TaxTMI 
TaxTMI 
2023 (9) TMI 1333
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....vy interest u/s 234B of the Income Tax Act, 1961 when the decision of the Delhi High Court in GE Packaged Power Inc. has not attained finality as the Department has filed review application in the Hon'ble Supreme Court." The assessee in its cross objection raised the following grounds: - Ground No.1 "On the facts and circumstances of the case the Ld.CIT(A) erred in confirming the action of the Assessing Officer in issuing the final assessment order which is in clear contravention of Section 144C of the Income Tax Act, 1961 and the judgment of Hon'ble Supreme Court of India in the case of Zuari Cement Limited Vs. ACIT. The final assessment order is bad in law to the extent that the Ld. Assessing Officer in terms of Section 144C of the Income Tax Act, 1961 should have issued a draft assessment order instead. Ground No. 2 On the facts and circumstances of the case the Ld.CIT(A)/Assessing Officer erred in disallowing standby charges totaling to Rs. 54,600,000/- on the ground of business exigency and business prudence not proved by the appellant." 2. In the cross objection filed by the assessee, the assessee challenged the validity of the final ....
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.... any such draft assessment order passed by the Assessing Officer and instead of that passing the final assessment order straight-away is not correct. The Id. AR, therefore, submitted that any consequent order passed by the Id. Assessing Officer is bad in law. The Id. AR relied on the decision of the Hon'ble Delhi High Court in the case of Nokia India Pvt. Ltd. Vs, AC1T in WPC No. 3629 (Del) of 2017 of Hon'ble Delhi High Court which has been affirmed by Hon'ble Supreme Court in ACIT Vs. Nokia India Pvt. Ltd. (2018) 259 taxmann.com 91 (SC). In view of this the Id. AR submitted that the order passed on 31.03.2015 is final order along with the direction to issue demand and challan initiating penalty proceedings is intuition of any merit and is liable to be quashed. 8. The Id. DR stated that this issue has been considered by the Id. CIT (Appeals) in para 5.3 of his order. He further relied on para 5.5 stating that assessee has already availed an opportunity of filing objections against the order before the D.RP. He further relied on the finding of the Id. CIT (Appeals) wherein he has held that in the present case the order is passed under Section 143(3) read with Section 144C( ....
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....ssessee filed an appeal before the ITAT, where, the additions on account transfer pricing and deduction under section 10A of the Act were set aside and the Assessing Officer was directed to frame the assessment afresh. The matter was restored to the Assessing Officer vide para 4.2.1 of ITAT order dated 17th July, 2012, which reads as under: "4.2.1 As a view has already been taken by the Tribunal in the aforesaid case and in the case of Ameriprise India Pvt. Ltd. in ITA No, 5694/De 1/201.1 for assessment year 2007-08 dt26-3-2012, we are bound the follow the view. Therefore, it is held that it was incumbent on the AO to supply the information to the assessee, obtain its objections, if any, and pass order after taking into account the information and the objections of the assessee. This has not been done in respect of 20 comparables." Therefore, the matter of transfer pricing adjustment is restored to the file of the AO for following proper procedure as mentioned above and decide the matter de novo. "Pursuant to the aforesaid remand, the Assessing Officer passed the assessment order dated 31st March, 2014 and the same was challenged by the respondent-assessee before ....
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....ent (hereafter in this section referred to as the draft order) to the eligible assessee if he proposes to make, on or after the 1st day of October, 2009, any variation which is prejudicial to the interest of such assessee. (2) On receipt of the draft order, the eligible assessee shall, within thirty days of the receipt by hint of the draft order,- (a) file his acceptance of the variations to the Assessing Officer; or (b) file his objections, if any, to such variation with,- (i) the Dispute Resolution Panel; and (ii) the Assessing Officer, (3) The Assessing Officer shall complete the assessment on the basis of the draft order, if- (a) the assessee intimates to the Assessing Officer the acceptance of the variation; or (b) no objections are received within the period specified in sub-section (2). (4) The Assessing Officer shall, notwithstanding anything contained in section 153 or section I53B, pass the assessment order under sub-section (3) within one month from the end of the month in which, - (a) the acceptance is received; or (b) the period of filing of objections under sub-section (....
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.... shall be issued after nine months from the end of the month in which the draft order is forwarded to the eligible assessee. (13) Upon receipt of the directions issued under sub-section (5), the Assessing Officer shall, in conformity with the directions, complete, notwithstanding anything to the contrary contained in section 153 or section 153B. the assessment without providing any further opportunity of being heard to the assessee, within one month from the end of the month in which such direction is received. (14) The Board may make rules for the purposes of the efficient functioning of the Dispute Resolution Panel and expeditious disposal of the objections filed under sub-section (2) by the eligible assessee. (14A) The provisions of this section shall not apply to any assessment or reassessment order passed by the Assessing Officer with the prior approval of the Principal Commissioner or Commissioner as provided in sub-section (12) of section 144BA. (15) For the purposes of this section,- (a) "Dispute Resolution Panel" means a collegiums comprising of three Principal Commissioners or Commissioners of Income-tax constituted by the Boar....
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....er in a series of acts contemplated by the said Section while dealing with the case of an eligible assessee. This Court is further of the view that if the Assessing Officer under section 144C can prepare a draft assessment order only, then by virtue of a remand order which directs the Assessing Officer to decide the matter de novo, the Assessing Officer cannot get the power to pass an assessment order, when there is an objection by the Assessee like in the present case, without reference of the Dispute Resolution Panel which comprises of three Principal Commissioners or Commissioners of Income-tax constituted by the Board. 20. Now to accept the appellant's argument would be to permit the Assessing Officer to decide the objections filed by the Assessee - which power has been specifically denied by the statute. IT IS SETTLED LAW THAT WHEN A POWER IS GIVEN TO DO CERTAIN THING IN A CERTAIN WAY, THE THING MUST BE DONE IN THAT WAY OR NOT AT ALL AND OTHER METHODS OF PERFORMANCE ARE FORBIDDEN 21. It is further settled law that when a power is given to do certain thing in a certain way, the thing must be done in that way or not at all and other methods of perf....
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....o 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 1TR 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 the Andhra Pradesh High Court in Zuari Cement Ltd. v. ACIT (supra) and a number of other decisions, the Madras High Court in Vijay Television (P.) Ltd. v. Dispute Resolution Panel (supra) quashed the final order of the AO and the demand notice. Interestingly, even as regards the corrigendum issued, the Madras High Court held that it was beyond the time permissible for issuance of such corrigendum and, therefore, it could not be sustained in law. 14. Recently, this Court in ESPN Star Sports Mauritius S.N.C. ET Compagnie v. Union of India (20161 388 1TR 383 (Delhi), following the decision of the Andhra Pradesh High Court in Zua....