Planet Online Private Limited., Hyd, Hyderabad V. ACIT, Circle-16(2),Hyderabad, Hyderabad

ITA 519/HYD/2015

• Counselvise Citation: 51922514 RSA 2015
• Duration Of Justice: 3 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-09-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 24-08-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 05-05-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S MO HARANA
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Transfer pricing; International transaction; Question of law; Condonation of delay
• Section: 143(3); 115JB

Judgement Text

ITA NO.519 OF 2015 PLANET ONLINE PRIVATE LTD HYDERA BAD PAGE 1 OF 10 IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD B BENCH, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH, ACCOUNTANT MEMBER ITA NO.519/HYD/2015 (ASSESSMENT YEAR: 2010-11) M/S. PLANET ONLINE PRIVATE LIMITED HYDERABAD PAN: AAECS 1624 F VS. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 16(2) HYDERABAD (APPELLANT) (RESPONDENT) FOR ASSESSEE : SHRI P. MURALI MOHAN RAO FOR REVENUE : SHRI S. MOHARANA, DR DATE OF HEARING : 24 .08.2015 DATE OF PRONOUNCEM ENT : 04 . 09 .2015 O R D E R PER SMT.P. MADHAVI DEVI, J.M. THIS IS ASSESSEES APPEAL FOR THE A.Y 2010-11, AGA INST THE ORDER OF THE AO PASSED U/S 143(3) R.W.S. 92CA(3) R. W.S. 144C(5) OF THE I.T. ACT, 1961. ASSESSEE HAD ORIGINALLY RAIS ED 23 GROUNDS OF APPEAL AND SUBSEQUENTLY, THREE ADDITIONAL GROUND S OF APPEAL WERE ALSO FILED VIDE ITS APPLICATION DATED 17.8.201 5. THE ADDITIONAL GROUNDS OF APPEAL FILED BY THE ASSESSEE ARE AS UNDER: 1. WE WOULD LIKE TO SUBMIT THAT AS PER THE RATIO L AID DOWN BY THE HON'BLE SUPREME COURT OF INDIA IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. V. CIT (199 8) 229 ITR 382 (SC), THE ITAT HAS JURISDICTION TO EXAM INE THE QUESTION OF LAW WHICH THOUGH NOT AROSE BEFORE T HE AO BUT AROSE BEFORE THE ITAT FOR THE FIRST TIME. ITA NO.519 OF 2015 PLANET ONLINE PRIVATE LTD HYDERA BAD PAGE 2 OF 10 2. THE AO ERRED IN NOT PASSING THE FINAL ASSESSMENT ORDER U/S 143(3) R.W.S. 92CA(3) R.W.S. 144C OF THE ACT DATED 07.01.2015 WITHIN THE TIME LIMIT PROVIDED U/S 144C(4) AND THEREFORE, THE ASSESSMENT ORDER PASSED IS NULL AND VOID. 3. THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 92CA(3) R.W.S. 144C OF THE ACT DATED 07.01.2015 IS VOID AB INITIO AS THE SAME IS NOT BASED ON ANY DIRECTIONS OF THE DRP SINCE NO DIRECTIONS WERE ISSU ED BY DRP IN VIEW OF NON-ADMISSION OF OBJECTIONS. 2. BRIEF FACTS OF THE CASE NECESSARY FOR ADMISSION AND ADJUDICATION OF THE ADDITIONAL GROUNDS OF APPEAL AR E THAT THE ASSESSEE COMPANY WHICH IS ENGAGED IN THE BUSINESS O F PROVIDING SOFTWARE DEVELOPMENT SERVICES TO ITS ASSOCIATED ENT ERPRISE (AE) IN USA, HAD FILED ITS RETURN OF INCOME FOR A.Y 2010 -11 ON 29.09.2010 ADMITTING A TOTAL INCOME OF RS.56,29,645 UNDER THE NORMAL PROVISIONS OF THE INCOME TAX ACT AND BOOK PR OFIT U/S 115JB OF THE ACT AT RS.99,17,033. DURING THE ASSESS MENT PROCEEDINGS U/S 143(3) OF THE ACT, AO OBSERVED THAT THE ASSESSEE HAS ENTERED INTO INTERNATIONAL TRANSACTIONS WITH IT S AE DURING THE PREVIOUS YEAR RELEVANT TO THE A.Y 2010-11. THER EFORE, HE MADE A REFERENCE TO THE TPO FOR DETERMINATION OF TH E ARMS LENGTH PRICE OF THE SAID INTERNATIONAL TRANSACTION. THE TPO PROPOSED THE TRANSFER PRICING ADJUSTMENT VIDE HIS O RDER DATED 24.09.2013. THEREFORE, THE SHORTFALL OF RS.8,56,55, 489 IN THE ALP AS DETERMINED BY THE TPO U/S 92CA OF THE ACT WAS AD DED IN THE DRAFT ASSESSMENT ORDER DATED 14.03.2014. IN RESPONS E TO THE DRAFT ASSESSMENT ORDER, THE ASSESSEE DID NOT EITHER FILE ANY LETTER ACCEPTING THE VARIATIONS, OR FILE ANY OBJECTIONS BE FORE THE DRP WITHIN THE TIME SPECIFIED UNDER SUB-SECTION 2 OF SE CTION 144C OF THE ACT. THEREAFTER, AFTER A PERIOD OF 9 MONTHS, AS SESSEE REALIZED ITA NO.519 OF 2015 PLANET ONLINE PRIVATE LTD HYDERA BAD PAGE 3 OF 10 THAT IT WAS REQUIRED TO FILE OBJECTIONS ON THE DRAF T ASSESSMENT ORDER BEFORE THE DRP. THEREFORE, IT FILED ITS OBJEC TIONS IN FORM NO.35A ON 15.12.2014 ALONG WITH AN APPLICATION FOR CONDONATION OF DELAY OF 237 DAYS. THE DRP HOWEVER, DID NOT COND ONE THE DELAY AND REJECTED THE OBJECTIONS OF THE ASSESSEE. THEREAFTER, THE AO PASSED THE FINAL ASSESSMENT ORDER DATED 7.1.2015 U/S 143(3) R.W.S. 92CA(3) R.W.S. 144C OF THE ACT, AGAINST WHIC H ASSESSEE IS IN APPEAL BEFORE US. 3. THE LD COUNSEL FOR THE ASSESSEE SUBMITTED THAT T HE ASSESSMENT ORDER PASSED BY THE AO IS BARRED BY LIMI TATION U/S 144C(2) OF THE ACT AND THEREFORE, IT WAS NON-EST IN LAW. HE FURTHER SUBMITTED THAT THE OBJECTIONS OF THE ASSESS EE WERE NOT ENTERTAINED BY THE DRP AND THEREFORE, THE FINAL ASS ESSMENT ORDER PASSED BY THE AO U/S 144C(5) OF THE ACT IS ALSO NOT SUSTAINABLE. 4. THE LD DR, ON THE OTHER HAND, SUPPORTED THE ORDE RS OF THE AUTHORITIES BELOW AND SUBMITTED THAT ON RECEIPT OF THE DRAFT ASSESSMENT ORDER CONSEQUENT TO THE TRANSFER PRICING ORDER U/S 92CA OF THE ACT, THE OPTION WAS TO BE EXERCISED BY THE ASSESSEE TO FILE ITS OBJECTIONS BEFORE THE DRP OR TO FILE AN APPEAL BEFORE THE CIT (A). SINCE THE ASSESSEE HAS FAILED TO EXERCISE ANY OF THESE OPTIONS, AO HAD NOT PASSED THE FINAL ASSESSMENT ORD ER AND HENCE THE TRANSFER PRICING ORDER WAS VERY MUCH IN F ORCE. HE SUBMITTED THAT SINCE THE OBJECTIONS FILED BY THE AS SESSEE BEFORE THE DRP WITH DELAY HAS BEEN REJECTED BY THE DRP, FI NAL ASSESSMENT ORDER HAS BEEN PASSED BY THE AO AND THER EFORE, IT HAS TO BE HELD AS VALIDLY PASSED. ITA NO.519 OF 2015 PLANET ONLINE PRIVATE LTD HYDERA BAD PAGE 4 OF 10 5. THE LD COUNSEL FOR THE ASSESSEE, IN THE REJOINDE R, SUBMITTED THAT THE AO IS REQUIRED TO PASS THE FINAL ASSESSMEN T ORDER, IF THE OPTIONS PRESCRIBED UNDER SUB-SECTION 2 OF SECTION 1 44C OF THE ACT ARE NOT EXERCISED BY THE ASSESSEE WITHIN THE PR ESCRIBED TIME. IN SUPPORT OF HIS ABOVE CONTENTIONS, HE PLACED RELI ANCE UPON A DECISION OF THE COORDINATE BENCH OF THE TRIBUNAL AT MUMBAI IN THE CASE OF BANK OF AMERICA NA VS. ASSTT. DIRECTOR OF INCOME TAX (IT) IN ITA NOS.7100/MUM/2010 AND ITA NO.109/MUM/20 11 DATED 30.10.2012 AND 16.11.2012 RESPECTIVELY. 6. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE M ATERIAL ON RECORD, WE FIND THAT THE ADDITIONAL GROUNDS OF APPE AL RAISED BY THE ASSESSEE ARE LEGAL GROUNDS AND THE FACTS RELATI NG TO THE ISSUE ARE ALREADY ON RECORD. THEREFORE, RESPECTFULLY FOLL OWING THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE O F NTPC (229 ITR 383 (S.C), THE ADDITIONAL GROUNDS OF APPEAL ARE ADMITTED AND ADJUDICATED AS UNDER. THE RELEVANT FACTS ARE NOT IN DISPUTE. THE DRAFT ASSESSMENT ORDER WAS ADMITTEDLY PASSED ON 14. 03.2014. NOW THE QUESTION TO BE CONSIDERED IS WHETHER THE FI NAL ASSESSMENT ORDER PASSED BY THE AO U/S 143(3) R.W.S. 144C(5) ON 7.01.2015 IS SUSTAINABLE?. FOR THE SAKE OF CONVENIE NCE AND READY REFERENCE, THE PROVISIONS OF SECTION 144C ARE REPRO DUCED HEREUNDER: 144C. (1) THE ASSESSING OFFICER SHALL, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS ACT, IN THE FIRST INSTANCE, FORWARD A DRAFT OF THE PROPOSED ORDER OF ASSESSMENT (HEREAFTER IN THIS SECTION REFERRED TO AS THE DRAFT ORDER) TO THE ELIGIBLE ASSESSEE IF HE PROPOSES TO MAKE, ON OR AFT ER THE 1ST DAY ITA NO.519 OF 2015 PLANET ONLINE PRIVATE LTD HYDERA BAD PAGE 5 OF 10 OF OCTOBER, 2009, ANY VARIATION IN THE INCOME OR LO SS RETURNED WHICH IS PREJUDICIAL TO THE INTEREST OF SUCH ASSESS EE. (2) ON RECEIPT OF THE DRAFT ORDER, THE ELIGIBLE ASS ESSEE SHALL, WITHIN THIRTY DAYS OF THE RECEIPT BY HIM OF THE DRA FT ORDER, (A) FILE HIS ACCEPTANCE OF THE VARIATIONS TO THE AS SESSING OFFICER; OR (B) FILE HIS OBJECTIONS, IF ANY, TO SUCH VARIATION WITH, (I) THE DISPUTE RESOLUTION PANEL; AND (II) THE ASSESSING OFFICER. (3) THE ASSESSING OFFICER SHALL COMPLETE THE ASSESS MENT ON THE BASIS OF THE DRAFT ORDER, IF (A) THE ASSESSEE INTIMATES TO THE ASSESSING OFFICER THE ACCEPTANCE OF THE VARIATION; OR (B) NO OBJECTIONS ARE RECEIVED WITHIN THE PERIOD SP ECIFIED IN SUB- SECTION (2). (4) THE ASSESSING OFFICER SHALL, NOTWITHSTANDING AN YTHING CONTAINED IN SECTION 153 75 [OR SECTION 153B ], PASS THE ASSESSMENT ORDER UNDER SUB-SECTION (3) WITHIN ONE M ONTH FROM THE END OF THE MONTH IN WHICH, (A) THE ACCEPTANCE IS RECEIVED; OR (B) THE PERIOD OF FILING OF OBJECTIONS UNDER SUB-SE CTION (2) EXPIRES. (5) THE DISPUTE RESOLUTION PANEL SHALL, IN A CASE W HERE ANY OBJECTION IS RECEIVED UNDER SUB-SECTION (2), ISSUE SUCH DIRECTIONS, AS IT THINKS FIT, FOR THE GUIDANCE OF THE ASSESSING OFFICER TO ENABLE HIM TO COMPLETE THE ASSESSMENT . . 7. FROM A LITERAL READING OF THE ABOVE PROVISIONS, IT IS CLEAR THAT SECTION 144C OF THE I.T. ACT DEALS WITH THE CI RCUMSTANCES UNDER WHICH THE AO CAN MAKE A REFERENCE TO THE DRP AND THE PROCEDURE TO BE FOLLOWED BY THE AO IN MAKING A REFE RENCE TO THE DISPUTE RESOLUTION PANEL AND ALSO THE PROCEDURE TO BE FOLLOWED BY THE DRP WHILE DEALING WITH THE OBJECTIONS RAISED BEFORE IT BY THE ASSESSEE AND THE PASSING OF THE FINAL ASSESSMEN T ORDER BY THE ITA NO.519 OF 2015 PLANET ONLINE PRIVATE LTD HYDERA BAD PAGE 6 OF 10 AO. SUB-SECTION (1) PROVIDES THAT UPON THE RECEIPT OF THE ORDER OF THE TRANSFER PRICING OFFICER SUGGESTING THE ADJUSTM ENTS AFTER DETERMINATION OF THE ALP, AO SHALL PASS A DRAFT ASS ESSMENT ORDER AND FORWARD THE SAME TO THE ELIGIBLE ASSESSEE, IF H E PROPOSES TO MAKE, ON OR AFTER THE 1ST DAY OF OCTOBER, 2009, ANY VARIATION IN THE INCOME OR LOSS RETURNED WHICH IS PREJUDICIAL TO THE INTEREST OF SUCH ASSESSEE. IN THE CASE BEFORE US, IN ACCORDANCE WITH THE ABOVE PROVISIONS, THE AO HAS PASSED THE DRAFT ASSES SMENT ORDER ON 14.03.2014. SUB SECTION 2 OF SECTION 144C PROVID ES THAT ON RECEIPT OF THE DRAFT ASSESSMENT ORDER, THE ELIGIBLE ASSESSEE SHALL, WITHIN 30 DAYS OF RECEIPT BY HIM OF THE DRAFT ASSES SMENT ORDER, FILE HIS ACCEPTANCE OF THE VARIATIONS TO THE AO OR FILE ITS OBJECTIONS, IF ANY, TO SUCH VARIATION WITH THE DRP AND THE AO. SUB-SECTION (3) PROVIDES THAT IF THE ASSESSEE DOES NOT EXERCISE THE OPTIONS PROVIDED IN SUB SECTION-2, THE AO SHALL PAS S THE FINAL ASSESSMENT ORDER. SUB SECTION (4) PROVIDES THE TIME LIMIT WITHIN WHICH THE FINAL ASSESSMENT ORDER IS TO BE PASSED I. E. ONE MONTH FROM THE END OF THE MONTH IN WHICH THE ASSESSEE EXE RCISES THE OPTION OF ACCEPTING THE VARIATION OR FAILS TO FILE ITS OBJECTIONS WITHIN THE PERIOD PRESCRIBED UNDER SUB SECTION (2) OF SECTION 144C. IN THE CASE BEFORE US, THE ASSESSEE HAS NOT E XERCISED ANY OF THE TWO OPTIONS WITHIN THE SPECIFIED PERIOD OF 3 0 DAYS OF THE RECEIPT OF THE DRAFT ASSESSMENT ORDER. THE CONSEQUE NCE OF THIS INACTION BY THE ASSESSEE IS PROVIDED FOR, UNDER SUB SECTIONS 3 AND 4 OF SECTION 144C OF THE ACT. FROM THE ABOVE, I T IS CLEAR THAT ON THE EXPIRY OF THE PERIOD OF ONE MONTH FROM THE E ND OF THE MONTH IN WHICH THE PRESCRIBED TIME TO EXERCISE THE OPTION BY THE ASSESSEE EXPIRES THE AO IS REQUIRED TO PASS THE FIN AL ASSESSMENT ORDER. IF THE ASSESSEE EXERCISES THE OPTIONS OF FIL ING ITS OBJECTIONS ITA NO.519 OF 2015 PLANET ONLINE PRIVATE LTD HYDERA BAD PAGE 7 OF 10 BEFORE THE DRP, THEN UNDER SUB SECTION (5), THE DRP SHALL ISSUE SUCH DIRECTIONS AS IT DEEMS FIT FOR THE GUIDANCE OF THE AO TO ENABLE HIM TO COMPLETE THE ASSESSMENT. IN THE CASE BEFORE US, THE ASSESSEE DID NOT FILE THE OBJECTIONS BEFORE THE DRP WITHIN THE PRESCRIBED TIME AND THEREFORE, THE OBJECTIONS ARE N OT MAINTAINABLE UNTIL THE DELAY IS CONDONED BY THE DRP . WE FIND THAT THE DRP HAS REFUSED TO CONDONE THE DELAY IN RA ISING OF THE OBJECTIONS BEFORE IT BY THE ASSESSEE AND THEREFORE IT AMOUNTS TO NON ADMISSION OF THE GROUNDS AND ADJUDICATION BY TH E DRP. THEREFORE, THERE ARE ALSO NO DIRECTIONS ISSUED BY T HE DRP FOR THE GUIDANCE OF THE AO TO ENABLE HIM TO COMPLETE THE AS SESSMENT. THEREFORE, THE FINAL ASSESSMENT ORDER PASSED BY THE AO AFTER REJECTION OF THE ASSESSEES OBJECTIONS BY THE DRP IN LIMINI IS THUS NOT SUSTAINABLE. THE FINAL ASSESSMENT ORDER PA SSED BY THE AO DATED 7.1.2015 ALLEGEDLY U/S 143(3) R.W.S. 92CA( 3) R.W.S. 144C(5) IS THEREFORE TO BE QUASHED. THIS VIEW HAS A LSO BEEN EXPRESSED BY THE COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF BANK OF AMERICA CITED (SUPRA), WE REPRODUCE HEREUND ER THE RELEVANT PORTION FOR READY REFERENCE: 4 HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CAREFU LLY PERUSAL OF THE RELEVANT MATERIAL ON RECORD, WE FIND THAT TH E ASSESSING OFFICER HAS PASSED TWO ORDERS IN THIS CASE ONE U/S 144C(3) DT 10.2.2010 AND ANOTHER U/S 144C(13) DT 20.8.2010. BOT H THESE ORDERS ARE IDENTICAL AND WITH SAME DEMAND OF TAX. T HERE IS NO DISPUTE ABOUT THE ITA NO. 7100/M/2010 BANK OF AMERI CA NA FACT AS EXPLAINED BY THE LD SR COUNSEL THAT AGAINST THE DRAFT ORDER DT 29.12.2009 PASSED U/S 144C(1), THE ASSESSEE FILED IT S OBJECTION DT 25.1.2010 BEFORE THE DRP. HOWEVER, IN THE MEANTIME, THE CBDT ISSUED A CLARIFICATION DT 20.1.2010 REGARDING THE O PTION OF AN ASSESSEE EITHER TO GO BEFORE THE DRP OR TO PREFER T HE NORMAL APPELLATE CHANNEL. IT WAS FURTHER CLARIFIED BY THE CBDT THAT IT IS THE CHOICE OF THE ASSESSEE WHETHER TO FILE AN OBJEC TION BEFORE THE DRP AGAINST THE DRAFT ASSESSMENT ORDER OR TO EXERCI SE THE OPTION AND FILE AN APPEAL LATER BEFORE THE COMMISSIONER OF INCOME TAX(APPEALS) AGAINST THE ASSESSMENT ORDER PASSED BY THE ITA NO.519 OF 2015 PLANET ONLINE PRIVATE LTD HYDERA BAD PAGE 8 OF 10 ASSESSING OFFICER. WHEN THE CLARIFICATION CAME TO T HE KNOWLEDGE OF THE ASSESSEE IT HAD IMMEDIATELY FILED A LETTER DATE D 29.1.2010 BEFORE THE DRP FOR EXPRESSING THE EXERCISE OF THE O PTION OF FILING AN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX(APPEAL S) AND WITHDRAWING THE OBJECTIONS FILED U/S 144C(2). 4.1 THOUGH, THE ASSESSEE HAD AN OPTION TO EXERCISE E ITHER TO FILE THE OBJECTION BEFORE THE DRP AGAINST THE PROPOSED DRAFT ASSESSMENT ORDER OR TO OPT FOR AN APPEAL BEFORE THE COMMISSION ER OF INCOME TAX(APPEALS) AGAINST THE ASSESSMENT ORDER PASSED U/ S 144C(3). HOWEVER, ONCE THE ASSESSEE HAS FILED THE OBJECTION BEFORE THE DRP, EVEN THOUGH THE ASSESSEE HAS LIBERTY TO WITHDRAW TH E SAME, THE PROCEEDINGS BEFORE THE DRP WOULD NOT AUTOMATICALLY CLOSE BECAUSE THE DRP IS HAVING THE POWERS OF ENHANCEMENT OF THE VARIATION AS PROPOSED IN THE DRAFT ORDER. THEREFORE, WITHOUT PER MISSION OF THE DRP, THE APPLICATION/OBJECTION, ONCE FILED, CANNOT BE WITHDRAWN BY THE PARTY IN VIEW OF SUB. SEC. 7 & 8 OF SECTION 144C OF THE I T ACT WHICH READ AS UNDER: 7. THE DISPUTE RESOLUTION PANEL MAY, BEFORE ISSUING ANY DIRECTIONS REFERRED TO IN SUB. SECTION (5)- A) MAKE SUCH FURTHER ENQUIRY, AS IT THINKS FIT; OR B) CAUSE ANY FURTHER ENQUIRY TO BE MADE BY ANY INCO ME TAX AUTHORITY AND REPORT THE RESULT OF THE SAME TO IT. 8) THE DISPUTE RESOLUTION PANEL MAY CONFIRM, REDUCE OR ENHANCE THE VARIOUS PROPOSED IN THE DRAFT ORDER SO, HOWEVER , THAT IT SHALL NOT SET ASIDE ANY PROPOSED VARIATION OR ISSUE ANY DIREC TION UNDER SUB SECTION (5) FOR FURTHER ENQUIRY AND PASSING OF THE ASSESSMENT ORDER.' 4.2 SINCE IN THE CASE IN HAND, THE DRP AFTER TAKING NOTE OF THE FACT THAT THE ASSESSEE DESIRES TO EXERCISE THE OPTION TO FILE THE APPEAL BEFORE THE COMMISSIONER OF INCOME TAX(APPEALS) AGAI NST THE ASSESSMENT ORDER, ACCEPTED THE REQUEST OF THE ASSES SEE FOR WITHDRAWAL OF THE OBJECTION WHILE PASSING THE ORDER DT 13.7.2010 AND THEREFORE, NO DIRECTION PER-SE WERE PASSED BY T HE DRP AS PER SUB. SEC. 5 OF SEC 144C OF THE ACT. WE QUOTE THE ORDE R OF THE DRP AS UNDER: 'IN THIS CASE, DRAFT ASSESSMENT ORDER DATED 29.12.2 009 WAS ISSUED BY THE ASSESSING OFFICER AGAINST WHICH THE ASSESSEE HAS FI LED FOLLOWING OBJECTIONS BEFORE THE DISPUTE RESOLUTION PANEL VIDE ITS LETTER DATED 25.1.2010. ITA NO.519 OF 2015 PLANET ONLINE PRIVATE LTD HYDERA BAD PAGE 9 OF 10 ................................................... ............................... ................................................... ......................... ................................................... .................. SUBSEQUENTLY, VIDE LETTER DATED 29TH JANUARY, 2010, THE ASSESSEE MADE A REQUEST FOR WITHDRAWAL OF THE OBJECTIONS FILED BEFO RE THE DRP MENTIONING THAT THEY INTEND TO OPT TO PROCEED TO THE NORMAL AP PELLATE AUTHORITY I.E. THE CJT(A). ASSESSEE WAS GIVEN OPPORTUNITY OF BEING HEA RD AND SHRI VIRENDRA A. MITTAL, PARTNER DELOITTE HARKINS & SELLS, THE AU THORIZED REPRESENTATIVE AND MR. SAURABH DOSHI, ASST. VICE PRESIDENT, COUNTR Y TAX & FINANCE BANK OF AMERICA NA ATTENDED THE PROCEEDINGS ON 28.4 .2010. ASSESSEE CONFIRMED ITS REQUEST FOR WITHDRAWAL OF OBJECTION. IN VIEW OF THE REQUEST OF THE ASSESSEE, THE OBJECTIONS FILED BEFORE THE PANEL ARE DISMISSED AS WITHDRAWN. THE ASSESSING OFFICER IS DIRECTED TO COM PLETE ASSESSMENT AS PROPOSED IN THE DRAFT ORDER.' 5. EVEN OTHERWISE, WHEN THE OBJECTIONS FILED BY THE ASSESSEE WERE ALLOWED TO BE WITHDRAWN ON THE GROUND THAT THE ASSE SSEE INTEND TO EXERCISE THE OPTION TO PROCEED TO FILE APPEAL BEFOR E THE COMMISSIONER OF INCOME TAX(APPEALS), THEN THERE CAN NOT BE ANY DIRECTION UNDER SUB.SEC.5 IN THE ABSENCE OF ANY OBJ ECTION AS REQUIRED UNDER SUB. SEC. (2) OF SEC. 144C OF THE ACT . IT IS CLEAR FROM THE ORDER DATED 13.7.2010 OF THE DRP THAT THE DRP H AS NOT ISSUED ANY DIRECTION ON MERITS OF THE PROPOSED DRAFT ITA N O. 7100/M/2010 BANK OF AMERICA NA ASSESSMENT ORDER; TH EREFORE, THE ASSESSING OFFICER GOT NO JURISDICTION TO PASS A NY ORDER U/S 144C(13). HENCE, THE ORDER DATED 20.8.2010 PASSED U/S 144C(13) R.W.S 143(3) BY THE ASSESSING OFFICER IS WITHOUT JU RISDICTION AND ACCORDINGLY IS NOT SUSTAINABLE. 5.1 EVEN OTHERWISE, WHEN THE ASSESSING OFFICER HAS ALREADY PASSED AN ASSESSMENT ORDER DT 10.2.2010 U/S 144C(3), THEN T HE SECOND ORDER WOULD RESULT MULTIPLICITY OF LITIGATION. 6 IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CAS E, WE HOLD THAT THE ORDER DATED 20.8.2010 IS INVALID FOR WANT OF JU RISDICTION AND ACCORDINGLY THE SAME IS QUASHED. SINCE THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) WHEREBY THE APP EAL OF THE ASSESSEE AGAINST THE ASSESSMENT ORDER DT 10.2.2010 WAS ALLEGEDLY DISMISSED IS NOT A SUBJECT MATTER BEFORE US IN THE PRESENT PROCEEDINGS; THEREFORE, WE DO NOT PROPOSE TO PASS A NY DIRECTION IN THAT RESPECT. HOWEVER, THE ASSESSEE OTHERWISE IS AT LIBERTY TO TAKE LEGAL REMEDY AS PER LAW. 8. THOUGH THE FACTS IN THE ABOVE CASE ARE SLIGHTLY DIFFERENT, WE FIND THAT THE CONCLUSION ARRIVED THEREIN ON THE POW ER OF THE AO TO ITA NO.519 OF 2015 PLANET ONLINE PRIVATE LTD HYDERA BAD PAGE 10 OF 10 PASS THE FINAL ASSESSMENT ORDER WHEN THERE ARE NO D IRECTIONS OF THE DRP IS APPLICABLE TO THE FACTS OF THE CASE BEFO RE US. THEREFORE, RESPECTFULLY FOLLOWING THE RATIO OF THE ABOVE DECISION, WE HOLD THAT THE ASSESSMENT ORDER U/S 143(3) R.W.S. 92CA(3) R.W.S. 144C(5) OF THE I.T. ACT, 1961 IS NOT SUSTAIN ABLE. THE ADDITIONAL GROUNDS OF APPEAL OF THE ASSESSEE ARE AC CORDINGLY ALLOWED. SINCE WE HAVE QUASHED THE ASSESSMENT ORDER , WE DO NOT SEE ANY REASON TO ADJUDICATE THE OTHER GROUNDS OF A PPEAL RAISED BY THE ASSESSEE ON MERITS IN ITS APPEAL AT THIS STA GE AS IT WOULD BE ONLY AN ACADEMIC EXERCISE. 9. IN THE RESULT, ASSESSEES APPEAL IS TREATED AS A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH SEPTEMBER, 2015. S D/ - S D/ - ( B. RAMAKOTAIAH ) ( P. MADHAVI DEVI ) ACCOUNTANT MEMBER JUDICIAL MEMBER HYDERABAD, DATED 4 TH SEPTEMBER, 2015. VNODAN/SPS COPY TO: 1. P.. MURALI & CO. CAS, 6-3-655/2/3 1 ST FLOOR, SOMAJIGUDA, HYDERABAD 500082 2. ASSTT. COMMISSIONER OF INCOME TAX, CIRCLE 16(2) HYD ERABAD 3. DRP, HYDERABAD 4. TPO-II, 6 TH FLOOR, IT TOWERS, 10-2-3 AC GUARDS, HYDERABAD 500004 5. THE DR, ITAT, HYDERABAD 6. GUARD FILE BY ORDER