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TMI Blog2018 (8) TMI 575X X X X Extracts X X X X X X X X Extracts X X X X ..... draft assessment order was necessary. We do not find from the scheme of Section 144C that if the proceedings were to be started a fresh on remand, the draft assessment order is not required to be given. Non issuance of the draft assessment order has thus vitiated the final assessment order. The view taken by the Tribunal in the impugned order that for want of issuance of draft order, the assessment order is without jurisdiction, cannot be faulted with. No substantial question of law - Tax Appeal No. 144 of 2017 - - - Dated:- 16-7-2018 - N.M. JAMDAR PRITHVIRAJ K. CHAVAN, JJ. Ms. Amira Razaq, Junior Central Government Standing Counsel for the Appellant. Mr. Percy Pardiwala, Senior Advocate with Ms. Priyanka Kamat, Advocate for the Respondent. Judgment (Per N. M. Jamdar, J) The Revenue has filed this appeal taking exception to the order passed by the Income Tax Appellate Tribunal, Panaji, on 21 January 2016. By the impugned order, the Tribunal dismissed the appeal filed by the Revenue and confirmed the order passed by the Commissioner of Income Tax (Appeals) dated 13 March 2015. The Assessee had filed cross objection which the Tribunal allowed. 2. The R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llected by the Panel, and the result of the enquiry. The Dispute Resolution Panel may confirm, reduce or enhance the variations. Direction issued by the Dispute Resolution Panel is binding on the Assessing Officer. Before issuing any directions, the Dispute Resolution Panel is required to give opportunity of hearing. After such directions are received from the Dispute Resolution Panel, the Assessing Officer proceeds to complete the assessment under Section 144C(13) of the Act. If the Assessing Officer proceeds to complete the assessment pursuant to the directions issued by the Panel under Section 144C(13), he is not required to give further opportunity of hearing to the assessee. This is broadly the scheme of Section 144C. 6. Turning now to the facts of the case at hand. The Assessee is in the business of manufacturing and assembly of telecommunication cables, wave-guides, connector antennas and accessories and also trades in the related products. The Assessee filed its return of income on 29 November 2006 declaring a loss of ₹ 14,93,68,912/-. The Assessment Order was passed under Section 143(3) on 16 December 2009 on an income of ₹ 31,21,13,590/- on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income Tax Act, 1961. The appellant submits the order dated 12th March 2014 is void, bad in law, non est and a nullity . The Tribunal entertained the additional ground and disposed of the appeal with the following observations. 10. We have considered the rival submissions. As it is noticed that the draft assessment order has not been produced before us to counter the specific allegations in respect of non-availability of the draft assessment order, we are of the view that the assessment order passed is liable to the annulled, respectfully following the decision of the Hon'ble Andhra Pradesh High Court in the case of M/s. Zuari Cement Ltd.(supra), wherein it has been held that where the assessment order has been passed contrary to the mandatory provisions of sec. 144C of the Act and violation thereof, the assessment order is liable to the declared as one without jurisdiction, null and void and unenforceable. 11. It was an admitted position before the Tribunal and so also in this Court that before the order was passed by the Assessing Officer on 2 February 2015, no draft assessment order was given. The question that is debated before us is whether it was necess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore arise for consideration are as follows. First, what was the effect of not issuing the draft assessment order by the Assessing Officer. Second, when the proceedings were remanded whether a draft assessment order was required to be issued. Thirdly, whether the order of the Assessing Officer could be said to an order under Section 144C(13). 16. We have gone through the order of the Tribunal dated 1 October 2012 by which the proceedings were remanded. The Tribunal noted that during the course of the proceedings, a new Transfer Pricing Officer took charge of the Assessee's case and he passed an order without issuing any show cause and without hearing the Assessee. The Tribunal upheld the grievance of the Assessee that a notice ought to have been issued when the new Transfer Pricing Officer took charge by observing thus :- 11. In view of the aforesaid decision of the Hon'ble Supreme Court and the other case laws, we are of the view that the new TPO should have given a show cause notice and also the copy of the material gathered by him which he wanted to use against the assessee prior to making adjustment. There is clear cut violation of principles of natural justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Dispute Resolution Panel on any of the proposed variations. There is a right given to the Assessee to object, and to have the objections considered not by the Assessing Officer, but by the Dispute Resolution Panel. 19. The Tribunal, by order dated 1 October 2012, set aside the entire exercise and the matter was relegated to the Assessing Officer. Once the matter was sent back to be decided afresh it went back to the stage of Section 144C(1) of the Act. Since the Tribunal set aside the proceedings on the ground of violation of principles of natural justice, the first exercise was void and without jurisdiction. Therefore, nothing remained on the record, including the draft assessment order. Therefore, issuance of a draft assessment order was necessary. We do not find from the scheme of Section 144C that if the proceedings were to be started a fresh on remand, the draft assessment order is not required to be given. Non issuance of the draft assessment order has thus vitiated the final assessment order. 20. In the case of JCB India, the Division Bench of the Delhi High Court in identical circumstances has held that after the remand on facts, the draft assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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