9911796707
TMI Blog2017 (6) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... communication of the same has to be treated and construed as a direction given to the Assessing Officer to complete the assessment as per draft order. Only when the panel choses to reduce or enhance the variation proposed, it can give any specific directions. Therefore, I do not think that the petitioner is justified in contending that the final order is not an order passed under Section 144C(13) of the said Act. Remedy available as against the order passed under Section 144C(13) - Held that:- Petitioner is entitled to file an appeal before the Appellate Authority as contemplated under Section 246(1)(a) of the said Act, which covers an order passed against the assessee under Section 144 of the said Act as well. When such statutory appellate remedy is available to the petitioner, this Court is not inclined to entertain this writ petition by going into the contentions raised on the merits of the matter by either parties. It is well settled that when a statutory appellate remedy is available, more particularly in fiscal matters, parties should not be permitted to resort to the remedy under Article 226 of the Constitution of India. - Writ Petition No. 1787 of 2017, W.M.P. No. 1772 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent on 29.04.2016 i.e., after 30 days time limit. The 1st respondent issued a hearing notice and during the course of hearing, the members of the 1st respondent panel informed the petitioner that the draft assessment order was served on 29.03.2016 and the objection was filed beyond the period of 30 days. Since there was one day delay in filing the objections, the 1st respondent, by oder dated 10.11.2016, refused to condone the delay and thus, rejected the objections. The 1st respondent had not issued any directions to the 2nd respondent as contemplated under Section 144C (5) of the said Act. Pursuant to the above said order passed by the 1st respondent, a final assessment order under Section 144(3) r/w Section 144(C)(13) of the said Act was passed by the 2nd respondent on 18.11.2016 by making the adjustment as proposed by the Transfer Pricing Officer. Thus, consequently a demand of ₹ 1,76,32,760/- was made. As against the impugned proceedings, the petitioner has no other alternative remedy. Hence, this Writ petition is filed seeking for the relief as stated supra. 3. The respondents filed counter affidavit, wherein it is stated as follows: (i) This writ petition is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is barred by limitation. The 2nd respondent cannot take the order passed by the 1st respondent dated 10.11.2016 as a direction issued to the 2nd respondent. In the absence of any specific direction issued by the 1st respondent and when the objection were rejected only on the ground of delay, the 2nd respondent cannot take shelter under Section 144C(13) to bring the final order dated 18.11.2016 as the one passed within the period of limitation. The 1st respondent has not passed the order as contemplated under Section 144C(5) (6) of the said Act and therefore, the order passed by the 2nd respondent, pursuant to the order passed by the 1st respondent, cannot be challenged by way of statutory Appeal before the appellate authority. Alternatively, in case, if this Court is of the view that the 1st respondent is empowered to condone the delay, the matter may be remitted back to the 1st respondent to decide the same on merits or if the Court comes to the conclusion that the order passed by the 1st respondent, virtually, amounts to a direction issued to the 2nd respondent, the petitioner may be given an option to file an appeal before the appellate forum challenging the order of the 2nd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the draft order. The 1st respondent, by order dated 10.11.2016 rejected the objections only on the reason that the assessee has filed the same beyond the specified period of 30 days. Accordingly, the 1st respondent communicated such decision to the petitioner as well as the 2nd respondent as per the provisions under Section 144C(5) of the said Act. Thereafter, the final assessment order was passed by the 2nd respondent on 18.11.2016 under section 143(3) r/w section 144C(13) of the said Act. 9. It is not in dispute that the petitioner has filed their objection before the 1st respondent only on 29.04.2016 by specifically indicating as though the draft order of assessment was served on them only on 31.03.2016. Thus, it is evident that the petitioner made the 1st respondent to believe that the objections were filed in time. However, when it was pointed out by the 2nd respondent to the 1st respondent, through communication dated 25.07.2016, that the draft assessment order was served on the assessee on 29.03.2016 itself, the petitioner filed an affidavit before the 1st respondent on 07.11.2016 reiterating that they received the draft assessment order only on 31.03.2016 and even o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objections are received within the period specified under Sub- Section 2, the Assessing Officer shall complete the assessment on the basis of the draft order, as contemplated under Section 144(C)(3) of the said Act. In this case, by communication dated 27.04.2016, the petitioner, by attaching the entire set of documents filed before the 1st respondent, asserted and made the Assessing Officer to believe that the objection was filed in time. Therefore, the 2nd respondent is justified in deferring the matter till an order is passed by the 1st respondent. At this juncture, it is to be noted that what is contemplated under Section 144C(2) is the filing of the objections by the assessee with the Dispute Resolution Panel, if he is not accepting the draft assessment order. Of course, the said provision also contemplates filing of such objection before the Assessing Officer as well. If such objection is filed in time, then the Dispute Resolution Panel alone shall proceed to decide the matter as provided under Section 144C(5) (6)of the said Act. Therefore, the Assessing Officer cannot proceed to pass the final order till the Dispute Resolution Panel passes an order as stated supra. Once th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 144C(13) of the said Act, more particularly, when the 1st respondent in its order dated 10.11.2016 clearly stated that the directions are communication to the assessee and the departmental authorities as per the provision of Section 144C(5) of the said Act. 14. No doubt, the learned counsel for the petitioner emphasized that there is no specific direction, whatsoever in the said order dated 10.11.2016. In my considered view, the dismissal or rejection of the objections filed by the petitioner, on whatever the ground may be, itself is a direction to the Assessing Officer to complete the assessment in accordance with draft order as contemplated under Section 144C(5) which reads as follows: (5) The Dispute Resolution Panel shall, in a case where any objection is received under sub-section (2), issue such directions, as it thinks fit, for the guidance of the Assessing Officer to enable him to complete the assessment. 15. Hence, the dismissal or rejection of the objection and communication of the same has to be treated and construed as a direction given to the Assessing Officer to complete the assessment as per draft order. Only when the panel choses to reduce or enh ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
