JUDGMENT : BHARGAV D. KARIA, J. 1. Heard learned advocate Mr. B.S. Soparkar for the petitioner and learned Senior Standing Counsel Mr. Karan Sanghani for the respondents. 2. Having regard to the controversy arising in this petition in narrow compass with the consent of the learned advocates for the respective parties the same is taken up for hearing. 3. Rule returnable forthwith. Learned Senior Standing Counsel Mr. Karan Sanghani waives service of notice of rule on behalf of the respondents. 4. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the legality and validity of the notice dated 31.03.2021 issued under Section 148 of the INCOME TAX ACT , 1961 (For Short “the Act”) for Assessment Year 2013-14. After filing of the petition and issuance of the notice by this Court on 29.03.2022, ad-interim relief was granted in terms of paragraph 7(b) whereby, implementation and operation of the notice dated 31.03.2021 was stayed. However, the respondent Assessing Officer passed the Assessment Order on 30.03.2022. The petitioner has, therefore, also challenged the Assessment Order dated 30.03.2022 by amendment, which was allowed. 5. The brief facts of the case are that the petitioner filed return of income on 29.11.2023 for the Assessment year 2013- 14 declaring total income of Rs.29,62,71,500/-. Thereafter the case of the petitioner for the year under consideration was selected for scrutiny and after detailed scrutiny, reference was made under Section 92CA (1) of the Act to the Transfer Pricing Officer to ascertain Arm’s Length Price of various international transactions undertaken by the petitioner. The notices under Section 92CA(2) of the Act were issued on 24.08.2015, 22.04.2016 and 13.06.2016 which were replied by the petitioner on 07.10.2015, 20.05.2016, 30.06.2016, 29.07.2016, 05.08.2016 and 19.09.2016. 5.1. The Transfer Pricing Officer passed the order dated 30.09.2016 without making any adjustments. Accordingly, the Assessing Officer passed the Assessment Order under Section 143(3) read with Section 92CA of the Act on 11.11.2016 assessing total income of the petitioner as per the return of income. The respondent no. 1 has thereafter issued impugned notice under Section 148 of the Act dated 31.03.2021 calling upon the petitioner to file the return of income. The petitioner without prejudice filed the above return of income in compliance of the notice on 09.04.2021 and sought for reasons recorded for reopening. The respondent no. 1 has thereafter issued impugned notice under Section 148 of the Act dated 31.03.2021 calling upon the petitioner to file the return of income. The petitioner without prejudice filed the above return of income in compliance of the notice on 09.04.2021 and sought for reasons recorded for reopening. The petitioner was provided with the copy of the reasons recorded on 30.07.2021 which reads as under :- “1. The assessee is engaged in the business of manufacturing and servicing of oil field equipment, primarily down whole equipment, tool apparatus, instrument and allied product including drilling equipments, gas well installation tools and specialized equipment used in the Oil field industry for drilling and completion of oil wells. The assessee had filed its return of income u/s 139 (1) of the Act on 29.11.2013 declaring total income of Rs. 29,62,71,500. ?he case of the assessee was selected for scrutiny for the A.Y.2013-14. A reference u/s 92CA(1) of the INCOME TAX ACT , 1961 in the case of assessee company for A.Y. 2013-14 for computation of ALP in relation to International Transaction recorded in form 3CEB was made to DCIT (TPO) Ahmedabad vide letter No. BRD/DCIT/ Cir-2(1)(2)/ TPO/WDPSIPL/2015-16 dated 05.08.2015. The TPO has passed order on 30.09.2016 without making any adjustment. The order u/s 143(3) r.w.s. 92CA was passed on 11.11.2016 at assessed income of Rs 29,62,71,500/-. 2. It is seen from the records of A.Y.2009-10, the Hon'ble DRP in its order had directed for applying the export filter of export >50%. It is observed that in A.Y.2010-11, during transfer pricing proceedings, the assessee company itself has objected to inclusion of comparables which have export sales less than 50% of the of the total turnover as company was having almost 100% export turnover. However, in A.Y. 2013-14, it was observed that the assessee has not applied the export filter. The application of such filter led to one comparable viz. GTN Engineering Pvt. Ltd. during the year under consideration. Following filters were applied by the assessee company in its TP study for the FY 2012-13 i.e. ?.?.2013-14. a) Product search - manufacturing valve. b) Companies having data for 2010-11, 2011-12, & 2012-13. c) Companies having sales more than Rs.1 crore. d) Ownership screening-independent, non governmental, non-cooperative. e) manufacturing as a percentage of sales more than 90%. f) Companies with positive net worth. 3. a) Product search - manufacturing valve. b) Companies having data for 2010-11, 2011-12, & 2012-13. c) Companies having sales more than Rs.1 crore. d) Ownership screening-independent, non governmental, non-cooperative. e) manufacturing as a percentage of sales more than 90%. f) Companies with positive net worth. 3. It is observed that in A.Y.2010-11, during transfer pricing proceedings, the assessee company itself has objected to inclusion of comparables which have export sales less than 50% of the of the total turnover as company was having almost 100% export turnover. Further the Hon'ble DRP also accepted the contention of the assessee company and port sales less than 50% of total sales: As directed to TPO to reject the com per this direction of Hon'ble DRP, the following companies were removed from the final set of comparables (1) KAR Mobile Limited: 12) Rage: Engine Valve Limited and accordingly final order was passed. However, in TP documents for FY 2012-13 (A.Y.2013-14), Assessee Company itself included the above mentioned two companies as comparable for computation of ALP of manufacturing division. In view of this, it is clearly established that the assessee company has not shown consistency in selection of comparable. Further, during the proceedings for A.Y.2009-10, when the case of the assessee for the AY 2009-10 was revert back by the ITAT to the TPO-1, Ahmedabad, the company applied following filters: (a) Product search- manufacturing valve, (b) Companies having data for FY 2008-09, (c) Companies having sales between Rs.1 crore to 350 crore, (d) qualitative filtering and (e) Companies having TRP (related party transaction) less than 25%. The TPO during finalization of the case for the AY 2009-10 observed that though the entries sales of the assessee company were export sale, no export filter was applied by the assessee company. Further he observed that certain valid comparable e.g. GTN Engineering India Ltd was wrongly rejected by the company. Reason was that the Hon'ble DRP in its order for the AY 2009-10 and AY 2010-11 had rejected the contention of the assessee on GTN Engineering India Ltd and held it as valid comparable. The TPO rejected the fresh TP study after the ITAT remand for the AY 2009-10 on the ground that export filter was not applied and the valid comparable i.e. GTN Engineering India Ltd was not included. The TPO rejected the fresh TP study after the ITAT remand for the AY 2009-10 on the ground that export filter was not applied and the valid comparable i.e. GTN Engineering India Ltd was not included. As such the case for the AY 2009-10 was finalized on 19/10/2016 after considering the above two adjustments which resulted into single comparable of GTN Engineering India Ltd. Only and upward adjustment of Rs.4,27,26,088 (Sale of Rs.3426,77,543 to AE). 4. During the year under considering, the assessee has used TNMM. to benchmark the transactions in the manufacturing division, taking OP/OR as the PLI. From the transfer pricing study report, in search for comparables, & was observed that the assessee has applied various filters to arrive at 4 comparables. It was stated by the assessee in the report that the FLI of the assessee is more than that of the mean PLI of the 4 comparables and that the transactions were at arm's length It was observed that in the case of the same assessee for A.Y. 2009-10 as well as for A.Y. 2010-11, the Hon'ble DRP had directed that in search for comparable companies in the manufacturing division, the liter of 50% of sales exports should be applied as the assessee is a 100% export oriented int was also directed by the Hon'ble DRP in both the cases that the single company GTN Engineering (India) Limited should be considered as comparable as it matches 100% export res revenue, which is the same as that of the assessee and because all the remaining companies, enter consideration have exports less than 50%. However, in the present case of the assesse for assessee has not applied the expY2013-14, it was observed that the 5. As discussion above has not show consistency in applying filter. During the year under consideration, the assessee has applied export filter while the same was not applied by the assessee during the year under consideration. Assessee company has to show consistency in application of filters for the selection of comparable. It has to justify the reason for exclusion or inclusion of any filters/comparables. Assessee company should have submitted proper justification for its inclusion in current year when it was not fulfilling the criteria laid down by the Hon'ble DRP as well as objection of company itself in preceding year and for the application of single or multiple year data. It has to justify the reason for exclusion or inclusion of any filters/comparables. Assessee company should have submitted proper justification for its inclusion in current year when it was not fulfilling the criteria laid down by the Hon'ble DRP as well as objection of company itself in preceding year and for the application of single or multiple year data. It is observed that the 4 comparables selected by the assessee have exports to sales ratio of less than 50%. Considering the directions of the Hon'ble DRP in the preceding years and taking only GTN Engineering (India) Limited as the comparable, the OP/OR of this comparable company, as calculated from its accounts, comes to 26.93%. However, the OP/OR of the assessee company comes to 22.78%. It can be seen that this is not at arm's length. In view of the same, an upward adjustment of Rs. 4,90,02,917/- is required to be made to the total income of the assessee for the transactions to be at arm's length. 6. In view of the facts discussed in above paras, I have reasons to believe that the income to the extent of Rs. 4,90,02,917/- and any other income are chargeable to tax and has escaped assessment within the meaning of section 147 of the IT Act and this is a fit case for assessment proceedings uls. 147 of the IT Act. The above likely income is prima facie more than the limit for re- opening the case uls 147 of the Income-tax Act. Therefore, I am satisfied that this is a fit case for taking action uls. 147 of the Income-tax Act, 1961. 7. During FY 2009-10, the assessee itself objected to inclusion of comparables which have export sales less than 50 percent of the total turnover as company was having almost 100% export turnover and as per directions of the Hon'ble DRP, KAR Mobile Limited And Rane Engine Valve Limited were removed from the final set of comparables. However, in A.Y. 2013-14, It was observed that the assessee has not applied the export filter which was applied in earlier years. There is a mistake on part of the assessee on account of not showing consistency in selection of comparable and application of filters for determining Arm's length price. In view of this, it is clearly established that the assessee had not disclosed fully and truly all materials facts necessary for his assessment. 8. There is a mistake on part of the assessee on account of not showing consistency in selection of comparable and application of filters for determining Arm's length price. In view of this, it is clearly established that the assessee had not disclosed fully and truly all materials facts necessary for his assessment. 8. In this case, a return of income was filed for the year under consideration and regular assessment u/s 143(3) was made on 11.11.2016. Since 4 years from the end of the relevant year has expired in this case, the requirements to initiate proceeding u/s 147 of the Act are reason to believe that income for the year under consideration has escaped assessment because of failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment for the assessment year under consideration. It is pertinent to mention here that reasons to believe that income has escaped assessment for the year under consideration have been recorded above (refer paragraphs 6). I have carefully considered the assessment records, containing the submissions made by the assessee in response to various notices issued during the assessment proceedings and have noted that the assessee has not fully and truly disclosed the material facts necessary for his assessment for the under consideration * The Assessee company has not show consistency in selection of comparables. * The Assessee company has not shown consistency in application of export filter. * The assessee company had not submitted any justification for its non- inclusion of GTN Engineering (India) Limited having export more than 50% which was applied in earlier years. It is evident from the facts that the assessee had not truly and fully disclosed material facts necessary for his assessment for the year under consideration thereby necessitating reopening u/s.147 of the Act. It is true that the assessee has filed a copy of annual report and audited P&L A/c and balance sheet along with return of income where various information/ material were disclosed. However, the requisite full and true disclosure of all material facts necessary for assessment has not been made as noted above. It is true that the assessee has filed a copy of annual report and audited P&L A/c and balance sheet along with return of income where various information/ material were disclosed. However, the requisite full and true disclosure of all material facts necessary for assessment has not been made as noted above. It is pertinent to mention here that even though the assessee has produced books of accounts, annual report, audited P&L A/c and balance sheet or other evidence as mentioned above, the requisite material facts as noted above in the reasons for reopening were embedded in such a manner that material evidence could not be discovered by the AO and could have been discovered with due diligence, accordingly attracting provisions of Explanation 1 of section 147 of the Act. It is important to highlight here that material facts relevant for the assessment on the issue(s) under consideration were not filed during the course of assessment proceeding and the same may be embedded in annual report, audited P&L A/c, balance sheet and books of account in such a manner that it would require due diligence by the AO to extract these information. For aforestated reasons, it is not a case of change of opinion by the AO. In this case more than four years have lapsed from the end of assessment year under consideration. Hence necessary sanction to issue notice u/s.148 has been obtained separately from the Pr. Commissioner of Income Tax as per the provisions of Section 151 of the Act.” 5.1. The petitioner filed objections on 30.08.2021 before the respondent no. 1. It is the case of the petitioner that the petitioner was waiting for the disposal of the objections, however, the respondent no. 2 issued notice under Section 142(1) of the Act on 02.03.2022 asking various details in connection with the assessment instead of passing order disposing of the objections. The petitioner thereafter by letter dated 15.03.2022 requested respondent no. 2 to pass the speaking order disposing of the objections. The respondent no. 2 thereafter again issued the show cause notice dated 22.03.2022 instead of passing order disposing of the objections. The petitioner thereafter filed this petition challenging the notice for reopening dated 28.03.2022 and vide order dated 29.03.2022, this Court issued notice to the respondent as well as granted ad-interim relief in terms of paragraph 7(b) of the petition. 5.2. 2 thereafter again issued the show cause notice dated 22.03.2022 instead of passing order disposing of the objections. The petitioner thereafter filed this petition challenging the notice for reopening dated 28.03.2022 and vide order dated 29.03.2022, this Court issued notice to the respondent as well as granted ad-interim relief in terms of paragraph 7(b) of the petition. 5.2. It is the case of the petitioner that since the copy of the order was not available immediately, the petitioner informed the respondent no. 2 about the order passed by this Court vide e- mail communication dated 29.03.2022. However, the respondent no.2 passed the Assessment Order on 30.03.2022 despite the stay granted by this Court as the limitation was expiring on 31.03.2022 by issuing notice of demand of Rs.3,31,43,820/- along with notice for levy of penalty under Section 274 read with Section 271(1)(c) of the Act. 6. Learned advocate Mr. B.S. Soparkar for the petitioner submitted that the respondent no. 1 does not have jurisdiction to reopen the assessment pertaining to the issue of Arm’s Length Price on the information received from the Dispute Resolution Panel for the earlier Assessment Year. It was submitted that sub-section (4) of Section 92CA of the Act has been substituted by the Finance Act, 2007 with effect from 01.06.2007 and accordingly, the Transfer Pricing Officer has exercised jurisdiction to determine Arm’s Length Price once the reference is made and the Assessing Officer cannot deviate from it. 6.1. It was submitted that during the course of regular assessment, reference was made to the Transfer Pricing Officer and by order dated 30.09.2016, the Transfer Pricing Officer has not made any order regarding Arm’s Length Price for which the reference was made. 6.1. Without prejudice to the aforesaid contention, it was submitted that the Assessing Officer could not have assumed the jurisdiction to reopen the assessment on the same information which was made available before the Transfer Pricing Officer only on the basis of the order passed by the Dispute Resolution Panel for the Assessment Year 2010-11. 6.1. Without prejudice to the aforesaid contention, it was submitted that the Assessing Officer could not have assumed the jurisdiction to reopen the assessment on the same information which was made available before the Transfer Pricing Officer only on the basis of the order passed by the Dispute Resolution Panel for the Assessment Year 2010-11. It was submitted that three points on which reopening is sought to be made, namely (i) that the petitioner has not shown consistency in selection of comparables; (ii) that the petitioner has not shown consistency in application of export filter and (iii) that the petitioner has not submitted any justification for his non-inclusion of GTN Engineering (India) Limited having export more than 50% which was applied in earlier years, were duly considered by the Transfer Pricing Officer when the reference was made under Section 92CA of the Act. It was, therefore, submitted that the impugned notice is based on mere change of opinion by the Assessing Officer which is not permissible in addition to the submission that the Assessing Officer was precluded from transgressing the jurisdiction of the Transfer Pricing Officer in absence of any failure on the part of the petitioner to disclose fully and truly all material facts relevant for the assessment more particularly, when the impugned notice is issued beyond the period of four years. 6.2. In support of his submissions, learned advocate Mr.B.S. Soparkar has referred to and relied upon the decision in case of Intercontinental India v. Deputy Commissioner of Income Tax reported in [2016] 73 Taxmann.com 232 (Gujarat) and in case of Jivraj Tea Ltd. v. Assistant Commissioner of Income Tax – Circle-1 reported in (2016) 386 ITR 298 . It was further submitted that the respondent Assessing Officer has assumed the jurisdiction to reopen the assessment in absence of any new tangible material available with the Transfer Pricing Officer other than what was available with the Transfer Pricing Officer during the course of the regular assessment and therefore, the respondent Assessing Officer could not have assumed the jurisdiction. Therefore, the impugned notice is liable to be quashed and set aside. 7. Per contra learned Senior Standing Counsel Mr. Therefore, the impugned notice is liable to be quashed and set aside. 7. Per contra learned Senior Standing Counsel Mr. Karan Sanghani for the respondent submitted that the impugned notice for reopening is based upon the information received from the Dispute Resolution Panel order of the earlier year which clearly shows that the petitioner has failed to show consistency in selection of comparable as well as application for export filters and the petitioner has not disclosed as to why GTN Engineering (India) Limited having export more than 50% was excluded which was in the year under consideration. It was, therefore, submitted that the respondent – Assessing Officer has rightly come to the conclusion that he has reason to believe that an income of Rs.4,90,02,917/- chargeable to tax has escaped the assessment. It was further submitted that during the year under consideration, the Assessing Officer has recorded the reasons in detail which clearly shows that the reopening is done after application of mind and the respondent – Assessing Officer was justified in assuming jurisdiction to reopen in view of the fact that there was failure on the part of the petitioner to fully and truly disclose all the material facts for the year under consideration. 7.1. It was submitted that the impugned notice cannot be said to have been issued on mere change of opinion as the petitioner was served with detailed reason for reopening and as the reasons clearly shows that there is a prima facie reason to belief formed by the Assessing Officer that the income has escaped assessment on the basis of the information made available as per the order passed by the Dispute Resolution Panel for earlier years and in view of the failure on the part of the petitioner to disclose fully and truly all material facts necessary for assessment for the year under consideration, the procedure for reopening was initiated after obtaining necessary approval from the competent authority. It was, therefore, submitted that no interference can be made by this Court while exercising extraordinary jurisdiction in the facts of the case. 8. It was, therefore, submitted that no interference can be made by this Court while exercising extraordinary jurisdiction in the facts of the case. 8. Having heard the learned advocates for the respective parties and considering the facts and material made available, it is not in dispute that the Assessing Officer during scrutiny assessment had referred the matter to the Transfer Pricing Officer under Section 92CA of the Act and the Transfer Pricing Officer after considering the submissions of the Assessing Officer has passed the order on 30.09.2016 without making any adjustment towards the Arm’s Length Price and the Assessing Officer was duty bound to accept the same. Section 92CA of the Act reads as under :- “92CA. [ Reference to Transfer Pricing Officer. [Inserted by Act 20 of 2002, Section 42 (w.e.f. 1.6.2002).] (1) Where any person, being the assessee, has entered into an international transaction or specified domestic transaction in any previous year, and the Assessing Officer considers it necessary or expedient so to do, he may, with the previous approval of the Principal Commissioner or Commissioner, refer the computation of the arm's length price in relation to the said international transaction or specified domestic transaction under section 92C to the Transfer Pricing Officer. (2) Where a reference is made under sub-section (1), the Transfer Pricing Officer shall serve a notice on the assessee requiring him to produce or cause to be produced on a date to be specified therein, any evidence on which the assessee may rely in support of the computation made by him of the arm's length price in relation to the international transaction or specified domestic transaction referred to in sub-section (1). (2A) Where any other international transaction other than an international transaction referred under sub-section (1), comes to the notice of the Transfer Pricing Officer during the course of the proceedings before him, the provisions of this Chapter shall apply as if such other international transaction is an international transaction referred to him under sub-section (1). (2B) Where in respect of an international transaction, the assessee has not furnished the report under section 92E and such transaction comes to the notice of the Transfer Pricing Officer during the course of the proceeding before him, the provisions of this Chapter shall apply as if such transaction is an international transaction referred to him under sub-section (1). (2B) Where in respect of an international transaction, the assessee has not furnished the report under section 92E and such transaction comes to the notice of the Transfer Pricing Officer during the course of the proceeding before him, the provisions of this Chapter shall apply as if such transaction is an international transaction referred to him under sub-section (1). (2C) Nothing contained in sub-section (2B) shall empower the Assessing Officer either to assess or reassess under section 147 or pass an order enhancing the assessment or reducing a refund already made or otherwise increasing the liability of the assessee under section 154, for any assessment year, proceedings for which have been completed before the 1st day of July, 2012. (3) On the date specified in the notice under sub-section (2), or as soon thereafter as may be, after hearing such evidence as the assessee may produce, including any information or documents referred to in sub-section (3) of section 92D and after considering such evidence as the Transfer Pricing Officer may require on any specified points and after taking into account all relevant materials which he has gathered, the Transfer Pricing Officer shall, by order in writing, determine the arm's length price in relation to the international transaction or specified domestic transaction in accordance with sub-section (3) of section 92C and send a copy of his order to the Assessing Officer and to the assessee. (3A) Where a reference was made under sub-section (1) before the 1st day of June, 2007 but the order under sub-section (3) has not been made by the Transfer Pricing Officer before the said date, or a reference under sub-section (1) is made on or after the 1st day of June, 2007, an order under sub-section (3) may be made at any time before sixty days prior to the date on which the period of limitation referred to in section 153, or as the case may be, in section 153B for making the order of assessment or reassessment or recomputation or fresh assessment, as the case may be, expires:Provided that in the circumstances referred to in clause (ii) or clause (x) of Explanation 1 to section 153, if the period of limitation available to the Transfer Pricing Officer for making an order is less than sixty days, such remaining period shall be extended to sixty days and the aforesaid period of limitation shall be deemed to have been extended accordingly.” 9. From the above provision, it is clear that the order passed by the Transfer Pricing Officer is binding upon the Assessing Officer and cannot be subject matter of even revision before the Commissioner of the Income Tax or by the Directorate of Income Tax. The Hon’ble Apex Court in case of Principal Commissioner of Income Tax-4, Mumbai v. S.G. Asia Holding (India) Private Limited reported in (2019) 13 SCC 353 = {[108 Taxmann.com 213]} has held that the Assessing Officer could not have determined the Arm’s Length Price without making any reference to the Transfer Pricing Officer in terms of sub-section (1) of Section 92CA of the Act. The Hon’ble Apex Court referred to Instruction No. 3 of 2003 issued by the Central Board of Direct Taxes (CBDT), whereby guidelines to Transfer Pricing Officers and Assessing Officers to operationalise transfer pricing provisions and to have procedural uniformity is stipulated. After considering the guidelines in detail, the Hon’ble Apex Court has held that in view of the guidelines issued by the CBDT in Instruction No. 3 of 2003 with reference to Transfer Pricing Officer, the Assessing Officer had breached the mandatory instructions issued by the CBDT and has observed as under :- “6. After considering the guidelines in detail, the Hon’ble Apex Court has held that in view of the guidelines issued by the CBDT in Instruction No. 3 of 2003 with reference to Transfer Pricing Officer, the Assessing Officer had breached the mandatory instructions issued by the CBDT and has observed as under :- “6. However, the following expressions employed in Instruction No.3/2003 put the matter in a different perspective: - “… ...The Assessing Officer can arrive at prima facie belief on the basis of these details whether a reference is considered necessary. No detailed enquiries are needed at this stage and the Assessing Officer should not embark upon scrutinizing the correctness or otherwise of the price of the international transaction at this stage… … If there are more than one transaction with an associated enterprise or there are transactions with more than one associated enterprise the aggregate value of which exceeds Rs.5 crores, the transactions should be referred to the TPO. … … Since the case will be selected for scrutiny before making reference to the TPO, the Assessing Officer may proceed to examine other aspects of the case during pendency of assessment proceedings but await the report of the TPO on the value of international transaction before making final assessment. (vi) Role of the Assessing Officer after receipt of “arm’s length price”: Under sub-section (4) of section 92C, the Assessing Officer has to compute total income of the assessee having regard to the arm’s length price so determined by the TPO.” 10. The aforesaid decision was followed by the decision of Hon’ble Delhi High Court in case of M/s. Giesecke and Devrient India Pvt. Ltd. v. Deputy Commissioner of Income Tax 2.1 and Ors. , rendered in W.P. (C ) No. 5429 of 2021 and CM APPL. No. 16909/2021 (stay) decided on 01.04.2024 by observing as under :- “19. It is abundantly clear that as per the legislative mandate behind Section 92CA of the Act, the ALP determination of any international transactions falls in the domain of the TPO. Moreover, the dictum laid down in CIT v. S.G. Asia Holdings noticeably elucidates that the AO is not clothed with the powers to ascertain the ALP of any international transaction that is selected on the transfer pricing risk parameters. Moreover, the dictum laid down in CIT v. S.G. Asia Holdings noticeably elucidates that the AO is not clothed with the powers to ascertain the ALP of any international transaction that is selected on the transfer pricing risk parameters. Furthermore, Section 92CA of the Act evidently mandates that the AO cannot deviate itself from the TPO order while computing the total income of the assessee.” 11. In the facts of the case, once the Transfer Pricing Officer has passed an order without making any adjustments, the respondent Assessing Officer could have assumed the jurisdiction to reopen assessment on the basis of the same facts without there being any new tangible material available with the respondent other than the material which was considered by the Transfer Pricing Officer during the course of original scrutiny assessment. Therefore, on all the three counts, namely (i) that the Assessing Officer has no jurisdiction to make adjustments qua Arm’s Length Price and therefore, could not have assumed the jurisdiction to reopen the assessment on the issues which were within the domain of the Transfer Pricing Officer as per the provision of Section 92CA of the Act. (ii) Once the Transfer Pricing Officer during the regular course of assessment has not made any adjustments, the reopening could not have been made on the issues arising from the same material resulting into mere change of the opinion. Therefore, the Assessing Officer could not have assumed the jurisdiction to reopen the assessment and (iii) in absence of any new tangible material available with the Assessing Officer which was not considered by the Transfer Pricing Officer during the course of original scrutiny of assessment, the impugned notice could not have been issued. 12. For the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned notice dated 31.03.2021 and consequential Assessment Order dated 30.03.2022 are hereby quashed and set aside. Rule is made absolute to the aforesaid extent with no order as to cost.