2021 (2) TMI 30 - AT - Income Tax

Upward transfer price adjustments - Provisions contemplated u/s. 144C was not followed - assessee contended that the AO has failed to follow the mandatory provisions of section 144C of the Act without issuing any draft assessment order passing of final assessment order suffers from infirmity and to be treated the same as bad in law - HELD THAT - This Tribunal discussing the provisions u/s. 144C of the Act and held the final assessment order passed by the AO without issuing draft assessment order is against the provisions of the Act. As decided in LIONBRIDGE TECHNOLOGIES PVT. LTD. 2018 (12) TMI 764 - BOMBAY HIGH COURT draft assessment order is necessary in terms of section 144C(1) of the Act before the AO can proceed to pass final assessment order. Assessee accepted the upward TP adjustment in relating to international transactions by way of vide its communication as that of in the present case involving A.Ys. 2010-11 and 2011-12. This Tribunal considered the submissions of Revenue that having participated for the assessment proceedings the assessee is estopped from challenging the action of AO for non-issuance of draft assessment order. The Tribunal discussed the same and observed where mere consent of parties does not bestow the jurisdiction if the order is beyond jurisdiction. As relying on assessee s own case 2019 (8) TMI 763 - ITAT PUNE the said order being against provisions of section 144C of the Act. In view of our setting aside the assessment order passed in the case under section 143(3) of the Act the grounds of appeal raised by assessee on merits and the grounds of appeal raised by Revenue become academic in nature - Decided in favour of assessee.

Summary

Issues Involved:
1. Validity of the assessment order due to non-compliance with Section 144C(1) of the Income Tax Act.
2. Various disallowances made by the Assessing Officer (AO).

Issue-wise Detailed Analysis:

1. Validity of the Assessment Order:
The primary issue in both appeals revolves around the validity of the assessment orders passed by the AO without issuing a draft assessment order as mandated by Section 144C(1) of the Income Tax Act. The CIT(A) quashed the assessment orders on this ground, and the Revenue challenged this decision.

The Tribunal noted that the AO determined the total income of the assessee at ?2,00,93,67,780/- after making various disallowances. The assessee raised additional grounds before the CIT(A) challenging the validity of the assessment order for not following the mandatory provisions of Section 144C(1). The CIT(A) accepted this additional ground, stating that the non-filing of the ground at the time of appeal was not willful.

The CIT(A) observed that the AO failed to forward a draft assessment order to the assessee as required under Section 144C(1). The CIT(A) held that this failure rendered the entire assessment proceedings null and void. The Tribunal upheld the CIT(A)'s decision, citing the Bombay High Court's ruling in International Air Transport Association Vs. DCIT, which held that the forwarding of a draft assessment order under Section 144C(1) is a mandatory requirement. The Tribunal also referred to its own previous decisions and the Andhra Pradesh High Court's ruling in Zuari Cement Ltd. Vs. ACIT, which declared similar final assessment orders as void for non-compliance with Section 144C(1).

2. Various Disallowances:
The Tribunal did not delve into the merits of the various disallowances made by the AO, such as depreciation on non-compete fee, foreign exchange loss, bad debts, and interest under Section 36(1)(iii), among others. This is because the primary issue of the validity of the assessment order was decided in favor of the assessee, rendering the other grounds academic.

The Tribunal noted that the CIT(A) quashed the assessment order due to non-compliance with Section 144C(1), and as a result, the grounds related to various disallowances became academic and required no further adjudication.

Conclusion:
The Tribunal dismissed the Revenue's appeals for both assessment years (2010-11 and 2011-12), upholding the CIT(A)'s decision to quash the assessment orders due to the AO's failure to issue a draft assessment order as required under Section 144C(1) of the Income Tax Act. The Tribunal emphasized that compliance with Section 144C(1) is mandatory, and non-compliance renders the assessment orders void. Consequently, the various disallowances made by the AO were not adjudicated upon, as the primary issue of the validity of the assessment order was decided in favor of the assessee.