TMI Blog2021 (2) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is estopped from challenging the action of AO for non-issuance of draft assessment order. The Tribunal discussed the same and observed where mere consent of parties does not bestow the jurisdiction if the order is beyond jurisdiction. As relying on assessee's own case [ 2019 (8) TMI 763 - ITAT PUNE] the said order being against provisions of section 144C of the Act. In view of our setting aside the assessment order passed in the case under section 143(3) of the Act, the grounds of appeal raised by assessee on merits and the grounds of appeal raised by Revenue become academic in nature - Decided in favour of assessee. - ITA Nos.2343 And 2336/PUN/2017 - - - Dated:- 28-1-2021 - Shri R.S. Syal, Vice President And Shri S.S. Viswanethra Ravi, Judicial Member For the Assessee : Shri Prashant S. Maheshwari For the Revenue : Shri Navin Gupta ORDER PER S.S. VISWANETHRA RAVI, JM : These two appeals by the Revenue are against the common order dated 19-07-2017 passed by the Commissioner of Income Tax (Appeals)-2, Nashik [ CIT(A) ] for assessment years 2010-11 and 2011-12. 2. We find that the issues raised in both appeals are similar, based same id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. Disallowance of ₹ 37,11,295/- Out of interest. 6. Rejection of claim for deduction of ₹ 33,41,09,821/- u/s. 80IB(IIA). 7. Consideration of C/F Of unabsorbed capital loss ₹ 4,15,15,549/-. 7. The plain reading of above grounds raised by the assessee before the CIT(A) clearly establishes that there was no ground questioning the action of AO for making upward transfer pricing adjustment in respect of international transactions but however the assessee raised additional ground of appeal challenging the validity of assessment order passed u/s. 143(3) of the Act for not following mandatory provisions of section 144C(1) of the Act. 8. The assessee requested the CIT(A) to take up the additional ground stating that it is legal ground, considering the same u/s. 250(5) of the Act, the CIT(A) held that non filing of said ground at the time of filing of appeal is not willful and proceeded to dispose of the additional ground. 9. Para No. 6 of the impugned order reveals that the assessee has claimed that the AO proceeded to pass final assessment order u/s. 143(3) of the Act on receipt of the order u/s. 92CA(3) of the Act without passing draft order as requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble High Court of Bombay in the case of International Air Transport Association (supra) are that the assessee therein is a foreign company and governed by section 144C(1) of the Act, thereof the AO is required to pass a draft assessment order u/s. 144C(1) of the Act before passing a final order u/s. 143(3) of the Act, the AO passed final assessment order u/s. 143(3) of the Act on 23-03-2015 without there being draft assessment order. The assessee filed objection in terms of section 144C(2) of the Act to the Dispute Resolution Panel (DRP). The DRP refused to pass any direction on the objections because the objections had been filed in respect of a final order not under draft assessment order u/s. 144C(1) of the Act. The Hon ble High Court of Bombay was pleased to find support from the unreported decision in the case of Zuari Cement Ltd. Vs. ACIT (Writ Petition No.5557 of 2012) of Hon ble High Court of Andhra Pradesh and consequently the dismissal of SLP by the Hon ble Supreme Court quashed the final assessment order dated 23-03-2015 treating the same was passed without there being jurisdiction. In the present case as emanating from the records that the AO referred the inter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had passed order u/s. 92CA(3) of the Act on 28-01-2013, wherein upward TP adjustment was suggested. The AO passed assessment order u/s. 143(3) r.w.s. 147 of the Act. Against the order of CIT(A), cross appeals were filed by the assessee as well as Revenue before this Tribunal. The assessee raised additional ground before this Tribunal requested to take up as preliminary issue as it is a legal ground. Accordingly, this Tribunal admitted the said additional ground and adjudicated thereupon. We note that the assessee contended that the AO has failed to follow the mandatory provisions of section 144C of the Act, without issuing any draft assessment order, passing of final assessment order suffers from infirmity and to be treated the same as bad in law. This Tribunal discussing the provisions u/s. 144C of the Act and held the final assessment order passed by the AO without issuing draft assessment order is against the provisions of the Act. 15. This Tribunal placed reliance on the decision of Hon ble High Court of Bombay in the case of Pr. CIT Vs. Lionbridge Technologies (P.) Ltd. reported in (2018) 100 taxmann.com 413 (Bom). This Tribunal discussed the same in detail in para No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 jurisdiction. 14. Applying the said proposition to the facts of present case and mainly relying on the proposition that mere consent of parties does not bestow the jurisdiction, where the order is beyond jurisdiction. We hold that even if assessee had accepted addition to be made on account of transfer pricing adjustment, during assessment proceedings, would not bestow the jurisdiction upon the Assessing Officer and final assessment order passed in the case cannot be upheld in law, in the absence of Assessing Officer passing draft assessment order, which is envisaged as per section 144C(1) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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