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TMI Blog2023 (3) TMI 908X X X X Extracts X X X X X X X X Extracts X X X X ..... enting the assessee s case. As decided in the case of Piramal Enterprises Ltd [ 2021 (8) TMI 48 - BOMBAY HIGH COURT ] in assessment order passed u/s. 143(3) r.w.s. 144(4) of the Act without adhering the procedure laid down u/s. 144B shall make the assessment non est in the eyes of law. Abacus Real Estate (P.) Ltd. [ 2021 (10) TMI 1213 - BOMBAY HIGH COURT ] in which the Hon'ble Jurisdictional High Court held that the mandatory procedure prescribed u/s. 144B of the Act if not followed the same would make the assessment order and the draft assessment order as non est. Assessment order passed in variation of the procedures prescribed u/s. 144B of the Act would render the assessment order as non est. Decided in favour of assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inesses from Mumbai (MUM segment) and Research and development services business from Hyderabad (HYD Segment). The assessee company filed its return of income for A.Y. 2017-18 dated 30.11.2017, declaring total income at Rs.Nil. The assessee s case was selected for scrutiny and the assessment order u/s. 143(3) r.w.s. 144C of the Act dated 28.02.2022 was passed, where the A.O. determined the total income at Rs.16,80,09,929/-, as against the loss of Rs.26,34,96,140/-, declared by the assessee in its return of income and made the transfer pricing adjustment of Rs.5,77,09,121/- pursuant to the direction of the ld.DRP after disposing off the objections raised by the assessee. 4. Aggrieved by the said order, the assessee is in appeal before us, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7,476/- was proposed in the draft assessment order. It is alleged that the A.O. has issued the draft assessment order u/s. 144C of the Act without issuing the draft order as per the faceless assessment scheme. The assessee contends that the A.O. has failed to comply with the procedures laid down under the Faceless assessment scheme by not issuing the draft assessment order before passing the draft order as per section 144C of the Act, where the assessment order is bad in law and contrary to the provisions of the Act. The ld. DRP, for the objection filed by the assessee has held that section 144C of the Act is a complete code in itself which is applicable to the eligible assessee defined u/s. 144C(15)(b) of the Act. The ld. DRP further state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order null and void. The ld. AR relied on the decision of Hon'ble Jurisdictional High Court in the case of Piramal Enterprises Ltd. vs. Addl. CIT [2021] 129 taxmann.com 18 (Bom), which held that the assessment u/s. 143(3) or section 144(4) of the Act which is not made in accordance with the provisions of section 144B shall be non est. The ld. AR also relied on the decision of the Hon ble Delhi High Court in the case of Gurgaon Realtech Ltd. vs. National Faceless Assessment Centre [2021] 127 taxmann.com 726 (Del), which also laid the said proposition. 8. The learned Departmental Representative (ld. DR for short) for the Revenue, on the other hand, controverted the same and contended that the draft assessment order issued u/s. 144 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Hon ble Dispute Resolution Panel ('DRP' for short) was not considered on the ground that section 144C in which the draft assessment order was passed was in itself a complete code and that merely by issuing a draft assessment order in case of an eligible assessee does not contemplate the same to be a final order. The assessee has the option to file objection before the DRP against the proposed additions/adjustments and that the impugned addition was made giving the assessee sufficient opportunity of being heard. The ld. DRP further held that the decisions relied upon by the assessee does not relate to section 144C and that the assessee was not prejudiced by non issuance of show cause notice along with the draft order. It is per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non est in the eyes of law. The relevant extract of the said decision is cited hereunder: 64. Section 144-B of the Income Tax Act, 1961 captioned 'Faceless Assessment' commences vide its sub-section (1) with a non- obstante clause and compulsively requires assessment u/ss 143(3) and 144 shall be by prescribed procedure contained in sub-section (1) of section 144-B in the cases referred to in sub-section (2) thereof. 65. Sub-section (9) of section 144B declares that assessment made under section 143(3) or under section 144(4) referable to sub- section (2) other than sub-section (8) on or after 1 st day of April, 2021 shall be non est if such assessment is not made in accordance with the procedure laid down under section 144 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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