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TMI Blog2019 (12) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... objections before the Dispute Resolution Panel (DRP) against the draft assessment order. In pursuance to the directions of the DRP, the Assessing Officer passed the final assessment order under section 144C(13) r/w 143(3) of the Act on 21st December 2015. The assessee challenged the aforesaid final assessment order by filing an appeal before the Tribunal. Vide order dated 8th June 2016, in ITA no.1166/Mum./2016, the Tribunal restored the disputed issues for fresh adjudication by the Assessing Officer. Of course, subsequently, vide order dated 4th January 2017, in M.A. no.274/Mum./2016, the Tribunal rectified certain mistakes which crept into the appeal order. Be that as it may, in pursuance to the directions of the Tribunal, the Assessing Officer passed order dated 8th March 2017, termed as "order giving effect to ITAT's order" making certain disallowances of Rs. 68,24,622, under the normal provisions and computed the total income of Rs. 1,04,30,850. Since, the tax computed on the book profit was more than tax computed on the income assessed under the normal provisions, the Assessing Officer assessed the tax under section 115JB of the Act. Against the aforesaid order passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessing Officer is required to forward a draft assessment order, the final assessment order may be set aside with a direction to the Assessing Officer to forward the draft assessment order to the assessee. In support of such contention, he relied upon the following decisions:- i) Tevapharm India Pvt. Ltd. v/s ACIT, [2018] 91 taxmann.com 103 (Del.); ii) Home Finders Housing Ltd. v/s ITO, [2018] 93 taxmann.com 371 (Mad.); and iii) Home Finders Housing Ltd. v/s ITO, [2018] 94 taxmann.com 84 (SC). 5. In rejoinder, the learned Counsel for the assessee submitted, since the Assessing Officer has passed an order termed as "order giving effect to ITAT's order" the only remedy available with the assessee is to file an appeal before the Tribunal. Drawing our attention to the provisions of section 246A(b) of the Act, he submitted, it only contemplates filing of appeal against the assessment order passed under section 143(3) of the Act. Thus, he submitted, the assessee has accordingly filed the appeal before the Tribunal, hence, it is maintainable. In support of his contentions, the learned Counsel relied upon the following decisions:- i) Empire Industries Ltd. v/s CIT, [1991] 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned order passed by the Assessing Officer has to be treated as an assessment order passed under section 143(3) of the Act as the assessee was given opportunity of being heard during the assessment proceedings. Now, the issue before us is, whether against such an assessment order the assessee can directly file an appeal before the Tribunal. As contemplated under section 253(1) of the Act, the assessee can file an appeal before the Tribunal against a final assessment order passed by the Assessing Officer only in case the assessee goes through the DRP route. In the facts of the present case, admittedly, the impugned order passed by the Assessing Officer is not in pursuance to the directions of the DRP. Therefore, it does not come within the purview of section 253(1)(d) of the Act. It is worth mentioning, the Tribunal, Delhi Bench, while dealing with identical issue in Tevapharm India Pvt. Ltd. v/s ACIT, [2018] 91 taxmann.com 103 (Del.), held that in respect of assessment order passed in pursuance to restoration of the issues by the Tribunal, the appeal will lie to the first appellate authority and not before the Tribunal. The observations of the Co-ordinate Bench in this regard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther a secondary issue, because, at the threshold what is required to be seen is that, the statutory remedy of appeal has to be before the appropriate authority. If an appeal mechanism has been provided under the statute for different kind of orders before different authorities then such an authority alone has the jurisdiction to decide the appeal. Even if the final assessment order has been passed in contravention of any statutory provision or any judicial precedent, the only course open for the assessee to seek for remedy is, firstly, either to file appeal before the appropriate forum/authority in terms of the provisions of law, which in our opinion lies before the CIT (A); or secondly, assessee has other constitutional remedy before the Hon'ble High Court under extra ordinary jurisdiction, of course with the discretion of Hon'ble Court. If an assessment order has been passed post remanding back by the Tribunal, then appeal will lie to the appropriate authority/ forum and the Tribunal does not have any jurisdiction to entertain an appeal which is not provided under the statute. In other words, right or wrong, if an assessment order has been passed, the remedy to rectify s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dingly, we hold that assessee is at liberty to file an appeal before the Ld. CIT (Appeals) and contest this appeal in accordance with law. Consequently, appeal of the assessee is dismissed in-limine being non maintainable." iv) The aforesaid decision of the Co-ordinate Bench is squarely applicable to the facts of the present case. Therefore, we hold that the present appeal filed by the assessee being not against an appealable order as provided under section 253 of the Act, is not maintainable. We must observe, the assessee may be having a strong case in its favour on the issue of not forwarding the draft assessment order before passing the final assessment order. However, that issue relating to the validity of the impugned assessment order has to be decided by the appropriate authority as provided under the statute. In view of the aforesaid, since the appeal of the assessee is not maintainable, we do not find any justifiable reason to entertain the grounds raised by the assessee including the additional grounds. Therefore, the present appeal filed by the assessee deserves to be dismissed in limine without going into the merits of the various issues raised by the assessee. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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