North Shore Technologies Pvt. Ltd. v. ITO (2020)78 ITR 204 /192 DTR 105/ 266 TTJ 344 (Delhi ) (Trib)

S. 92CA :Reference to transfer pricing officer -Arm’s length price —Computing Arm’s Length Price without referring matter to Transfer Pricing Officer — Transfer adjustment vitiated – Draft assessment order does not become final assessment order simply by issuing corrigendum — Draft assessment order not valid. [ S.92CA(3) 144C ]

The Tribunal held that the transfer pricing adjustment was done by the Assessing Officer without reference to the Transfer Pricing Officer. The Commissioner (Appeals) held that by mentioning the words “draft assessment order and section 144C ” by mistake did not make the assessment order bad in law. The Assessing Officer could not assume the role of Transfer Pricing Officer without referring the transfer pricing analysis on international transaction to the Transfer Pricing Officer. Such an exercise of transfer pricing adjustment was vitiated. The Tribunal also held that the   a corrigendum could not validate the draft assessment order passed by the Assessing Officer, where he had clearly mentioned that the order passed was a draft assessment order and even his forwarding letter further clarified the order and the intention of the Assessing Officer. The limitation for passing the assessment order, if it was not draft assessment order, was March 31, 2014. However the Assessing Officer had passed the draft assessment order and had forwarded the order to the assessee stating that if the assessee did not agree with the transfer pricing adjustment, it could file objections before the Dispute Resolution Panel within 30 days of the order. It was only when the assessee intimates to the Assessing Officer that it had accepted the variation order and had no objections within 30 days that the Assessing Officer had to complete the assessment order on the basis of the draft assessment order. Thus, the draft assessment order could not be treated as the final assessment order simply by way of issuing corrigendum and since no final assessment order had been passed and only a draft assessment order had been passed, the draft order had no consequence and was null and void.( AY.2011-12)