2018 (5) TMI 942 - AT - Income Tax

Draft assessment order imposing Penalty u/s 271(1)(c) - notice of demand u/s.156 as well as issue of notice u/s.274 r.w.s. 271(1)(c) of the Act at the stage of making draft assessment order as per the provisions of section 144C(1) - Held that - Normally such notices are issued at the end of the assessment proceedings and at the time of making assessment order. The fact that demand is raised is evident on the fact of draft assessment order which bears the entry of the demand in the register of Demand Collection and Balance (DCR 02/45 dated 20-2-13). The notice u/s.274 of the Act is found issued for furnishing of inaccurate particulars of income. On law it is settled legal proposition at the level of High Courts that the assessment orders based on such draft assessment orders not following the mandatory provisions of section 144C of the Act is without jurisdiction and therefore null and void and not enforceable in law - Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of the assessment order under section 144C of the Income-tax Act, 1961.
2. Issuance of demand notice and penalty notice along with the draft assessment order.
3. Admission and adjudication of additional grounds raised by the assessee.

Issue-wise Detailed Analysis:

1. Validity of the Assessment Order Under Section 144C of the Income-tax Act, 1961:
The primary issue raised by the assessee was the validity of the assessment order dated March 26, 2013, issued by the Assessing Officer (AO). The assessee contended that the order was "bad in law and void ab initio" as it was passed in violation of section 144C of the Income-tax Act, 1961. The AO issued the order incorporating adjustments recommended by the Transfer Pricing Officer (TPO) and subsequently issued a demand notice and penalty notice, which the assessee argued was not in accordance with the proper procedure laid down in the statute.

2. Issuance of Demand Notice and Penalty Notice Along with the Draft Assessment Order:
The assessee argued that the issuance of the demand notice under section 156 and the penalty notice under section 274 read with section 271(1)(c) along with the draft assessment order was improper. According to the assessee, such notices should only be issued at the end of the assessment proceedings, not at the draft stage. The Tribunal observed that the AO had crystallized the demand at the draft assessment stage itself, which is not envisaged under section 144C. The Tribunal cited multiple precedents, including the case of M/s. Zuari Cements Ltd. Vs. ACIT, where the court held that non-compliance with section 144C renders the assessment order null and void.

3. Admission and Adjudication of Additional Grounds Raised by the Assessee:
The Tribunal admitted the additional grounds raised by the assessee, which were of a legal nature and did not require further investigation into the facts. The Tribunal found that the additional grounds were covered by the decision in the case of M/s. Eaton Industrial Systems Pvt. Ltd., where a similar issue was adjudicated in favor of the assessee. The Tribunal held that the draft assessment order, which included a demand notice and penalty initiation, was invalid as it did not follow the mandatory provisions of section 144C. Consequently, the Tribunal declared the assessment order dated January 15, 2014, as "without jurisdiction, null and void."

Conclusion:
The Tribunal allowed the appeal of the assessee on the additional grounds, rendering the original grounds of appeal academic. The assessment order was declared invalid due to non-compliance with the mandatory provisions of section 144C, and the issuance of demand and penalty notices at the draft stage was found improper. The appeal was partly allowed, and the original grounds were dismissed as academic.