2017 (7) TMI 948 - AT - Income Tax

Validity of appeal filed before CIT(A) instead of filing objection - assessment order u/s 143(3) r.w.s. 144C - eligibility to file objections - Held that - From the plain reading of the provisions contained in Sub-section (2) of Section 144C of the Act, it is clear that on receipt of the draft order, the eligible assessee shall file his objection, if any, to the ld. DRP and the AO within 30 days on receipt of draft order, and as per the provision contained in Sub-section (5), the DRP shall, in a case where any objection is received under Sub-section (2) of Section 144C of the Act shall, issue such direction as it thinks fit for the guidance of the AO to enable him to complete the assessment. But in the present case, nothing is brought on record to substantiate that any draft assessment order was passed by the AO or the objections were filed by the assessee or any direction was given by the ld. DRP. Therefore, the ld. CIT(A) was not justified in observing that the assessment order has been passed by the AO on the direction of the ld. DRP. On the contrary, the AO passed the assessment order u/s 143(3) r.w.s. 144C of the Act. From the CBDT Circular No. 5/2010, it is crystal clear that in case the assessee does not file objection, the AO shall pass the assessment order and thereafter the assessee can file an appeal against such assessment order before the ld. CIT(A). In the present case also the assessee did not file any objection before the DRP and filed the appeal before the ld. CIT(A), since it was the choice of the assessee as to whether to file an objection before the DRP or to pursue the normal channel of filing appeal against the assessment order before the ld. CIT(A). Therefore, the appeal filed by the assessee before the ld. CIT(A) was maintainable. We set aside the impugned order and direct the ld. CIT(A) to admit the appeal of the assessee and decide the same in accordance with law after providing due and reasonable opportunity of being heard to the assessee.

Summary

Issues Involved:
1. Maintainability of the appeal before the CIT(A).
2. Limitation of the assessment order passed by the AO.
3. Charging of interest under sections 234A, 234B, and 234C of the Income Tax Act.
4. Initiation of penalty proceedings under Section 271(1)(c) of the Income Tax Act.

Issue-wise Detailed Analysis:

1. Maintainability of the Appeal Before the CIT(A):
The primary grievance of the assessee was the dismissal of the appeal by the CIT(A) on the grounds of non-maintainability. The CIT(A) observed that the assessment order was passed under Section 144C of the Income Tax Act, which is not appealable under Section 246A but rather under Section 253(1)(d). The CIT(A) concluded that he lacked jurisdiction to adjudicate the appeal. However, the Tribunal noted that the AO had passed the assessment order under Section 143(3) read with Section 144C, and there was no evidence of a draft assessment order or any objections filed before the DRP. The Tribunal referred to CBDT’s Circular No. 5/2010, which clarified that if no objection is filed before the DRP, the assessee can appeal before the CIT(A). Thus, the Tribunal held that the appeal before the CIT(A) was maintainable and directed the CIT(A) to admit and decide the appeal in accordance with the law.

2. Limitation of the Assessment Order Passed by the AO:
The assessee contended that the assessment order passed by the AO was barred by limitation. The CIT(A), despite holding the appeal non-maintainable, addressed the issue of limitation in his order. However, the Tribunal did not delve into the specifics of this issue in its judgment, focusing instead on the procedural aspects of maintainability and jurisdiction.

3. Charging of Interest Under Sections 234A, 234B, and 234C:
The assessee argued against the charging of interest under Sections 234A, 234B, and 234C of the Income Tax Act. This issue was raised as part of the grounds of appeal, but the Tribunal's judgment primarily addressed the procedural aspect of the appeal's maintainability. The Tribunal directed the CIT(A) to adjudicate the appeal, which would include addressing the issue of interest charges.

4. Initiation of Penalty Proceedings Under Section 271(1)(c):
The assessee also contested the initiation of penalty proceedings under Section 271(1)(c) of the Income Tax Act. Similar to the issue of interest, this was included in the grounds of appeal but was not specifically addressed in the Tribunal's judgment. The Tribunal's directive to the CIT(A) to admit and decide the appeal would encompass the consideration of the penalty proceedings.

Conclusion:
The Tribunal concluded that the appeal filed by the assessee before the CIT(A) was maintainable based on the provisions of the Income Tax Act and the clarifications provided by the CBDT Circular. The CIT(A) was directed to admit the appeal and decide it in accordance with the law, providing the assessee with a reasonable opportunity to be heard. The appeal was allowed for statistical purposes, and the detailed adjudication of the substantive issues was left to the CIT(A) upon admitting the appeal.