9911796707
TMI Blog2021 (2) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the submissions of Revenue that having participated for the assessment proceedings the assessee is estopped from challenging the action of AO for non-issuance of draft assessment order. The Tribunal discussed the same and observed where mere consent of parties does not bestow the jurisdiction if the order is beyond jurisdiction. As relying on assessee s own case [ 2019 (8) TMI 763 - ITAT PUNE] the said order being against provisions of section 144C of the Act. In view of our setting aside the assessment order passed in the case under section 143(3) of the Act, the grounds of appeal raised by assessee on merits and the grounds of appeal raised by Revenue become academic in nature - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... raised additional ground of appeal challenging the validity of assessment order passed u/s. 143(3) of the Act for not following mandatory provisions of section 144C(1) of the Act. 8. The assessee requested the CIT(A) to take up the additional ground stating that it is legal ground, considering the same u/s. 250(5) of the Act, the CIT(A) held that non filing of said ground at the time of filing of appeal is not willful and proceeded to dispose of the additional ground. 9. Para No. 6 of the impugned order reveals that the assessee has claimed that the AO proceeded to pass final assessment order u/s. 143(3) of the Act on receipt of the order u/s. 92CA(3) of the Act without passing draft order as required u/s. 144C(1) of the Act. Further, it was contended it is incumbent upon the AO to forward a draft assessment order u/s. 144C(1) of the Act to the assessee, if the AO proposes to make any addition on the basis of order passed by the TPO u/s. 92CA(3) of the Act. It is claimed that the AO has failed to forward such draft order prior to passing the final assessment order, the whole assessment proceedings become a nullity and the assessment order becomes void-ab-nitio. Further, it was co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act to the Dispute Resolution Panel (DRP). The DRP refused to pass any direction on the objections because the objections had been filed in respect of a final order not under draft assessment order u/s. 144C(1) of the Act. The Hon'ble High Court of Bombay was pleased to find support from the unreported decision in the case of Zuari Cement Ltd. Vs. ACIT (Writ Petition No.5557 of 2012) of Hon'ble High Court of Andhra Pradesh and consequently the dismissal of SLP by the Hon'ble Supreme Court quashed the final assessment order dated 23-03-2015 treating the same was passed without there being jurisdiction. In the present case as emanating from the records that the AO referred the international transactions for determination of arm's length price (ALP) to the TPO and the TPO suggested upward adjustment, the AO show caused the assessee on this issue. In response to which the assessee filed a letter dated 24-02-2014 stating agreeing for the said addition relating to upward adjustment suggested by the TPO. As it shows the assessee was in the impression that no prejudice will cause to it if the TP adjustment is accepted. The AO passed final assessment order without there being a dra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee contended that the AO has failed to follow the mandatory provisions of section 144C of the Act, without issuing any draft assessment order, passing of final assessment order suffers from infirmity and to be treated the same as bad in law. This Tribunal discussing the provisions u/s. 144C of the Act and held the final assessment order passed by the AO without issuing draft assessment order is against the provisions of the Act. 15. This Tribunal placed reliance on the decision of Hon'ble High Court of Bombay in the case of Pr. CIT Vs. Lionbridge Technologies (P.) Ltd. reported in (2018) 100 taxmann.com 413 (Bom). This Tribunal discussed the same in detail in para No. 13 and observed that the Hon'ble Bombay High Court in Lionbridge Technologies (P.) Ltd. (supra) placed reliance in the case of International Air Transport Association (supra) which held that the draft assessment order is necessary in terms of section 144C(1) of the Act before the AO can proceed to pass final assessment order. We note that the assessee accepted the upward TP adjustment in relating to international transactions by way of vide its communication as that of in the present case involving A.Ys. 2010 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent of parties does not bestow the jurisdiction if the order is beyond jurisdiction. 14. Applying the said proposition to the facts of present case and mainly relying on the proposition that mere consent of parties does not bestow the jurisdiction, where the order is beyond jurisdiction. We hold that even if assessee had accepted addition to be made on account of transfer pricing adjustment, during assessment proceedings, would not bestow the jurisdiction upon the Assessing Officer and final assessment order passed in the case cannot be upheld in law, in the absence of Assessing Officer passing draft assessment order, which is envisaged as per section 144C(1) of the Act. Accordingly, we hold that assessment order passed in the case is without jurisdiction and bad in law. 15. The stand of Revenue in this case that the assessee having participated in assessment proceedings and hence, the error, if any, stands corrected, do not stand in view of the dictate of the Hon'ble Bombay High Court. The learned Departmental Representative for the Revenue has also relied on the decision of Tribunal in DCIT Vs. Magna International Inc. (supra), wherein the facts are at variance. Since the as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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