TMI Blog2023 (9) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 144C(1) of the Act would result in rendering the final assessment as one without jurisdiction. Decided in favour of assessee. - K.R. SHRIRAM DR. N. K. GOKHALE, JJ. For the Petitioner : Mr. Vishal Kalra a/w Ms. Rajnandini Shukla i/b Mr. Harsh Rajesh Shah. For the Respondent : Mr. Suresh Kumar. ORAL JUDGMENT: (PER K.R.SHRIRAM, J.) 1. Writ Petition No. 1784 of 2022 and Writ Petition No. 1791 of 2022 pertain to Assessment Years 2010-11 and 2009-10, respectively. The facts are identical and therefore, we decided to dispose both the matters together by this common order. With the consent of the Parties, the Petitions are taken up for hearing at this stage itself. Rule. Rule made returnable forthwith. 2. Petitioner filed its return of income for the respective years and the return of income was processed under Section 143(1) of the Income-tax Act, 1961 ( Act ). Subsequently, the case was selected for scrutiny and statutory notices were issued in both. As there were international transactions, a reference was made by the Assessing Officer ( AO ) to the Transfer Pricing Officer ( TPO ) under Subsection (2) of Section 92CA of the Act. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax 6(1)(1), Mumbai Anr. Writ Petition No.451 of 2022 (Bombay) dated 18.4.2022 (Unreported) 5. We are in agreement with Mr. Kalra. 6. Section 144C of the Act reads as under: 144C. Reference to dispute resolution panel. ( 1) The Assessing Officer shall, notwithstanding anything to the contrary contained in this Act, in the first instance, forward a draft of the proposed order of assessment (hereafter in this section referred to as the draft order) to the eligible assessee if he proposes to make, on or after the 1st day of October, 2009, any variation in the income or loss returned which is prejudicial to the interest of such assessee. (2) On receipt of the draft order, the eligible assessee shall, within thirty days of the receipt by him of the draft order, (a) file his acceptance of the variations to the Assessing Officer; or (b) file his objections, if any, to such variation with, (i) the Dispute Resolution Panel; and (ii) the Assessing Officer. (3) The Assessing Officer shall complete the assessment on the basis of the draft order, if (a) the assessee intimates to the Assessing Officer the acceptance of the variation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be binding on the Assessing Officer. (11) No direction under sub-section (5) shall be issued unless an opportunity of being heard is given to the assessee and the Assessing Officer on such directions which are prejudicial to the interest of the assessee or the interest of the revenue, respectively. (12) No direction under sub-section (5) shall be issued after nine months from the end of the month in which the draft order is forwarded to the eligible assessee. (13) Upon receipt of the directions issued under sub-section (5), the Assessing Officer shall, in conformity with the directions, complete, notwithstanding anything to the contrary contained in section 153 or section 153B, the assessment without providing any further opportunity of being heard to the assessee, within one month from the end of the month in which such direction is received. (14) The Board may make rules for the purposes of the efficient functioning of the Dispute Resolution Panel and expeditious disposal of the objections filed under sub-section (2) by the eligible assessee. (14A)The provisions of this section shall not apply to any assessment or reassessment order passed by the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed a Cross-Objection No. 62/2015. xxxxxxxxxxxx 14. Mr. Pardiwala contended that a draft assessment order ought to have been issued and upon failure of the Officer to do so the Assessee has lost a valuable right. Mr. Pardiwala submitted that, when the Dispute Resolution Panel sent the proceedings back to the Transfer Pricing Officer, categorical observations were made that the order was passed in violation of the principles of natural justice and exercise had to be taken afresh. He submitted that therefore the earlier draft assessment order did not exist and a fresh draft order had to be issued and the failure has vitiated the further proceedings and, therefore, there is no error in the order passed by the Tribunal and there is no question of law arises. Mr. Pardiwala relied upon the decisions in the case of the Dy.CIT v. Control Risks India (P.) Ltd. [SPL(Civil) No.7090 of 2018]; Control Risks India (P.) Ltd. v. Dy. CIT [WP(C) 5722 of 2017 CM No.23860 of 2017 (Stay), dated 27-7-2017]; International Air Transport Association v. Dy. CIT [2016] 68 taxmann.com 246/241 Taxman 249 (Bom); JCB India Ltd. v. Dy. CIT [2017] 85 taxmann.com 155/251 Taxman 143/398 ITR 189 (De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee to file his objections before the Disputes Resolution Panel and the Assessing Officer for vindicating his grievances and redress the same. It is needless to state that the provisions of the Act must be complied with by the executives in its letter and spirit. When the procedure of passing the draft assessment order is contemplated under the Act, the same is to be scrupulously followed by the authorities competent. (emphasis supplied) 10. Mr. Suresh Kumar relying on a judgment of the learned Single Judge of the Hon'ble Madras High Court in M/s Volex Interconnect (India) Private Limited v. The Office of the Assistant Commissioner of Income Tax, Chennai WP No. 25583 and 25584 of 2017 pronounced on 27.5.201 requested that the Court may remand the matter for fresh consideration to the AO. We are not inclined to grant such a request because; (a) in Ms. Volex Interconnect (Supra), it was passed on the facts and circumstances of the case and; (b) failure to pass draft assessment order Section 144C(1) of the Act has rendered the assessment as one without jurisdiction. 11. Accordingly, Rule made absolute in terms of prayer clause (a) which reads ..... X X X X Extracts X X X X X X X X Extracts X X X X
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