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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 ..... inability of the assessment order dated 20th Aug 2010 as raised in the ground no.1 of the assessee's appeal. 3. We have heard the ld Sr counsel Shri P.J. Paridiwala as well as the ld DR. Shri Narendra Kumar and considered the relevant material on record. Ld Sr counsel Shri Paridiwala has narrated the facts of the case and submitted that the draft order in this case was passed by the Assessing Officer on 29th Dec 2009 which was served on the assessee on 30th Dec 2009. The assessee filed its objections to the draft order before the DRP on25th Jan 2010. Subsequent to the filing the objection, the assessee came to know about the CBDT circular dated 20th Jan 2010 whereby it was clarified that the assessee has the option to either file objec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt order dated 10.2.2010 before the Commissioner of Income Tax(Appeals) which was pending for disposal. In the meantime, the assessee received a letter dated 20.4.2010 from the DRP for fixing the hearing on 28.4.2010. In response to the said letter, the assessee submitted a letter dated 23.4.2010 to the DRP informing them about the withdrawal of the application/objections and filing of appeal to the Commissioner of Income Tax(Appeals). The assessee has also filed a detailed note before the DRP explaining all the facts and submitted that in view of the clarification issued by the CBDT, the assessee withdrawn its objections filed before the DRP and also requested the Assessing Officer to pass an order as per the provisions of sec. 144C(3), wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal before the Commissioner of Income Tax(Appeals) against the assessment order dated 10.2.2010. Thus, ld Sr counsel has submitted that the directions passed by the DRP as well as the assessment order dated 20.8.2010 passed in pursuant to the directions are bad in law and liable to be quashed. 3.6 On the other hand, the ld DR has fairly accepted the factual position that there are two assessment orders passed in this case, one u/s 144C(3) and another one u/s 144C(13) of the I T Act and accordingly, the second assessment order may be quashed. 3.7 The ld Sr counsel has pointed out that the 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 directi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DRP against the proposed draft assessment order or to opt for an appeal before the Commissioner of Income Tax(Appeals) against the assessment order passed u/s 144C(3). However, once the assessee has filed the objection before the DRP, even though the assessee has liberty to withdraw the same, the proceedings before the DRP would not automatically close because the DRP is having the powers of enhancement of the variation as proposed in the draft order. Therefore, without permission of the DRP, the application/objection, once filed, cannot be withdrawn by the party in view of sub. Sec. (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horized representative and Mr. Saurabh Doshi, Asst. Vice President, Country Tax & Finance Bank of America NA attended the proceedings on 28.4.2010. Assessee confirmed its request for withdrawal of objection. In view of the request of the assessee, the objections filed before the Panel are dismissed as withdrawn. The Assessing Officer is directed to complete assessment as proposed in the draft order." 5. Even otherwise, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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