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Income Tax Appellate Tribunal, MUMBAI L BENCH, MUMBAI
Date of concluding the hearing : January 4, 2016 Date of pronouncing the order : January 15, 2016 O R D E R Per Pramod Kumar, AM:
By way of this appeal, the assessee appellant has challenged correctness of the order dated 16th April, 2014 passed by the CIT(A) in the matter of assessment under section 143(3) of the Income Tax Act, 1961, for the assessment year 2007-08. .
This is second round of proceedings. In the first round of proceedings, the matter had travelled before a coordinate bench of this Tribunal, and, vide order dated 19th August 2013, the matter was remitted to the file of the CIT(A) by observing that, “...We consider it appropriate to restore the entire issue regarding the TP adjustment to the file of the CIT(A) with a direction to re-adjudicate the same by taking into account the aforesaid amendment as well as other grievances on the assessee on TP adjustment by giving the assessee a reasonable opportunity of hearing.....” The assessee is not satisfied by the stand taken by the CIT(A) in the remanded proceedings as well. That is why the assessee is once again in appeal before us.
When this appeal was called out for hearing, learned counsel for the assessee invited our attention to the additional grounds of appeal, which, according to him, goes to the root of the matter. He submits that in the event of assessee being successful in this ground Assessment year: 2007-08 Page 2 of 11 of appeal, all other issues raised in the appeal will be rendered academic and infructuous. We are thus urged to take up these additional grounds of appeal first. Learned Departmental Representative does not oppose this prayer of the assessee.
Grievance of the assessee, as raised in the additional grounds of appeal is, that the assessment order passed by the Assessing Officer is contrary to the scheme of the Act inasmuch as the assessee was directly issued an assessment order, without the issuance of a draft assessment order as required by the scheme of Section 144C of the Act.
In this case, the assessment order under section 143(3) was passed on 24th 5. November 2010, without passing any draft assessment order. As stated in the assessment order, “penalty proceedings under section 271(1)(c) of the Income Tax Act, 1961, are initiated separately for furnishing inaccurate particulars of income and thereby concealment of income”. The notice of demand dated 24th November 2010 was duly raised on this basis demanding a sum of Rs 66,71,271. As evident from the handwritten entries on page 1 of the assessment order, entries in respect of the demand so raised were duly made in the demand and collection register. On 30th December 2010, however, the Assessing Officer issued a letter to the assessee pointing out that “the assessment order was passed actually under section 144C(1) r.w.s. 143(3), however, on the first page of the order, the words Section 144C were missed to be mentioned” and that “the demand notice and notice under section 271(1)(c) were inadvertently served, which should not have been served as the order was only a draft order”. The assessee was advised to treat the assessment order as a draft assessment order only and a rectified draft assessment order was also issued on that day. Accordingly, the assessee proceeded to deal with the order as drat assessment order and the matter was carried in appeal in the first round. In the second round of proceedings, however, the assessee has raised the legal issue regarding the validity of the assessment order itself. There is no dispute that this issue was not raised earlier. The short legal issue raised by the learned counsel now is whether once the Assessing Officer issues an assessment order under section 143(3), on 24th November 2010, is it really open to him to issue a draft assessment order thereafter, or even contend that the assessment order already issued is nothing but a draft assessment order- particularly when not only the notice of demand, consequential to regular assessment, is raised, penalty proceedings, which are initiated on the basis of additions finally made in the assessment order, are initiated, but also when the assessment order so issued is in form and in substance a regular assessment order.
Assessment year: 2007-08 Page 3 of 11
We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position.
The issue being raised by the assessee is a purely legal issue. In view of the law laid down by Hon’ble Supreme Court in the case of National Thermal Power Corporation Ltd Vs CIT [(1998) 229 ITR 383 SC)], this issue can indeed be even raised for the first time before this Tribunal. That aspect of the matter is not even seriously disputed before us. What is really contested is whether such an issue can be raised for the first time in the second round of proceedings, as a result of the matter having been remanded by the Tribunal earlier, before the Tribunal. On this issue, however, we find guidance of Hon’ble jurisdictional High Court. In the case of Inventors Industrial Corporation Ltd Vs CIT [(1992) 194 ITR 548 (Bom)], speaking through late Hon’ble Justice T D Sugla, one of our former Presidents who later graced Hon’ble High Court as a judge, Hon’ble Bombay High Court has observed as follows:
In the case before us, the new ground was raised for the first time not in appeals arising out of the same proceedings. It was taken in collateral proceedings. Reassessment under section 147 was made on August 27, 1959. More or less a consent order was obtained in appeal thereagainst as a result of which the order of reassessment stood set aside for the purpose of giving an opportunity to the assessee to prove the genuineness of certain cash credits. The ground questioning jurisdiction to reassess was not raised even in the second round of proceedings before the Income-tax Officer who completed reassessment afresh on March 28, 1970. No such ground was taken originally even in the appeal filed against the second reassessment. The ground in dispute was taken at the time of hearing before the Appellate Assistant Commissioner. In view of the latest decision of the Supreme Court in the case of Jute Corporation of India Ltd. [1991] 187 ITR 688, it cannot be disputed that the assessee could have raised this ground before the Appellate Assistant Commissioner in his appeal against the first order of reassessment. The pertinent question is whether the new ground could be taken in reassessment proceedings after remand. This takes us to another aspect of the question, namely, whether the assessee could have taken such a ground before the Income-tax Officer himself in these proceedings because if he could have done so, the powers of the Appellate Assistant Commissioner being coterminous, it would be open to him to do so before the Appellate Assistant Commissioner as well. The other aspect would be whether being a ground challenging the very jurisdiction to make reassessment, such a ground could be taken before any authority and at any stage of the proceedings. In this context, it will be necessary in the first instance to ascertain the scope of fresh assessment to be made by an Income-tax Officer when the Appellate Assistant Commissioner sets aside the assessment and directs the Income-tax Officer to make fresh assessment with some directions. The legal position does not appear to be very clear on the subject. One view is that while making a fresh assessment, the Income- tax Officer has, subject to the Appellate Assistant Commissioner's directions, the same powers which he had while making the original assessment. He is entitled to disregard his own previous findings. He can take into account materials not previously existing and tax income not originally assessed. Likewise, it may be open to the assessee to raise objections to the assessment or to the quantum which he
Assessment year: 2007-08 Page 4 of 11 had not raised originally before him or the Appellate Assistant Commissioner. The other view is that the Income-tax Officer is, while passing orders in pursuance of the orders of the appellate authority, required to consider only those matters about which there was a dispute before the appellate authority and directions had been given. Even where the appellate order does not contain such specific directions, under certain circumstances, it may have to be read as remitting the case only on the issues in appeal and, in that event also, the Income-tax Officer cannot re-examine other issues. Consequently, the assessee may not be able to raise contentions which were not raised by him in the original proceedings. However, in this case, it is not really necessary to go into this question. The impugned ground raised before the Appellate Assistant Commissioner admittedly goes to the very root of the Income-tax Officer's jurisdiction to make reassessment. In our view, the jurisdiction of the Income-tax Officer to initiate reassessment proceedings under section 34 of the Act depends solely on the existence of the conditions precedent prescribed by law and the jurisdictional defect, if any, cannot be made good by relying on the order of remand passed by the Appellate Assistant Commissioner. In fact, the Appellate Assistant Commissioner has no jurisdiction under section 31 of the 1922 Act to issue directions to the extent of conferring jurisdiction upon the Income-tax Officer which he is not lawfully seized of. This view was taken by the Madras High Court in the case of N. Naganatha Iyer v. CIT [1966]
60. ITR 647 . The said decision was followed by the Gujarat High Court in CIT v. Nanalal Tribhovandas [1975] 100 ITR 734 . We are in respectful agreement with the view taken by the Madras and Gujarat High Courts in this regard. If it is found that the Income-tax Officer had no jurisdiction to make an order of reassessment, it is irrelevant that the jurisdiction of the Income-tax Officer to reassess was not challenged at any of the earlier stages.
8. In this view of the matter, the mere fact that this issue was not taken up in the first round of proceedings does not act to the detriment of the assessee. The issue being raised now is a fundamental legal issue which goes to the root of the matter. If the assessment order itself is a legal nullity, as it is claimed to be, the impugned additions are devoid of any legally sustainable basis. As long as this legal plea can be raised before us otherwise, which it can be in the light of Hon’ble Supreme Court’s judgment in the case of NTPC Ltd (supra), this issue can also be raised before us in the second round of proceedings as well. We are, therefore, inclined to admit this claim for adjudication on merits.
The scheme of Section 144 C is unambiguous. Section 144C(1) states that “(t)he 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 (hereafter in this section referred to as the draft order) to the eligible assessee if he proposes to make, on or after the 1st day of October, 2009, any variation in the income or loss returned which is prejudicial to the interest of such assessee”. Clearly, therefore, the issuance of a draft assessment order is a sine qua non before the Assessing Officer can pass a regular assessment order under section 143(3). We have carefully perused the assessment order dated 24th November 2010. It is a regular assessment order in form and in substance. Not only that the income is computed, tax payable thereon is Assessment year: 2007-08 Page 5 of 11 computed and demanded, entries are made on the basis of this order in the demand and collection register and even penalty proceedings are initiated. Such an exercise could not have been done if the assessment order was indeed a draft assessment order. Undoubtedly, if a draft assessment order is wrongly titled as an assessment order, Section 292 B comes to the rescue of the Assessing Officer as it specifically provides that “(n)o return of income, assessment, notice, summons or other proceeding, furnished or made or issued or taken or purported to have been furnished or made or issued or taken in pursuance of any of the provisions of this Act shall be invalid or shall be deemed to be invalid merely by reason of any mistake, defect or omission in such return of income, assessment, notice, summons or other proceeding if such return of income, assessment, notice, summons or other proceeding is in substance and effect in conformity with or according to the intent and purpose of this Act”. The key really is that even if the draft assessment order has a wrong description as an “assessment order”, as long as it is “in substance and effect, in conformity with, or according to the intent and purpose of this Act”, no objection can be taken to the same. However, given the fact that that the resultant tax demand is raised, penalty proceeding initiated and entries made, the order passed by the Assessing Officer was a final assessment order in substance and in effect. The subsequent letter dated 30th December 2010, issued by the Assessing Officer, was only a cover up exercise to convert a regular assessment order into a draft assessment order. However, once a regular assessment order is framed and issued- as, in our considered view, was issued on 24th November 2010, there cannot be any occasion to turn the clock back and issue a draft assessment order. As to what is the impact of an assessment order being directly issued, in a situation in which the assessee is an eligible assessee who ought to have been issued a draft assessment order, we find the following guidance from the decision of a coordinate bench in the case of Capsugel Healthcare Limited Vs ACIT and vice versa [(2015) 152 ITD 142 (Del)] :-
7. We find that the issue is covered is now covered in favour in of the assessee by judgment of Hon'ble Madras High Court, in the case of Vijay Television Pvt Ltd Vs DRP [(2014) 369 ITR 113 (Mad)] wherein Hon'ble High Court has, inter alia, observed as follows:
Under Section 144 (C) of the Act, it is evident that the assessing officer is required to pass only a draft assessment order on the basis of the recommendations made by the TPO after giving an opportunity to the assessee to file their objections and then the assessing officer shall pass a final order. According to the learned senior counsel for the petitioners, this procedure has not been followed by the second respondent inasmuch as a final order has been straightaway passed without passing a draft assessment order.
Assessment year: 2007-08 Page 6 of 11
As rightly pointed out by the learned senior counsel for the petitioners, in the order passed on 26.03.2013, the second respondent even raised a demand as also imposed penalty. Such demand has to be raised only after a final order has been passed determining the tax liability. The very fact that the taxable amount has been determined itself would show that it was passed as a final order. In fact, a notice for demand under Section 156 of the Act was issued pursuant to such order dated 26.03.2013 of the second respondent. Both the order dated 26.03.2013 and the notice for demand thereof have been served simultaneously on the petitioner. Therefore, not only the assessment is complete, but also a notice dated 28.03.2013 was issued thereon calling upon the petitioner to pay the tax amount as also penalty under Section 271 of the Act. Thereafter, the petitioner was given an opportunity of hearing on 12.04.2013. Subsequently, the second respondent realised the mistake in passing a final order instead of a draft assessment order which resulted in issuing a corrigendum on 15.04.2013. In the corrigendum it was only stated that the order passed on 26.03.2013 under Section 143C of the Act has to be read and treated as a draft assessment order as per Section 143C read with Section 93CA (4) read with Section 143 (3) of the Act. In and by the order dated 15.04.2013, the second respondent granted thirty days time to enable the assessee to file their objections. On receipt of the corrigendum dated 15.04.2013, the petitioner company approached the first respondent, but the first respondent declined to issue any direction to the assessment officer on the ground that the first respondent has got jurisdiction only to entertain such an appeal if the order passed by the second respondent is a pre-assessment order. Therefore, it is evident that the first respondent declined to entertain the objections raised by the petitioner company on the ground that the order passed by the second respondent is not a draft assessment order, rather it is a final order. Thus, the first respondent had treated the order dated 26.03.2013 of the second respondent as a final order and therefore it refused to entertain the objections filed on behalf of the petitioner company.
As mentioned supra, as per Section 144C (1) of the Act, the second respondent-assessing officer has no right to pass a final order pursuant to the recommendations made by the TPO. In fact, the second respondentassessing officer himself has admitted by virtue of the corrigendum dated 15.04.2013, that the order dated 26.03.2013 is only a final order and it was directed to be treated as a draft assessment order. In this context, it is worthwhile to refer to the decision of the Honourable Supreme Court in the decision Deepak Agro Foods (supra) wherein in Para No.10, the Honourable Supreme Court discussed as to when an order could be construed as a final order:-
"10. Shri Rajiv Dutta, learned senior counsel appearing on behalf of the appellant, submitted that in the light of its afore-extracted observations and a clear finding that the assessment order for the assessment year 1995-96 had been anti-dated, the order was null and void. It was urged that assessment proceedings after the expiry of the period of limitation being a nullity in law, the High Court should have annulled the assessment and there was no question of a fresh assessment. Thus, the nub of the grievance of the appellant is that in remanding the matter back to the Assessing Officer, the High Court has not only extended the statutory period prescribed for completion
Assessment year: 2007-08 Page 7 of 11 of assessment, it has also conferred jurisdiction upon the Assessing Officer, which he otherwise lacked on the expiry of the said period."
It is evident from the above decision of the Honourable Supreme Court that if an order is passed beyond the statutory period prescribed, such order is a nullity and has no force of law. In that case before the Honourable Supreme Court, the period for assessment proceedings expired and thereafter, fresh assessment orders have been issued by anti-dating it. In those circumstances, it was held that the High Court ought not to have remanded the matter back to the assessment officer and by doing so, the statutory period prescribed for completion of assessment has been extended by conferring jurisdiction upon the Assessing Officer, which he otherwise lacked on the expiry of the said period. In that case, the Honourable Supreme Court also held that there is a distinction between an order which is a nullity and an order which is irregular and illegal. Where an authority making order lacks inherent jurisdiction, such an order will be null and void ab initio, as the defect of jurisdiction goes to the root of the matter and strikes at his very authority to pass any order and such a defect cannot be cured even by consent of the parties.
This decision squarely applies to the facts of this case. In this case, the order passed by the second respondent lacks jurisdiction especially when it is beyond the period of limitation prescribed by the statute. When there is a statutory violation in not following the procedures prescribed, such an order cannot be cured by merely issuing a corrigendum.
In the decision rendered by the Honourable Supreme Court of India in the case of (L. Hazari Mal Kuthiala (supra), which was relied on by the learned standing counsel for the respondents, it was held that the mistake or defect on the part of the Commissioner to consult the Central Board of Revenue did not render his order invalid since the provision about consultation in terms of Section 5 (3) of Patiala Act was merely directory and not mandatory. In the present case, the procedure that was required to be followed by the second respondent to pass a draft assessment order is mandatory and it is prescribed by the statute. Therefore, this decision relied on by the learned standing counsel for the respondents cannot be made applicable to this case.
The learned senior counsel for the petitioners relied on the decision of the Allahabad High Court in the case of Shital Prasad Kharag Prasad (supra) wherein the Division Bench of the Allahabd High Court held that a notice contemplated under Section 148 of the Income Tax Act is a jurisdictional notice and it is not curable by issuing a notice under Section 292 B of the Act, if it was not served in accordance with the provisions of the Act.
Similarly, the Division Bench of this Court in the decision in the case of V. Ramaiah (supra) Madras held that when an order is passed under Section 158BC of the Act instead of Section 158BD, it is not valid since it is not a defect curable under Section 292B of the Act. It was also held that an order passed after the period of limitation laid down in Section 158BC is not a valid order. It was further held that when there is a prescribed procedure contemplated under the Act or in a particular section and it is violated, then it cannot be cured. In the present case, certain procedure has been contemplated under Section 144C of the Act and they have been violated by the second respondent by passing final order of assessment and therefore
Assessment year: 2007-08 Page 8 of 11 such order passed by the second rspondent has got no jurisdiction or it can be cured by virtue of issuing a corrigendum.
By referring to the decision of the Division Bench of this Court dated 10.02.2014 passed in Tax Case (Appeal) No. 2412 of 2006, the learned standing counsel for the respondents sought to make a distinction with the decision of the Division Bench of this Court mentioned in the preceding paragraph. That is a case where the facts relating to the order covered in the decision of the Honourable Supreme Court, which the Division Bench relied on, could not be made applicable to the facts of that case and therefore it was not discussed by the Division Bench in the order dated 10.02.2014. For more clarity, the relevant portion of the decision of the Division Bench of this Court in the case of V. Ramaiah (supra) is extracted hereunder:-
Certainly passing an order of assessment under Section 158BC instead of Section 158BD (inspite of clear terminology used in both the sections) would not amount to a mistake, a defect or an omission, much less a curable one. When different contingencies are dealt with under different sections of the Act, allowing an illegality to be perpetrated and then taking a plea by the Revenue that such an action adopted on their part would not nullify the proceedings, cannot be appreciated since by virtue of such actions, the Revenue has attempted to nullify the scheme of things of limitations legally propounded under the Act....
In yet another decision of the Division Bench of this Court in the case of Smt. R.V. Sarojini Devi (supra), which was relied on by the learned senior counsel for the petitioners, it was held äs follows:-
Under Section 158BC of the Act empowers the assessing officer to determine the undisclosed income of the block period in the manner laid down in Section 158BB and 'the provisions of Section 142, subsections (2) and (3) of Section 143, Section 144 and Section 145 shall, so far as may be apply. This indicates that this clause enables the Assessing Officer, after the return is filed, to complete the assessment under Section 143 (2) by following the procedure like issue of notice under Section 143 (2)/142. This does not provide accepting the return as provided under Section 143 (1) (a). The Officer has to complete the assessment order under Section 143 (3) only. If an assessment is to be completed under Section 143 (3) read with Section 158BC, notice under Section 143 (2) should be issued within one year from the date of filing of the block return. Omission on the part of the assessing officer to issue notice under Section 143(2) cannot be a procedural irregularity and is not curable.
It is evident from the above decision of the Division Bench of this Court that where there is an omission on the part of the assessing officer to follow the mandatory procedures prescribed in the Act, such an omission cannot be termed as a mere procedural irregularity and it cannot be cured.
In identical case as that of the case on hand, the Division Bench of the Andhra Pradesh High Court, in an unreported decision, had an occasion to consider the scope of the validity of the demand notice issued by the assessing officer in the case of Zuari Cement Ltd. (supra), wherein it was held as under:-
Assessment year: 2007-08 Page 9 of 11 "A reading of the above section shows that if the assessing officer proposes to make, on or after 01.10.2009, any variation in the income or loss returned by an assessee, then, notwithstanding anything to the contrary contained in the Act, he shall first pass a draft assessment order, forward it to the assessee and after the assessee files his objections, if any, the assessing officer shall complete assessment within one month. The assessee is also given an option to file objections before the Dispute Resolution Panel in which event the latter can issue directions for the guidance of the Assessing Officer to enable him to complete the assessment.
In the case of the petitioner, admittedly the TPO suggested an adjustment of Rs.52.14 crores u/s.92CA of the Act on 20.09.2011 and forwarded it to the Assessing Officer and to the assessee under subsection (3) thereof. The assessing officer accepted the variation submitted by the TPO without giving the petitioner any opportunity to object to it and passed the impugned assessment order. As this has occurred after 01.10.2009, the cut off date prescribed in sub-section (1) of S.144C, the Assessing Officer is mandated to first pass a draft assessment order, communicate it to the assessee, hear his objections and then complete assessment. Admittedly, this has not been done and the respondent has passed a final assessment order dated 22.12.2011 straight away. Therefore, the impugned order of assessment is clearly contrary to S.144C of the Act and is without jurisdiction, null and void.
The contention of the Revenue that the circular No.5/2010 of the CBDT has clarified that the provisions of S.144C shall not apply for the assessment year 2008-09 and would apply only from the assessment year 2010-2011 and later years is not tenable in as much as the language of Sub-section (1) of Section 144C referring to the cut off date of 01.10.2009 indicates an intention of the legislature to make it applicable, if there is a proposal by the Assessing Officer to make a variation in the income or loss returned by the assessee which is prejudicial to the assessee, after 01.10.2009. Therefore, this particular provision introduced by Finance (No.2) Act, 2009, would apply if the above condition is satisfied and other provisions, in which similar contrary intention is not indicated, which were introduced by the said enactment, would apply from 01.04.2009 i.e., from the assessment year 2010-2011.
It is not disputed that the memorandum explaining the Finance Bill and the Notes and clauses accompanying the Finance Bill which preceded the Finance (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 byt he CBDT stating that S.144C(1) would apply only from the assessment year 2010-2011 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 and Wire Industries Case (1 Supra), Indra Industries (2 supra). The Revenue has not been able to pursuade us to take a contra view by citing any authority.
In this view of the matter, we are of the view that the impugned order of assessment dated 23.12.2011 passed by the respondent is contrary to the Assessment year: 2007-08 Page 10 of 11 mandatory provisions of S.144C of the Act and is passed in violation thereof. Therefore, it is declared as one without jurisdiction, null and void and unenforceable. Consequently, the demand notice dated 23.12.2011 issued by the respondent is set aside."
As against this order of the Division Bench of the Andhra Pradesh High Court, the Revenue went on appeal before the Honourable Supreme Court. The record of proceedings of the Supreme Court indicate that the Special Leave Petition was dismissed on 27.09.2013.
The decision of the Division Bench of the Andhra Pradesh High Court deals with an identical issue as that of the present case. In this case, against the order passed by the second respondent on 26.03.2013, the petitioner filed objections before the DRP, the first respondent herein and the first respondent refused to entertain it by stating that the order passed by the second respondent is a final order and it had jurisdiction to entertain objections only if it is a draft assessment order. While so, the order dated 26.03.2013 of the second respondent can only be termed as a final order and in such event it is contrary to Section 144C of the Act. As mentioned supra, in and by the order dated 26.03.2013, the second respondent determined the taxable amount and also imposed penalty payable by the petitioner. According to the learned senior counsel for the petitioners, even as on this date, the website of the department indicate the amount determined by the second respondent payable by the company inspite of issuance of the corrigendum on 15.04.2013 as a tax due amount. Thus, while issuing the corrigendum, the second respondent did not even withdraw the taxable amount determined by him or updated the status in the website. In any event, such an order dated 26.03.2013 passed by the second respondent can only be construed as a final order passed in violation of the statutory provisions of the Act. The corrigendum dated 15.04.2013 is also beyond the period prescribed for limitation. Such a defect or failure on the part of the second respondent to adhere to the statutory provisions is not a curable defect by virtue of the corrigendum dated 15.04.2013. By issuing the corrigendum, the respondents cannot be allowed to develop their own case. Therefore, following the order passed by the Division Bench of the Andhra Pradesh High Court, which was also affirmed by the Honourable Supreme Court by dismissing the Special Leave Petition filed thereof, on 27.09.2013, the orders, which are impugned in these writ petitions are liable to be set aside.
Learned Departmental Representative, on the other hand, submits that this lapse on the part of the Assessing Officer is at best a procedural lapse and the matter should, therefore, be restored to the file of the Assessing Officer for adjudication de novo.
9. We are, however, unable to see any legally sustainable merits in the stand so taken by the learned Departmental Representative. Hon'ble High Court's esteemed views, as extracted above, bind us and we have to respectfully follow the same. Accordingly, in due deference to this binding judicial precedent, and other binding judicial precedents referred to therein, we quash the impugned assessment order. It is a legal nullity. As for the show cause notice issued by the Assessing Officer, before making the ALP adjustment, this cannot be treated as a draft assessment order nor the assessee could have approached the DRP against the same. Learned CIT(A) was thus clearly in error in equating the show cause notice with a draft assessment order against, and thus rationalizing the impugned assessment order. The stand of Assessment year: 2007-08 Page 11 of 11 the CIT(A) cannot be upheld. In a case in which no draft assessment order is furnished to the assessee, to which assessee is entitled under section 144C (15), the assessment order passed by the AO is to be held is illegal and liable to be quashed on this ground alone. We do so.
As we have seen in the reproductions above, the issuance of corrigendum by the Assessing Officer was not allowed to be given effect by the Hon’ble Court as well. What is material is that the original assessment order was in form and in substance a regular assessment order, and not a draft assessment order. Learned Departmental Representative has also submitted that since the assessee has participated in the proceedings before the DRP, it cannot be open to the assessee to raise this question now. It is only elementary that acquiescence does not confer the jurisdiction, and the only issue which can not be raised subsequently, in the light of the specific provisions of Section 292BB, is objections with regard to service, time or manner of service of a notice. That is not the case before us. In any event, in the case of Inventors Industrial Corp (supra) as well, the assessee had duly participated in the reassessment proceedings and yet, in the second round of proceedings, the objections were taken to the validity of reassessment itself. In this view of the matter, and in the light of the above discussions, we uphold the grievance of the assessee and quash the impugned assessment order itself. The issuance of a regular assessment order, without issuance of draft assessment order, was an illegality, but once a regular assessment order was so framed, it was also no longer open to the Assessing Officer to issue a corrigendum or the draft assessment order after issuance of the regular assessment order. As the assessment order itself is quashed, all other issues raised in this appeal have been academic and infructuous. These issues donot call for any adjudication as on now.
In the result, the appeal is allowed in the terms indicated above. Pronounced in the open court today on 15th day of January, 2016.