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TMI Blog2021 (9) TMI 1074X X X X Extracts X X X X X X X X Extracts X X X X ..... ise of power which offends Article 14 21 of the Constitution of India and therefore an action made without jurisdiction and ergo the assessment order dated 25.09.2017 is null in the eyes of law and therefore, is non est. Therefore, when the foundation itself does not exist, i.e., assessment order dated 25.09.2017 is non-est, the Ld. PCIT could not have exercised his jurisdiction to interfere with void/null order which is not existing in the eyes of law and, therefore, the impugned order of Ld. PCIT is also a nullity. The assessee succeeds on the legal issue. - I.T.A. No. 416/Kol/2020 - - - Dated:- 15-9-2021 - A.T. Varkey, Member (J) And Manish Borad, Member (A) For the Appellant : Akkal Dudhwewala, FCA For the Respondents : Tushar Dhawal Singh, CIT, DR ORDER Per Shri A.T. Varkey, JM This is an appeal filed by the Assessee against the order of Ld. PCIT-12, Kolkata dated 17.03.2020 passed u/s. 263 of Income Tax Act, 1961 (hereinafter referred to as the 'Act') for Assessment year 2014-15. 2. At the outset, the Ld. AR Shri Akkal Dudhewewela assails the jurisdiction of the Ld. Pr. CIT-12, Kolkata to have invoked the revisional jurisdiction u/s. 263 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal issue of failure on the part of AO to frame draft assessment order and, therefore, according to him, he can interfere and he was pleased to set aside the order of the AO dated 25.09.2017 and directed the AO to make assessment de novo after properly complying with the provisions of section 144C of the Act. Aggrieved, the assessee is in appeal before us. 4. We have heard rival submissions and gone through the material available on record. We note that the assessee's return of income was taken up for scrutiny proceedings and the AO had referred to the TPO the domestic transfer pricing issue. Pursuant to the reference made to the TPO, the TPO passed the order u/s. 92CA(3) of the Act dated 31.07.2017 determining ALP at ₹ 8,92,829/-. Thereafter, the AO had issued the original assessment order u/s. 143(3) of the Act dated 25.09.2017 which according to the assessee, is non est in the eyes of law, since as per law the AO was bound to issue draft assessment order and thereby inter-alia give an opportunity to assessee to avail to go before the Dispute Resolution Panel (hereinafter referred to as DRP). Thus by not framing the draft assessment order, after receipt of TPO ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Assessing Officer or file his objections, if any, to such variation with the DRP and the Assessing Officer. Under sub-section (3) of section 144C of the Act, the Assessing Officer shall complete the assessment on the basis of draft order if the assessee intimates to the Assessing Officer the acceptance of the variation or no objections are received within period specified in sub-section (2) of section 144C of the Act. Thereafter, the Assessing Officer is empowered to pass the assessment order within one month from the end of month, in which the acceptance is received or the period of filing objections under sub-section (2) of section 144C of the Act expires. Under sub-section (5) of section 144C of the Act, it is provided that the Dispute Resolution Panel shall in case where 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. Upon receipt of the said directions, the Assessing Officer shall in conformity with the same, complete the assessment without providing any further opportunity of being hearing to the assessee within one month from the end of the month in w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer under section 144C(5) of the Act. It is only thereafter, the AO is bound to pass a final order of assessment in compliance with the directions issued by the DRP under section 144C(3) of the Act. In the present case, without following above mandatory procedure, the AO has passed the order of assessment on 26.03.2013 and subsequently issued a corrigendum on 15.04.2014 to rectify the mistake committed in passing the final order of assessment inter alia to treat it as a draft assessment order. This course of action adopted by the second respondent is contrary to the mandatory provisions contained in the Act and the corrigendum issued by the AO could not cure the defect. The very fact that the Assessing Officer has signed the order of assessment and also assessed the amount payable by the assessee has become complete and it cannot be simply treated as a draft assessment order or it can be rectified by issuing the corrigendum. In fact, pursuant to the order of assessment under section 143C, demand was also made for payment of the amount and such demand has not been withdrawn by the second respondent even after issuing the corrigendum. Even as per the website of the department, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t year 2008-09 was contrary to the expressed language of the section and the said view of the Revenue was held to be not acceptable. The Hon'ble High Court of A.P thereafter held that the impugned order of assessment dated 23.12.2011 passed by the respondent was contrary to the mandatory provisions of section 144C of the Act is declared as one without jurisdiction, null and void and unenforceable. The Hon'ble High Court of Andhra Pradesh held as under:- In this view of the matter we are of the view that the impugned order of assessment dt. 23.12.2011 passed by the respondent is contrary to the mandatory provisions of S. 144C of the Act and is passed in violation thereof. Therefore, it is declared as one without jurisdiction, null and void and unenforceable. Consequently, the demand notice dated 23.12.2011 issued by the respondent is set aside. 9. The Hon'ble Supreme Court (supra) in ACIT Vs. Zuari Cements Ltd. (supra) had dismissed the Special Leave Petition filed by the Department upon hearing the Counsel. According to the Ld. A.R. Shri Akkal Dudhwewala since the said Special Leave Petition was dismissed after hearing the Counsel the view taken by the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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