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TMI Blog2019 (12) TMI 1195X X X X Extracts X X X X X X X X Extracts X X X X ..... MI 34 - ITAT DELHI ] it is open to the assessee to file an appeal before the first appellate authority and contest all the issues including the validity of the order passed by the Assessing Officer. - IT(TP)A no.3199/Mum./2017 - - - Dated:- 16-12-2019 - Shri Pramod Kumar, Vice President, And Shri Saktijit Dey, Judicial Member For the Assessee : Shri Vishal Karla For the Revenue : Shri V. Sreekar ORDER PER SAKTIJIT DEY, J.M. The captioned appeal has been filed by the assessee challenging the order dated 3rd August 2017, passed by the Assessing Officer in pursuance to the directions of the Income Tax Appellate Tribunal (ITAT) while disposing off assessee s appeal against the final assessment order passed of the assessment year 2011 12. 2. Brief facts are, the assessee is the Indian Branch of a non resident company and is basically a tax resident of United Kingdom (UK). For the assessment year under consideration, the assessee filed its return of income on 28th November 2011, declaring nil income. The Assessing Officer framed the draft assessment order on 21st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , hence, deserves to be quashed. In support of such contention he relied upon a number of decisions including the following: i) PCIT v/s Andrew Telecommunications Pvt. Ltd., [2018] 96 taxmann.com 613 (Bom.); and ii) Dimension Data Asia Pacific PTE Ltd. v/s DCIT, [2018] 96 taxmann.com 182 (Bom.); 4. The learned Departmental Representative, as a preliminary issue, submitted, assessee s appeal is not maintainable as against the assessment order passed, the assessee has straight away come in appeal before the Tribunal. Drawing our attention to the provisions of section 253 of the Act, the learned Departmental Representative submitted, the assessment order passed by the Assessing Officer is not an order against which an appeal can directly lie to the Tribunal. He submitted, only recourse available to the assessee against the order passed by the Assessing Officer is to prefer appeal before the Commissioner (Appeals). Thus, he submitted, the appeal filed by the assessee being not maintainable has to be dismissed at the threshold. Without prejudice, the learned Departmental Representative submitted, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Commissioner (Appeals). On a careful reading of the provisions of section 253 of the Act, it is noticed that the assessee can file an appeal against the assessment order only as prescribed under section 253(1)(d) and (e) of the Act. Admittedly, the order against which the assessee has preferred the present appeal does not come within the purview of section 253(1)(d) and (e) of the Act. Though, the learned Counsel for the assessee drawing our attention to the provisions of section 246A(b) of the Act has submitted that it does not provide for filing appeal before the Commissioner (Appeals) against the order giving effect to passed by the Assessing Officer, however, in our considered opinion, the impugned order passed by the Assessing Officer is nothing less than an order passed under section 143(3) of the Act. In fact, the assessee itself in Col.2 of the memorandum of appeal filed in Form no.36B, has stated that the order appealed against has been passed under section 143(3) r/w section 254 of the Act. Moreover, the Hon'ble Jurisdictional High Court in Empire Industries Ltd. v/s CIT, [1992] 193 ITR 293 (Bom.), has held that an order passed by the Income Tax Officer to gi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sections, it is quite ostensive that the appeal before the Tribunal against the assessment order would lie if it has been passed in pursuance of direction given by the DRP in terms of section 144C and no appeal can be filed before the first appellate authority in such a case. In the original round of proceedings, the appeal before the Tribunal has come through DRP route and that is the reason how this Tribunal has decided the appeal and thereafter has remanded the matter back to the file of the AO/TPO. Once an appeal has been disposed of by the Tribunal by remanding back the matter before the A.O. to be pass fresh assessment order in accordance with the law, then it relegates back to the stage of assessment proceedings as if it is a fresh assessment which has to be done by the A.O. Even if the matter is remanded with specific direction or purpose of verification or re-computation etc., then also the A.O. has to give effect to such direction and pass a fresh assessment order thereby determining the income of the assessee and work out the tax demand accordingly. If the assessee is aggrieved by such an assessment order giving effect to the appellate order, then in that case, the only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raft assessment order is passed then the appeal will lie before the Tribunal. This inter alia means that the entire assessment procedure is thrown open and remedy against the order will follow according to the statute. One another inference can be drawn though not directly flowing from the judgments, is that, the remanding back to the AO is not reckoned as extension of lis pending before the Tribunal, albeit, the set-aside or remand back to the file of AO is disposal of the appeal by the Tribunal and all the consequence of passing of fresh assessment order will follow. Most of these judgments have been rendered under writ jurisdiction of the Hon'ble High Court where non adherence to procedure laid down in section 144C has been struck down or has been held as nullity. 10. Accordingly, we agree with the objection raised by the Ld. CIT (DR) that the appeal filed by the assessee is not maintainable before the Tribunal and hence treated as infructuous being not been filed before the appropriate authority under the law. 11. However, under the given facts and circumstances of the case and in the interest of justice, we can only direct the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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