TaxTMI 
TaxTMI 
2021 (11) TMI 381
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....reciating that the assessing authority has passed order in pursuance to remand order passed by Tribunal and it is order giving effect passed under section 143(3) & 144C read with section 254 of the Act and as such passing of draft assessment order does not arise as per section 144C and 254 of the Act?" (2) "Whether on the facts and in the circumstances of the case, the Tribunal is right in law in quashing the order dated 30.03.2016 passed by assessing authority on the ground that this is in violation of the mandate of section 144C of the Act without appreciating that order passed by the assessing authority in question is not the order in first instance?" (3) "Whether on the facts and in the circumstances of the case, the Tribunal is right in law in dismissing Revenue's appeal by holding that assessment order itself has been quashed and as such order passed under section 263 of the Act does not arise?" 2. The assessee is a company engaged in the business of leasing and finance. The assessee has filed its return of income for the year under consideration declaring the income. The assessment order under Section 143(3) read with Section 144C of the Act was p....
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....ass draft assessment order. Reliance was placed on section 292B and 292BB of the Act in support of his contention that such mistake if any, is curable. Thus, it was argued that the order of the Tribunal is wholly perverse and suffers from infirmity. Accordingly, seeks to answer the Substantial Questions of Law raised, in favour of the Revenue and against the assessee. 4. Learned counsel Sri. Nageswara Rao, appearing through video conferencing for the respondent/assessee justifying the impugned order of the Tribunal, has placed reliance on the judgment of the Hon'ble High Court of Delhi, in the case of DCIT Vs. JCB India Ltd., [(2017) 85 taxmann.com 155 (Delhi)] and argued that the very same arguments now canvassed by the revenue were advanced by the learned Additional Solicitor General of India before the Hon'ble High Court of Delhi. On considering the identical arguments, the Hon'ble High Court of Delhi has negated the contentions of the Revenue and has held that passing of the draft of the proposed order under Section 144C of the Act is mandatory even after the remand from the Tribunal and it cannot be held to be the requirement of Section 144C of the Act only in the first ins....
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.... the mandatory requirements of first passing draft assessment order in terms of Section 144C(1) of the Act is no longer res - integra. There is a long series of decisions to which reference would be made presently. 12. In Zuari Cement Ltd., v. ACIT (decision dated 21st February, 2013 in WP(C) No.5557/2012), the Division Bench (DB) of the Andhra Pradesh High Court categorically held that the failure to pass a draft assessment order under Section 144C(1) of the Act would result in rendering the final assessment order "without jurisdiction, null and void and unenforceable." In that case, the consequent demand notice was also set aside. The decision of the Andhra Pradesh High Court was affirmed by the Supreme Court by the dismissal of the Revenue's SLP(C) [CC No.16694/2013] on 27th September, 2013. 13. In Vijay Television (P.) Ltd. V. Dispute Resolution Panel [2014] 369 ITR 113 (Mad.), a similar question arose. There, the Revenue sought to rectify a mistake by issuing a corrigendum after the final assessment order was passed. Consequently, not only the final assessment order but also the corrigendum issued thereafter was challenged. Following the decision of th....
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....d that even in remand proceedings it was mandatory for the Assessing Officer to have passed draft assessment order under Section 144C of the Act prior to issuing of the final assessment order, issuance of final assessment order sans the draft order is bad in law. In the light of these judgments and perusing the circular instructions, which has been relied upon by the learned counsel for the Revenue that the provisions of Section 144C of the Act would be applicable to any order which proposed to be variation in income or loss returned by the eligible assessee, irrespective of the Assessment Year to which it pertains, it is mandatory that the draft of the proposed order of assessment has to be passed by the Assessing Officer even after remand from the Tribunal. The interpretation of the Revenue inasmuch as the phrase 'at the first instance', is wholly misconceived. The mandatory requirement of passing draft order has to be strictly adhered to, irrespective of the remand order passed by the Tribunal. Having regard to the language employed by the legislature under Section 144C of the Act, it is mandatory to the Assessing Officer to pass draft assessment order before issuing the final o....