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2023 (1) TMI 93 - KERALA HIGH COURTAssessment u/s 143(3) r.w.s 144C - AO jurisdiction to make revised final assessment order without recourse to DRP - omission in re-doing the procedure u/s 144C - Whether, on the facts and in the circumstances of the case and in the initial assessment order being preceded by draft assessment order is not the final assessment order without a prior draft assessment order legal and with jurisdiction? - HELD THAT:- This Court has referred to the admitted dates in the orders made by the Assessing Officer in the first round etc. and also the revised final assessment order made in Annexure-E for the purpose of appreciating the legal objection raised by the assessee and now the grounds canvassed by the revenue. The citations relied on by the assessee are to the effect that with the interdiction of assessment order made under Section 143(3) read with Section 144C(5) & (13) of the Act by the Tribunal, the matter is remitted to A.O. The issues revisit the table of AO for a decision in the same manner in which the first final assessment order was made by the AO. In cases to which Section 92CA is attracted, the assessment could be completed only by following the procedure under Section 144C - We do not prefer to burden our judgment with reproducing all the portions relied on by the assessee from the decisions cited at the Bar, except the view taken by the Delhi High Court in Nokia India (P) Ltd. [2017 (9) TMI 1838 - DELHI HIGH COURT ] and the Special Leave Petition filed against the said decision [2018 (5) TMI 1913 - SC ORDER]. The requirement of re-doing the same procedure upon remand to the AO u/s 144C is held to be mandatory and omission in following the procedure is held to be an incurable defect. The revenue does not dispute the omissions pointed out in this behalf by the Tribunal. The filing of appeal before the Commissioner of Income Tax (Appeals) cannot be treated as a waiver of an objection available to the assessee in this behalf u/s 144C etc. Section 253(1)(d) provides for appeal only when order has been made under Section 143(3) read with Section 144C of the Act. Annexure-E order is an order made under Section 143(3) of the Act and not a final revised assessment order made in compliance with the directions issued by DRP. The assessee, hence was justified in moving the CIT(Appeals). This Court has difficulty in accepting the argument of the revenue to sustain the order in Annexure-E. The arguments have been confined to the points considered above and we are of the view that the Tribunal has correctly considered the objections of assessee against Annexure-E order and recorded the findings which resulted in the order under appeal. The order of Tribunal is to be understood in the background of what is considered by the AO in Annexure-E and what was not the subject matter before the Assessing Officer, upon the remand in the first round of litigation cannot and could not be understood as made by the Tribunal. We are in agreement with the argument of Mr.Joseph Markos that Annexure-E is limited only to the issues remitted by the Tribunal in Annexure D order dated 21.11.2014 - Decided in favour of the assessee and against the revenue.
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