TMI Blog2020 (2) TMI 717X X X X Extracts X X X X X X X X Extracts X X X X ..... 144C, which he has not. Draft assessment order dated 31.03.2014 cannot be treated as final assessment order simply by way of issuing corrigendum on 05.05.2014 and since no final assessment order has been passed as on 31.03.2014 and only draft assessment order has been passed, therefore, the said draft order has no consequence and is null and void. Accordingly, on this ground, appeal of the assessee is allowed - I.T.A. No.6830/DEL/2015 - - - Dated:- 13-2-2020 - Shri Amit Shukla, Judicial Member And Shri Prashant Maharishi, Accountant Member For the Appellant : Shri Piyush Kaushik, Adv. For the Respondent : Ms. Nidhi Sharma, Sr.D.R. ORDER PER AMIT SHUKLA, J.M.: The aforesaid appeal has been filed by the Assessee against the impugned order dated 15.09.2015, passed by Commissioner of Income Tax (Appeals)-XLIV, New Delhi for the quantum of assessment passed u/s.143(3) r.w.s. 144C for the Assessment Year 2011-12. In the grounds of appeal, the assessee has raised following grounds:- 1. On the facts and circumstances of the case, the learned CIT(A) erred in upholding time barred assessment as valid assessment. 2. On the facts and circumstances of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - Assessment Year 2011-12-Reg. I am forwarding herewith a copy of draft assessment order passed u/s 143(3) r.w.s. 144C dated 31.03.14 as per provisions of section 144C of the I.T. Act 1961. If the Transfer pricing adjustment determined is not acceptable, you may file objection before the Dispute Resolution Panel and file a copy of the same to this office within 30 days of receipt of this draft order. If you are accepting the variations acceptance may be filed before the undersigned within 30 days of receipt of this draft order, failing which this draft order shall be given the final effect. End: as above Sd/- Arun Kumar Income Tax Officer Ward 13(3), New Delhi. 3. Thus, he submitted that the aforesaid letter clearly confirms that Assessing Officer has consciously passed draft assessment order dated 31.03.2014 and it was not a final assessment order. Apart from that, the draft assessment order was not accompanied by any notice of demand. Later on, on 05.05.2014 after the expiry of time barring date of 31.03.2014 for framing the assessment, Assessing Officer issued a corrigendum dated 05.05.2014 stating that in the order sent by him, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s.271(l)(c) of the Act are being initiated separately since I am satisfied that assessee has concealed taxable income and have not disclosed true particulars of the income. Give credit for prepaid taxes if any after due verification. Issue necessary forms. A perusal of the above workings reveals that total income is already assessed the order is already signed by the assessing officer. Even notice of demand u/s. 156 and penalty notice u/s 274 is signed on 31.03.2014 which were of course sent to the appellant alongwith corrigendum dated 05.05.2014. 4.3 Ld. AR s allegation that demand notice and penalty notice u/s 274 were signed back dated has been examined in depth. The copy of impugned order dated 31.03.2015 which has been perused. The first page contains DCR No. 01/91/2013-14. Therefore, this order is entered in Demand Collection register of the assessing officer. Without raising demand, an entry cannot be made in demand collection register of the assessing officer. Therefore, allegation of Ld. AR that demand notice was issued back dated is unproved. If the copy of order dated 31.03.2014 in possession of the assessee contains DCR No, it proves that the demand was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... draft assessment order, when the corrigendum itself has been issued beyond the period of limitation. In support, he relied upon the following judgments:- i. Decision of Delhi ITAT in the case of Oracle India Pvt. Ltd. Vs. ACIT in cross appeals dated 13/04/18; ii. Decision of Madras High Court in the case of Vijay Television P. Ltd. Vs Dispute Resolution Panel Ors. (2014) 369 ITR 113 (Mad.); iii. Decision of Delhi High Court in the case of Turner International India Pvt. Ltd. Vs. DCIT (2017) 398 ITR 177 (Del.); iv. Decision of Bombay High Court in the case of Principal Commissioner of Income Tax Vs. Lionbridge Technologies Pvt. Ltd. 2018-TII-268-HC-MUM-TP. 7. By way of alternative argument, he submitted that there is another illegality in the approach of the Assessing Officer, as in terms of provisions of section 92CA where the AO considers necessary or expedient to determine the ALP of international transactions then a reference is to be made to the TPO. The provisions of Income tax Act nowhere authorizes an AO to step in the shoes of TPO and assume the functions of TPO. The AO accordingly on the facts of present case has committed an illegality at the thre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with the said draft assessment order, the Assessing Officer has written a forwarded letter which has been incorporated above, which clearly shows that he was forwarding the draft assessment order and that it has been passed u/s.143(3) r.w.s. 144C. He has categorically said that if Transfer Pricing Adjustment is not acceptable, then assessee may file objection before the DRP within 30 days after the receipt of the order. Thereafter, the ld. Assessing Officer has passed corrigendum on 05.05.2014 which reads as under: This is in continuation to my earlier letter dated 31.03.2014 and accompanied assessment order dated 31.03.2014. It is to be brought in your knowledge that while passing the assessment order, it was erroneously mentioned that the order passed is a draft order u/s. 144C read with section 143(3) of the Income Tax Act. It is to be stated that the order was passed u/s. 143(3) and the same may be treated as final order passed u/s.143(3) of the Act. It is pertinent to mention that income was determined as per provisions of the Act and accordingly assessed at ₹ 1,07,92,130/- and demand notice was prepared vide DCR entry no.91/01 dated 31.03.2014, which is also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e., to pass a draft assessment order and if such a draft assessment order has not been passed and instead final assessment order has been passed, then such a final assessment order is null and void; Secondly, merely by issuing a corrigendum, final assessment order passed cannot be converted into a draft assessment order especially when such corrigendum has been passed beyond the period of limitation; and Lastly, if the draft assessment order has not been passed in accordance with the procedure laid down in Section 144C (1) and instead final assessment order has been passed though within the limitation time, then such an order cannot be cured after the limitation has expired by any subsequent rectification proceedings or corrigendum and in such a situation all the subsequent proceedings and final assessment order will get invalidated. It is a trite proposition that errors which can be rectified either u/s.154 or some error in the printing work for which a corrigendum has been issued, cannot be resorted for curing the defect of jurisdictional nature and if there is an error of jurisdiction or limitation, then same cannot be validated by such an order. Rectification ..... X X X X Extracts X X X X X X X X Extracts X X X X
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