2024 (2) TMI 391 - AT - Income Tax

AO cannot pass final assessment under section 92CA(4) without mandatory draft order under section 144C(1)

M/s Welspun Global Brands Ltd. Versus DCIT-8 (3) (2), Mumbai

ITAT Mumbai held that passing a draft assessment order under section 144C(1) is mandatory before final assessment under section 92CA(4). The AO directly ... Validity of assessment u/s 144C - Whether the passing of the draft assessment order as prescribed under section 144C(1) of the Act is mandatory or not? - HELD THAT:- We have given thoughtful consideration to the peculiar facts and circumstances of the case and observe that jurisdictional High Court in the case of SHL India Pvt. Ltd vs DCIT (2021 (7) TMI 1208 - BOMBAY HIGH COURT] held that provisions of section 144C of the Act clearly mandates that the AO is required to pass and furnish a draft assessment order in the first instance and therefore failure to follow the procedure as prescribed u/s 144C(1) of the Act, would be a jurisdictional error and not merely procedural error or irregularity. Straight way passing a final assessment order u/s 92CA(4) amounts to complete contravention of the provisions of section 144C of the Act is an incurable illegality. Such order would be illegal and without jurisdiction and entail the final assessment order as void ab-initio sans jurisdiction. Even the provisions of section 292B of the Act cannot confer and validate the jurisdiction on the Assessing Officer, which is otherwise non-existing. Hence passing of the draft assessment order as prescribed under section 144C(1) of the Act is mandatory. Question no. 1 is answered accordingly. Estoppel from challenging the assessment order which was passed on the basis of the admission by the Assessee itself - Whether on the waiver/admission/undertaking of the Assessee for not challenging the draft order before the Ld.DRP u/s 144C of the Act, the AO is competent to pass the assessment order under section 92CA(4) of the Act without passing a draft assessment order as prescribed u/s 144C? - HELD THAT:- It clear that there cannot be any estoppel on the issue of law pertaining to jurisdiction and order passed without jurisdiction, the same can be raised at any time and the principle of estoppel will not apply. Waiver of any legal right can not entail passing the order otherwise than the mandate of law. Passing of the proposed order of assessment u/s 144(C)(1) of the Act is sine qua non before passing of the assessment order and consent of parties cannot confer jurisdiction, which is otherwise not available. Hence we are of the view that the Assessee cannot be estopped from challenging the assessment order, which is otherwise based on the waiver/admission/undertaking of the Assessee. Further may be there is waiver/admission/undertaking of the Assessee for not challenging the draft order before the Ld. DRP u/s 144C of the Act, but still the AO is not empowered to pass the assessment order under section 92CA(4) of the Act directly, without passing a draft assessment order as prescribed u/s 144C(1) of the Act. Hence the questions no. 2 and 3 are answered accordingly. In the instant case, as we have observed above “that the Assessee has categorically admitted before the Assessing Officer that it does not want to challenge the draft assessment order before the Ld. DRP under section 144C of the Act”, and therefore the AO on such waiver/admission/undertaking of the Assessee, passed the final assessment order u/s 143(3) rws 92CA(4) of the Act directly and thus at this stage can not be allowed to make u turn as it is settled law that construction which permits one to take advantage of one’s own wrong or impair one’s own objections under the statue should be disregarded. 'Maxim Nullus commodum capere potest de injuria sua propria” has a clear mandate of law that, a person who by manipulation of a process, frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations. There is no estoppel against the issue of law or jurisdiction of the authorities and waiver/undertaking of party(ies) cannot bestow the jurisdiction which is otherwise do not exist and also can not bypass the procedure established by law. Hence we are of the considered view, that the final assessment order dated 13/03/2015 u/s 143(3) read with section 92CA(4) of the Act passed by the AO, without passing the draft assessment order as prescribed u/s 144C(1) of the Act, is without jurisdiction and void-ab-initio. Hence, the assessment order itself is quashed. Issues Involved:1. Whether the passing of the draft assessment order as prescribed under section 144C(1) of the Act is mandatory.2. Whether the Assessee can be estopped from challenging the assessment order based on their own admission.3. Whether the AO is competent to pass the assessment order under section 92CA(4) without passing a draft assessment order as prescribed under section 144C(1).Summary:Issue 1: Mandatory Nature of Draft Assessment OrderThe Tribunal examined whether the passing of the draft assessment order as prescribed under section 144C(1) of the Income-tax Act, 1961 is mandatory. The Tribunal referred to the jurisdictional High Court case of SHL India Pvt. Ltd vs DCIT (2021), which held that the Assessing Officer must pass and furnish a draft assessment order initially. Failure to follow this procedure constitutes a jurisdictional error, rendering the final assessment order illegal and void ab initio. The Tribunal concluded that passing the draft assessment order is mandatory.Issue 2: Estoppel from Challenging Assessment OrderThe Tribunal considered if the Assessee could be estopped from challenging the assessment order based on their own admission. The Tribunal referred to the case of Principal Commissioner of Income-tax Vs Lion Bridge Technology Pvt. Ltd (2018), which clarified that there can be no estoppel on issues of law related to jurisdiction. The principle of estoppel does not apply, and mere consent of parties does not bestow jurisdiction. Thus, the Assessee cannot be estopped from challenging the order.Issue 3: Competence of AO to Pass Final Assessment OrderThe Tribunal addressed whether the AO could pass the final assessment order under section 92CA(4) without issuing a draft assessment order as required under section 144C(1). The Tribunal cited the case of Linc Pen & Plastics Ltd vs DCIT (2023), which held that passing the proposed order of assessment is a sine qua non before passing the final assessment order. The Tribunal concluded that the AO is not empowered to pass the final assessment order directly without issuing a draft assessment order.Conclusion:The Tribunal quashed the final assessment order dated 13/03/2015 passed by the AO under section 143(3) read with section 92CA(4) of the Act, as it was without jurisdiction and void ab initio due to the failure to pass a draft assessment order as prescribed under section 144C(1). Consequently, the appeal of the Assessee was allowed, and the appeal filed by the Revenue was dismissed as infructuous.