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2019 (8) TMI 1268 - AT - Income TaxViolation of Section 144C - validity of draft assessment order issued along with notice of demand and penalty notice - HELD THAT - The Ld. AR demonstrated that the assessment order dated 15.01.2013 was draft assessment order which is evident from the very heading of the order. Along with this draft assessment order, the AO has issued notice of demand u/s.156 and penalty notice u/s.274 r.w.s.271(1)(c) and therefore, procedure laid down in Section 144C has been violated. The provisions of Section 144C spells out that on receipt of the draft order, the eligible assessee shall within thirty days of the receipt by him of the draft assessment order file his acceptance of the variations to the AO or file his objections, if any, to such variation with the DRP. Thereafter, the AO shall complete the assessment order on the basis of draft order. The issue is clearly identifiable and covered in favour of the assessee by the decisions rendered by the Co-ordinate Bench of the Tribunal, Pune in the case of Skoda Auto India Pvt. Ltd. Vs. ACIT 2019 (8) TMI 1157 - ITAT PUNE and also in the case of DCIT, Circle-10, Pune Vs. Rehau Polymers (P) Ltd. ( 2017 (8) TMI 1294 - ITAT PUNE ). Respectfully following the above referred decisions, we hold the draft assessment order to be bad in law and void-ab-initio and thereby allow the additional ground raised in appeal by the assessee
Issues Involved:
1. Violation of Section 144C of the Income Tax Act, 1961. 2. Validity of the draft assessment order. Issue-wise Detailed Analysis: 1. Violation of Section 144C of the Income Tax Act, 1961: The primary issue raised by the assessee was that the assessment order dated 15.01.2013 was invalid and void ab initio due to non-compliance with Section 144C of the Income Tax Act, 1961. The assessee argued that the assessment order was a draft assessment order, as indicated by its heading, and was accompanied by a notice of demand under Section 156 and a penalty notice under Section 274 read with Section 271(1)(c) of the Act. This procedure, according to the assessee, violated Section 144C, which mandates that upon receipt of a draft order, the eligible assessee must file acceptance or objections within thirty days, and only then should the final assessment order be completed. The assessee relied on several judicial precedents, including decisions from the Supreme Court and High Courts, to support the contention that the issuance of a demand notice along with the draft assessment order contravenes the mandatory procedure outlined in Section 144C. 2. Validity of the Draft Assessment Order: The Tribunal examined the facts of the case and the relevant judicial precedents. It was noted that the Assessing Officer (AO) had issued a draft assessment order along with a demand notice and a penalty notice, which led to the crystallization of the demand. This action was deemed contrary to the provisions of Section 144C, which require the AO to first issue a draft assessment order and then, based on the assessee's response, finalize the assessment. The Tribunal referenced the case of Skoda Auto India Pvt. Ltd. vs. ACIT, where a similar issue was adjudicated. In that case, the Tribunal held that the issuance of a demand notice along with the draft assessment order rendered the proceedings null and void. The Tribunal also cited the decision in the case of DCIT, Circle 10, Pune vs. Rehau Polymers (P) Ltd., where it was held that the AO's actions violated the mandatory provisions of Section 144C, making the assessment order invalid. The Tribunal further referred to multiple High Court decisions, including those from the Madras High Court and the Andhra Pradesh High Court, which consistently held that non-compliance with Section 144C renders the assessment order null and void. The Hon’ble Supreme Court's dismissal of the Special Leave Petition in the case of Zuari Cements Ltd. was also highlighted, reinforcing the mandatory nature of Section 144C compliance. Conclusion: The Tribunal concluded that the draft assessment order issued in the present case was invalid in law due to the accompanying demand notice and penalty notice, which violated the procedure mandated by Section 144C. Consequently, the additional ground raised by the assessee was allowed, and the draft assessment order was declared bad in law and void ab initio. As a result, all other grounds in the appeal became academic in nature. Final Order: The appeal of the assessee for the assessment year 2009-10 was allowed, and the order was pronounced on 26th August 2019.
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