2019 (1) TMI 938 - AT - Income Tax

Eligible assessee in accordance with section 144C(15)(b) - draft assessment order proposed to tax the income of the assessee - Income accrued in India - DRP jurisdiction over the case - neither the TPO proposed any variation in the returned income nor the assessee is a foreign company - existence of PE in India - Held that - As decided in assessee own sister concerns case now there are numerous judgments not only passed by the various High Courts but also by this Tribunal, wherein it has been categorically held that, if assessee is not an eligible assessee in terms of section 144C(15)(b), then AO is not competent to pass a draft assessment order u/s 144C and the final assessment order consequently becomes time barred. Accordingly, following the aforesaid binding judicial precedents, we hold that the draft assessment order is invalid and consequently the impugned final assessment order is also unsustainable in law and is set aside. - Decided against revenue

Summary

Issues Involved:
1. Validity and legality of the order passed by the Dispute Resolution Panel (DRP).
2. Interpretation of Section 144C of the Income Tax Act, 1961.
3. Determination of the assessee's status under Section 144C(15)(b).
4. Consideration of provisions of Section 144C(8) and its explanation.
5. Opportunity to the Assessing Officer as per Section 144C(11).
6. Definition of "firm" under Section 2(23)(i) of the Income Tax Act and its implications.
7. Acceptance of similar draft and final assessment orders in previous assessment years.
8. Applicability of Section 292B of the Income Tax Act, 1961.

Detailed Analysis:

1. Validity and Legality of the Order Passed by the DRP:
The Revenue challenged the DRP’s directions, claiming that the order was "bad in law and void ab initio." The DRP had dismissed the proceedings in-limine, stating that the assessee was not an "eligible assessee" under Section 144C(15)(b) since there was no variation proposed by the Transfer Pricing Officer (TPO) and the assessee was not a foreign company.

2. Interpretation of Section 144C of the Income Tax Act, 1961:
The DRP and the Tribunal both emphasized that Section 144C applies only to "eligible assessee," defined as any person with variations arising from a TPO order or any foreign company. Since the TPO proposed no variation, and the assessee was not a foreign company, the DRP held that it lacked jurisdiction.

3. Determination of the Assessee's Status under Section 144C(15)(b):
The assessee was a partnership firm under Mauritian law, not a foreign company. The Tribunal upheld the DRP’s view, referencing precedents where similar entities were not considered "eligible assessee" under Section 144C(15)(b), thus invalidating the draft assessment order.

4. Consideration of Provisions of Section 144C(8) and its Explanation:
The Revenue argued that the DRP ignored Section 144C(8) and its explanation. However, the Tribunal found that since the assessee was not an "eligible assessee," the provisions of Section 144C(8) were not applicable.

5. Opportunity to the Assessing Officer as per Section 144C(11):
The Revenue contended that the DRP failed to provide the Assessing Officer an opportunity as envisaged under Section 144C(11). The Tribunal, however, focused on the primary issue of eligibility under Section 144C(15)(b), rendering this argument moot.

6. Definition of "Firm" under Section 2(23)(i) of the Income Tax Act and its Implications:
The Revenue argued that the definition of "firm" includes Limited Liability Partnerships (LLPs), which are considered "body corporate" under domestic laws. The Tribunal, however, upheld the DRP’s finding that the assessee did not meet the criteria of a foreign company under Section 144C(15)(b).

7. Acceptance of Similar Draft and Final Assessment Orders in Previous Assessment Years:
The Revenue pointed out that the assessee accepted similar orders in previous years without dispute. The Tribunal maintained that each assessment year is separate, and the primary issue of eligibility under Section 144C(15)(b) was decisive.

8. Applicability of Section 292B of the Income Tax Act, 1961:
The Revenue cited Section 292B, which protects assessments from being invalid due to procedural errors. The Tribunal concluded that the core issue was the jurisdictional validity under Section 144C(15)(b), which was not a mere procedural error but a substantive legal requirement.

Conclusion:
The Tribunal upheld the DRP’s directions, stating that the assessee was not an "eligible assessee" under Section 144C(15)(b) as there was no variation proposed by the TPO and the assessee was not a foreign company. Consequently, the draft assessment order was invalid, and the final assessment order was unsustainable. The appeal by the Revenue was dismissed.