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2024 (4) TMI 256 - AT - Income TaxRevision u/s 263 - assessment order passed u/s 254/143(3) r.w.s. 92CA(3) was found to be erroneous and prejudicial to the interests of the Revenue - as argued no draft assessment order u/s 144C prior to passing the final assessment order passed - HELD THAT:- When the ld. PCIT himself has formed an opinion that the final assessment order has been passed without taking into account the Board Circular No.05/2010 dated 03.06.2010 and Circular No.09/2013 dated 19.11.2013, which has made it mandatory for the AO to pass a draft assessment order u/s 144C of the Act prior to passing the final assessment order, then, certainly, it cannot be accepted from DR that he would still press that there was no requirement of passing a draft assessment order. Thus the order passes was not in accordance with law. We are of the considered view that every circular or communication of the Board cannot be considered to be issued by the Board u/s 119 of the Act, which are meant for issuing orders, instructions and directions and same when issued u/s 119 of the Act specifically mention the fact that Board has invoked the powers of Section 119 of the Act. The explanatory notes to the provisions of Finance Act only explain the substance of the provisions of the concerned Finance Act relating to Direct taxes and may serve as external aid to interpretation of the Finance Act but cannot be considered to be issued u/s 119 of the Act, so as to say that if anything contained therein in the explanatory notes has not been followed by the assessing officer, it will lead to defiance of orders, instructions and directions issued by the Board u/s 119 of the Act. Thus the exercise of jurisdiction by invoking clause (c) of Explanation 2 of Section 263(1) of the Act, itself was bad. Then reference to ‘any order’ u/s 263 of the Act is to an assessment order, which otherwise is passed in due course of law and is otherwise a valid and enforceable order and not an order which is void ab initio, being not passed in accordance with due course of law. Decided in favour of assessee.
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