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The instant assessment is a nullity for two reasons, viz., first for the DRP exceeding its jurisdiction in restoring the matter to the AO/TPO for undertaking a fresh benchmarking altogether afresh; and two, the AO not following the statutorily  procedure of first passing a draft order and snatching away a forum from the assessee for assailing the variation in the income pursuant to the order of the TPO before approaching the Tribunal. We set aside the impugned order as null and void.

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Section 144C(3), 144C(8) & 144C(13 ) of the Income Tax Act, 1961 — Transfer Pricing — Computation of arms length price — Irrespective of the course of action followed by the assessee, whether or not accepting the variation in the draft order or choosing the route of the DRP or the CIT(A), passing of a draft order is a sine qua non for passing the final assessment order either under section (3) or sub section (13) of section 144C and therefore,  final assessment order straight away passed by the AO under section 144C(3) read with section 144C(13) pursuant to the second order of the TPO without passing a draft order is a nullity of both the reasons — Capstine Securities Analysis P. Ltd. vs. Deputy Commissioner of income tax [2019] 201 TTJ (Pune) 641

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