TMI Blog2019 (8) TMI 763X X X X Extracts X X X X X X X X Extracts X X X X ..... to be made on account of transfer pricing adjustment, during assessment proceedings, would not bestow the jurisdiction upon the AO and final assessment order passed in the case cannot be upheld in law, in the absence of AO passing draft assessment order, which is envisaged as per section 144C(1). Accordingly, we hold that assessment order passed in the case is without jurisdiction and bad in law. Similar issue of AO having passed final assessment order u/s 143(3) making certain adjustments to assessee s arm's length price without processing draft assessment order, the Tribunal in Soktas India (P.) Ltd. Vs. ACIT ( 2017 (2) TMI 1001 - ITAT PUNE ) it was held that the said order being against provisions of section 144C. In view of our setting aside the assessment order passed in the case u/s 143(3), the grounds of appeal raised by assessee on merits and the grounds of appeal raised by Revenue become academic in nature and the same are dismissed. - Decided against revenue - ITA No.739/PUN/2015, ITA No.831/PUN/2015 - - - Dated:- 1-8-2019 - Ms. Sushma Chowla, JM And Shri Anil Chaturvedi, AM For the Assessee : Shri Prashant Maheshwari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the plea of assessee that the issue raised in additional ground of appeal is jurisdictional legal issue and does not require any investigation into facts, hence the same is admitted for adjudication. 7. The learned Authorized Representative for the assessee pointed out that the TPO had passed order under section 92CA(3) of the Act, dated 28.01.2013, wherein adjustment of ₹ 91,94,100/- was proposed. Consequent thereto, assessment proceedings were taken up by Assessing Officer vide letter dated 15.02.2013. The assessee had offered addition as per transfer pricing order along with other offers. The Assessing Officer passed assessment order under section 143(3) of the Act, dated 21.03.2013. The learned Authorized Representative for the assessee before us has placed copy of demand notice issued in Form No.7 and also notice issued under section 274 r.w.s. 271(1)(c) of the Act initiating penalty proceedings, dated 21.03.2013. It has been pointed out that the said issue stands covered by decision of Hon ble Bombay High Court in Pr.CIT Vs. Lionbridge Technologies (P.) Ltd. (2018) 100 taxmann.com 413 (Bom) and also by Pune Bench of Tribunal in Soktas India (P.) Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raft assessment order and thereafter, pass a final assessment order. 11. Looking at the provisions of the Act i.e. section 144C(1) of the Act, which lays down that the Assessing Officer shall (notwithstanding anything to the contrary contained in this Act) in the first instance forward a draft of proposed order of assessment to the eligible assessee if he proposes to make, on or after first day of October, 2009 any variation in the income or loss returned, which is prejudicial to the interest of such assessee. Sub-section (2) of the said section provides that on receipt of draft order, the eligible assessee shall within 30 days of the receipt by him of the draft order, (a) file his acceptance of the variation to the Assessing Officer; or (b) file his objections, if any, to such variation with DRP and the Assessing Officer. Under sub-section (3), the Assessing Officer shall then complete assessment on the basis of draft assessment order, if, (a) the assessee intimates to the Assessing Officer the acceptance of variation, or (b) no objections are received within period specified in sub-section (2). In case an objection is filed before the DRP, then the procedure is p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xpired. Then, reliance was placed on the decision of Hon ble Bombay High Court in International Air Transport Association Vs. DCIT (2016) 68 taxmann.com 246 (Bom), wherein it was held that draft assessment order is necessary in terms of section 144C(1) of the Act before the Assessing Officer can proceed to pass final assessment order. It was held that in the absence thereof, order is without jurisdiction. The Hon ble Bombay High Court in the facts before it in Pr.CIT Vs. Lionbridge Technologies (P.) Ltd. (supra) did not accept the contention on behalf of Revenue that the Respondent was estopped from challenging the corrigendum, which was passed after the date of passing of draft assessment order, as it was accepted by it and representation was also filed to the DRP. The Hon ble Bombay High Court held this submission overlooks the fact that there can be no estoppel on issue of law pertaining to jurisdiction. It was further held that if the corrigendum and the order passed by Assessing Officer was without jurisdiction, the same can be raised at any time and the principle of estoppel will not apply. Mere consent of parties does not bestow the jurisdiction if the order is beyond jurisd ..... X X X X Extracts X X X X X X X X Extracts X X X X
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