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2023 (2) TMI 1002 - AT - Income TaxDraft assessment order u/s 144C(1) - assessee is an LLP - Whether Appellant is a foreign company? - HELD THAT:- AO has framed draft assessment order when the provisions were not applicable to the assessee. “Eligible Assessee” means, any person in whose case variation referred to in sub-section arises as a consequence of an order passed by the TPO u/ss (3) of section 92CA of the Act. Facts of the case in hand show that no order has been passed by the TPO, therefore, there is no question of any variation arising as a consequence of the order of the TPO and since the assessee is an LLP, therefore, it cannot be termed as a foreign company, which means that provisions of section 144C of the Act with all its sub section do not apply to the assessee, which means that the impugned assessment order is void ab initio. As relying on [2019 (4) TMI 2098 - ITAT MUMBAI] and provisions of section 144C of the Act, we have no hesitation in holding that the assessment order is void ab initio. - Decided in favour of assessee. Unexplained Receipts shown in Form No. 26AS - Findings given by AO is totally based upon the findings given in earlier Assessment Years. Even the directions of the DRP are based upon the directions given in earlier Assessment Years and both the authorities grossly erred in not realizing that the assessee has discontinued its business after Assessment Year 2010-11. Therefore, drawing support from earlier year’s order would do no good to the Revenue as the facts are not similar. In fact, the Assessing Officer has put the entire burden on the assessee to show in whose hands the receipts shown in Form 26AS has been declared. By putting the onus on the assessee, the AO has grossly erred as the assessee is not responsible to explain the recipients of the receipts shown in Form No. 26AS. AO should have asked the payer, details of the payee to whom payments have been made by the payer on which it could deduct tax at source . Therefore, on merit also, addition cannot survive as facts are not identical to the facts of earlier Assessment Years - Appeal of assessee allowed.
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