TMI Blog2018 (5) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... As referring to present case we find that the Assessing Officer has himself recorded that the assessee is a Non-resident (Foreign partnership firm). Since the assessee is a non-resident partnership firm, it cannot be characterized as an Indian company and, hence, sheds the character of a ‘domestic company’ and, consequently, a ‘foreign company’ as well. Thus, it is clear that the second condition to qualify for ‘eligible assessee’ in terms of section 144C (15)(b) is not fulfilled. Referring to the first condition, being, ‘any person’ though the assessee is ‘any person’, but admittedly, the TPO has not proposed any variation in the income arising from the international transactions. Thus, it becomes manifest that the assessee has not f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under:- In the circumstances of the case and in law, the appellant not being an eligible assessee within the meaning of section 144C(15)(b) of the Act, the learned Assessing Officer erred in passing invalid draft order and thereafter issuing an order which was barred by limitation. 3. Since the above ground involves a legal issue which does not require any consideration of new facts at our end, respectfully following the judgment of the Hon'ble Supreme Court in the case of National Thermal Power Company Ltd. vs. CIT (1998) 229 ITR 383 (SC) , we admit the additional ground for consideration and decision. The contention of the ld. DR for not admitting this additional ground is, therefore, repelled. 4. Briefly stated, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that an invalid draft order was passed and, further, such order is barred by limitation. 6. In so far as the question of limitation is concerned, we find that the assessment order was passed on 20.09.2010. Sub-section (2) of section 153 at the material time provided that : No order of assessment, re-assessment or re-computation shall be made under section 147 after the expiry of one year from the end of the financial year in which notice under section 148 was served . Third proviso to this section read as under:- Provided also that where the notice u/s 148 was served on or after the 1st day of April, 2006, but before the 1st day of April, 2010 and during the course of the proceedings for the assessment or re-assessment or recom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consequently the final order was invalid. 9. Section 144C(1) provides that : The Assessing Officer shall, notwithstanding anything to the contrary contained in this Act, in the first instance, forward a draft of the proposed order of assessment (hereafter in this section referred to as the draft order) to the eligible assessee if he proposes to make, on or after the 1st day of October, 2009, any variation in the income or loss returned which is prejudicial to the interest of such assessee. The term eligible assessee as used in sub-section (1) has been defined in clause (b) of section 144C(15), which reads as under:- eligible assessee means ,- ( i) any person in whose case the variation referred to in sub-section (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndition to qualify for eligible assessee in terms of section 144C (15)(b) is not fulfilled. 12. We now espouse the first condition, being, any person in whose case variation is proposed in the income returned in the draft order consequent upon the passing of an order by the TPO. Though the assessee is any person , but admittedly, the TPO has not proposed any variation in the income arising from the international transactions. Thus, it becomes manifest that the assessee has not fulfilled any of the conditions to become eligible assessee in terms of section 144C(15)(b). A fortiori, no draft assessment order could have been proposed u/s 144C(1) of the Act which has, in fact, been proposed by the Assessing Officer before passing the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raft assessment order u/s 144C(1). We find that the facts and circumstances for the assessment year under consideration are identical to those considered and decided by the Hon'ble High Court in writ petition for the assessment year 2010-11. Respectfully following the binding precedent, we set aside the final assessment order. The additional ground is, therefore, allowed to this extent. 15. In view of our decision on the additional ground setting aside the assessment order, there is no need to deal with the grounds on merits. Assessment Years 2006-07 2007-08. 16. The assessee has raised additional ground for these two years which is similar to the one reproduced above for the assessment year 2005-06. Such an additional ..... X X X X Extracts X X X X X X X X Extracts X X X X
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