MARRIOTT INTERNATIONAL INC,MUMBAI vs. DCIT-(IT)-3(2)(1), MUMBAI

All these four appeals have been recalled by the order of the coordinate bench in miscellaneous application number 220 – 223/M/2022 for assessment year 2006 – 07 to assessment year 2009 – 10 as per order dated 20/9/2023 wherein the additional ground raised

For all these years the assessee has raised the following identical additional ground of appeal: –

It is prayed by the application for additional ground that the above ground is jurisdictional in nature, no fresh facts are required to be investigated, could be raised at any time during the year and is bona fide, therefore should be admitted.

Identical additional grounds were raised for all these four assessment years.

The learned departmental representative vehemently objected to the same and stated that assessee could not raised this ground before the lower authorities and also in the original proceedings but is now

We have carefully considered the rival contention and perused the additional ground raised by the assessee along with the application thereof wherein it is found that this ground is jurisdictional in nature, goes to the root of the issue, does not require any investigation of facts, failure to raise this grounds earlier is a bona fide omission, therefore, this ground of appeal is admitted for all these years.

Coming to the facts for assessment year 2006 – 07 which is the first year in bunch of all these appeals, The facts for that year shows that a. the assessee filed return of income on 30/11/2006 at ₹ 26,186,356/– which was picked up for scrutiny and assessment was completed on 25/11/2008 assessing the total taxable income at ₹ 127,745,463/–.

Based on this, the argument of the learned authorized representative is that the draft assessment order passed by the assessing officer along with the notice of demand under section 156 of the Act is bad in law as the same has been passed in violation of provisions of section 144C of the income tax act 1961. For this proposition he relied on the several judicial precedent submitted in a paper book containing 216 pages wherein 16 judicial precedents were relied upon.

We have carefully considered the rival contention and perused the orders of the lower authorities. Admittedly, in this case the draft assessment order is passed which is also accompanied by the notice of demand issued under section 156 of the income tax act on the same date along with the computation of tax payable by the assessee. We find that the issue is identical to the facts of the case of the Cisco Systems services BV decided by the honourable Karnataka High Court in 456 ITR 50 on 24/2/2023 wherein the facts were that the assessee received the notice of demand under section 156 of the income tax act 1961 along with the draft assessment order under section 143 (3) of the act passed by the learned AO. The honourable High Court held that provisions of section 144C lays down a detailed procedure wherein the assessing officer is required to forward a draft of the proposed order of assessment to the assessee. The assessee may file its acceptance/ objections before the dispute resolution panel and the AO. If the assessee intimates

In the present case before us in the draft, assessment order dated 22/3/2016 the assessing officer in the last paragraph has directed computation of total tax payable as per ITNS 150, which was part of the order. The penalty under

For assessment year 2007 – 08 the identical facts exist and assessment order was passed on February 29/02/2016 under section 143 (3) read with section 254 read with section 144C (1) of the income tax act 1961 determining total income of the assessee at ₹ 213,292,618/–. In the last paragraph of the assessment order, the learned assessing officer has held that computation of total tax payable is as per ITNS 150 accompanied and is a part of the order. Further the penalty under section 271 (1) © is initiated for furnishing of incorrect particulars of income. The draft assessment order was accompanied by the notice of demand under section 156 of the income tax act, 1961 dated 29/2/2016 computing the demand payable of ₹ 2,322,300/–. Along with that income tax computation form was also attached showing the demand payable of ₹ 2,322,300. Therefore the facts in the case of the assessee for assessment year 2007 – 08 is identical to the facts in case of the assessee for assessment

For assessment year 2008 – 09 identical facts exist where the assessment order passed on February 29, 2016 under section 143 (3) read with section 254 read with section 144C (1) of the income tax act dated 29/2/2016 assessing the total income of the assessee at ₹ 185,318,070 by the draft assessment order accompanied with the notice of demand under section 156 of the income tax act along with the income tax computation form computing the tax payable of Rs. 130,07,780/–.

Further for assessment year 2009 – 10, draft assessment order was passed on 29/2/2016 under section 143 (3) read with section 254 read with section 144C (1) of the income tax act 1961 on 29/2/2016 along with the notice of demand under section 156 of the income tax act computing the tax payable of ₹ 33,277,830/– along with the income tax computation form giving the breakup of the above tax demand.

In the result, by allowing the additional ground raised by the assessee for all these four years, the draft assessment orders for those years are quashed and appeal of the assessee are allowed.