TaxTMI 
TaxTMI 
2023 (3) TMI 503
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....d raising a notice of demand under section 156 of the Act, without passing draft assessment order is bad in law, thereby resulting in violation of procedure prescribed under the Act. Therefore, the impugned order of assessment is, clearly contrary to Section 144C of the Act and is without jurisdiction, null and void and liable to be quashed. 2. On the facts and in the circumstances of !he case and in contrary to law, the assessment order passed by the Ld AO is against the provisions of law and is illegal, which cannot be cured under section 292B of-the Act. 3. On the facts and in the circumstances of the case and in contrary to law, the Ld. CIT(A) ought not to have observed that the Appellant's intention is to create frivolous litigation despite observing that the Ld, AO made an error. Without prejudice to ground no. 1 and 2 taken herein above, the Appellant wishes to take below mentioned grounds 4. On the facts and in the circumstances of the case and in contrary to law, the Ld. CIT(A) erred in not adjudicating on the conceptual grounds from ground no. 5 to 13,....
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....Limited • Excel Infoways Limited • MPS Limited 11. On the facts and in the circumstances of the case and in contrary to law, the TPO erred in rejecting / not considering the following companies without cogent reasons though they are functionally comparable and passes all the filters applied by the Ld. TPO. • Cosmic Global Limited • Informed Technologies India Limited • Suprawin Technologies Limited • Microland Limited 12. On the facts and in the circumstances of the case and in contrary to law, the Ld. TPO erred, in considering outstanding receivable as a separate and distinct international transaction and further erred in making transfer pricing adiuslment in the nature of notional interest on receivables amounting to Rs. 4.96,340. 13. On the facts and in the circumstances of the case and in contrary to law, the Ld. TPO has not justified that the State Bank of India-s ('SBI') term deposit rates will be construed as an appropriate comparable uncontrolled price ('CUP') to b....
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....s. 92CA(3) of the Act dt.31.10.2018 suggested the Transfer Pricing Adjustment of Rs.24,87,35,361. 3.5 On receipt of the TPO order, the Assessing Officer passed the said draft assessment order on 11.12.2018 u/s. 143 r.w.s. 92CA determining the total income at Rs.52,49,96,000 after making Transfer Pricing Adjustment of Rs.24,87,30,361 as suggested by the TPO. The Assessing Officer also issued a demand notice in original calling upon the assessee company to pay a sum of Rs.11,83,97,330. The Assessing Officer initiated the penalty proceedings u/s. 271(1)(c) of the Act. 3.6 Being aggrieved by the above draft assessment order along with demand notice, the assessee filed an appeal before the learned CIT (Appeals) challenging inter alia the validity of assessment order on the ground that the assessee is an eligible assessee, within the meaning of provisions of section 144C(15) of the Act, the assessment order is passed in violation of the provisions of section 144C of the Act, therefore is null and void. The said contention of the assessee was rejected by the learned CIT (Appeals) by holding that the order passed by the Assessing Officer is draft assessment order which ....
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....of the Act. Hence the appeal filed by the assessee is not maintainable, as draft assessment order is not appealable before the learned CIT (Appeals) and the learned CIT (Appeals) had rightly dismissed the appeal of the assessee. Mere technicality in mentioning wrong section and a proposal to initiate penalty proceedings would not make the order as final assessment order. 6. We have heard the rival submissions and perused the material on record. The issue in the present appeal relates to, as to what is true nature of the assessment order, dt.28.12.2018 and its validity. The undisputed facts of the case are as under : 6.1 The Assessing Officer on receipt of the order from the TPO u/s. 92CA(4) of the Act suggesting Transfer Pricing Adjustment of Rs.24,87,30,361 passed an order stated or draft assessment u/s. 143(3) r.w.s. 92CA(4) of the Act on 11.12.2018, also issued the notice of demand in Form No.7 in original demanding the assessee company to pay a demand of Rs.11,83,97,330. The Assessing Officer also initiated the proceedings under the provisions of section 271AA of the Act and 271BA of the Act. In the bottom of the assessment order, it is clearly mentioned tha....
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.... to the provisions of section 144C would result in quashing the assessment proceedings as held by the catena of decisions as mentioned below : i) CIT Vs. Shyam Cold Storage (2013) 215 Taxman 669 (All) ii) CIT Vs. Durga Enterprises (2014) 44 taxmann.com 442 iii) JCB India Ltd. Vs. DCIT 398 ITR 189 (Del) iv) Turner International India (P) Ltd Vs. DCIT 398 ITR 177 (Del). Recently, the Hon'ble Madras High Court after making reference to the above decisions in the case of ACIT Vs. Vijay Television (P) Ltd. 407 ITR 642 (Mad), held as follows : " 46. The Revenue, with a view to squirm around from under wrongful act of passing the assessment order, which is prohibited by law and an unlawful one, had issued a corrigendum, amending the Section under which the order has been passed, forgetting that the content of the order that matters and not the mere quoting of the Section alone. In other words, the window dressing which has been attempted by the Revenue would not give life to an order passed without jurisdiction. It is to be pointed out that the order of assessment, once issued under Section 143 (3), ....