9911796707
TMI Blog2023 (7) TMI 1488X X X X Extracts X X X X X X X X Extracts X X X X ..... essee in terms of section 144C(15) and no variation in the income returned could be made, which is prejudicial to the interests of the assessee, without proposing a draft assessment order at the first instance in terms of section 144C(1) Assessing Officer issued a communication dated 09.11.2016 to the assessee indicating therein that the assessment order dated 31.10.2016 passed earlier was wrongly passed, hence, should be treated as null and void. On the very same date, the Assessing Officer passed a draft assessment order, purportedly, under section 143(3) r.w.s. 144C(1) of the Act and subsequently, passed the final assessment order on 19.01.2017, purportedly, under section 143(3) read with section 144C(3) of the Act. Once the Assessing Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute does not confer any power on the Assessing Officer to either withdraw or modify or substitute one assessment order passed by him earlier with another assessment order subsequently. If the AO is permitted to do so, it will lead to undesirable consequences and will give a free hand to the AO to pass an assessment order and subsequently withdraw/modify/cancel it according to his own whims and caprices. This will not only be against the scheme of the Act, but against all legal principles. In view of the aforesaid, we hold that the AO had no jurisdiction to declare the assessment order passed earlier by him as null and void and substitute it with another assessment order. In view of the aforesaid, we uphold the decision of Commissioner (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudicate the appeal. 4. Briefly, the facts are, the assessee is a non-resident corporate entity. In the assessment year under dispute, the assessee filed its return of income on 29.11.2013 declaring nil income. Assessee s case was selected for scrutiny and in course of assessment proceedings, the Assessing Officer, having noticed that in the year under consideration, the assessee has entered into international transactions with its Indian Associated Enterprises (AEs) by subscribing to fully convertible debentures (FCDs), made reference to the Transfer Pricing Officer (TPO) for determining Arm s Length Price (ALP) of the international transactions. After examining the issue, the TPO passed an order on 26.09.2016 under section 92CA(3) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al before learned first appellate authority. 6. While deciding the appeal arising out of first assessment order dated 31.10.2016, learned Commissioner (Appeals) held that since, the assessee is an eligible assessee under section 144C(15) of the Act and the Assessing Officer has proposed a variation to the income returned by the assessee, which is prejudicial to the interest of the assessee, he should have passed a draft assessment order under section 144C(1) of the Act instead of passing the final assessment order under section 143(3) read with section 144C(3) of the Act. Thus, he held that non-framing of a draft assessment order under section 144C(1) of the Act is not a curable defect under section 292B of the Act. Hence, he held the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority, it cannot be cancelled/recalled/ nullified/withdrawn by the Assessing Officer under any circumstance. He submitted, the statute only vests powers on the Assessing Officer to either initiate assessment proceedings under section 147 of the Act on the ground that income has escaped assessment or pass rectification order under section 154 of the Act in case there is mistake apparent on the fact of record. He submitted, the statute does not confer any power on the Assessing Officer to cancel / nullify / withdraw / recall or hold the assessment order to be null and void. He submitted, merely because the period of limitation to pass assessment order is available, it will not empower the Assessing Officer to pass any number of assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er has passed an assessment order, whether rightly or wrongly, does he has the power to cancel / recall / withdraw the assessment order or declare it as null and void ? On carefully scanning through the provisions of the Act, we were unable to locate any such power vested with the Assessing Officer to declare an assessment order passed by him earlier as null and void. However, in the facts of the present case, the Assessing Officer has not only declared the assessment order passed by him earlier as null and void, but has passed a fresh assessment order when earlier assessment order was under challenge before the first appellate authority. Once, an assessment order is passed by Assessing Officer and communicated to the assessee, he becomes f ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
