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2019 (12) TMI 1195 - AT - Income TaxAssessment order passed under section 143(3) r/w section 254 - HELD THAT - We hold that the present appeal filed by the assessee being not against an appealable order as provided under section 253 of the Act, is not maintainable. We must observe, the assessee may be having a strong case in its favour on the issue of not forwarding the draft assessment order before passing the final assessment order. However, that issue relating to the validity of the impugned assessment order has to be decided by the appropriate authority as provided under the statute. In view of the aforesaid, since the appeal of the assessee is not maintainable, we do not find any justifiable reason to entertain the grounds raised by the assessee including the additional grounds. Therefore, the present appeal filed by the assessee deserves to be dismissed in limine without going into the merits of the various issues raised by the assessee. Accordingly, we do so. However, as observed by the co ordinate Bench in case of Tevapharm India (P) Ltd. V/s ACIT 2018 (4) TMI 34 - ITAT DELHI it is open to the assessee to file an appeal before the first appellate authority and contest all the issues including the validity of the order passed by the Assessing Officer.
Issues Involved:
1. Validity of the final assessment order passed by the Assessing Officer without forwarding a draft assessment order. 2. Maintainability of the appeal filed directly before the Tribunal. Issue-wise Detailed Analysis: 1. Validity of the Final Assessment Order: The assessee, an Indian Branch of a non-resident company based in the UK, filed its return of income for the assessment year 2011-12 declaring nil income. The Assessing Officer (AO) initially framed a draft assessment order proposing additions, resulting in a total income of ?7,20,20,659. The Dispute Resolution Panel (DRP) issued directions, and the AO passed the final assessment order under section 144C(13) r/w 143(3) of the Act. The Tribunal restored the disputed issues for fresh adjudication by the AO, who then passed an order making disallowances of ?68,24,622 and computed the total income at ?1,04,30,850. The AO assessed tax under section 115JB as it was higher than the tax computed under normal provisions. The assessee contested the validity of this order, arguing that the AO should have forwarded a draft assessment order as required under section 144C(1) and that the failure to do so rendered the assessment order invalid. The assessee supported this contention with various judicial decisions. 2. Maintainability of the Appeal: The Revenue raised a preliminary objection regarding the maintainability of the appeal, arguing that the assessee should have appealed to the Commissioner (Appeals) rather than directly to the Tribunal. The Revenue cited section 253 of the Act, stating that the order in question did not fall under the categories against which an appeal could be filed directly to the Tribunal. The Tribunal concurred with the Revenue, noting that the impugned order should be treated as an order under section 143(3) r/w 254 of the Act. The Tribunal referenced the Bombay High Court's decision in Empire Industries Ltd. v/s CIT, which held that an order giving effect to an appeal results in an assessment under section 143(3) or 144. The Tribunal emphasized that the proper course of action for the assessee was to appeal to the Commissioner (Appeals). The Tribunal further referenced the Delhi Bench's decision in Tevapharm India Pvt. Ltd. v/s ACIT, which held that appeals in such scenarios should be filed before the first appellate authority, not the Tribunal. The Tribunal concluded that the appeal filed by the assessee was not maintainable as it did not fall under the appealable orders specified in section 253 of the Act. The Tribunal dismissed the appeal in limine, without addressing the merits of the issues raised by the assessee, and directed the assessee to seek remedy by filing an appeal before the Commissioner (Appeals). Conclusion: The Tribunal dismissed the appeal filed by the assessee on grounds of non-maintainability, holding that the proper forum for challenging the assessment order was the Commissioner (Appeals) and not the Tribunal. The Tribunal did not address the merits of the issues raised by the assessee, including the validity of the final assessment order passed without forwarding a draft assessment order. The assessee was advised to file an appeal before the first appellate authority to contest all issues, including the validity of the AO's order.
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