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2019 (4) TMI 2098 - AT - Income TaxAssessment u/s 144C - “eligible assessee” - Validity of draft assessment order - as argued assessee not being an “eligible assessee” as defined u/s 144C(15) AO could not have passed the draft assessment order under section 144C(1) - whether the assessee can be termed as an “eligible assessee” u/s 144C(15)(b) to empower the Assessing Officer to pass the draft assessment order under section 144C(1)? - whether the assessee can fit into the definition of a foreign company as provide du/s 144C(15)(b)(ii)? - HELD THAT:- The definition of firm under section 2(23) of the Act includes a limited liability partnership. Further, in the draft assessment order passed under section 144C of the Act for the assessment year 2016–17, the status of the assessee has been shown as firm. Thus, from these facts, it becomes clear that the assessee is not a foreign company but a limited liability partnership. The aforesaid factual position has not been controverted by the learned Departmental Representative by bringing before us any documentary evidence. As relying on ESS DISTRIBUTION (MAURITIUS) SNC ET COMPAGNIE [2018 (8) TMI 2106 - ITAT DELHI], HONDA CARS INDIA LIMITED [2016 (2) TMI 527 - DELHI HIGH COURT] and M/S ESPN STAR SPORTS MAURITIUS S.N.C. ET COMPAGNIE [2016 (4) TMI 45 - DELHI HIGH COURT] unless the assessee is an eligible assessee under section 144C(15)(b) of the Act, the Assessing Officer cannot pass a draft assessment order under section 144C of the Act. Keeping in view the principle of law propounded in the aforesaid judicial precedents, we have no hesitation in holding that the draft assessment order passed in case of the assessee for the impugned assessment year is invalid. Therefore, all the proceedings consequent thereupon are also invalid. Consequently, the draft assessment order as well as the final assessment order passed in pursuance thereof is quashed.
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