Intas Pharmaceuticals Ltd., Ahmedabad V. The Dy.CIT.,Cent.Circle-2(1), Ahmedabad

ITSSA 270/AHD/2012

• Counselvise Citation: [2013] 121 COUNSELVISE.COM (IT) 8718 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 28-02-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 23-01-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 25-05-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SHELLEY JINDAL
• Assessee Lawyers: S N SOPARKAR SRDR
• Keywords: Depreciation; Transfer pricing; International transaction; Period of limitation; Condonation of delay; Unabsorbed depreciation; Reassessment proceedings
• Section: 92C; 143(3); 92D; 92E; 153A; 115JB; 147; 131; 263; 132; 154; 92

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH A AHMEDABAD BEFORE SHRI, A.K.GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER IT(SS)A NO.268-270/AHD/2012 ASSESSMENT YEARS :2006-07 TO 2008-09 INTAS PHARMACEUTICALS LTD., 203, CHINUBHAI CENTRE, ASHRAM ROAD, AHMEDABAD 380009 [ PAN NO.AAACI 5120L ] V/S . DCIT CENTRAL CIRCLE-2(1), 3 RD FLOOR, AAYAKAR BHAVAN, ASHRAM ROAD, AHMEDABAD - 380014 /APPELLANT .. /RESPONDENT) /BY ASSESSEE SHRI S.N.SOPARKAR, SR-DR /BY RESPONDENT SHRI SHELLEY JINDAL, CIT-DR /DATE OF HEARING 23-01-2013 /DATE OF PRONOUNCEMENT 28-02-2013 ! ! ! ! /O R D E R PER A.K.GARODIA, ACCOUNTANT MEMBER:- THESE ARE THREE ASSESSEES APPEALS DIRECTED AGAINS T THE ORDER BY COMMISSIONER OF INCOME-TAX (CENTRAL)-II, AHMEDABAD (CIT FOR SHORT) U/S. 263 OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) ON 27-03- 2012 FOR ASSESSMENT YEAR (AY) 2006-07 AND DATED 26- 03-2012 FOR AYS 2007- 08 AND 2008-09. ALL THESE APPEALS WERE HEARD TOGETH ER AND ARE BEING DISPOSED OF BY WAY OF COMMON ORDER FOR THE SAKE OF CONVENIENCE. FIRST WE TAKE UP IT(SS)A NO.268/AHD/2012 FOR A.Y. 0 6-07. 2. GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER:- 1. IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE AP PELLANTS CASE, THE ORDER U/S. 263, PASSED BY THE HONORABLE COMMISSIONE R OF INCOME TAX, CENTRAL-II, AHMEDABAD, IS BAD IN LAW AND IS REQUIRE D TO BE QUASHED. IT(SS)A NO.268-270/AHD/2012 A.YS. 06-07 TO 08-0 9 INTAS PHARMACEUTICALS LTD. V. DCIT CC-2(1) ABD PAGE 2 2. IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APP ELLANTS CASE, THE HONORABLE COMMISSIONER OF INCOME TAX HAS GROSSLY ER RED IN CONSIDERING THE ASSESSMENT ORDER U/S. 153A R.W.S. 1 43(3) PASSED BY THE LD. AO TO BE ERRONEOUS AND PREJUDICIAL TO THE INTER EST OF THE REVENUE AND HA ERRED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT. 3. IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APP ELLANTS CASE, THE HONORABLE COMMISSIONER OF INCOME TAX HAS GROSSLY ER RED IN DIRECTING THE DE NOVO ASSESSMENTS BY INVOKING THE PROVISIONS OF SECTION 263. 4. IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APP ELLANTS CASE, THE HONORABLE COMMISSIONER OF INCOME TAX HAS GROSSLY ER RED IN INVOKING THE PROVISIONS OF SECTION 263 MERELY BASED ON THE C HANGE OF OPINION. 5. IN LAW AND IN FACTS AND CIRCUMSTANCES OF THE APP ELLANTS CASE, THE HONORABLE COMMISSIONER OF INCOME TAX HAS GROSSLY ER RED IN NOT CONSIDERING THE FACT THAT APPELLANT COMPANY WAS LIA BLE TO PAY TAX ON ITS BOOK PROFIT U/S. 115JB AND HENCE, THERE BEING NO IM PACT ON THE TAX LIABILITY, THE ORDER PASSED BY THE LD AO CAN NEVER BE SAID TO BE PREJUDICIAL TO THE INTEREST OF THE REVENUE. 6. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 3. BRIEF FACTS ARE THAT IT IS NOTED BY LD. CIT IN H IS ORDER U/S. 263 OF THE ACT THAT A SEARCH ACTION WAS CARRIED OUT IN THE CASE OF ASSESSEE U/S. 132 OF THE ACT. THE ASSESSMENT PROCEEDINGS U/S 153A OF THE ACT WAS INITIATED AND THE ASSESSEE FILED RETURN OF INCOME U/S. 153A OF THE AC T DECLARING NIL INCOME. THE ASSESSING OFFICER PASSED THE ASSESSMENT ORDER U/S. 143(3) R.W.S. 153A OF THE ACT ON 31-12-2009 DETERMINING TOTAL ASSESSED INCOME AT RS. NIL AND IN THE ASSESSMENT, THE AO HAS ALLOWED SET OFF OF B/F BUSIN ESS LOSS OF M/S DOLPHIN LABORATORIES LIMITED (DLL FOR SHORT) TO THE EXTE NT OF RS.43,49,59,470/-. IT IS ALSO NOTED THAT ASSESSEE HAS PAID TAX AS PER MINIMU M ALTERNATE TAX (MAT) PROVISIONS. THE LD. CIT INITIATED PROCEEDINGS OF RE VISION U/S. 263 OF THE ACT AND SHOW-CAUSE NOTICE TO THIS EFFECT WAS ISSUED TO THE ASSESSEE AND AFTER CONSIDERING THE REPLY AND SUBMISSION OF THE ASSESSE E, LD. CIT HAS PASSED HIS ORDER U/S. 263 OF THE ACT AND IT WAS HELD BY HIM TH AT THE ASSESSMENT ORDER PASSED BY THE AO IS ERRONEOUS AS WELL AS PREJUDICIA L TO THE INTEREST OF THE IT(SS)A NO.268-270/AHD/2012 A.YS. 06-07 TO 08-0 9 INTAS PHARMACEUTICALS LTD. V. DCIT CC-2(1) ABD PAGE 3 REVENUE AND IN THIS REGARD, IT WAS THE ALLEGATION O F LD. CIT THAT AO HAS NOT MADE PROPER INQUIRY AND THEREFORE, THE ASSESSMENT O RDER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE AND RELI ANCE HAS BEEN PLACED BY LD. CIT ON THE JUDGMENT OF HONBLE SUPREME COURT RENDER ED IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. V. CIT (2000) 243 ITR 83 (SC). LD. CIT HAS GIVEN THE FOLLOWING DIRECTIONS TO THE ASSESSING OFFICER T O KEEP IN MIND WHILE RE- FRAMING THE ASSESSMENT ORDER. THESE DIRECTIONS ARE AS PER PARA-16 OF THE ORDER OF LD. CIT AND THE SAME ARE REPRODUCED BELOW: - 16. WHILE REFRAMING THE ASSESSMENT ORDER, THE ASSE SSING OFFICER WILL ALSO CONSIDER THE FOLLOWING POINTS:- (I) ON VERIFICATION OF THE SCHEME OF REHABILITATION , IT WAS NOTICED HAT THE CUT OF DATE , THE DATE FOR CONSIDERATION OF RELIEF AND CONCESS IONS AS ENVISAGED IN THE SCHEME WAS TAKEN AS 30.9.2006. THE APPOINTED DATE OR THE DATE OF AMALGAMATION WAS 1.1.2006. EFFECTI VE DATE WAS THE DATE ON WHICH THE COPY OF SANCTIONED SCHEME BY BIFR WOULD BE FILED WITH ROC. IT IS NOTICED THAT M/S. INTAS PHARMACEUTI CALS LTD. HAS CLAIMED BROUGHT FORWARD LOSSES OF M/S. DOLPHIN LABORATORIES LTD., IN RETURN OF AY 2006-07. THE CLAIM OF SUCH BUSINESS LOSSES AMOUNTS TO RS.43,49,59,470/-. THE AO HAS ALLOWED THE ABOVE CLA IM OF THE ASSESSEE VIDE ORDER US. 143(3)/153A DATED 30.12.200 9. THE AO HAS ALSO ALLOWED THE CLAIM OF UNABSORBED DEPRECIATION O F DOLPHIN LABORATORIES IN AY 2006-07 AND IN AY 2007-08. THUS THE TOTAL BENEFIT AVAILED BY THE ASSESSEE COMPANY AS A RESULT OF AMAL GAMATION OF DOLPHIN LABORATORIES IS OF RS.51,53,11326/-. IN THE REASSESSMENT PROCEEDINGS, THE AO WOULD CONSIDER ALL THE POINTS A S MENTIONED IN THE INSTANT ORDER AND REWORK OUT ALLOWABLE BROUGHT FORWARD LOSSES AND DEPRECIATION (IF ANY) IN THE CASE OF ASSESSEE C OMPANY. (II) ON VERIFICATION OF THE SCHEME OF REHABILITATIO N OF DOLPHIN LABORATORIES LTD. BEFORE BIFR, IT WAS NOTICED THAT THE CUT OF DATE IS 30/09/06 I.E. F.Y 2006-07 RELEVANT TO THE AY 2007-0 8. THE ASSESSEE HAS CLAIMED BUSINESS LOSSES OF RS.43,49,59,470/- IN AY 2006-07 AND WHILE PASSING ORDER U/S. 143(3) R.W.S. 153A OF THE ACT THE AO HAS ALLOWED THIS CLAIM. APART FROM IT THE ASSESSEE HAS ALSO CLAIMED UNABSORBED DEPRECIATION OF RS.4,44,21,865/- AND DUR ING THE FINALIZATION OF ASSESSMENT ORDER, THE AO HAS ALLOWED THE CLAIM O F UNABSORBED DEPRECIATION UP TO RS.5,76,63,865/- WHICH WAS FURTH ER REDUCED TO RS.4,67,16,865/- AS A RESULT OF RECTIFICATION VIDE ORDER DATED 03.02.2010. THE AO HAS ALSO ALLOWED TO CARRY FORWARD THE REMAIN ING UNABSORBED DEPRECIATION OF RS.3,36,34,991/-. THIS POINT SHALL BE EXAMINED BY THE AO IN RE-ASSESSMENT PROCEEDINGS. THE AO SHALL ALSO DECIDE THE IT(SS)A NO.268-270/AHD/2012 A.YS. 06-07 TO 08-0 9 INTAS PHARMACEUTICALS LTD. V. DCIT CC-2(1) ABD PAGE 4 YEAR OF ALLOWABILITY OF BROUGHT FORWARD LOSSES AND UNABSORBED DEPRECIATION. (III) IT IS FURTHER NOTICED THAT PARA 6 PAGE 8 TO 1 0 OF THE SCHEME (OF BIFR) NARRATES THE STATUS OF ASSETS AND LIABILITIES AS ON 30.9.2003 AS WELL AS ON 31.12.2005. THEREIN, THE TOTAL ACCUMULATED LOSSE S ARE MENTIONED AT RS.10.89 CRORES WHEREAS ESTIMATED INCOME-TAX BENEFI T U/S 72A OF THE INCOME-[TAX ACT ARE ESTIMATED TO BE RS.17.25 CRORES IN PARA 7 OF THE PROCEEDINGS OF HEARING DATED 26.4.2007 AS WELL AS I N PARA 11.4 PAGE 17 OF THE SCHEME. THEREFORE IT APPEARS THAT THERE WAS A BIG GAP IN THE FIGURE OF ACTUAL LOSSES OF RS.10.89 CRORES AND ESTI MATED SET OFF OF CARRY FORWARD LOSSES AND DEPRECIATION CLAIMED TO HAVE BEE N AVAILABLE TO IPL. IT APPEARS FROM THE RECORDS AVAILABLE WITH THIS OFF ICE, THAT THIS ASPECT HAS NOT BEEN VERIFIED BY THE THEN AO WHILE PASSING THE ORDER U/S. 153A R.W.S. 143(3) OF THE ACT. THE AO SHOULD VERIFY THIS POINT IN RE- ASSESSMENT PROCEEDINGS. (IV) FURTHER, IT WAS NOTICED THAT THE IMPORTANT ASP ECT OF THE SCHEME (BEFORE BIFR) PERTAINS TO INCOME-TAX IS SUB-PARA 5 OF PARA 14 PAGE 26 ON RELIEF AND CONCESSIONS. IT IS NOTED THAT IN OTHE R SUB-PARAS OF THESE SECTION, SPECIFIC DIRECTIONS HAVE BEEN GIVEN TO BAN KS AND OTHER GOVT. AGENCIES FOR COMPLIANCE. WHEREAS IN PARA 5, THE BIF R HAS ISSUED DIRECTIONS TO CONSIDER APPLICABILITY OF PROVISION S OF SEC. 41(1), CARRY FORWARD AND SET OFF OF UNABSORBED LOSSES AND DEPREC IATION; CONDONATION OF DELAY IN FILLING OF AUDITED ACCOUNTS. THE BIFR H AS NOT DIRECTED AS TO WHAT IS TO BE DONE EXCEPT REGARDING WAIVER OF INTER EST ON PENALTY OF DELAYED PAYMENT OF INCOME-TAX DUES. IT HAS ONLY DIR ECTED THE DEPARTMENT OF INCOME-TAX TO CONSIDER VARIOUS ASPECTS. ON VERIFICATION OF DETAILS AVAILABLE WITH THIS OFFICE IT APPEARS TH AT THE THEN AO HAS NOT VERIFIED THE FOLLOWING ASPECTS AND ISSUES. ACCORDINGLY, THE AO IS DIRECTED TO ALSO VERIFY AND TAKE NOTE OF THE FOLLOW ING POINTS IN RE- ASSESSMENT PROCEEDINGS:- (A) IN PURSUANCE OF BIFR DIRECTIONS, THE DIT (RECOV ERY) HAS ISSUED DIRECTION VIDE THEIR LETTER NO.2(1739)/DIT(R)/BIFR/ 2006-07/396 DATED 28.04.2010. IN THESE DIRECTIONS, THE BIFR HAS CLARIFIED THAT FIELD AUTHORITIES MAY TAKE NECESSARY ACTION AS PER LAW IN THE LIGHT OF FACT THAT NO RELIEF AND CONCESSION HAS BEEN ALLOWED TO THE SICK COMPANY OR HEALTHY COMPANY BY THIS DIRECTORATE BEYO ND THE PROVISIONS OF IT ACT. THE AO SHOULD FOLLOW THE DIR ECTIONS OF DIT(R). (B) AS PER THE SCHEME, THE LIABILITIES OF LOANS FRO M BANK AND CREDITORS HAVE BEEN REDUCED FROM 11.39 CRORES TO 3.90 CRORES. WHETHER THE AO HAS VERIFIED AND ASCERTAINED WHETHER ANY ORDER H AS BEEN PASSED REGARDING THE APPLICABILITY OF THE PROVISION S OF SEC. 41(1) OF IT(SS)A NO.268-270/AHD/2012 A.YS. 06-07 TO 08-0 9 INTAS PHARMACEUTICALS LTD. V. DCIT CC-2(1) ABD PAGE 5 THEREFORE, IT ACT AND THE TAXABILITY OF SUCH REMISS IONS / WAIVERS IN THE HANDS OF THE AMALGAMATING COMPANY? (C) WHETHER THE UNABSORBED LOSSES OR DEPRECIATION W AS QUANTIFIED BY THE ASSESSING OFFICER IN THE HANDS OF M/S. DLL BY W AY ASSESSMENT OR NOT? IF NOT, WHETHER SUCH UNQUALIFIED LOSSES/DEP RECIATION COULD BE ALLOWED TO BE SET OFF? (D) WHETHER SET OFF LOSES BEYOND 8 ASSESSMENT YEARS WILL BE IN CONFLICT WITH THE PROVISIONS OF SEC. 72A OR NOT? (E) IN THE RE-ASSESSMENT PROCEEDINGS, THE AO WOULD CONSIDER EXPLANATION OF THE ASSESSEE IN CONNECTION WITH DIFF ERENCE IN ASSESSEES CLAIM IN SET OFF OF BUSINESS LOSSES/UNAB SORBED DEPRECIATION AND OTHER DEDUCTIONS IN ORIGINAL RETUR N AND IN THE RETURN FILED IN RESPONSE TO NOTICE ISSUED U/S.153A OF IT A CT. (V) AS MENTIONED IN THE INSTANT ORDER AT PARA 6.4 T HE AO WHILE PASSING THE IMPUGNED ASSESSMENT ORDER, HAS NOT PROCURED AND VERIFIED ALL THE DETAILS OF M/S. DOLPHIN LABORATORIES LTD. IN THE RE-ASSESSMENT PROCEEDINGS, WOULD CALL FOR AND VERIFY ALL THE RELE VANT DOCUMENTS / DETAILS AND INFORMATION RELATING TO M/S. DOLPHIN LA BORATORIES LTD., AND THEN DECIDE THE ALLOWABLE CARRIED FORWARD LOSSE S AND DEPRECIATION (IF ANY) OF M/S. DOLPIN LABORATORIES L TD. IN THE ASSESSMENT OF THE ASSESSEE COMPANY I.E, IPL. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THIS ORDER PASSED BY LD. CIT U/S. 263 OF THE ACT. 5. IT WAS THE CONTENTION OF LD. AR OF THE ASSESSEE THAT THERE ARE THREE DATES MENTIONED IN THE BIFR ORDER I.E., BEING 01-01 -2006 AS APPOINTED DATE OR DATE OF AMALGAMATION, 30-09-2006 AS THE CUT OFF DAT E BEING THE DATE OF CONSIDERATION OF RELIEF AND CONCESSION AS IN THE SC HEME AND EFFECTIVE DATE BEING THE DATE ON WHICH THE COPY OF SANCTIONED SCHE ME BY BIFR COULD BE FILED WITH THE REGISTRAR OF COMPANIES WHICH IS ON 01-06-2 007 AS PER COPY OF RECEIPT AVAILABLE ON PAGES 2 AND 3 OF THE PAPER BOOK. IT WA S THE CONTENTION THAT APPOINTED DATE I.E., 01-01-2006 IS THE DATE OF AMAL GAMATION AND THE AMALGAMATING COMPANY I.E., DLL HAS MERGED WITH THE ASSESSEE-COMPANY IT(SS)A NO.268-270/AHD/2012 A.YS. 06-07 TO 08-0 9 INTAS PHARMACEUTICALS LTD. V. DCIT CC-2(1) ABD PAGE 6 FROM THIS DATE AND HENCE, ASSESSING OFFICER HAS RIG HTLY ALLOWED THE BENEFIT OF BROUGHT FORWARD LOSSES AND UNABSORBED DEPRECIATION OF DLL TO THE ASSESSEE- COMPANY FOR AY 2006-07. HE PLACED RELIANCE ON THE J UDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT RENDERED IN THE CASE OF KHURANA ENGINEERING LIMITED AS SUCCESSOR OF M.S. KHURANA V. DCIT IN SPECIAL CIVIL APPLICATION NO. 605 OF 2013 DATED 28-01-2013. HE FILED COPY OF THE SAID JUDGME NT ON 30-01-2013. IT WAS SUBMITTED BY HIM THAT AS PER THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT, THE AMALGAMATION SCHEME SHALL BE OPERATIVE F ROM THE APPOINTED DATE BUT SHALL BECOME EFFECTIVE FROM THE EFFECTIVE DATE. HE SUBMITTED THAT IN THE PRESENT CASE ALSO, THE APPOINTED DATE I.E., 01-01-2 006 SHOULD BE CONSIDERED AS THE DATE OF AMALGAMATION AND THEREFORE, THE ORDE R OF LD. CIT IS NOT JUSTIFIED AND THE ASSESSMENT ORDER IS NOT ERRONEOUS ON THIS A SPECT. 6. HE PLACED RELIANCE ON SEVERAL JUDGMENTS IN SUPPO RT OF THIS CONTENTION THAT APPOINTED DATE IS VALID AND HE ALSO PLACED REL IANCE ON THE SAME JUDGMENT OF HONBLE SUPREME COURT RENDERED IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. (SUPRA), IN SUPPORT OF THIS CONTENTION THAT IN THE PRESENT CASE, THE ORDER OF LD. CIT U/S. 263 IS NOT JUSTIFIED. 7. AS AGAINST THIS, LD. CIT-DR SUPPORTED THE ORDER OF LD. CIT AND ALSO PLACED RELIANCE ON THE FOLLOWING JUDICIAL PRONOUNCE MENTS:- (I) CIT V. INFOSYS TECHNOLOGIES LD. (2012) 17 TAXM ANN.COM 203 (KAR) (II) CIT V. EASTERN MEDIKIT LTD. (2011) 12 TAXMANN .COM 427 (DEL) 8. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS, PERUSE D THE MATERIAL ON RECORD AND GONE THROUGH THE ORDERS OF LD. CIT AND T HE JUDGMENTS CITED BY BOTH THE SIDES. WE FIND THAT ORDER OF LD. CIT U/S. 263 OF THE ACT IS NOT MERELY ON THIS ASPECT THAT WHAT IS EFFECTIVE DATE OF AMALG AMATION OF DLL WITH THE ASSESSEE-COMPANY. THIS ALSO IS HIS ALLEGATION IN AD DITION TO THIS THAT THE ASSESSING OFFICER HAS NOT MADE ANY INQUIRY ON THIS ASPECT AS TO WHETHER UNABSORBED LOSSES OR DEPRECIATION WAS QUANTIFIED BY THE ASSESSING OFFICER IN IT(SS)A NO.268-270/AHD/2012 A.YS. 06-07 TO 08-0 9 INTAS PHARMACEUTICALS LTD. V. DCIT CC-2(1) ABD PAGE 7 THE HANDS OF M/S DLL BY WAY OF ASSESSMENT OR NOT, A ND IF ANY, WHETHER SUCH QUANTIFIED LOSSES OF DEPRECIATION COULD BE ALLOWED TO BE SET OFF. HE HAS ALSO OBSERVED THAT AS PER SCHEME, THE LIABILITY OF LOANS FROM BANK AND CREDITORS HAVE BEEN REDUCED FROM RS.11.39 CRORES TO RS.3.90 C RORES BUT THE ASSESSING OFFICER HAS NOT VERIFIED AND ASCERTAINED WHETHER TH E PROVISIONS OF SECTION 41(1) OF THE ACT ARE APPLICABLE OR NOT REGARDING TA XABILITY OF SUCH REMISSION / WAIVERS IN THE HANDS OF AMALGAMATING COMPANY. HENCE , IT IS SEEN THAT THIS IS A MAIN BASIS OF THE ORDER OF LD. CIT THAT PROPER INQU IRY WAS NOT MADE BY THE ASSESSING OFFICER BEFORE ALLOWING SET OFF OF SUCH B ROUGHT FORWARD LOSSES AND UNABSORBED DEPRECIATION OF DLL I.E., AMALGAMATING C OMPANY. ON THIS ASPECT, NOTHING HAS BEEN BROUGHT ON RECORD BY LD. AR OF THE ASSESSEE TO SHOW THAT FACT IS NOT SUCH AND INQUIRY WAS MADE BY THE AO IN COURSE OF ASSESSMENT PROCEEDINGS BEFORE ALLOWING SET OFF OF SUCH BROUGHT FORWARD LOSSES AND UNABSORBED DEPRECIATION. IN THE LIGHT OF THESE FACT S, WE NOW EXAMINE THE APPLICABILITY OF THE JUDGMENT OF HONBLE SUPREME CO URT RENDERED IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. (SUPRA). IN THAT CASE, THE RELEVANT PARA OF THE JUDGMENT OF HONBLE SUPREME COURT IS ON PAGES 88 AN D 89 OF 243 ITR, WHICH IS REPRODUCED BELOW:- IN THE INSTANT CASE, THE COMMISSIONER NOTED THAT T HE INCOME-TAX OFFICER PASSED THE ORDER OF NIL ASSESSMENT WITHOUT APPLICAT ION OF MIND. INDEED, THE HIGH COURT RECORDED THE FINDING THAT THE INCOME -TAX OFFICER FAILED TO APPLY HIS MIND TO THE CASE IN ALL PERSPECTIVE AND T HE ORDER PASSED BY HIM WAS ERRONEOUS. IT APPEARS THAT THE RESOLUTION P ASSED BY THE BOARD OF THE APPELLANT-COMPANY WAS NOT PLACED BEFORE THE ASSESSING OFFICER. THUS, THERE WAS NO MATERIAL TO SUPPORT THE CLAIM OF THE APPELLANT THAT THE SAID AMOUNT REPRESENTED COMPENSATION FOR LOSS O F AGRICULTURAL INCOME. HE ACCEPTED THE ENTRY IN THE STATEMENT OF T HE ACCOUNT FILED BY THE APPELLANT IN THE ABSENCE OF ANY SUPPORTING MATE RIAL AND WITHOUT MAKING ANY INQUIRY. ON THESE FACTS THE CONCLUSION T HAT THE ORDER OF THE INCOME-TAX OFFICER WAS ERRONEOUS IS IRRESISTIBLE. W E ARE, THEREFORE, OF THE OPINION THAT THE HIGH COURT HAS RIGHTLY HELD TH AT THE EXERCISE OF THE JURISDICTION BY THE COMMISSIONER UNDER SECTION 263( 1) WAS JUSTIFIED. 9. IN THE ABOVE PARA OF THE SAID JUDGMENT, HONBLE APEX COURT HAS APPROVED THE JUDGMENT OF HONBLE HIGH COURT THAT IF ASSESSMENT ORDER IS PASSED IN THE ABSENCE OF ANY SUPPORTING MATERIAL AN D WITHOUT MAKING ANY IT(SS)A NO.268-270/AHD/2012 A.YS. 06-07 TO 08-0 9 INTAS PHARMACEUTICALS LTD. V. DCIT CC-2(1) ABD PAGE 8 INQUIRY, SUCH ASSESSMENT ORDER IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE AND THE EXERCISE OF JURISDICTIO N BY THE COMMISSIONER U/S. 263 OF THE ACT WAS JUSTIFIED. IN THE PRESENT CASE A LSO, IT COULD NOT BE SHOWN BY LD. AR OF THE ASSESSEE THAT ASSESSMENT ORDER OF DLL WAS AVAILABLE BEFORE THE PRESENT ASSESSING OFFICER IN COURSE OF ASSESSME NT PROCEEDINGS REGARDING QUANTIFICATION OF UNABSORBED LOSSES AND UNABSORBED DEPRECIATION ALLOWED TO BE CARRIED FORWARD BY THE ASSESSING OFFICER OF DLL AND WHICH COULD BE SET OFF IN THE PRESENT ASSESSMENT YEAR IN THE HANDS OF DLL AS A CONSEQUENCE OF MERGER IN THE HANDS OF ASSESSEE IN VIEW OF THE AMAL GAMATION. NOTHING HAS BEEN BROUGHT ON RECORD TO SHOW THAT ANY INQUIRY HAS BEEN MADE BY THE AO IN THE COURSE OF ASSESSMENT PROCEEDINGS ON THIS ACCOUN T AND HENCE, IT HAS TO BE ACCEPTED THAT SUCH SET OFF WAS ALLOWED BY THE AO IN THE ABSENCE OF ANY SUPPORTING MATERIAL AND WITHOUT MAKING ANY INQUIRY AND THEREFORE, THE JURISDICTION EXERCISED BY LD. CIT U/S. 263 OF THE A CT IS JUSTIFIED IN THE PRESENT CASE ALSO. 10. REGARDING THIS ASPECT AS TO WHETHER THE EFFECTI VE DATE OR APPOINTED DATE SHOULD BE THE DATE TO BE CONSIDERED AS DATE OF AMAL GAMATION, WE FIND THAT SINCE LD. CIT HAS NOT GIVEN ANY SPECIFIC DIRECTION ON THIS ACCOUNT AS TO WHETHER THE ASSESSING OFFICER HAS TO ADOPT THE CUT OFF DATE OR APPOINTED DATE AND HE HAS SIMPLY DIRECTED THE AO TO EXAMINE THIS P OINT IN RE-ASSESSMENT PROCEEDINGS AND AO IS DIRECTED TO DECIDE THE YEAR O F ALLOWABILITY OF BROUGHT FORWARD LOSSES AND UNABSORBED DEPRECIATION, WE FEEL THAT ON THIS ISSUE, CONTENTION RAISED BY THE LD. COUNSEL FOR THE ASSESS EE BEFORE US ARE REQUIRED TO BE RAISED BEFORE THE AO AND AO HAS TO FIRST TAKE A DECISION ON THIS ASPECT AND THEREAFTER, IF THE ASSESSEE IS NOT SATISFIED WI TH THE ORDER OF AO, HE CAN RAISE DISPUTE BY FILING APPEAL BEFORE LD. CIT(A) BU T AT THIS STAGE, NO DECISION IS CALLED FOR ON THIS ASPECT BECAUSE WE ARE UPHOLDING THE EXERCISING OF JURISDICTION OF LD. CIT U/S. 263 OF THE ACT ON THIS BASIS THAT THE ASSESSMENT ORDER FRAMED BY THE ASSESSING OFFICER AND ALLOWING OF SET OFF B/F LOSSES AND UNABSORBED DEPRECIATION WAS ALLOWED BY THE AO IN TH E ABSENCE OF ANY IT(SS)A NO.268-270/AHD/2012 A.YS. 06-07 TO 08-0 9 INTAS PHARMACEUTICALS LTD. V. DCIT CC-2(1) ABD PAGE 9 SUPPORTING MATERIAL BEING AVAILABLE ON RECORD AND W ITHOUT MAKING ANY INQUIRY. HENCE, WE DO NOT COMMENT ON THIS ASPECT AS TO WHETH ER CUT OFF DATE OR APPOINTED DATE SHOULD BE ACCEPTED AS DATE OF AMALGA MATION BECAUSE IT WILL BE AN ADVANCE DECISION. IN VIEW OF THE ABOVE DISCUSSIO N, WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LD. CIT PASSED BY HIM U/S. 263 OF THE ACT AND HENCE, WE UPHOLD THE SAME. 11. IN THE RESULT, APPEAL OF ASSESSEE IS DISMISSED. 12. NOW WE TAKE UP REMAINING APPEALS IN IT(SS) A NO .269-270/AHD/2012 A.Y. 07-08 & 08-09, BECAUSE ISSUE INVOLVED IN THES E TWO YEARS IS IDENTICAL. THE GROUND RAISED BY ASSESSEE ARE ALSO IDENTICAL. H ENCE, WE REPRODUCE THE GROUNDS FROM A.Y. 2007-08 I.E., IT(SS) A NO.269/AHD /2012:- 1. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF TH E APPELLANTS CASE, THE IMPUGNED ORDER U/S. 263 IS VOID AND DESERVES TO BE CANCELLED, INTER ALIA, FOR THE REASONS THAT IT HAS BEEN PASSED WITHOUT APP LICATION OF MIND. 2. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE, THE LEARNED CIT HAS GROSSLY ERRED IN LAW WHILE PASSING SUCH ORDER U/S. 263 SINCE THE ORIGINAL ASSESSMENT ORDER IS NEITHER ERRO NEOUS NOR PREJUDICIAL TO THE INTERESTS OF THE REVENUE. 3. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE, THE LEARNED CIT HAS GROSSLY ERRED IN APPLYING THE JUDGM ENT GIVEN IN THE CASE OF RANBAXY LABORATORIES LTD. IN THE APPELLANT S CASE, AS THE FACTS OF THE CASE ON WHICH THE JUDGMENT HAS BEEN GIVEN AR E COMPLETELY DIFFERENT FROM THAT OF THE APPELLANT IN SO FAR AS, INTER ALIA, THE NATURE OF TRANSACTIONS ARE CONCERNED. 4. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE, THE LEARNED CIT HAS GROSSLY ERRED IN INTERPRETING THE I NTENT OF INSTRUCTION NO. 3 ISSUED BY THE CBDT AND THEREBY WRONGLY RELYING ON THE ASPECT THAT THE ASSESSING OFFICER HAD NOT REFERRED CERTAIN TRAN SACTIONS TO THE TPO U/S. 92CA. 5. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE, THE LEARNED CIT HAS GROSSLY ERRED IN INTERPRETING SECTI ON 92CA AND THEREBY WRONGLY HOLDING THE ASSESSING OFFICER DUTY BOUND, A S AGAINST A POWER BEING VESTED ON THE ASSESSING OFFICER BY VIRTUE OF SECTION 92CA. IT(SS)A NO.268-270/AHD/2012 A.YS. 06-07 TO 08-0 9 INTAS PHARMACEUTICALS LTD. V. DCIT CC-2(1) ABD PAGE 10 6. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE, THE LEARNED CIT HAS GROSSLY ERRED IN ASSUMING THAT THE TRANSACTION ENTERED IN TO BY THE APPELLANT AS INTERNATIONAL TRANSACTION S U/S. 92B, WHEN THE SAID TRANSACTIONS DO NOT MEET THE REQUIREMENTS OF T HE PROVISIONS OF SECTION 92B. 7. IN LAW AND IN THE FACTS AND CIRCUMSTANCES OF THE APPELLANTS CASE, THE LEARNED CIT HAS GROSSLY ERRED BY GIVING A SWEEPING DIRECTION TO THE ASSESSING OFFICER TO RE DO THE ASSESSMENT DE NOVO. 8. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL EITHER BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. 13. IN THESE TWO YEARS, THE BASIS OF ORDER PASSED B Y LD. CIT U/S. 263 OF THE ACT IS THIS THAT ASSESSEE-COMPANY FILED FORM NO. 3C EB FOR THESE TWO YEARS AND THE ASSESSING OFFICER DID NOT REFER THE MATER T O THE TPO FOR DETERMINATION OF ARMS LENGTH PRICE OF THE TRANSACTION. THE LD. C IT HAS NOTED THAT AO WAS DUTY BOUND TO REFER THE INTERNATIONAL TRANSACTION E NTERED BY THE ASSESSEE IN ORDER TO DETERMINE ARMS LENGTH PRICE OF THE TRANSA CTION TO THE TPO BUT SINCE THE AO COMMITTED GROSS ERROR IN NOT DOING THE SAME, SUCH ACTION ON THE PART OF AO HAS MADE IMPUGNED ASSESSMENT ORDER ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. IN SUPPORT OF THIS CONTENTION, HE PLACED RELIANCE ON THE JUDGMENT OF HONBLE DELHI HIGH COURT RENDERED IN TH E CASE OF RANBAXY LABORATORIES LTD. 16.TAXMANN.4.18 (DEL) AND HELD THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS AS WEL L AS PREJUDICIAL TO THE INTEREST OF REVENUE AND HE SET ASIDE THE SAME WITH A DIRECTION TO THE AO TO RE-DO THE ASSESSMENT DE NOVO AND AFTER REFERRING THE MATTER RELATED TO INTERNATIONAL TRANSACTION TO THE TPO TO DETERMINE A RMS LENGTH PRICE OF INTERNATIONAL TRANSACTION AS REQUIRED IN SECTION 92 CA OF THE ACT READ WITH BOARDS INSTRUCTION NO. 3 DATED 20.05/2003. 14. NOW THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THESE TWO ORDERS PASSED BY LD. CIT U/S. 263 OF THE ACT. IT(SS)A NO.268-270/AHD/2012 A.YS. 06-07 TO 08-0 9 INTAS PHARMACEUTICALS LTD. V. DCIT CC-2(1) ABD PAGE 11 15. IT WAS SUBMITTED BY LD. AR OF THE ASSESSEE THAT ASSESSING OFFICER CAN RE-DO THE DE NOVO ASSESSMENT FOR INTERNATIONAL TRANSACTION ONLY AND HE CANNOT DISTURB THE OTHER PART OF THE ASSESSMENT ORDER. AS AGAINST THIS, LD. CIT-DR OF THE REVENUE SUPPORTED THE ORDER PASSED BY LD. CIT U /S. 263 OF THE ACT. 16. WE HAVE CONSIDERED THE RIVAL SUBMISSION, PERUSE D THE MATERIALS ON RECORD AND GONE THROUGH THE ORDER PASSED BY LD. CIT U/S. 263 OF THE ACT. WE FIND THAT THE RELEVANT PROVISION ON THE BASIS OF WH ICH THE JURISDICTION IS EXERCISED BY LD. CIT U/S. 263 OF THE ACT IS SECTION 92CA OF THE ACT AND THEREFORE THE SAME IS REPRODUCED BELOW:- 92CA (1) WHERE ANY PERSON, BEING THE ASSESSEE, HAS ENTERED INTO AN INTERNATIONAL TRANSACTION [OR SPECIFIED DOMESTIC TR ANSACTION] IN ANY PREVIOUS YEAR, AND THE ASSESSING OFFICER CONSIDERS IT NECESSARY OR EXPEDIENT SO TO DO, HE MAY, WITH THE PREVIOUS APPRO VAL OF THE COMMISSIONER, REFER THE COMPUTATION OF THE ARMS LE NGTH PRICE IN RELATION TO THE SAID INTERNATIONAL TRANSACTION [OR SPECIFIED DOMESTIC TRANSACTION] UNDER SECTION 92C TO THE TRANSFER PRIC ING OFFICER. (2) WHERE A REFERENCE IS MADE UNDER SUB-SECTION (1) , THE TRANSFER PRICING OFFICER SHALL SERVE A NOTICE ON THE ASSESSE E REQUIRING HIM TO PRODUCE OR CAUSE TO BE PRODUCED ON A DATE TO BE SPE CIFIED THEREIN, ANY EVIDENCE ON WHICH THE ASSESSEE MAY RELY IN SUPPORT OF THE COMPUTATION MADE BY HIM OF THE ARMS LENGTH PRICE IN RELATION T O THE INTERNATIONAL TRANSACTION [OR SPECIFIED DOMESTIC TRANSACTION] REF ERRED TO IN SUB-SECTION (1) [(2A) WHERE ANY OTHER INTERNATIONAL TRANSACTION[OTH ER THAN AN INTERNATIONAL TRANSACTION REFERRED UNDER SUB-SECTIO N(1)], COMES TO THE NOTICE OF THE TRANSFER PRICING OFFICER DURING THE C OURSE OF THE PROCEEDINGS BEFORE HIM, THE PROVISIONS OF THIS CHAP TER SHALL APPLY AS IF SUCH OTHER INTERNATIONAL TRANSACTION IS AN INTERNAT IONAL TRANSACTION REFERRED TO HIM UNDER SUB-SECTION (1).] [(2B) WHERE IN RESPECT OF AN INTERNATIONAL TRANSACT ION, THE ASSESSEE HAS NOT FURNISHED THE REPORT UNDER SECTION 92E AND SUCH TRANSACTION COMES TO THE NOTICE OF THE TRANSFER PRICING OFFICER DURIN G THE COURSE OF THE PROCEEDING BEFORE HIM, THE PROVISIONS OF THIS CHAPT ER SHALL APPLY AS IF SUCH TRANSACTION IS AN INTERNATIONAL TRANSACTION RE FERRED TO HIM UNDER SUB-SECTION (1).] [(2C) NOTHING CONTAINED IN SUB-SECTION (2B) SHALL E MPOWER THE ASSESSING OFFICER EITHER TO ASSESS OR REASSESS UNDE R SECTION 147 OR PAS IT(SS)A NO.268-270/AHD/2012 A.YS. 06-07 TO 08-0 9 INTAS PHARMACEUTICALS LTD. V. DCIT CC-2(1) ABD PAGE 12 AN ORDER ENHANCING THE ASSESSMENT OR REDUCING A REF UND ALREADY MADE OR OTHERWISE INCREASING THE LIABILITY OF THE ASSESS EE UNDER SECTION 154, FOR ANY ASSESSMENT YEAR, PROCEEDINGS FOR WHICH HAVE BEEN COMPLETED BEFORE THE 1 ST DAY OF JULY, 2012] (3) ON THE DATE SPECIFIED IN THE NOTICE UNDER SUB-S ECTION (2), OR AS SOON THEREAFTER AS MAY BE, AFTER HEARING SUCH EVIDENCE A S THE ASSESSEE MAY PRODUCE, INCLUDING ANY INFORMATION OR DOCUMENTS RE FERRED TO IN SUB- SECTION (3A) OF SECTION 92D AND AFTER CONSIDERING S UCH EVIDENCE AS THE TRANSFER PRICING OFFICER MAY REQUIRE ON ANY SPECIFI ED POINTS AND AFTER TAKING INTO ACCOUNT ALL RELEVANT MATERIALS WHICH HE HAS GATHERED, THE TRANSFER PRICING OFFICER SHALL, BY ORDER IN WRITING , DETERMINE THE ARMS LENGTH PRICE IN RELATION TO THE INTERNATIONAL TRANS ACTION [OR SPECIFIED DOMESTIC TRANSACTION] IN ACCORDANCE WITH SUB-SECTIO N (3) OF SECTION 92C AND SEND A COPY OF HIS ORDER TO THE ASSESSING OFFIC ER AND TO THE ASSESSEE. [(3A) WHERE A REFERENCE WAS MADE UNDER SUB-SECTION (1) BEFORE THE 1 ST DAY OF JUNE, 2007 BUT THE ORDER UNDER SUB-SECTION ( 3) HAS NOT BEEN MADE BY THE TRANSFER PRICING OFFICER BEFORE THE SAI D DATE, OR A REFERENCE UNDER SUB-SECTION (1) IS MADE ON OR AFTER THE 1 ST DAY OF JUNE, 2007, AN ORDER UNDER SUB-SECTION (3) MAY BE MADE AT ANY TIME BEFORE SIXTY DAYS PRIOR TO THE DATE ON WHICH THE PERIOD OF LIMITATION REFERRED TO IN SECTION 153, OR AS THE CASE MAY BE, IN SECTION 153B FOR MAKING THE ORDER OF ASSESSMENT OR REASSESSMENT OR RECOMPUTATIO N OR FRESH ASSESSMENT, AS THE CASE MAY BE, EXPIREES.] [(4) ON RECEIPT OF THE ORDER UNDER SUB-SECTION (3), THE ASSESSING OFFICER SHALL PROCEED TO COMPUTE THE TOTAL INCOME OF THE AS SESSEE UNDER SUB- SECTION (4) OF SECTION 92C IN CONFORMITY WITH THE A RMS LENGTH PRICE AS SO DETERMINED BY THE TRANSFER PRICING OFFICER.] (5) WITH A VIEW TO RECTIFYING ANY MISTAKE APPARENT FROM THE RECORD, THE TRANSFER PRICING OFFICER MAY AMEND ANY ORDER PASSED BY HIM UNDER SUB-SECTION (3) , AND THE PROVISIONS OF SECTION 154 SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY. (6) WHERE ANY AMENDMENT IS MADE BY THE TRANSFER PRI CING OFFICER UNDER SUB-SECTION (5), HE SHALL SEND A COPY OF HIS ORDER TO THE ASSESSING OFFICER WHO SHALL THEREAFTER PROCEED TO A MEND THE ORDER OF ASSESSMENT IN CONFORMITY WITH SUCH ORDER OF THE TRA NSFER PRICING OFFICER. (7) THE TRANSFER PRICING OFFICER MAY, FOR THE PURPO SES OF DETERMINING THE ARMS LENGTH PRICE UNDER THIS SECTION, EXERCISE ALL OR ANY OF THE POWERS SPECIFIED IN CLAUSES (A) TO (D) OF SUB-SECTI ON (1) OF SECTION 131 OR SUB-SECTION (6) OF SECTION 133 [OR SECTION 133A] . IT(SS)A NO.268-270/AHD/2012 A.YS. 06-07 TO 08-0 9 INTAS PHARMACEUTICALS LTD. V. DCIT CC-2(1) ABD PAGE 13 EXPLANATION FOR THE PURPOSES OF THIS SECTION, TR ANSFER PRICING OFFICER MEANS A JOINT COMMISSIONER OR DEPUTY COMMISSIONER O R ASSISTANT COMMISSIONER AUTHORISED BY THE BOARD TO PERFORM ALL OR ANY OF THE FUNCTIONS OF AN ASSESSING OFFICER SPECIFIED IN SECT IONS 92C AND 92D IN RESPECT OF ANY PERSON OR CLASS OF PERSONS.] LD. CIT HAS ALSO REFERRED TO BOARD INSTRUCTION NO. 3 DATED 20-05-2003 ISSUED BY CBDT U/S. 119 OF THE ACT AS PER WHICH IT WAS DEC IDED THAT WHEREVER THE VALUE OF INTERNATIONAL TRANSACTION EXCEEDS TO RS.5 CRORES, THE CASE SHOULD BE TAKEN UP FOR SCRUTINY AND REFERENCE U/S.92CA BE MAD E TO THE TPO. IN THE PRESENT CASE, COPY OF FORM NO.3CEB OF BOTH YEARS AR E AVAILABLE ON PAGES 8 TO 22 AND PAGES 23 TO 34 OF THE PAPER BOOK AND AS P ER THE SAME, THE AMOUNT OF INTERNATIONAL TRANSACTION REPORTED BY THE ASSESS EE IN THIS FORM IS MORE THAN RS.5 CRORES IN BOTH YEARS AND THEREFORE, AS PER THI S BOARDS INSTRUCTION NO.3 DATED 20-05-2003, THE ASSESSING OFFICER WAS DUTY BO UND TO REFER THE MATER TO THE TPO FOR DETERMINATION OF ARMS LENGTH PRICE AND SINCE, THIS WAS NOT DONE BY THE AO, IT HAS TO BE ACCEPTED THAT THE ASSESSMEN T ORDER IN BOTH YEARS IS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF REVENUE. THE DIRECTION OF LD. CIT TO THE ASSESSING OFFICER IS THIS MUCH ONLY THAT HE SHOULD RE-DO THE DE NOVO ASSESSMENT AFTER REFERRING THE MATTER RELATED TO I NTERNATIONAL TRANSACTION TO THE TPO TO DETERMINE THE ARMS LENGTH PRICE OF T HE INTERNATIONAL TRANSACTION IN ACCORDANCE WITH LAW AND HENCE WE DO NOT FIND ANY INFIRMITY IN BOTH THESE YEARS IN THE ORDER PASSED BY LD. CIT U/S . 263 OF THE ACT AND THEREFORE, WE UPHOLD THE SAME. 17. REGARDING THIS CONTENTION OF LD. AR OF THE ASSE SSEE THAT WHILE RE-DOING THE ASSESSMENT, THE ASSESSING OFFICER CAN ONLY DETE RMINE ARMS LENGTH PRICE OF INTERNATIONAL TRANSACTION AS PER LAW AND HE CANN OT RE-DO THE ASSESSMENT ON OTHER ASPECT OF ASSESSMENT, WE FEEL THAT NO DIRECTI ON IS CALLED FOR IN THIS REGARD, AT THIS STAGE BECAUSE THERE IS NO INFIRMITY IN THE DIRECTION OF LD. CIT AND THEREFORE, WE DECLINE TO INTERFERE IN HIS ORDER BECAUSE THIS CONTENTION IS PREMATURE AND IF THE ASSESSING OFFICER TAKES ANY AC TION WHICH IS NOT AS PER THE DIRECTION OF LD. CIT THEN ONLY THE ASSESSEE CAN CHALLENGE THE SAME AS PER IT(SS)A NO.268-270/AHD/2012 A.YS. 06-07 TO 08-0 9 INTAS PHARMACEUTICALS LTD. V. DCIT CC-2(1) ABD PAGE 14 LAW BEFORE THE APPELLATE AUTHORITY BUT AT PRESENT, THIS CONTENTION OF THE ASSESSEE IS PREMATURE AND HENCE REJECTED. 18. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE ARE DISMISSED. 19. IN COMBINED RESULT, ALL THE APPEALS OF ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE AT CAPTION PAGE. SD/- SD/- (KUL BHARAT) (A.K.GARODIA) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD, *DKP '#$- 28/02/2013 ,-. / ! ! ! ! 001 001 001 001 2 1 2 1 2 1 2 1 / COPY OF ORDER FORWARDED TO:- 1. / APPELLANT 2. / RESPONDENT 3. #.#04 5 / CONCERNED CIT 4. 5- / CIT (A) 5. 1 89 0004, 04 , ,-. / DR, ITAT, AHMEDABAD 6. 9<= >? / GUARD FILE. BY ORDER/ ! , /TRUE COPY/ @/, # 04 , ,-. / STRENGTHEN PREPARATION & DELIVERY O F ORDERS IN THE ITAT 1) DATE OF TAKING DICTATION 07/02 2) DIRECT DICTATION BY MEMBER STRAIGHT ON COMPUTER/LAPTOP/DRAGON DICTATE NO 3) DATE OF TYPING & DRAFT ORDER PLACE BEFORE MEMBER 08/02 4) DATE OF CORRECTION 22/02 5) DATE OF FURTHER CORRECTION 6) DATE OF INITIAL SIGN BY MEMBERS 26/02 7) ORDER UPLOADED ON 8) ORIGINAL DICTATION PAD-PART HAS BEEN ENCLOSED IN THE FILE YES 9) FINAL ORDER AND 2 ND COPY SEND TO BENCH CLERK ON 28/02