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2021 (9) TMI 1074 - AT - Income TaxRevision u/s 263 by CIT - AO's omission to frame draft assessment order u/s 144C - not framing the draft assessment order, after receipt of TPO order, the AO has acted arbitrarily without scant regard to the mandatory procedure to be followed as per section 144C - Whether assessment order passed by the Assessing Officer is void being passed without jurisdiction? - HELD THAT:- AO was bound to follow the mandatory provision of law scrupulously and therefore non-framing and issue of draft assessment order is not curable defect because it is a jurisdictional defect which cannot be subsequently corrected by the Ld. PCIT u/s. 263 of the Act, since the assessment order of AO dated 25.09.2017 is null in the eyes of law We hold that the AO's omission to frame draft assessment order breached the Rule of Law and consequently, his non-action to frame draft assessment order before passing the final assessment order was in contravention of mandatory provision of law as stipulated in section 144C of the Act, consequently his action is arbitrary & whimsical exercise of power which offends Article 14 & 21 of the Constitution of India and therefore an action made without jurisdiction and ergo the assessment order dated 25.09.2017 is null in the eyes of law and therefore, is non est. Therefore, when the foundation itself does not exist, i.e., assessment order dated 25.09.2017 is non-est, the Ld. PCIT could not have exercised his jurisdiction to interfere with void/null order which is not existing in the eyes of law and, therefore, the impugned order of Ld. PCIT is also a nullity. The assessee succeeds on the legal issue.
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