DCIT VS. JSW LIMITED IN ITA NO. 6264/MUM/2018 & 6103/MUM/2018, ASSESSMENT YEAR 2013-14, ORDER DT. 14 TH MAY, 2020. 31. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART. KOLKATA, THE SD/- [S. S. GODARA] JUDICIAL MEMBER DATED : 29.05.2020 {SC SPS} 24 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED ERRED IN GRANTING THE TAX DEDUCTED AT SOURCE. IF THERE IS A MISTAKE IN GRANTING OF TAX, THE ASSESSING OFFICER MAY BE APPROACHED WITH A SUITABLE APPLICATION FOR RECTIFICATIONS F THE ASSESSEE IS DISMISSED. ON THE ADDITIONAL GROUND OF GRANTING OF TAX CREDIT OF TAXES PAID IN USA, WE FIND NOT ON RECORD EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE DRP ADMIT THE ADDITIONAL GROUND OF APPEAL WHEN THE FACTS ARE ON RECORD. AS THE FACTS SUPPORTING THE CLAIM OF THE ASSESSEE ARE NOT ON RECORD THIS GROUND OF THE ASSESSEE. HE LD. COUNSEL FOR THE ASSESSEE AFTER CONSIDERABLE ARGUMENTS, HAS N HIS CLAIM THAT THE FOREIGN AE TO BE MADE THE TESTED PARTY. HENCE, WE DISMISS THIS NO ARGUMENTS WERE MADE ON THE QUESTION OF ADJUSTMENT, MOST APPROPRIATE METHOD (MAM), COMPARABLES ETC. THE TRANSFER PRICING ADJUSTMENTS ON FACTS IS NOT DISPUTED BY THE ASSESSEE. AS ALREADY STATED, NO ARGUMENTS WERE ADVANCED ON THE SAME. HENCE, WE UPHOLD THE SAME. THER GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED AS NOT ARGUED. BEFORE PARTING, IT IS NOTED THAT THE ORDER IS BEING PRONOUNCED AFTER NINETY (90) DAYS OF HEARING. HOWEVER, TAKING NOTE OF THE EXTRAORDINARY SITUATION IN THE LIGHT OF THE 19 PANDEMIC AND LOCKDOWN, THE PERIOD OF LOCKDOWN DAYS NEED TO BE EXCLUDED FOR THE PURPOSE OF COMPUTATION OF THE LIMITATION . FOR COMING TO SUCH A CONCLUSION, RELY UPON THE DECISION OF THE CO - ORDINATE BENCH OF THE MUMBAI TRIBUNAL IN THE CASE OF DCIT VS. JSW LIMITED IN ITA NO. 6264/MUM/2018 & 6103/MUM/2018, ASSESSMENT YEAR MAY, 2020. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART. KOLKATA, THE 29 TH DAY OF MAY, 2020. [ J. SUDHAKAR REDDY ACCOUNTANT MEMBER ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED ERRED IN GRANTING THE TAX DEDUCTED AT SOURCE. IF THERE IS A MISTAKE IN GRANTING OF TAX, FOR RECTIFICATIONS . ON THE ADDITIONAL GROUND OF GRANTING OF TAX CREDIT OF TAXES PAID IN USA, WE FIND NOT ON RECORD EITHER BEFORE THE ASSESSING OFFICER OR BEFORE THE DRP ADMIT THE ADDITIONAL GROUND OF APPEAL WHEN THE FACTS ARE ON ON RECORD , WE DO NOT HE LD. COUNSEL FOR THE ASSESSEE AFTER CONSIDERABLE ARGUMENTS, HAS N OT PRESSED HIS CLAIM THAT THE FOREIGN AE TO BE MADE THE TESTED PARTY. HENCE, WE DISMISS THIS NO ARGUMENTS WERE MADE ON THE QUESTION OF ADJUSTMENT, MOST APPROPRIATE METHOD (MAM), COMPARABLES ETC. THE TRANSFER PRICING ADJUSTMENTS AS ALREADY STATED, NO THER GROUNDS RAISED BY THE ASSESSEE ARE DISMISSED AS NOT ARGUED. THAT THE ORDER IS BEING PRONOUNCED AFTER NINETY (90) DAYS OF HEARING. HOWEVER, TAKING NOTE OF THE EXTRAORDINARY SITUATION IN THE LIGHT OF THE 19 PANDEMIC AND LOCKDOWN, THE PERIOD OF LOCKDOWN DAYS NEED TO BE EXCLUDED . FOR COMING TO SUCH A CONCLUSION, WE ORDINATE BENCH OF THE MUMBAI TRIBUNAL IN THE CASE OF DCIT VS. JSW LIMITED IN ITA NO. 6264/MUM/2018 & 6103/MUM/2018, ASSESSMENT YEAR SD/- J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER COPY OF THE ORDER FORWARDED TO: 1. M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED BLOCK-EP, PLOT Y14 SALT LAKE CITY SECTOR-V KOLKATA 700 091 2. ASSTT. COMMISSIONER OF INCOME TAX , CIRCLE 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. 25 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED ASSTT. COMMISSIONER OF INCOME TAX , CIRCLE -2(2), KOLKATA 5. CIT(DR), KOLKATA BENCHES, KOLKATA. ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES ITA NO. 2298/KOL/2016 ASSESSMENT YEAR: 2011-12 M/S. PRICEWATERHOUSE COOPERS PRIVATE LIMITED TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES