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TMI Blog2024 (7) TMI 125X X X X Extracts X X X X X X X X Extracts X X X X ..... para 8 of this order. The subsequent clarificatory circular issued by CBDT is in line with the provisions of Section 144C(1) - CBDT Circular and decision referred above makes it explicit that after 01.10.2009, the AO is statutorily required to pass draft assessment order u/s. 144C(1) of the Act, if he makes any addition, before passing the final assessment order u/s. 144C(3) of the Act. As decided in the case of Xander Advisors India Pvt. Ltd.[ 2022 (12) TMI 501 - ITAT DELHI] in somewhat similar case where the final assessment order was passed without passing draft assessment order, after considering various decisions including the decision rendered in the case of Zuari Cement Ltd. ( 2013 (9) TMI 1167 - SC ORDER ) the decision of CIT vs. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling the assessment order on the basis of CBDT Circular No. 09/2013 dated 19.11.2013, by disregarding that: (a) The Explanatory Notes to the Provisions of the Finance Act 2009 (Circular No. 05/2010) issued on 03.06.2010, as applicable on the date of assessment order, mention that the amendments have been made applicable with effect from 1 October, 2009, and will accordingly apply in relation to assessment year 2010-11 and subsequent assessment years. (b) The CBDT Circular No. 05/2010 was in force when the TP Order was passed on 28.01.2013 and when the assessment order was passed on 28.02.2013. (c) The CBDT Circular No. 09/2013 was issued on 19.11.2013 whereas TP Order was passed on 28.01.2013 and the assessment order was passed on 28.03.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td. reported as TS-270-213-SC. The CIT(A) while deciding this issue has also considered various other decisions including the decision of Hon ble Jurisdictional High Court in the case of ESPN Star Sports Mauritius S.N.C ET Compagnie vs. UOI 68 taxmann.com 377. The ld. AR prayed for upholding the order of CIT(A) and dismissing appeal of the Revenue. 5. Per contra, Shri Rajesh Kumar representing the Department vehemently defended validly of assessment order. The ld. DR narrating sequence of events submitted that the Transfer Pricing Officer (TPO) passed the order u/s. 92CA(3) on 28.01.2013. Thereafter, the AO passed the impugned assessment order on 28.03.2013. The provisions of section 144C were inserted by the Finance (No.2) Act, 2009 with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions. 8. The undisputed fact is that the Assessing Officer has passed the final assessment order dated 28.03.2013, without passing any draft assessment order. The provisions of Section 144C of the Act were inserted by the Finance (No.2) Act, 2009 with retrospective effect from 01.04.2009. A bear perusal of sub-section (1) to section 144C of the Act would show that the Assessing Officer in the first instance is required to pass a draft assessment order in the case of eligible assessee, if he proposes to make any variation which is prejudicial to the interest of such assessee, on or after 01.10.2009. In the Explanatory circular for Finance (No.2) Act, 2009 i.e. Circular No.5 of 2010 dated 03.6.2010 in Para 45.5 it was mentioned that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (No.2) Act, 2009 clearly indicated that the amendments relating to S.144C would take effect from 01.10.2009. In our view, the circular No.5/2010 issued by the CBDT stating that S.144C(1) would apply only from the assessment year 2010-11 and subsequent years and not for the assessment year 2008-09 is contrary to the express language in S.144C(1) and the said view of the Revenue is unacceptable. The circular may represent only the understanding of the Board/Central Government of the statutory provisions, but it will not bind this court or the Supreme Court. It cannot interfere with the jurisdiction and power of this court to declare what the legislature says and take a view contrary to that declared in the circular of the CBDT (Ratan Melting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ACIT, in somewhat similar case where the final assessment order was passed without passing draft assessment order, after considering various decisions including the decision rendered in the case of Zuari Cement Ltd. vs. ACIT (supra) the decision of Hon ble Gujarat High Court in the case of CIT vs. C-Sam (India) (P.) Ltd 84 taxmann.com 261 (Guj.) and CBDT circular dated 03.6.2010 and dated 19.11.2013 (supra) quashed the final assessment order. 13. In the instant case, the CIT(A) has quashed the final assessment order dated 28.03.2013 that has been passed without following the mandatory provisions of Section 144C(1) of the Act after considering decisions passed by various Hon ble High Courts. We do not find any infirmity in the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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