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TMI Blog2018 (12) TMI 1655X X X X Extracts X X X X X X X X Extracts X X X X ..... ircumstances of the case and in law, the assessment order dated 29th December, 2009 issued by the learned Assessing Officer is bad in law and void ab initio as the same has been passed in violation of section 144C of the Income-tax Act, 1961. 2] The assessee company submits that the learned Assessing Officer erred in issuing the notice of demand notice u/s. 156 and penalty notice u/s. 274 r.w.s. 271(1)(c) along with the assessment order dated 29.12.2009 instead of draft assessment order and hence, since the procedure laid down in section 144C was not followed by the learned A.O., the assessment order passed be held invalid in law. 3] Without prejudice to the above additional grounds of cross objection, the assessee company submits tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is legal issue include that the assessee filed the return of income declaring income of Rs. 9.23 crores (rounded off). The TPO passed an order u/s 92CA(3) of the Act on 30.10.2009 and proposed the adjustments worth of Rs. 207.35 crores (rounded off). The Assessing Officer passed the assessment incorporating the said adjustments on 28.03.2008 determined the total income at Rs. 33.28 crores (rounded off). The matter reached to the Tribunal and the Tribunal, vide ITA No.202/PUN/2007, order dated 12.03.2009, set-aside the whole issue to the file of the Assessing Officer/TPO, copy of the said order is placed at pages 168 to 208 of the Paper Book. On the receipt of the order of the Tribunal, the matter was referred by the Assessing Officer to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to the ld. Counsel for the assessee, the making of the final assessment order, without complying with the statutory provisions as required for making of a draft assessment order as per the procedure laid down in the said Section is invalid and unsustainable in law. Without going to the merits of the above, ld. Counsel for the assessee filed a written submission. However, ld. Counsel argued that the identical issue was decided by the Jurisdictional High Court in the case of the Pr.CIT vs. M/s. Lionbridge Technologies Pvt. Ltd. in Income Tax Appeal No.622 of 2016, order dated 03.12.2018. He also submitted that the Pune Bench of the Tribunal also decided the same issue in favour of the assessee vide ITA No.2599/PUN/2016 in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DCIT [ITA No.465 & 607/PN/14]. f. Walter Tools India Pvt. Ltd. vs. ACIT [ITA No.416/PN/14]. g. Soktas India Pvt. Ltd. vs. ACIT [77 taxmann.com 19]. h. JCB India Ltd. vs. DCIT [85 taxmann.com 155 (Delhi)]. 8. Thus, Assessing Officer made the assessment order and issued demand notice and penalty notices as if the same is the final assessment order. Normally, the draft assessment order is never issued along with demand notice and penalty notice. Assessing Officer wanted the assessee to treat the said order as draft assessment order. Demand notice and penalty notices are issued only at the time of issue of the assessment order. Thus, Assessing Officer violated the provision of section 144C of the Act. Further, in the process of makin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same over a period of time. 3. Without prejudice to the above, the Hon'ble CIT(A) erred in neither specifying the quantum of adjustment on account of additional noncenvatable duties paid by the Assessee, which is to be allowed to the Assessee nor suggesting any methodology for determining such quantum of adjustment. 4. The Hon'ble CIT(A) erred in directing the A.O. to allow the adjustment on account of under utilization of capacity which is not in accordance with the provisions of the Rule 10B(1)(e)(iii) of the Income-tax Rules, 1962 as well as the decision of Hon'ble ITAT in case of Global Vantedge Pvt. Ltd. (2010-TIOL-24-ITAT-DEL). 5. Without prejudice to the above, the Hon'ble CIT(A) erred in neither specifying the quantum of ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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