TaxTMI 
TaxTMI 
2025 (6) TMI 1544
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.... "1. That the assessing officer erred on facts and in law in completing a assessment at an income of Rs. 4,97,59,663 as against the returned income of Rs. 1,36,62,858 as declared by the appellant. 2. That assessment order passed by the assessing officer is liable to quashed due to violation of provision of Section 282 of the Income Tax Act, 1961 ("the Act") and Rule 127 of the Income Tax Rules, 1962 being non-service of the draft assessment order passed under section 144C of the Income Tax Act at the correct email address. 3. That the assessing officer erred on facts and in law by making additions of Rs. 3,60,96,805 without providing sufficient opportunity of being heard to the appellant. 4. That the Dispute Resolution Panel (DRP)erred on facts and in law by affirm the disallowance proposed by the assessing officer in his draft assessment order of the cess paid amounting to Rs. 94,43,856 under section 40(a)(ii) of the Act in the assessment order. 5. That the assessing officer erred on facts and in law by making additions of Rs. 40,60,939 by treating the Other Business & Community development expenditures as a Corporate Social Responsibility (CS....
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....thin the meaning of 'eligible assessee'. In the instant case there is no order of the TPO passed u/s. 92CA(3) of the Act. Since, one of the two conditions as set out in sub section(15) to section 144C of the Act is not satisfied, therefore, provisions of section 144C of the Act are not attracted. 3.3. In respect of ground no. 4 of appeal, the ld. Counsel submitted that the assessee is a foreign company engaged in the business of extraction of crude oil. The assessee entered into the Production Sharing Contract with Government of India on 16.06.1995 which had assent of the Parliament. The assessee carries on the business in accordance with terms and conditions of said Production Sharing Contract (PSC). In the said agreement the Government has laid down certain conditions as well as given some relaxation to the participating parties over and above conditions and relaxation provided under various enactments and laws. As per Article 16.2 of the PSC, the assessee was liable for payment of royalty and Cess at the rate of Rs. 480 per ton and Rs. 900 per ton of crude oil, respectively. The assessee claimed payment of Cess as expenditure the AO disallowed the same u/s. 40(a)(ii)of the Ac....
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....the assessee. 4. Per contra, Shri Vijay B Vasanta representing the department vehemently defended the impugned order and prayed for dismissing appeal of the assessee. The ld. DR vehemently opposing submissions of the assessee with regard to service of draft Assessment Order stated that the assessee was served notices/draft assessment order on the email id that was available in the records of the department. There was no communication from the assessee to say that no notice is to be served on the old email id or furnishing fresh email id for issuance of notices. Hence, the assessee was served notices on the email id as available in the records of the Department. He further contended that in any case the assessee has admitted that notice issued u/s. 143(2) of the Act has been duly served. Upon, service of said notice the assessee has participated in assessment proceedings and has made submissions from time to time. No prejudice is caused to the assessee for not serving notices on the email id mentioned in the return of income. 4.1. The ld. DR in the first instance objected to raising of additional ground of appeal. The ld. DR on merits of additional ground submitted that sectio....
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....es (i) and (ii) clearly indicates that these are the two categories and not the conditions to be satisfied to fall within the meaning of eligible assessee. This can be explained with the help of an example; an Indian company can be an 'eligible assessee', where order of Transfer Pricing Officer u/s. 92CA of the Act is passed to determine Arm's Length Price of a transaction with its foreign AE. In such a case clause (ii) of section 144C(15)(b) of the Act would not get triggered. Our view is fortified by the decision of Hon'ble Delhi High Court in the case of Honda Car India Ltd. vs. DCIT, 67 taxmann.com 29, wherein the Hon'ble Jurisdictional High Court has explicitly made clear that definition of 'eligible assessee' u/s. 144C(15)(b) of the Act does not lay down two conditions but indicate two categories of persons. The relevant observations of the Hon'ble High Court are extracted herein below:- "11. In Section 144C(15)(b) of the Act, the term "eligible assessee" is followed by an expression "means" only and there are two categories referred therein (i) any person in whose case the variation arises as a consequence of an order of the Transfer Pricing Officer and ii) any fore....
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....y: (i) email address available in the Income Tax Return furnished by the addressee ; (ii) email address available in the last Income Tax Return furnished by the assessee; (iii) in the case of addressee being a company, email address of the company as available on the website of Ministry of Corporate Affairs or any email address made available by the addressee to the Income Tax Authority or any person authorized by such Income Tax Authority. 7.2. In the instant case, the contention of the assessee is that the email id on which draft assessment order is communicated is not that of the assessee. It is an undisputed fact that after conclusion of draft assessment order, the assessee filed objection before the DRP within the time prescribed under the provisions of the Act. The assessee participated in draft assessment proceedings and thereafter in DRP proceedings. No prejudice was caused to the assessee, in availing the remedy against the draft assessment order. The Hon'ble Supreme Court of India in the case of CIT vs. Laxman Das Khandelwal, 108 taxmann.com 183 while dealing with an issue relating to service of notice u/s. 143(2) of the Act and the provision....
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....) of the Act, without identifying the exact nature of such 'Cess'. When the assessee filed objections before the DRP, the DRP misread the expression, 'Cess' and wrongly decided the issue considering it to be an 'Education Cess'. Therefore, findings of the AO and the DRP on this issue are cryptic and contrary to the facts on record. A perusal of the P&L account placed on record at page no. 10 to 25 of the paper book reveal that the assessee has claimed 'Cess' under the head 'Other Expenses'. The details of other expenses are given in Note No. 19 forming part of the Financial Statement for the year ended 31st March 2018. A perusal of Note No.19 further shows that similar expenditure was incurred in the Financial Year ended on 31st March, 2017. The ld. Counsel made a statement that in the past assessee's claim of Cess was allowed by the Department. We deem it appropriate to restore this issue back to the AO for the limited purpose to examine whether the payment of Cess was allowed to the assessee in the past. In case the same was allowed to the assessee in preceding assessment years, the rule of consistency demands that the same should be allowed to the assessee in the impugned assess....