JANARDHAN KAPUR,HARYANA vs. ITO,WARD 29(1), DELHI

This appeal is preferred by the Assessee against the order dated 13.09.2024 of the Commissioner of Income-tax (Appeals), NFAC, Delhi (hereinafter referred to as the Ld. First Appellate Authority or ‘the Ld. FAA’, for short) in Appeal No.NFAC/2018-19/10092978 arising out of the appeal before it against the order dated 23.09.2021 passed u/s 143(3) r.w.s. 144B of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) by the Assessment Unit, Income-tax Department (hereinafter referred to as the Ld. AO).

On hearing both the sides, we find that amongst other grounds on merits the assessee has raised ground No.2. This ground was not raised before the CIT(A). However, before us, a separate application is moved requesting to raise this as an additional ground. Considering that the ground no. 2 questions the assumption of jurisdiction to pass final assessment order and can be decided on the basis of admitted facts, the same is admitted.

The ground No.2 as raised is reproduced below:- “That the order passed by the Assessing Officer (AO) under section 143(3)/144B of the Income-tax Act, 1961 (Act) was without jurisdiction, null and void since no prior draft assessment order as required under section 144C(1) was passed and provided to the Appellant being a non- resident and “eligible assessee” as per section 144C(15)(b)(ii) of the Act.”

As from the assessment order itself it can be observed that the appellant is an individual who was assessed in the status of non-resident and, therefore, falls in the definition of ‘eligible assessee’ as per section 144C(1) r.w.s. 144(15)(b)(ii) of the Act and, thus, for the purpose of section 144C the AO was required to first issue a draft assessment order. However, we find that the AO issued a final assessment order u/s 143(3)/144B of the Act and raised the income-tax demand and also initiated penalty proceedings.

The ld. DR has defended it by submitting that in any case the assessee was given a show cause during the assessment of the proposed addition. However, that does not lead to defiance of express provision of law of issuing a draft assessment order in case of an eligible assessee. The Hon’ble Delhi High Court in the case of PCIT vs. Sumitomo Corporation India Pvt. Ltd., 166 taxmann.com 55, has decided a bunch of cases including the case of Aditya Talwar which was also a case of a non-resident individual and where also without issuing draft assessment order as per the mandate of section 144C of the Act, the AO had proceeded to pass the final assessment order and the Hon’ble High Court had held the final assessment order to be a nullity.

In the light of the aforesaid discussion, we sustain the ground No.2 and the appeal of the assessee is allowed. The impugned assessment is quashed.