2023 (3) TMI 416

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....   These three appeals by the Revenue, challenging the orders passed by ITAT [Income Tax Appellate Tribunal] have been filed with a delay of 65 days to consider following questions of law: "1. Whether on the facts and in the circumstances on the case, quashing the assessment order by concluding that there was no 'Draft Assessment Order' passed under section 144C of the Act whereas there was indeed a draft assessment order passed by assessing authority which was served on to the assessee and further availing the same opportunity was provided through such draft assessment order, the assessee approached the DRP and the directions of the DRP were passed and thereafter the 'final Assessment order' was passed? 2. Whether....

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.... case are, assessee is a company incorporated and registered in Amsterdam and having its branch office in India. It is engaged in providing technical advanced professional engineering and consultancy services. Assessee filed its return for A.Y. [Assessment Year] 2011-12, 2012-13 and 2013-14. Learned Advocates on both sides have adverted to facts in ITA No.427/2022. Therefore, illustratively the facts of the said appeal are recorded in this order. They have submitted that the questions of law are same in all three appeals. 6. For A.Y. 2011-12, Assessee has filed its return declaring income of Rs.17,92,72,000/-. Assessee received a notice of demand dated December 28, 2018 under Section 156 of the Income Tax Act, 1961 for Rs.82,99,46,321/- ....

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....aft assessment order was passed in this case; • ITAT's view that issuance of demand notice and initiation of penalty proceedings are fatal to the proceedings when assessee had accepted the draft assessment order and filed its objection before the DRP is erroneous; • the demand notice was not enforced; and • any mistake or defect shall not invalidate the draft assessment order as per Section 292B of the Act and it is a curable defect. 10. With these submissions, Shri. Aravind prayed for allowing these appeals. 11. Opposing these appeals, Shri. Nageshwar Rao for the assessee, submitted that at the stage of passing the draft assessment order the ACIT had completed the assessment and issued a demand ....

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....see, it shall issue necessary directions to the AO to enable him to complete the assessment after considering the documents/material mentioned in Section 144C (6)(a) to (g) which includes the draft order. Before issuing the directions, the DRP may also make such further enquiry by any Income Tax Authority. 16. Upon receipt of the directions from DRP under Sub- Section 5, the AO shall, in conformity with the directions, complete the assessment within one month from the end of the month in which such direction is received. A notice of demand under Section 156 may be issued after completion of the assessment under Section 144C(13). 17. In Vijay Television Case, it is held as follows: "21. As rightly pointed out by the learned se....