2020 (3) TMI 1197 - AT - Income Tax

Revision u/s 263 - failure to adhere to requirement under 144C (1) - HELD THAT - For assessment year 2008-09, Ld.AO passed final assessment order immediately within 2 days of receipt of report from Ld. TPO whereas for assessment year 2009-10 final assessment order was passed after a period of 6 months from the date of receipt of transfer pricing report. Admittedly, present assessee is an eligible assessee, as defined in section 144C (15) (b) of the Act. On perusal of section 144C of the Act, non-compliance with section in case of an eligible assessee cannot be considered to be a mere irregularity as has been argued by Ld. CIT-DR. Plethora of decisions referred to herein above and relied upon by Ld.AR supports this view. Admittedly, in present facts of the case, for years under consideration, the Ld.AO has not followed the mandate required under section 144C (1), wherein he is required to forward draft of proposed order of assessment to the eligible assessee, if he proposes to make any variation in the income or loss returned, which is prejudicial to the interest of assessee. This is a non-obstinate clause that gives an overriding effect to the procedure. Various Hon ble Court s in decisions relied upon like TURNER INTERNATIONAL INDIA PVT. LTD. 2017 (5) TMI 991 - DELHI HIGH COURT , LIONBRIDGE TECHNOLOGIES PVT. LTD., 2018 (12) TMI 764 - BOMBAY HIGH COURT , JCB INDIA LTD. 2017 (9) TMI 673 - DELHI HIGH COURT , CONTROL RISKS INDIA PVT. LTD. 2017 (7) TMI 1077 - DELHI HIGH COURT and M/S ESPN STAR SPORTS MAURITIUS 2016 (4) TMI 45 - DELHI HIGH COURT has held that procedure laid down u/s 144C of the Act is of great importance. When an assessing officer proposes to make variation to the returned income declared by an eligible assessee, he has to first pass draft order, provide a copy thereof to assessee and only thereupon the assessee could exercise the right under 144C (2) of the Act to raise objections before DRP on proposed variations. This requirement the courts has been held to be mandatory that gives substantive rights to assessee to object to any additions, before they are made, and such objections have to be considered not by the assessing officer but by the DRP. We therefore reject the argument of Ld. CIT DR that failure to adhere to requirement under 144C (1) is curable defect u/s. 292B of the Act. - Decided in favour of assessee.

Summary

Issues:
Validity of order passed by Ld.AO under sections 143(3), 254, and 263 of the Act challenged by assessee for assessment years 2008-09 and 2009-10.

Issue Analysis:

Validity of Order Passed by Ld.AO:
The main issue raised in the present appeals pertains to the validity of the order passed by the Ld.AO under sections 143(3), 254, and 263 of the Income Tax Act. The assessee challenged the order on the grounds that it violated the mandate of section 144C of the Act. The Ld.AR contended that the failure to pass a draft assessment order in a case of remand by the Tribunal is a serious defect and cannot be considered curable under section 292B of the Act. The Ld.CIT DR, on the other hand, argued that there is no specific requirement in section 144C(1) to pass a draft assessment order in case of a remand by the ITAT. The Tribunal analyzed the arguments presented by both sides and examined the sequence of events leading to the appeals.

Procedural Non-Compliance:
The Tribunal noted that the Ld.AO did not follow the prescribed procedure under section 144C of the Act, especially in cases involving eligible assesses. The failure to forward a draft assessment order to the assessee before passing the final assessment order was deemed a violation of the statutory provisions. The Tribunal emphasized that the procedure outlined in section 144C is crucial and provides substantive rights to the assessee to raise objections before the Dispute Resolution Panel (DRP) on proposed variations. The non-compliance with this procedure was considered a serious irregularity, and the Tribunal referred to various High Court decisions supporting this view.

Legal Precedents and Rulings:
The Tribunal relied on a series of judicial decisions, including those by the Hon'ble Supreme Court and High Courts, to support its conclusion that the failure to adhere to the requirements of section 144C(1) is not a curable defect under section 292B of the Act. The judgments highlighted the mandatory nature of the procedure under section 144C and the importance of providing the assessee with an opportunity to object to proposed variations before the final assessment order is passed.

Judgment and Outcome:
Based on the arguments presented and the legal precedents cited, the Tribunal set aside and quashed the orders passed by the Ld.AO for the assessment years 2008-09 and 2009-10. The Tribunal allowed the appeal filed by the assessee on the legal issue raised, declaring the orders invalid due to procedural non-compliance. As a result, the other grounds raised by the assessee on merits were not adjudicated, and the appeal filed by the assessee for the mentioned assessment years was allowed. On the revenue's appeal challenging the order passed under section 263, the Tribunal found it infructuous as the assessment order had already been quashed and set aside. Consequently, the appeals filed by the revenue for the respective assessment years were dismissed.

This detailed analysis of the issues involved in the judgment provides a comprehensive understanding of the legal complexities and the Tribunal's decision on the validity of the orders passed by the Ld.AO.