9911796707
TMI Blog2023 (7) TMI 1488X X X X Extracts X X X X X X X X Extracts X X X X ..... )-2, Delhi had issued an order dated 23.05.2018 authorising filing of appeal in respect of two separate orders, both, dated 23.03.2018, passed in Appeal Nos. 85 & 101/2016-17. Whereas, the present appeal has been filed by the Assessing Officer without mentioning the specific order of learned Commissioner (Appeals), against which, the appeal is preferred, though, both the orders of learned first appellate authority have been attached to the memorandum of appeal. 3. When the Bench called upon learned Departmental Representative to clarify which order of learned first appellate authority is under challenge, he furnished a report of the Assessing Officer stating that the present appeal has been preferred against order dated 23.03.2018 pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.2016 was passed due to an inadvertent mistake/oversight and should be treated as null and void. He further stated that since the assessee is an eligible assessee as per section 144C of the Act and a variation to the income returned by the assessee is proposed, which is prejudicial to the assessee, a draft assessment order in terms of section 144C(1) of the Act was required to be passed. Accordingly, on 09.11.2016, he passed a draft assessment order, purportedly, under section 143(3) read with section 144C(1) of the Act. Since, the assessee did not raise any objections against the draft assessment order within the statutory period of limitation, the Assessing Officer passed the final assessment order on 19.01.2017 under section 143(3) read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntal Representative) submitted that the original assessment order dated 31.10.2016 passed under section 143(3) read with section 144C(3) of the Act was subsequently cancelled/withdrawn by the Assessing Officer, as it was passed due to an inadvertent mistake. He submitted, since, the assessee is an eligible assessee under section 144C(15) of the Act, the Assessing Officer was required to pass a draft assessment order under section 144C(1) of the Act, which he has ultimately passed. Thus, he submitted, the error committed by the Assessing Officer in not passing the draft assessment order originally, at first instance, under section 144C(1) of the Act is a curable defect and would be covered under section 292B of the Act. 9. Per contra, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016. Thereafter, realizing the fact that the assessee, being an eligible assessee in terms of section 144C(15) of the Act, and no variation in the income returned could be made, which is prejudicial to the interests of the assessee, without proposing a draft assessment order at the first instance in terms of section 144C(1) of the Act, the Assessing Officer issued a communication dated 09.11.2016 to the assessee indicating therein that the assessment order dated 31.10.2016 passed earlier was wrongly passed, hence, should be treated as null and void. On the very same date, the Assessing Officer passed a draft assessment order, purportedly, under section 143(3) read with section 144C(1) of the Act and subsequently, passed the final assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y authority under section 263 of the Act. The Assessing Officer himself cannot assume the role of either the appellate authority or the revisionary authority to revise / modify / cancel or withdraw the assessment order. The statute does not confer any power on the Assessing Officer to either withdraw or modify or substitute one assessment order passed by him earlier with another assessment order subsequently. If the Assessing Officer is permitted to do so, it will lead to undesirable consequences and will give a free hand to the Assessing Officer to pass an assessment order and subsequently withdraw/modify/cancel it according to his own whims and caprices. This will not only be against the scheme of the Act, but against all legal principles ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
