2019 (4) TMI 2098 - AT - Income Tax

Assessment u/s 144C - eligible assessee - Validity of draft assessment order - as argued assessee not being an eligible assessee as defined u/s 144C(15) AO could not have passed the draft assessment order under section 144C(1) - whether the assessee can be termed as an eligible assessee u/s 144C(15)(b) to empower the Assessing Officer to pass the draft assessment order under section 144C(1)? - whether the assessee can fit into the definition of a foreign company as provide du/s 144C(15)(b)(ii)? - HELD THAT - The definition of firm under section 2(23) of the Act includes a limited liability partnership. Further, in the draft assessment order passed under section 144C of the Act for the assessment year 2016 17, the status of the assessee has been shown as firm. Thus, from these facts, it becomes clear that the assessee is not a foreign company but a limited liability partnership. The aforesaid factual position has not been controverted by the learned Departmental Representative by bringing before us any documentary evidence. As relying on ESS DISTRIBUTION (MAURITIUS) SNC ET COMPAGNIE 2018 (8) TMI 2106 - ITAT DELHI , HONDA CARS INDIA LIMITED 2016 (2) TMI 527 - DELHI HIGH COURT and M/S ESPN STAR SPORTS MAURITIUS S.N.C. ET COMPAGNIE 2016 (4) TMI 45 - DELHI HIGH COURT unless the assessee is an eligible assessee under section 144C(15)(b) of the Act, the Assessing Officer cannot pass a draft assessment order under section 144C of the Act. Keeping in view the principle of law propounded in the aforesaid judicial precedents, we have no hesitation in holding that the draft assessment order passed in case of the assessee for the impugned assessment year is invalid. Therefore, all the proceedings consequent thereupon are also invalid. Consequently, the draft assessment order as well as the final assessment order passed in pursuance thereof is quashed.

Summary

Issues Involved:
1. Validity of the draft assessment order under section 144C(1) of the Income-tax Act, 1961.
2. Status of the assessee as an "eligible assessee" under section 144C(15)(b) of the Act.
3. Limitation period for passing the final assessment order under section 143(3) of the Act.

Issue-wise Detailed Analysis:

1. Validity of the Draft Assessment Order under Section 144C(1):
The primary issue in this case is whether the draft assessment order issued under section 144C(1) of the Income-tax Act, 1961, is valid. The assessee argued that the Assessing Officer (AO) erred in passing the draft assessment order under section 144C(1) because the assessee is not an "eligible assessee" as defined under section 144C(15)(b). The Tribunal admitted the additional ground raised by the assessee, citing that it involves important legal and jurisdictional issues that go to the root of the matter and do not require fresh fact investigation.

2. Status of the Assessee as an "Eligible Assessee" under Section 144C(15)(b):
The assessee is a limited liability partnership (LLP) incorporated in Germany and a subsidiary of a Netherlands-based company. The AO treated the assessee's income from software licenses and training fees as royalty under Article 12 of the India-Germany Tax Treaty, issuing a draft assessment order. The assessee contended that it is not an "eligible assessee" because it is neither a foreign company nor has any variation arisen due to an order by the Transfer Pricing Officer under section 92CA(3). The Tribunal examined the statutory provisions and concluded that the assessee does not fit the definition of a foreign company and no variation was proposed due to an order by the Transfer Pricing Officer. Therefore, the assessee is not an "eligible assessee" under section 144C(15)(b).

3. Limitation Period for Passing the Final Assessment Order under Section 143(3):
The assessee argued that the limitation period for passing the assessment order under section 143(3) expired in January 2016, making the final assessment order passed on 27th January 2017 time-barred. The Tribunal, referencing multiple judicial precedents, including decisions from the Hon'ble Supreme Court and various High Courts, held that if the assessee is not an "eligible assessee," the AO cannot pass a draft assessment order under section 144C. Consequently, the final assessment order is also invalid and unsustainable in law.

Conclusion:
The Tribunal quashed the draft assessment order as well as the final assessment order passed in pursuance thereof, rendering the main grounds of the appeal academic and not requiring adjudication. The appeal was partly allowed, and the order was pronounced in the open Court on 12.04.2019.