2018 (8) TMI 674 - AT - Income Tax

Benefit of DTAA - double taxation - Validity of assessment order passed u/s 143(3) r.w.s. 144C - Jurisdiction u/s 172(4) - failure to communicate had server draft assessment order - Held that - Learned counsel for the assessee has raised certain fundamental legal and factual issues, particularly with respect to double non taxation and the scheme of the India Singapore DTAA, which have neither been examined at the stage of the authorities below nor learned Departmental Representative is in a position to offer much assistance on the same in the absence of discussions thereon by the authorities below. Held that - In the light of the above discussions, bearing in mind entirety of the case and following the above observations of this Tribunal in the case of the LR2 Management K/S (2015 (11) TMI 274 - ITAT RAJKOT), we deem it fit and proper to remit these matters to the file of the Assessing Officer for framing fresh assessment under section 172(4). - Matter remanded back.

Summary

Issues Involved:
1. Whether the Income Tax Officer (International Taxation), Rajkot erred in passing a final order under section 172(4) of the Income-tax Act, 1961 without issuing a draft of the assessment order as required under section 144C.
2. Examination of the merits of the case, particularly concerning double non-taxation and the India-Singapore DTAA.

Issue-wise Detailed Analysis:

1. Error in Passing Final Order Without Draft Assessment:
The core grievance in these appeals is that the Income Tax Officer (International Taxation), Rajkot passed a final order under section 172(4) without first issuing a draft assessment order as mandated by section 144C of the Income-tax Act. The representatives agreed that this issue is covered in favor of the assessee, referencing the case of LR2 Management K/S Vs. Income Tax Officer. The Tribunal observed that an order under section 172(4) is indeed an 'assessment order' and thus subject to the requirements of section 144C. The Tribunal cited the Delhi High Court's decision in Emirates Shipping Line FZE v. Asstt.DIT, which held that an order under section 172(4) is a summary assessment of income, and can be followed by a regular assessment under section 143(3). The Supreme Court in AS Glittre v. CIT also supported this view, stating that an ad hoc assessment under section 172(4) can be superseded by a regular assessment as per the Act's provisions.

The Tribunal further discussed the scheme of reference to the Dispute Resolution Panel (DRP) under section 144C, noting that the Assessing Officer must forward a draft assessment order to the assessee, who then has the option to raise objections. However, there is no provision extending the limitation period for passing orders under section 172(4) when the DRP is involved, creating practical difficulties. The Tribunal emphasized the need to interpret the statute to make it effective, suggesting that references to sections 153 and 153B in section 144C should be seen as illustrative, not exhaustive, thus including section 172(4A).

Ultimately, the Tribunal held that the Assessing Officer should have issued a draft assessment order under section 172(4) and remitted the matter back to the Assessing Officer to follow the procedure under section 144C. They noted that failing to issue a draft order when required could render the final order null and void, but given the bona fide belief of the Assessing Officer, the case was remanded for proper procedure.

2. Examination on Merits:
The learned senior counsel for the assessee argued on the merits of the cases, raising issues related to double non-taxation and the India-Singapore DTAA. The Tribunal acknowledged these arguments but noted that these issues had not been examined by the authorities below, nor was the Departmental Representative able to assist on these points due to the lack of prior discussion.

Given the complexity and foundational nature of these issues, the Tribunal decided not to address them directly at this stage. Instead, they remitted the cases back to the Assessing Officer for fresh assessment under section 172(4), with instructions to consider the Tribunal's observations in LR2 Management K/S and allow the assessee to raise all relevant issues in the remanded proceedings.

Conclusion:
The appeals were allowed for statistical purposes, with the matters remitted to the Assessing Officer for fresh assessment in accordance with the Tribunal's detailed observations and instructions. The Tribunal emphasized the importance of issuing a draft assessment order under section 172(4) and following the procedure outlined in section 144C, while also allowing for the consideration of substantive issues raised by the assessee on remand.