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TMI Blog2023 (10) TMI 915X X X X Extracts X X X X X X X X Extracts X X X X ..... gal issue and do not involve any investigation of facts and should be allowed to be raised even at the appellate stage. Reference in this regard is drawn from the case of National Thermal Power Co. Ltd. v. CIT in [1998] 229 ITR 383 (SC)wherein the powers of the Tribunal to admit additional grounds of appeal were analyzed by quoting another decision of the Hon'ble Apex Court. The relevant paras as follows: "In the case of Jute Corporation of India Ltd v. CIT [1991] 187 ITR 688, this court, while dealing with the powers of the Appellate Assistant Commissioner observed that an appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income-tax Officer. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal to admit additional grounds of appeal were analyzed by quoting another decision of the Hon'ble Apex Court. The relevant paras as follows: "In the case of Jute Corporation of India Ltd. v. CIT [1991] 187 ITR 688, this court, while dealing with the powers of the Appellate Assistant Commissioner observed that an appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income-tax Officer. This court further observed that there may be several factors justifying the raising of a new plea in an appeal and each case has to be considered on its own facts. The Appellate Assistant Commissioner must be satisfied that the ground raised was bona fide and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee narrated the sequence of events as under:- Assessment Year 2015-16. Assessment Year 2016-17. (i) Return filed on 27.11.2015 (i) Return filed on 29.11.2016 (ii) Draft assessment order passed on 29.12.2018 (ii) Draft assessment order passed on 30.12.2018 (iii) Final assessment order 11.02.2019 (iii) Final assessment order 20.02.2019 4. The ld. Counsel for the assessee further made the following submissions:- i) As per Section 144C(1) of the Act, the A.O. shall in the first instance forward a draft of the proposed order of assessment (draft order') to the eligible assessee, if he proposes to make any variation in the income or loss returned, which is prejudicial to the interest of the assessee. ii) As per Section 144C(15) of the Act, 'Eligible Assessee' means - (a) Any person in whose case variation referred to in Section 144C(1) of the Act arises as a consequence of the order of the TPO passed under 92CA(3) of the Act; and (b) Any foreign company. iii) Therefore, for passing a draft order under Section 144C, following conditions are required to be fulfilled cumulatively:- (a) The Assessee should be an 'Eligible Assessee' as defined in Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onsideration to the rival contentions and have carefully perused the assessment order. In so far as the facts of the case are concerned, there is no quarrel. The returned income of Rs. 27,38,71,150/- was assessed as such with the only difference that the Assessing Officer denied the benefit of India - Cyprus DTAA and taxed the income @ 20% u/s 115A of the Act. 11. On these undisputed facts, all that has to be decided is as to whether the Assessing Officer was justified in passing a draft assessment order when there is no variation in income or loss returned which is prejudicial to the interest of the assessee. 12. Section 144C(1) of the Act provides that : "The Assessing Officer shall, notwithstanding anything to the contrary contained in this Act, in the first instance, forward a draft of the proposed order of assessment to the eligible assessee if he proposes to make, on or after the 1 st day of October, 2009, any variation in the income or loss returned which is prejudicial to the interest of such assessee." 13. As mentioned elsewhere, there is no variation in the income returned by the assessee and returned income has been assessed as such. It is also not in dispute tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssued in this case, as the provisions of Section 144C(1) could not have been invoked in this case, the time limit of completion of assessment was available only upto 31st December 2017. The mere issuance of draft assessment order, when it was legally not required to be issued, cannot end up enhancing the time limit for completing the assessment under section 143(3). We, therefore, uphold the plea of the assessee on this point as well. The impugned assessment order is indeed, in our considered view, time barred. We, accordingly, hold so." 16. In light of the above, we hold the assessment order to be time barred and since the assessment order itself has been held to be time barred, all the issues raised by the Revenue in its appeals which deal with the merits of stand taken by the Assessing Officer in the assessment order become academic and infructuous and require no separate adjudication." 7. Facts being identical respectfully following the said decision we hold that the assessment order passed under section 143(3) read with section 144C(13) is barred by limitation for both the assessment years 2015-16 and 2016-17. Additional grounds raised by the assessee are accordingly allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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