TaxTMI 
TaxTMI 
2021 (2) TMI 30
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....143(3) of the Act in the facts and circumstances of the case. 5. The brief facts of the case as emanating from records are: The assessee is a company and filed return of income declaring total income of Rs. 196,19,84,080/-. Again the assessee filed revised return of income on 29-12-2011. For the second time again filed revised return of income declaring the total income at Rs. 158,36,43,921/- on 30-03-2012, against which the AO determined the total income at Rs. 2,00,93,67,780/- inter alia making disallowance as under : 1. On a/c of depreciation on non compete fee Rs. 10,28,322/- 2. Income as per Transfer Pricing order Rs. 43,67,625/- 3. On a/c of Foreign Exchange Loss Rs. 69,33,357/- 4. On a/c of Bad Debts Rs. 11,52,165/- 5. Int. u/s. 36(1)(iii) Rs. 1,13,77,407/- 6. Disallowance u/s. 14A Rs. 6,343/- 7. Rent paid (Int. on Walkeshwar Flat Dep) Rs. 68,40,000/- 8. Interest on Deposit Rs. 37,11,295/- 9. Rent paid (Family member) Rs. 13,95,832/- 6. Challenging the action of AO, the assessee raised 7 grounds of appeal before the CIT(A). The grounds forming part and parcel of Form No. 35 are as under : ....
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.... ACIT in ITA No. 206/PN/2015, order dated 09-12-2016. The CIT(A) examined the assessment record and observed that there was no reference made by the AO to any draft assessment order in the order passed u/s. 144C(1) of the Act and no mention of any draft assessment order forwarded to the assessee in accordance with the provisions of section 144C(1) of the Act. He held that the AO failed to pass on any draft assessment order to the assessee. The CIT(A) discussed the provisions of section 144C of the Act and in para 6.3, he held the AO did not follow the procedure laid down u/s. 144C(1) of the Act and the said violation would go to the very foundation and root of the assessment and the entire assessment proceedings shall be rendered null and void in law. 10. The CIT(A) taken reference to the decision of Hon'ble High Court of Bombay in the case of International Air Transport Association (supra) which held that the forwarding of draft assessment order u/s. 144C(1) is a mandatory requirement stipulated by the Act, the same is not a procedural formalities, then the assessment order becomes invalid and illegal for non-issuance of draft assessment order. 11. Further, he referred to....
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....of Andhra Pradesh in the case of Zuari Cement Ltd. (supra). Brief facts, the assessee therein is a company engaged in the business of manufacture and sale of cement. The AO, having noticed, certain international transactions in audit report, referred the case to TPO u/s. 92CA of the Act for determination of ALP. The TPO passed order under sub-section (3) of section 92CA of the Act recommending upward TP adjustment. The AO forwarded the same to the assessee therein. The AO after examination of information furnished by the assessee therein from time to time passed final assessment order on 23-12-2011 u/s. 143(3) of the Act. The assessee therein raised objections to the said assessment order vide letter dated 20-01-2012 contending the provisions contemplated u/s. 144C was not followed. The AO by taking reference to Circular No. 5/2010 issued by the CBDT held the provisions u/s. 144C are not applicable to the year under consideration but however given an opportunity to the assessee to make his submissions. The Hon'ble High Court discussed the provisions u/s. 144C and the facts in detail and declared the final assessment order dated 23-12-2011 as one without jurisdiction, null and....
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.... from para nos. 13 to 16 of order dated 01-08-2019 in ITA No. 739/PUN/2015 for A.Y. 2009-10 in assessee's own case are reproduced here-in-below for ready reference : "13. The Hon'ble Bombay High Court in Pr.CIT Vs. Lionbridge Technologies (P.) Ltd. (supra) have laid down the proposition that in terms of section 144C(1) of the Act, the Assessing Officer is to first pass a draft assessment order which is subject to challenge, by way of representation to the DRP. It is only after DRP disposes of representation, that Assessing Officer passes a final order in terms of directions of DRP and such final order is appealable to the Tribunal. In the facts before the Hon'ble Bombay High Court a final order was passed without passing any draft assessment order and the same was sought to be corrected by issue of corrigendum on a date after the time to pass draft assessment order had expired. Then, reliance was placed on the decision of Hon'ble Bombay High Court in International Air Transport Association Vs. DCIT (2016) 68 taxmann.com 246 (Bom), wherein it was held that draft assessment order is necessary in terms of section 144C(1) of the Act before the Assessing Officer can proceed to ....