O R D E R

The Assessment order dated 01.11.2018 passed under Section 143 (3)

read with Section 254 of the Income Tax Act for the Assessment Year 2012-

13 is under challenge in the present writ petition.

2. The petitioner is a Private Limited Company engaged in the business of development and sale of integrated solar installations and other related services for solar power installations. The petitioner filed the return of income for the Assessment Year 2012-13 on 28.11.2012. The return was duly processed under Section 143(1) and the case was selected for scrutiny under Section 143(2) dated 20.04.2015 and the petitioner company had international transactions with the Associated Enterprise and the case was transferred to the Transfer Pricing Officer under Section 92CA of the Act for determining the Arm's Length Price.

3. The Transfer Pricing Officer vide his order dated 29.01.2016 under Section 92 CA(3) of the Income Tax Act, made an adjustment to the Arm's Length Price of the international transactions undertaken by the petitioner company. Thereafter, a Draft Assessment order was issued on 31.03.2016 under Section 144(3) read with Section 144C(1) of the Act. Aggrieved over the said order, the petitioner company filed its objections before the Disputes Resolution Panel, Bangalore. The Disputes Resolution Panel vide its order dated 21.10.2016, in addition to the adjustments proposed by the Transfer Pricing Officer, directed the authority to make adjustments on the transactions with Non-Associated Enterprises. Consequently, the Assessing Officer issued the final assessment order under Section 143(3) read with Section 144(C)(13) incorporating the said adjustment. The petitioner company preferred an appeal before the Income Tax Appellate Tribunal[hereinafter referred to as 'ITAT'], Chennai in ITA.No.2018/Mds/2018. The Tribunal vide its order dated 03.04.2017, remitted back the matter to the Transfer Pricing Officer to examine the selection of most appropriate method for determining the Arm's Length Price and also to see whether the Associated Enterprises has derived any benefit or mark up on the price charged by the vendor for supply of raw materials to petitioner's Associated Enterprise. The petitioner company once again made its submissions before the Transfer Pricing Officer, through its authorized representative. After the entire hearing, the Transfer Pricing Officer vide his order dated 27.10.2018, computed the Arm's Length Price of International transactions with respect to purchase of materials, which resulted in a downward adjustment.

4. The petitioner states that the order of the Transfer Pricing Officer would reveal that the authority has failed to consider several crucial aspects. The respondent under those circumstances, instead of issuing a draft assessment order as mandated under Section 144(C)(1) of the Act, has issued the final assessment order under Section 143(3) read with Section 254 of the Act in proceedings dated 01.11.2018. Thus, the petitioner is constrained to move the present writ petition.

5. The learned counsel for the petitioner strenuously contended that the procedures followed by the respondent for passing of the impugned order of final assessment is directly in violation of the procedures contemplated under Section 144(C) of the Income Tax Act. No draft assessment order has been passed after remitting the matter back by the ITAT. Thus, the petitioner is deprived of filing objections before the Disputes Resolution Panel by submitting their objections. The denial of opportunity in this regard is violation of the very provision itself. Thus, the impugned final assessment order is liable to be set aside.

6. In support of the said contention, the learned counsel for the petitioner referred the judgment of this Court in the case of Principal Commissioner of Income Tax-4 Vs. Headstrong Services India (P) Ltd., reported in [2021] 125 taxmann.com 262 (Delhi) and the relevant paragraphs are extracted hereunder:

“13. The