Undercarriage and TractorParts (P.) Ltd v. DRP [2023] 156 taxmann.com 79/ [2024] 460 ITR 401 (Bom)(HC)

S. 144C : Reference to dispute resolution panel-DRP can give directions only in pending assessment proceedings; once assessment order is passed, DRP would have no power to pass any directions contemplated under sub-section (5) of section 144C-Direction issue by DRP is quashed. [S.92CA(3), Art. 226]

The TPO passed an order under section 92CA(3) proposing an adjustment to the reported international and domestic related parties transactions after working out arms length price (ALP). The Dy. CIT passed the draft assessment order dated 3-12-2018 under section 143(3), read with section 92CA(3), read with section 144C(1). The assessee, by a letter dated 14-12-2018, informed Dy. CIT that assessee was in the process of filing of an objection before the Dispute Resolution Panel and requested not to pass an assessment order under section 143(3) till the disposal of the objections by the DRP. However on 24-12-2018 the Dy. CIT passed the final assessment order. Unaware of said order, assessee filed its objections before DRP. DRP proceeded to issue directions dated 16-9-2019 based on which another assessment order came to be passed. On writ, the assessee contended  that  the directions dated 16-9-2019 passed by the DRP was in gross violation of the provisions of the Act inasmuch as the DRP can hear and pass directions only in pending assessment proceedings. The DRP could give directions only in pending assessment proceedings and once assessment order is passed, rightly or wrongly, the assessment proceedings come to an end and, therefore, the DRP would have no power to pass any directions contemplated under sub-section (5) of section 144C.  While concluding, the authorities submitted that in view of what is stated in the affidavit in reply where authorities have admitted that the assessment order dated 24-12-2018 could not have been passed, the appeal pending before the Commissioner (Appeals) will naturally get allowed/the assessment order would get set aside. That would result in the revenue not being able to pass assessment order under section 143(3) or even under section 147.  Notwithstanding this, the DRP has proceeded to issue the directions which it should not have done.  In the circumstances, the directions issued by DRP on 16-9-2019 and the consequent assessment order dated 31-10-2019 is  quashed and set aside. (AY. 2015-16)