Bangalore 560 103 Circle 6(1)(1) Bangalore PAN NO : AABCS9255R APPELLANT RESPONDENT Appellant by : Shri Ajay Rotti, A.R. Respondent by : Dr. Shankar Ganesh K., D.R. Date of Hearing : 16.02.2023 Date of Pronouncement : 27.02.2023 ORDER PER CHANDRA POOJARI, ACCOUNTANT MEMBER: This appeal by assessee is directed against final assessment order passed by the Assessing Officer u/s 143(3) r.w.s. 254 r.w.s. 144C(3) r.w.s. 144B of the Incometax Act,1961 ['the Act' for short] dated 29.7.2022. The assessee has raised following grounds of appeal: The grounds stated hereunder are independent of and without prejudice to one another. The Appellant submits as under: 1. Assessment and Reference to the Transfer Pricing Officer is bad in law IT(TP)A No.948/Bang/2022 M/s. Subex Limited, Bangalore Page 2 of 69 1.1. The order dated July 29, 2022, passed under section 143(3} read with section 254, section 144C(13} and section 144B of the Incometax Act, 1961 ('the Act'), by the National Faceless Assessment Centre ('the NFAC1), be struck down as invalid, as the order is bad in law and on facts. 1.2. The NFAC, erred in making a reference to the Ld. Deputy Commissioner of Incometax, Transfer Pricing 2(2)(1) (TPO1) as the former has not recorded an opinion that any of the conditions in section 92C(3) of the Act, were satisfied in the instant case. The Hon'ble Dispute Resolution Panel ('DRP') erred in upholding the actions of the NFAC. 1.3. The Ld. TPO/ NFAC erred in not demonstrating that the motive of the Appellant was to shift profits outside India by manipulating the prices charged in its international transactions, which is a prerequisite condition to make any adjustment under the provision of Chapter X of the Act. The Hon'ble DRP erred in upholding the actions of the Ld. NFAC/ TPO. 1.4. The Ld. TPO/ NFAC erred in not taking due cognizance of the facts and legal contentions provided by the Appellant and erred in adopting a biased and prejudiced approach to the transfer pricing assessment. The Hon'ble DRP erred in upholding the actions of the Ld. TPO/ NFAC. 2. Transfer pricing order is void ab initio as transfer pricing proceedings were not conducted in a faceless manner The transfer pricing order dated January 23, 2021, issued under section 92CA(3) of the Act, is liable to be struck down, as the transfer pricing proceedings were not conducted in a faceless manner. 3. Transfer pricing order is bad in law as principles of natural justice were violated The transfer pricing order is liable to be struck down as such order was passed in violation of the principles of natural justice and without providing reasonable opportunity to the Appellant, as showcause notice was issued on January 22, 2021 and the TP order was passed on January 23, 2021. The Hon'ble DRP erred in upholding the actions of the Ld. TPO/ NFAC. 4. Assessment order is bad in law as assessment was not completed in conformity with the directions of the Hon'ble DRP 4.1. The final assessment order dated July 29, 2022 passed by the Ld. NFAC is bad in law as the assessment was not completed in conformity with the directions of the Hon'ble DRP as prescribed under section 144C(13) of the Act. 4.2. The Ld. NFAC has erred in not following directions of the Hon'ble DRP wherein the Ld NFAC was directed to allow the setoff of brought forward unabsorbed depreciation. 5. Incorrect rejection of aggregated approach 5.1. The Ld. TPO / NFAC erred in rejecting the entity level Transactional Net Margin