Appeal Dismissed: Seek Statutory Remedies First

The Tribunal dismissed the appeal as non-maintainable before it, directing the assessee to file an appeal before the Commissioner of Income Tax (Appeals) (CIT(A)). The Tribunal emphasized the importance of pursuing statutory remedies before the appropriate authority as provided under the Act. It also noted that the assessee could seek constitutional remedies before the High Court if necessary.

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Issues Involved:
1. Legality of the final assessment order passed without issuing a draft assessment order.
2. Jurisdiction and maintainability of the appeal before the Tribunal.
3. Appropriate forum for filing the appeal.

Issue-Wise Detailed Analysis:

1. Legality of the Final Assessment Order:
The primary issue raised by the assessee was the legality of the final assessment order dated 7.11.2017, passed by the Assessing Officer (A.O.) under sections 143(3) r.w.s. 254/144C without issuing a draft assessment order. The assessee contended that this was in gross violation of the provisions of the Act and the procedure laid down in section 144C. The Tribunal noted that the A.O. was required to pass a draft assessment order to allow the assessee to file objections before the Dispute Resolution Panel (DRP) within 30 days. The failure to issue a draft assessment order rendered the final assessment order null and void as per the judgments of the Hon’ble Delhi High Court in Turner International India (P.) Ltd. v. Dy. CIT [2017] 398 ITR 177 and JCB India Ltd. v. Dy. CIT [2017] 398 ITR 189. These judgments established that the requirement to pass a draft assessment order is mandatory and failure to do so results in an incurable illegality.

2. Jurisdiction and Maintainability of the Appeal:
The Tribunal examined whether it had jurisdiction to entertain the appeal against the final assessment order passed by the A.O. The Tribunal observed that the appeal was not filed against an order passed in pursuance of directions given by the DRP under section 144C(13). Section 253(1)(d) allows appeals to the Tribunal against orders passed in pursuance of DRP directions. Since the present assessment order was passed following a remand by the Tribunal and not through the DRP route, the Tribunal held that the appropriate remedy for the assessee was to file an appeal before the Commissioner of Income Tax (Appeals) [CIT(A)]. The Tribunal emphasized that the statutory remedy of appeal must be pursued before the appropriate authority as provided under the Act.

3. Appropriate Forum for Filing the Appeal:
The Tribunal concluded that the appeal should have been filed before the CIT(A) and not directly before the Tribunal. The Tribunal clarified that even if the final assessment order was passed in contravention of statutory provisions, the remedy lies in filing an appeal before the CIT(A). The Tribunal directed the assessee to seek the statutory remedy of filing a first appeal before the CIT(A). The Tribunal also noted that the assessee could seek constitutional remedy before the Hon’ble High Court under extraordinary jurisdiction if deemed appropriate.

Conclusion:
The Tribunal dismissed the appeal in limine, holding it as non-maintainable before the Tribunal. The Tribunal directed the assessee to file an appeal before the CIT(A) and stated that the CIT(A) should entertain and decide the matter in accordance with the law. The Tribunal also mentioned that the assessee could approach the Hon’ble High Court for constitutional remedy if necessary. Consequently, the appeal of the assessee was dismissed.

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