2025 (3) TMI 866 - AT - Income Tax

Validity of final assessment order u/s 143(3) without issuing the draft assessment order as is required u/s 144C - HELD THAT - As per provisions of section 144C(1) it is clear that the AO should mandatorily issue the draft assessment order before passing the final assessment order in the case of the eligible assessee i.e. foreign company. From the perusal of fact we notice that the AO has passed the final assessment order without passing any draft assessment order and the fact is not disputed by the Revenue. As already stated in assessee s case the revenue has not disputed the fact that the assessee falls within the definition of eligible assessee as per the provisions of section 144C(15)(ii) and therefore the AO ought to have passed the draft assessment order before passing the final assessment order. Failure of passing of a Draft Order under Sec 144C (1) is not a curable defect since this a violation of a statutory right of the assessee to raise grievance that can be addressed before a final assessment order is passed and appellate proceedings invoked. Thus final assessment order passed by the AO is liable to be quashed.

ISSUES PRESENTED and CONSIDERED

The primary issues considered in this judgment are:

1. Whether the Assessing Officer (AO) erred in passing the final assessment order under section 143(3) of the Income-tax Act, 1961, without issuing a draft assessment order as required under section 144C of the Act.

2. Whether the disallowance upheld by the Commissioner of Income Tax (Appeals) [CIT(A)] regarding the freight income earned by the assessee, which was claimed to be exempt under Article 8 of the Double Taxation Avoidance Agreement (DTAA) between India and Singapore, was justified.

3. Whether the profits from the operation of ships in international traffic should be taxable only in Singapore, as per the DTAA, and not in India.

4. Whether the assessee was eligible to claim relief under the India-Singapore treaty and whether the CIT(A) erred in not recognizing the DIT certificates submitted by the assessee.

5. Whether the interest levied under sections 234B and 234C of the IT Act was justified given the assessee's claim of not being liable to pay advance tax based on the Double Income-tax Relief Certificate.

ISSUE-WISE DETAILED ANALYSIS

1. Legal Framework and Precedents

The primary legal issue revolves around section 144C of the Income-tax Act, which mandates the issuance of a draft assessment order for eligible assessees before the final assessment order is passed. The definition of "eligible assessee" includes non-resident foreign companies, as per section 144C(15)(ii). The Tribunal referenced the decision of the Bombay High Court in International Air Transport Association vs. DCIT, which held that failure to issue a draft assessment order renders the final assessment order without jurisdiction.

2. Court's Interpretation and Reasoning

The Court interpreted section 144C to mean that the AO must issue a draft assessment order to eligible assessees, such as foreign companies, before finalizing the assessment. This procedural step is crucial as it provides the assessee an opportunity to address grievances before the final assessment order is passed. The failure to issue a draft order constitutes a jurisdictional error, rendering the final assessment order void.

3. Key Evidence and Findings

The Tribunal noted that the assessee is a non-resident foreign company, a fact undisputed by the Revenue. The AO failed to issue a draft assessment order, which was a clear procedural lapse. The Tribunal also noted the assessee's claim of exemption under Article 8 of the DTAA, which was not addressed due to the procedural defect.

4. Application of Law to Facts

The Tribunal applied the legal requirement of section 144C to the facts, concluding that the AO's failure to issue a draft assessment order violated the statutory rights of the assessee. This procedural defect was deemed incurable, as it deprived the assessee of an opportunity to contest the assessment before it was finalized.

5. Treatment of Competing Arguments

The Revenue's reliance on the assessment order was insufficient to counter the procedural lapse identified by the Tribunal. The Tribunal prioritized the statutory requirement over the merits of the Revenue's case, emphasizing the importance of procedural compliance.

6. Conclusions

The Tribunal concluded that the final assessment order was void due to the AO's failure to issue a draft assessment order. Consequently, the Tribunal did not address the substantive issues related to the DTAA exemption and the eligibility of the assessee for relief under the treaty, as these issues became academic in light of the procedural defect.

SIGNIFICANT HOLDINGS

The Tribunal held that the final assessment order was without jurisdiction due to the failure to issue a draft assessment order, as mandated by section 144C. This procedural requirement is essential to protect the statutory rights of eligible assessees, such as foreign companies, to contest variations in their income assessments. The Tribunal's decision underscores the importance of adhering to procedural mandates to ensure fair and just tax assessments.

The Tribunal's decision did not address the substantive issues related to the DTAA exemption and the eligibility of the assessee for relief under the treaty, as these issues were rendered moot by the procedural defect.

The appeal was partly allowed, with the Tribunal quashing the final assessment order due to the procedural error.

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