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TMI Blog2012 (12) TMI 375X X X X Extracts X X X X X X X X Extracts X X X X ..... ought to have been issued by the DRP. held that:- when the objections filed by the assessee were allowed to be withdrawn on the ground that the assessee intend to exercise the option to proceed to file appeal before the Commissioner of Income Tax(Appeals), then there cannot be any direction under sub-sec. (5) in the absence of any objection as required under sub-Sec. (2) of sec. 144C of the Act. It is clear from the order dated 13.7.2010 of the DRP that the DRP has not issued any direction on merits of the proposed draft assessment order; therefore, the Assessing Officer got no jurisdiction to pass any order u/s 144C(13). Hence, the order dated 20.8.2010 passed u/s 144C(13) r.w.s 143(3) by the Assessing Officer is without jurisdiction an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the CBDT circular dated 20th Jan 2010 whereby it was clarified that the assessee has the option to either file objections before the DRP or to challenge the assessment framed as per the normal appellate channel. The ld Sr counsel has referred para 4 of the said clarification at page 33 of the paper book and submitted that prior to this notification, this position was not clear to the tax payers. 3.1 Consequently, the assessee decided to opt the normal appellate channel and accordingly filed a letter dated 29.1.2010 before the DRP withdrawing its objections filed on 25.1.2010. Thus, the ld Sr counsel has submitted that the assessee made it clear that in view of the clarifications of the CBDT, the assessee desired to exercise the optio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn its objections filed before the DRP and also requested the Assessing Officer to pass an order as per the provisions of sec. 144C(3), which was passed by the Assessing Officer within the prescribed period and the assessee has already filed an appeal before the Commissioner of Income Tax(Appeals) against the said assessment order. Thereafter, the DRP has passed the directions dated 13.7.2010 whereby the objections filed before the DRP have been dismissed as withdrawn and the Assessing Officer was directed to complete the assessment as proposed in the draft order. 3.4 The ld Sr counsel has submitted that when the Assessing Officer has already passed the order u/s 144C(3) r.w.s 143(3) after the clarification issued by the CBDT, then the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income Tax(Appeals) has dismissed the appeal filed by the assessee by taking note of the fact that the DRP has already passed the directions; therefore, the directions may be issued for reviving of the appeal of the assessee before the Commissioner of Income Tax(Appeals). 4. Having considered the rival submissions and carefully perusal of the relevant material on record, we find that the Assessing Officer has passed two orders in this case one u/s 144C(3) dt 10.2.2010 and another u/s 144C(13) dt 20.8.2010. Both these orders are identical and with same demand of tax. There is no dispute about the fact as explained by the ld Sr counsel that against the draft order dt 29.12.2009 passed u/s 144C(1), the assessee filed its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. (7) (8) of section 144C of the I T Act which read as under: 7. The Dispute Resolution Panel may, before issuing any directions referred to in sub. section (5)- (a) make such further enquiry, as it thinks fit; or (b) cause any further enquiry to be made by any income tax authority and report the result of the same to it. (8) The Dispute Resolution Panel may confirm, reduce or enhance the various proposed in the draft order so, however, that it shall not set aside any proposed variation or issue any direction under sub section (5) for further enquiry and passing of the assessment order. 4.2 Since in the case in hand, the DRP after taking note of the fact that the assessee desires to exercise the option ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ption to proceed to file appeal before the Commissioner of Income Tax(Appeals), then there cannot be any direction under sub-sec. (5) in the absence of any objection as required under sub-Sec. (2) of sec. 144C of the Act. It is clear from the order dated 13.7.2010 of the DRP that the DRP has not issued any direction on merits of the proposed draft assessment order; therefore, the Assessing Officer got no jurisdiction to pass any order u/s 144C(13). Hence, the order dated 20.8.2010 passed u/s 144C(13) r.w.s 143(3) by the Assessing Officer is without jurisdiction and accordingly is not sustainable. 5.1 Even otherwise, when the Assessing Officer has already passed an assessment order dt 10.2.2010 u/s 144C(3), then the second order would r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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