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2024 (3) TMI 380 - BOMBAY HIGH COURTValidity of Proceedings u/s 144C - Eligible assessee - Original ITR filed declaring the status as "Resident" - In the revised ITR the status declared as "Non-Resident" - Later the assessee has withdrawn/ abandoned his revised return - petitioner requested the DRP to rule on the issue of jurisdiction since the petitioner now claimed that he was not the eligible assessee as defined under Section of the IT Act - DRP rejected the petitioner's objections and maintained the Draft Order - HELD THAT:- Unless it was established that an assessee is an "eligible assessee" as defined under Section of the IT Act, there was no question of any reference to any DRP. There can be no estoppel against the law. Admittedly, this is not a case where the petitioner is a person in whose case variation referred to in sub-section 1 of Section 144C arises as a consequence of the order of the Transfer Pricing Officer passed under sub-section (3) of Section 92CA. Secondly, though the petitioner in his revised return had claimed that he was a non-resident, the Draft Order made by the first respondent upon considering the material on record has categorically held that this claim was incorrect and the petitioner was a resident in India" and not a non-resident". This is the Department's finding, and the Department cannot distance itself from it merely because the Petitioner may have claimed otherwise in his revised returns. The petitioner has also now accepted the position that he is a "resident in India" and, based upon such acceptance, submitted that the authorities need not consider his revised return because the same proceeded on an erroneous premise that the petitioner was a "non-resident". Accordingly, the petitioner cannot now be held as an "eligible assessee" as defined u/s 144C(15) of the IT Act. If the petitioner is not an eligible assessee, then there is no question of applying the procedure u/s 144C to the petitioner. Thus considering the clear and categorical conclusion recorded in the draft order that the Petitioner was not a non-resident in India, the provisions of Section 144C, including in particular the provisions of Section 144C (15)(b) we will have to hold that the proceedings u/s 144C against the petitioner who was a resident in India, are incompetent. As a consequence, the Draft Order(to the extent it initiates proceedings under 144C of the IT Act) and the order dated will have to be set aside and are hereby set aside.
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