TaxTMI 
TaxTMI 
TaxTMI 
2023 (5) TMI 404
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....ond jurisdiction and void ab initio since the ACIT, Circle-1, Moradabad (the jurisdictional Assessing officer) erred in transferring the case of the appellant without serving any notice under section 127 of the Act or providing copy of order, if any, passed under that section for transfer of case of the appellant. Assessment concluded pursuant to draft assessment order passed contrary to mandate of section 144C - impugned order is void ab initio and liable to be quashed. 3. That on the facts and circumstances of the case, the impugned final assessment order passed under section 147 r.w.s. 144C(13) of the Act is illegal , beyond jurisdiction and void ab initio and ex-facie contrary to the mandate of provisions of section 144C read with section 143(3) of the Act and consequently, deserves to be quashed in toto. 4. That on facts and circumstances of the case and in law, the assessing officer erred in passing a draft assessment order under section 144C(1) without appreciating that the appellant does not qualify as an 'eligible assessee' under section 144C(15) of the Act in the absence of any variation being proposed by the TPO and the assessee not being a foreign compa....
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....cer/DRP erred in not appreciating that while computing number of stay days in India "from the date of arrival" "to the date of departure" of an assessee, the first date i.e. , the date of arrival is to be excluded. 9. That on the facts and circumstances of the case, the DRP erred on facts and in law in passing revised directions under Rule 13 of Income Tax (Dispute Resolution Panel) Rules 2009, withdrawing the exemption of salary income arising under employment contract with Singapore Company from taxation in India under Article 15 of Double Taxation Avoidance Agreement ("DTAA') and holding that salary income to be taxable in India on the ground that the appellant was held to be resident in India and thus, global income ought to be taxed in India, without appreciating that the said benefit under the DTAA was available even if appellant was considered to be a resident in India. 10. That on the facts and circumstances of the case, the DRP erred on facts and in law in exercising the power under Rule 13 of Income Tax (Dispute Resolution Panel) Rules, 2009 and passing revised directions for withdrawing the substantive benefit granted under Article 15 of DTAA under the garb of ....
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....ponse, vide revised written statement dated 20.01.2023, reiterated in her arguments by the ld. DR, it has been submitted that vide jurisdiction order No. 2/2020, dated 22.12.2020, passed by the ld. Principal Chief Commissioner of Income Tax (International Taxation), New Delhi, the ADIT / DDIT (International Tax), Lucknow held concurrent charge over all persons / class of persons who are assessed / assessable within the jurisdiction of the Principal CIT/CIT, Bareilly; that since the Assessee had filed return of income claiming status of non-resident , the jurisdictional Assessing Officer had no jurisdiction over the case and the correct jurisdiction vested with the ADIT/DDIT (International Tax), Lucknow; that as such, this was not a normal case where the PAN was transferred from the AO of one PCIT's jurisdiction to the AO of another PCIT's jurisdiction, requiring an order u/s 127 of the Act to be passed; that rather, it was a case of concur rent jurisdiction which Assessing Officers of International taxation charge have over all the cases of their territorial jurisdiction and the PAN is necessarily to be migrated to the AO of International taxation charge, for completion of assessme....
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....r Commissioner may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons for doing so, transfer any case from one or more Assessing Officers subordinate to him (whether with or without concurrent jurisdiction) to any other Assessing Officer or Assessing Officers (whether with or without concurrent jurisdiction) also subordinate to him. (2) Where the Assessing Officer or Assessing Officers from whom the case is to be transferred and the Assessing Officer or Assessing Officers to whom the case is to be transferred are not subordinate to the same Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner,- (a) where the Principal Directors General or Directors General or Principal Chief Commissioners or Chief Commissioners or Principal Commissioners or Commissioners to whom such Assessing Officers are subordinate are in agreement , then the Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner from whose jurisdiction....
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.... unsustainable, since there was no transfer order u/s 127 of the I.T. Act, rendering the assessment order passed by the AO at Delhi void ab initio. 9. In 'Ajantha Industries Vs. CBDT', (supra), it was held that while making an order of transfer u/s 127 of the Act, the requirement of recording reasons is a mandatory direction under the law and non-communication thereof to the Assessee was a serious infirmity in the order, for which, the order was invalid. 10. In 'Vinay Kumar Jaiswal Vs. CIT', (supra), it was held that wherever it is proposed to transfer a case from one Assessing Officer to another, a notice has to be given u/s 127, indicating the reasons for the proposed transfer; that mere filing of objections by the Assessee does not comply with the requirement of section 127, unless the Assessees know the reasons for the proposed transfer, they will not be able to properly meet the basis of the proposed transfer; and that even non-communication of the transfer order is a serious infirmity. 'Ajantha Industries Vs. CBDT', (supra) was followed and relied on. 11. In the present case, as per the jurisdiction order No. 3/2020 dated 22.12.2020, passed by the Pr . CCIT and furnished o....
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....finition of 'eligible essessee' to include any 'non-resident (not being a Company) '. It has been submitted that the amendment is applicable prospectively from assessment year 2020-21 and, therefore, not for the year under consideration, i .e. , assessment year 2016-17. Reliance in this respect has been placed on 'IPF India Property Cyprus. (No.1) Ltd. Vs. DCIT (IT)', 183 ITD 46 (Mumbai), 'Dy. Commissioner of Income Tax (International Taxation) Vs. Pramerica ASPF II Cyprus', 137 taxmann.com 380 (Mumbai), 'Silver Bella Holdings Ltd v ACIT (international Taxation) ', 189 ITD 678 (Delhi) and 'Superbrands Ltd. [U.K.] Vs. ACIT , Circle 1(1)(2)(International Taxation), New Delhi', ITA No. 3315 / Delhi /2009, for assessment year 2005-06 and other appeals, order dated 20.09.2022. 17. It has been contended, apropos ground No.5, that as a sequitur, if the provisions of section 144C of the Act are not applicable, the present assessment is time barred, the extended limitation of nine months, as provided u/s 144C (12) of the Act having not been available; that as such, keeping in consideration the Covid period, the assessment had to be completed by 30.09.2021, whereas the assessment order has ....
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....ent case, vide the assessment order dated 28.6.2022, the Assessee has been held to be a resident in India, as a consequence whereof, salary income earned by the Assessee in Singapore has been taxed in India. 25. Then, in the Assessee's case, no variation prejudicial to his interest, at the hands of the AO, has arisen as a consequence of the order passed by the TPO under section 92CA(2) of the Act , nor is the Assessee a foreign company. Therefore, neither of the conditions prescribed by section 144C (15) (b) stands fulfilled and as such, the Assessee is not an 'eligible assessee' within the meaning of section 144C (15). Hence, as correctly contended, there was no question of the AO passing a draft proposed assessment order under section 144C(1). 26. Further still, the Assessee being an individual , even in case he were to be held to be a non-resident , he would not fall within the definition of 'eligible assessee', as prescribed by section 144C(15). 27. In this regard, in, 'Honda Cars India Ltd. Vs. DCIT' (supra), it has been held that where the Assessee is not a foreign company and the Transfer Pricing Officer has not proposed any variation to the return filed by the Assessee, ....