TaxTMI 
TaxTMI 
2013 (2) TMI 948
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....the respondent for the assessment year 2008-09 passed under sub-section (3) of S. 143 of the Income Tax Act, 1961 (for short 'the Act') and the consequent demand notice dt. 23.12.2011 issued by him under S. 156 of the Act on the ground that it is invalid, null and void, without jurisdiction and passed in violation of principles of natural justice. The petitioner is a Company registered under the provisions of the Companies Act, 1956 engaged in the business of manufacture and sale of cement. It filed its return for the assessment year 2008-09 declaring a total income of Rs. 249,05,26,980/- on 27.09.2008. In the audit report filed by the petitioner along with its return of income, as certain international transactions were reported,....
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....on filed the present writ petition contending, inter alia, that the respondent ought not to have passed the final assessment order u/s. 143(3) of the Act without passing a draft assessment order as required under sub-section (1.) of S. 144C of the Act in view of the Transfer Pricing Adjustment of Rs. 52.14 crores as per recommendation of the TPO u/s. 92CA(3) of the Act; instead of passing a draft order, forwarding it to the petitioner, hearing the objections to the petitioner to the draft order and then passing a final order of assessment, the respondent straight away passed the final order of assessment; that the respondent had effected variation in the income returned by the assessee as a consequence to the order of the TPO dt.20.09.2011 ....
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....f date 01.10.2009 is specified; even the memorandum explaining the Finance Bill and Notes on clauses accompanying the said bill clarified clearly that the amendments relating to S. 144C will take effect from 01.10.2009; therefore the circular No.5/2010 insofar as it provides that S. 144C of the Act would apply only to the assessment year 2010-11 and for subsequent years is contrary to the provisions of the Finance (No.2) Act, 2009 and is invalid. It is also contended that the Dispute Resolution Panel was constituted u/s. 144C by the Central Government vide notification No.84/2009 (F.No.142/22/2009-TPL)/SO2958(E) dt.20.11.2009 and it started functioning immediately; that it was hearing objections even in respect of assessment years prior to....
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.... Resolution Panel as provided under S. 144C of the Act. We have noted the contentions of the respective parties. S. 144C of the Act was introduced by the Finance (No.2) Act, 2009 and sub-sections (1) to (8) thereof states: 144C. Reference to Dispute Resolution Pane.- (1) The Assessing Officer shall, notwithstanding anything to the contrary contained in this Act, in the first instance, forwarded a draft of the proposed order of assessment (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 in the income or loss returned which is prejudicial to the interest of such assessee. (2) On receipt of the draft order, the eligible asse....
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....by, or caused to be collected by, it; and (g) result of any enquiry made by, or caused to be made by, it (7) The Dispute Resolution Panel may, before issuing any directions referred to in sub-section (5), -- (a) make such further enquiry, as it thinks fit; or (b) cause any further enquiry to be made by any income-tax authority and report the result of the same to it. (8) The Dispute Resolution Panel may confirm, reduce or enhance the variations proposed in the draft order so, however, that it shall not set aside any proposed variation or issue any direction under sub-section (5) for further enquiry and passing of the assessment order. A reading of the above section shows that if the Assessing Officer proposes to make, on or after....
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....ar No.5/2010 of the CBDT has clarified that the provisions of S. 144C shall not apply for the assessment year 2008-09 and would apply only from the assessment year 2010-11 and later years is not tenable in as much as the language of sub-section (1) of S. 144C referring to the cut off date of 01.10.2009 indicates an intention of the legislature to make it applicable, if there is a proposal by the Assessing Officer to make a variation in the income or loss returned by the assessee which is prejudicial to the assessee, after 1.10.2009. Therefore, this particular provision introduced by Finance (No.2) Act, 2009 would apply if the above condition is satisfied and other provisions, in which similar contrary intention is not indicated, which were ....