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2015 (1) TMI 865 - AT - Income TaxRevision u/s 263 - AO made addition towards TPO adjustment u/s 92CA - Order u/s 143(3) has not been passed in accordance with the provisions of Sec. 144C, thus the order was erroneous and prejudicial to the interest of the revenue as held by CIT(A) - Held that - Non-compliance of the provisions of Sec. 144C i.e non complying with the natural justice of providing the opportunity to the assessee itself proves that there is error in the order passed by assessing officer and completing the assessment without complying with the provision tantamounts to order being erroneous and prejudicial to the interest of the Revenue. The Hon'ble Supreme Court in the case of Malabar Industrial Co. Ltd. (2000 (2) TMI 10 - SUPREME Court) while holding so has relied on the decision of the Hon'ble Supreme Court in the case of Rampyari Devi Saraogi vs. CIT, (1967 (5) TMI 10 - SUPREME Court). The order passed u/s 263 therefore has to be upheld as, in our opinion, it has passed through the test of fulfilment of both conditions by the CIT that the order passed by the AO is erroneous as well as prejudicial to the interest of the Revenue. We, therefore, dismiss the appeal filed by the Assessee by upholding the order passed u/s 263. - Decided against assessee.
Issues Involved:
1. Validity of the order passed by the Commissioner of Income-Tax (CIT) under section 263 of the Income Tax Act, 1961. 2. Exercise of revisionary powers under section 263 by the CIT. 3. Compliance with the provisions of section 144C of the Income Tax Act. 4. Dismissal of the appeal by the CIT(A) as infructuous. Issue-wise Detailed Analysis: 1. Validity of the Order Passed by the CIT under Section 263: The appellant challenged the legality of the CIT's order dated March 20, 2012, under section 263 of the Income Tax Act. The CIT noted that the Assessing Officer (AO) did not provide a draft assessment order to the assessee as required under section 144C, which was inserted by the Finance Act, 2009, effective from April 1, 2009. The CIT invoked jurisdiction under section 263, considering the AO's order erroneous and prejudicial to the interest of the revenue. The CIT set aside the assessment order and directed the AO to pass a speaking draft assessment order and provide a copy to the assessee. 2. Exercise of Revisionary Powers under Section 263 by the CIT: The appellant argued that the CIT erred in exercising revisionary powers under section 263 as the assessment order was passed after detailed examination and proper application of mind by the AO. The appellant relied on the Supreme Court's decision in Malabar Industrial Co. Ltd. vs. CIT, which states that both conditions of the order being erroneous and prejudicial to the interest of the revenue must be satisfied for section 263 to be invoked. The appellant contended that the order was not prejudicial to the revenue and that the CIT exceeded his jurisdiction. 3. Compliance with the Provisions of Section 144C of the Income Tax Act: The CIT observed that the AO did not comply with the mandatory provisions of section 144C, which requires providing a draft assessment order to the assessee before passing the final order. This non-compliance was considered a violation of the principles of natural justice, rendering the AO's order erroneous and prejudicial to the revenue. The appellant argued that the non-compliance with section 144C made the AO's order void ab initio and that the CIT could not exercise jurisdiction under section 263 against an invalid order. The Tribunal, however, held that the assessment order was in existence and the CIT's invocation of section 263 was valid as the AO's non-compliance with section 144C made the order erroneous and prejudicial to the revenue. 4. Dismissal of the Appeal by the CIT(A) as Infructuous: The appellant's appeal against the assessment order was dismissed by the CIT(A) as infructuous because the assessment under appeal had been set aside by the CIT under section 263. The Tribunal agreed with the CIT(A) that since the assessment was set aside and the AO was directed to re-frame it afresh, the appeal on merits became infructuous. The Tribunal confirmed the order of the CIT(A) and dismissed the appeal filed by the assessee. Conclusion: The Tribunal upheld the CIT's order under section 263, confirming that the AO's non-compliance with section 144C rendered the assessment order erroneous and prejudicial to the revenue. The Tribunal also agreed with the CIT(A) that the appeal on merits was infructuous due to the setting aside of the assessment order by the CIT. Both appeals filed by the assessee were dismissed.
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