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TMI Blog2023 (3) TMI 1032X X X X Extracts X X X X X X X X Extracts X X X X ..... els will not operate against the Act. It is obligatory on the part of the ld. AO to comply with the mandatory procedural requirements of completing the assessment. AO straightaway passed the assessment order, without passing any draft of the proposed order of assessment for which he noted, In view of above, final order is being passed without making any draft assessment order . As held in various decision of the Tribunal, a final assessment order without passing of the draft of the proposed order of assessment, being not in accordance with the provisions contained in section 144C of the Act, is liable to be quashed. Decided in favour of assessee. - ITA No.1871/Kol/2019 - - - Dated:- 24-2-2023 - SHRI SANJAY GARG, JUDICIAL MEMBER AND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... November, 2021 had taken the following additional grounds of appeal:- (1) For that the orders passed by the lower authorities are arbitrary, erroneous, without proper reasons, invalid and bad-in-law, to the extent to which they are prejudicial to the interests of the appellant. (2) For that the Ld. A.O. having failed to forward a draft of the proposed order of assessment to the appellant proposing to make variation to the total returned income the order so passed u/s 143(3) r.w.s. 144C(3) of the Income Tax Act, 1961 is bad-in-law, liable to be annulled. (3) For that the A.O. having not followed the mandatory provision of Sec.l44C of the Act to provide a draft assessment order to the appellant before making a final assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken by the assessee vide its order dated 7t h April, 2022. 5. On 14.11.2022, ld. Counsel for the assessee at the time of hearing has submitted that he does not want to press the main grounds of appeal on merits rather he stresses solely on the additional grounds of appeal. The ld. Counsel in this respect has invited our attention to the provisions of section 144C of the Act to submit that since this was a case of Transfer Pricing Adjustment, provisions of section 144C were applicable.As per the said provisions, Ld. Assessing Officer was supposed to forward a draft of proposed order of assessment and give opportunity to the asse ssee, either to accept the same or to file objections against it before the Dispute Re solution Panel and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer, or (b) file is objections, if any, to such variations made in the returned income as discussed above with the Dispute Resolution Panel, 8th Floor, Aayakar Bhawan, P-7, Chowringhee Square, Kolkata-700069 and the Assessing Officer with in 30 (Thirty) days of the receipt of draft order. The assessee has stated that they do not in tend to exercise the option available u /s 144C to file objections before the Dispute Resolution Panel. In view of above, final order is being passed without making any draft assessment order . 6.1. A perusal of the above part of the assessment order reveals that before the Assessing Officer, assessee had stated that they did not intend to exercise the option available under section 144C to file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.1. Ld. D.R. in this respect has submitted that since Ld. Assessing Officer had proceeded to frame the assessment order due to waiver exercised by the assessee, therefore, to meet the principles of natural justice, the matter may be remanded to the file of ld. Assessing Officer for passing a fresh draft assessment order, whereupon the assessee would be entitled to file its objections, if any, as per the provisions of section 144C of the Act. 9. We find that in this case, the mandatory procedural compliance error has been committed by the ld. Assessing Officer in not passing the draft of the proposed order of assessment. From the perusal of the provisions of section 144C(1) of the Act, we note that the AO is required in the first insta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of assessment for which he noted, In view of above, final order is being passed without making any draft assessment order . As held in various decision of the Tribunal, a final assessment order without passing of the draft of the proposed order of assessment, being not in accordance with the provisions contained in section 144C of the Act, is liable to be quashed. 11.1. Some of the decisions of various benches of the Tribunal which have held that passing of the draft of the proposed order of assessment is sine qua non before passing of the final assessment order are as under: 1. Decision of the Mumbai Bench of the Tribunal in the case of Jazzy Creations Pvt. Ltd. v/s. ITO reported in [2017] 83 taxmann.com 244. 2. Decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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