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2021 (12) TMI 1420 - AT - Income TaxValidity of draft assessment order passed in violation section 144C - AO treating the draft order as final order by issuing the notice of demand under section 156 the Act and notice initiating penalty proceeding under section 271(1)(c) - HELD THAT - As per section 144C of the Act, it is mandatory for the Ld.AO to pass Draft Assessment Order in accordance with the procedure laid down therein. We have noticed that the coordinate Bench in the case of Suretex Prohphylactics (India) Ltd., 2021 (4) TMI 120 - ITAT BANGALORE considered similar issue. In the present case, the AO passed the draft assessment order u/s. 143(3) r.w.s. 144C(13) of the Act on 21.12.2016 which is accompanied with demand notice issued u/s. 156 of the Act dated 21.12.2016 and it is also noticed that in the draft assessment order itself, the AO recorded the statement as stating that Demand notice issued accordingly. Penalty proceedings u/s. 271(1)(c) are initiated separately for the additions made. Being so, it is observed that the draft assessment order passed by the AO is without following the due process of law as enumerated in the judgment in the case of Vijay Television 2014 (6) TMI 540 - MADRAS HIGH COURT Since the order passed by the AO is without following the due process of law and it cannot survive in the eyes of law, accordingly we quash the impugned assessment order before us. Appeal by the assessee is allowed.
Issues Involved:
1. Corporate tax matters regarding foreign currency expenditure on salaries and wages. 2. Transfer pricing matters including negative working capital adjustment, comparability criteria, operating margins, turnover filter, and arm's length price. 3. Validity of the draft assessment order under section 144C of the Income-tax Act, 1961. Issue-wise Detailed Analysis: 1. Corporate Tax Matters: - Ground 1: The appellant argued that foreign currency expenditure on salaries and wages should be considered as 'reimbursements' and not taxable income. The Tribunal did not provide a detailed ruling on this specific argument due to the quashing of the assessment order. - Ground 2: The appellant contended that the disallowance of INR 14,10,000 for salaries and wages in foreign currency was erroneous. This amount included INR 9,18,000 for employee welfare expenses and INR 4,92,000 for international assignees' salaries. The Tribunal did not address this due to the quashing of the assessment order. 2. Transfer Pricing Matters: - Ground 3: The appellant argued against the negative working capital adjustment, claiming they are a captive service provider without working capital risk. The Tribunal did not address this due to the quashing of the assessment order. - Grounds 4-16: Various arguments were made regarding the acceptance/rejection of comparable companies, computation of operating margins, application of turnover filter, benefit of the 3% range, adjustments for risk profile differences, and rejection of certain filters. The Tribunal did not address these due to the quashing of the assessment order. - Ground 17: The appellant claimed the AO made a reference to the TPO without recording a finding of necessity or expediency, resulting in a jurisdictional error. The Tribunal did not address this due to the quashing of the assessment order. - Ground 18: The appellant argued against the use of information obtained under section 133(6) of the Act. The Tribunal did not address this due to the quashing of the assessment order. 3. Validity of Draft Assessment Order: - Additional Ground 19: The appellant challenged the validity of the draft assessment order, arguing it was treated as a final order by issuing a demand notice and initiating penalty proceedings, contrary to section 144C of the Act. - The Tribunal admitted this ground for adjudication, stating it was a legal issue that did not require further fact-finding. - The Tribunal found that the AO issued a draft assessment order on 21.12.2016, accompanied by a demand notice under section 156 and initiated penalty proceedings under section 271(1)(c), which was contrary to the prescribed procedure. - The Tribunal referenced multiple judgments, including the Madras High Court in Vijay Television Private Limited, which emphasized the mandatory nature of the procedures under section 144C. - The Tribunal concluded that the draft assessment order was issued without following due process, rendering it null and void. Consequently, the subsequent final assessment order and demand notice also lost their validity. - The Tribunal quashed the impugned assessment order and refrained from addressing other grounds of appeal, as the quashing of the assessment order rendered them academic. Conclusion: The Tribunal allowed the appeal, quashing the assessment order due to procedural violations under section 144C of the Income-tax Act, 1961. The Tribunal did not address the substantive issues raised by the appellant on corporate tax and transfer pricing matters, as the procedural invalidity of the assessment order rendered these issues moot.
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