TaxTMI 
TaxTMI 
2023 (1) TMI 93
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....the case and in the initial assessment order being preceded by draft assessment order is not the final assessment order without a prior draft assessment order legal and with jurisdiction? 2. Whether, on the facts and in the circumstances of the case and also in the light of the principle laid down by the Supreme Court in Pooranmmai (96 ITR 394) followed by this Hon'ble Court in 404 ITR 288 is not cancellation of the final assessment order against law and logic? 2A. Whether the Tribunal is right in law in relying on an order of the Supreme Court dismissing the Special Leave Petition as a binding authority and is not such an approach vitiated in the light of the judgment in (2019)(6) SCC 270? 3. Is not the final assessment order legal and with jurisdiction? 3. Let us refer to the dates which have bearing on the legal question canvassed by both the revenue and the assessee. On 29-09-2009, the assessee filed return for the assessment year 2009-2010. The assessment, since has a few implications in considering Arm's Length Price under Section 92CA of the Act, the assessment was referred to the Transfer Pricing Officer. On 29.12.2011, the Assessing Officer served on the ass....
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....he objection of not following Sec.144C of the Act while issuing assessment order dated 2.3.2016. Therefore the assessee, it shall be understood, condoned the omission in not re-doing the assessment strictly in accordance with Section 144C of the Act. The assessee has choice and option to waive this requirement, therefore the case on hand stands singular and the view taken by the Tribunal raises a substantial question of law for decision by this Court. He in support thereof relies on the decisions in K.V.Abdul Azeez v Commissioner of Income Tax [2018] 404 ITR 288 (Ker.), Director of Inspection of Income Tax (Investigation), New Delhi v Pooran Mall and sons [1974] 96 ITR 390 (SC) and Apollo Tyres Ltd., Kochi v Union of India (Judgment dated 20.4.2010 of Delhi High Court in WP(C) No.13338 of 2009). 5. Mr.Joseph Markos contends that the assessment procedure under Section 144C of the Act is attracted and adherance becomes necessary having regard to a few intricacies envisaged by Section 92B; 92CA etc. Section 92B;92CA etc., are attracted to the case in relation to transfer prising shown by the assessee. The Assessing Officer, by issuing draft assessment order (Annexure-A dated 28.3.201....
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....d subject to the directives the Dispute Resolution Panel may issue in this behalf issue revised final assessment order in matters covering Section 92B; 92CA etc. Admittedly the assessment is to be made under Section 144C of the Act. The Assessing Officer does not have jurisdiction to make revised final assessment order without recourse to DRP. The omission in re-doing the procedure under Section 144C is not a curable defect. The omission is completely illegal, without jurisdiction and an incurable defect, and resultantly there is no waiver of the legal objections available to the assessee against the order in Annexure E dated 2.3.2016. He explains by arguing that the remedy under Section 253(1)(d) of appeal before the Tribunal is available only when the assessment order is made in compliance with the directions issued by DRT. The filing of appeal before the Commissioner (CIT) Appeals does not bar the grounds raised before the Tribunal in C.O.No.57/Coch/2018. He relies on the following citations: Nokia India v CIT (2018) 98 Taxmann.com 373 (Delhi), SLP order of Supreme Court dismissing SLP (2018) 295 Taxmann 91 (SC), JCB India Ltd. V Deputy Commissioner of Income Tax (2017) 398 IT....
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....44C of the Act inasmuch as it was nto preceded by a draft assessment order as was mandatory int erms of Section 144C(1) of the Act. The second ground is that the impugned order was passed beyond the period of limitation. The principal ground of challenge should succeed as it is squarely covered in favour of the Assessee and against the Revenue by the decision dated 17th May 2017 passed by this Court in Turner International India (P) Ltd. V Dy.CIT [2017] 82 Taxmann.com 125 (Delhi). There, the Court categorically held that the mandatory requirements under Section 144C(1) of the Act had to be met even where the TPO had passed the order int he second round on remand by the ITAT. This is also the view of the Gujarat High Court in CIT v C-Sam (India) (P) Ltd. [2017] 84 Taxmann.com 261. By a separate order passed in JCB India Ltd. V Dy.CIT [2017] 85 Taxmann.com 155/251 Taxman 143 (Delhi), the Court followed its decision in Turner International India (P) Ltd. (supra) and quashed the final assessment order which was challenged in those cases. Once there is a clear order of setting aside of an assessment order with the requirement of the AO/TPO to undertake a fresh exercise of determ....