TMI Blog2020 (4) TMI 788X X X X Extracts X X X X X X X X Extracts X X X X ..... admitting the fact that it is not approaching to DRP. This Tribunal in the case of Atlas Copco (India) Limited [ 2019 (8) TMI 1415 - ITAT PUNE ] held a detailed discussion in respect of provisions u/s. 144C of the Act, the decisions of Hon ble Supreme Court in the case of Kalyan Kumar Ray [ 1991 (8) TMI 291 - SUPREME COURT ] and Vijay Television (P) Ltd. [ 2014 (6) TMI 540 - MADRAS HIGH COURT ] and held that the final assessment order is null and void for the reason the AO issued notice of demand at stage of draft assessment order which actually ought to have been done at the stage of passing the final assessment order. Therefore, in our opinion, the facts and circumstances in the case of Atlas Copco (India) Limited [ 2019 (8) TM ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds as preliminary issue. 3. The brief facts emanating from the record for the purpose of above said preliminary issue are that the assessee is a non-resident company having incorporated in Netherlands in 1966. The said company established its project office in India during F.Y. 2006-07 and registered as a foreign company under the provisions of Companies Act, 1956. The assessee filed its original return of income on 30-11-2011 and thereafter a revised return of income claiming refund of ₹ 75,77,750/- which is the same identical amount claimed in the original return of income. 4. Under scrutiny assessment proceedings notice u/s. 143(2) of the Act was issued and in response to which the assessee claimed to have explained and furni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed return of income declaring ₹ 1,44,59,01,250/- and AO passed draft assessment order dated 29-12-2011 u/s. 143(3) r.w.s. 144C(1) of the Act determining the total income at ₹ 1,56,72,76,785/- and issued demand notice along with penalty notice both dated 29-12-2011. Thereafter the AO passed final assessment order on 27-02-2012 for which the Tribunal held the final assessment order lacked validity and quashed the same. The Tribunal by placing reliance on the decision of Hon ble Supreme Court in the case of Kalyan Kumar Ray reported in 191 ITR 634 (SC) which held that assessment order involves determination of income and tax as well and the assessment is an integrated process involving not only the assessment of the total income bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 28-04-2014 lacked validity and it is liable to be quashed. 8. Coming to the decision of Hon ble High Court of Madras in the case of Vijay Television (P) Ltd. (supra), the Hon ble High Court was pleased to hold where there was omission on the part of the AO to follow the mandatory procedure prescribed in the Act, such omission cannot be termed as a mere procedural irregularity and it cannot be cured. In the present case, it appears that on the basis of TP study report rendered by the TPO, the AO proposed an addition of ₹ 3,08,71,018/- vide its draft assessment order and issued demand and penalty notices before passing of final assessment order. The contention of the ld. AR, that was without any directions to file accept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing intimation from assessee for acceptance of variation or for no objections and issued demand notice u/s. 156 of the Act. It is also on record the final assessment order passed after the issuance of notice u/s. 156 and 274 r.w.s. 271(1)(c) of the Act. As rightly contended by the ld. AR that without following the procedure as contemplated u/s. 144C of the Act the AO issued demand notice and penalty notice. Thereby, in our opinion, the final assessment order 28-04-2014 passed u/s. 143(3) r.w.s. 144C(3) of the Act lacked validity and it is liable to be quashed. 14. Smt. Usha Gaikwad, the ld. DR submits that it was a routine mistake by the AO. The assessee had participated in the proceedings and the provision u/s. 292BB is applicable. Nowh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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