ORDER

PER N.K. BILLAIYA, ACCOUNTANT MEMBER, This appeal by the Revenue is preferred against the order of the ld. CIT(A) – 44, New Delhi dated 30.10.2017 pertaining to A.Y. 2003-04

2. The grievances of the Revenue read as under:

“1. "Whether the Ld. CIT(A) was justified in holding that the order passed by the AO on 28.09.2016 in pursuance of the directions of ITAT wherein the issue of TP was set aside to the AO/TPO with a specific direction, was without jurisdiction on the ground that no draft order was issued to the assessee u/s 144C by ignoring the fact that the whole assessment order was not set aside by the ITAT to the file AO/TPO

2. The Ld. CIT(A) erred in not adjudicating the issue on merit.”

3. The representatives of both the sides were heard at length, the case records carefully perused and with the assistance of the ld. Counsel, we have considered the documentary evidences brought on record in the form of Paper Book in light of Rule 18(6) of ITAT Rules.

4. Briefly stated, the facts of the case are that in the first round of litigation, the quarrel travelled upto the Tribunal and the Tribunal, inter alia, considered the quarrel against the inclusion of the case of Samrat Clearing in the list of comparables.

5. While restoring the issue to the file of the TPO/Assessing Officer, the Tribunal in ITA No. 2307/DEL/2006 & 6719/DEL/2013 held as under:

“7.3 Coming to the merits of the exclusion or otherwise of this case, we find that there is no discussion in the order of the TPO about the comparability or otherwise of this case with the assessee. In our considered opinion, the ends of justice would meet adequately if the impugned order is set aside to this extent and matter is restored to the TPO/AO for first deciding the comparability or otherwise of Samrat Clearing with the assessee and then accordingly recomputing the ALP of this set of international transactions. Needless to say, the assessee will be allowed a reasonable opportunity of being heard in such proceedings”.

6. Pursuant to the directions of the Tribunal, vide order dated 28.09.2016, the Assessing Officer framed assessment order u/s 254/143(3) r.w.s 144C of the Income tax Act, 1961 [hereinafter referred to as 'The Act' for short].

7. Quarrel is this assessment order framed by the Assessing Officer without passing a draft assessment order which is a mandatory requirement in terms of section 144C of the Act. This issue is well settled in favour of the assessee and against the Revenue by the decision of the Hon'ble High Court of Delhi in the case of JCB India Ltd 398 ITR 189. The relevant findings of the Hon'ble Jurisdictional High Court read as under:

“16. In response, Mr. Sanjay Jain, learned Additional Solicitor General of India appearing for the Revenue, submitted that there was an efficacious alternative remedy available to the Petitioner to file appeals against the impugned final assessment orders passed by the AO. It is denied that it was mandatory on the part of the AO to pass a draft assessment order since this was a second round before the TPO pursuant to remand by the ITAT. Moreover, it was not as if the ITAT had set aside the entire assessment order of the AO. The setting aside was only in respect of the transfer pricing adjustment and that too with a specific direction to the AO for determining the arms length price "after considering fresh comparables." Since the assessment itself was not cancelled by the ITAT or completely set aside, it is the provisions of Section 153 (3) (ii) of the Act which would apply. Mr Jain submitted that the requirement of passing a draft assessment order under Section 144C was only in the first instance and not after the remand by the ITAT.

17. The Court is unable to agree with the submissions made on behalf of the Revenue by Mr. Jain. Section 144C (1) of the Act is unambiguous. It requires the AO to pass a draft assessment order after receipt of the report from the TPO. There is nothing in the wording of Section 144C (1) which would in