The Hon’ble Mr. Justice Ravi v. Hosmani I.t.a

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20 DAY OF SEPTEMBER, 2021 PRESENT THE HON’BLE MRS. JUSTICE S. SUJATHA AND THE HON’BLE MR. JUSTICE RAVI V. HOSMANI I.T.A. NO.128/2021 BETWEEN: 1. PR. COMMISSIONER OF INCOME TAX-2, BMTC COMPLEX, KORAMANGALA, BANGALORE. 2. THE DEPUTY COMMISSIONER OF INCOME TAX, OF INCOME TAX, CIRCLE -2(1)(1)(1), BENGALURU. …APPELLANTS (BY SRI. SANMATHI E.I., ADVOCATE) AND: M/S. CISCO SYSTEMS CAPITAL (INDIA) PVT. LTD., BRIGADE SOUTH PARADE, NO.10, M.G. ROAD, BENGALURU - 560 001 PAN: … RESPONDENT (BY SRI. NAGESHWARA RAO, ADVOCATE-VC) THIS APPEAL IS FILED UNDER SECTION 260A OF THE INCOME-TAX ACT, 1961, ARISING OUT OF ORDER DATED 06.03.2020 PASSED IN ITA NO.900/BANG/2019 AND ITA NO. 1009/BANG/2019 (ANNEXURE-A), FOR THE ASSESSMENT YEAR 2008-2009 AND ETC., THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, S.SUJATHA J., DELIVERED THE FOLLOWING: JUDGMENT This appeal is filed by the Revenue under Section 260A of the Income Tax Act, 1961 (‘Act’ for short) against the order of the Income Tax Appellate Tribunal, ‘A’ Bench, Bengaluru (for short ‘Tribunal’) in ITA No.900/BANG/2019 and ITA No.1009/BANG/2019 relating to the Assessment Year 2008-09 raising the following Substantial questions of Law: (1)“Whether on the facts and in the circumstances of the case, the Tribunal’s order can be said as perverse in nature as the Tribunal has held that assessing authority has not followed the due procedure laid down in section 144C of the Act in passing assessment order without appreciating that the assessing authority has passed order in pursuance to remand order passed by Tribunal and it is order giving effect passed under section 143(3) & 144C read with section 254 of the Act and as such passing of draft assessment order does not arise as per section 144C and 254 of the Act?” (2)“Whether on the facts and in the circumstances of the case, the Tribunal is right in law in quashing the order dated 30.03.2016 passed by assessing authority on the ground that this is in violation of the mandate of section 144C of the Act without appreciating that order passed by the assessing authority in question is not the order in first instance?” (3)“Whether on the facts and in the circumstances of the case, the Tribunal is right in law in dismissing Revenue’s appeal by holding that assessment order itself has been quashed and as such order passed under section 263 of the Act does not arise?”circumstances of the case, the Tribunal is right in law in dismissing Revenue’s appeal by holding that assessment order itself has been quashed and as such order passed under section 263 of the Act does not arise?” 2. The assessee is a company engaged in the business of leasing and finance. The assessee has filed its return of income for the year under consideration declaring the income. The assessment order under Section 143(3) read with Section 144C of the Act was passed. Subsequently, Principal Commissioner of Income Tax initiated suo-motu revision proceedings 2. The assessee is a company engaged in the business of leasing and finance. The assessee has filed its return of income for the year under consideration declaring the income. The assessment order under Section 143(3) read with Section 144C of the Act was passed. Subsequently, Principal Commissioner of Income Tax initiated suo-motu revision proceedings under Section 263 of the Act which was challenged before the Tribunal. The same came to be quashed by the Tribunal remanding the matter pertaining to the original assessment order passed by the Assessing Authority for re-adjudication. Subsequently, Transfer Pricing Officer (‘TPO’ for short) passed an order under Section 92VA read with Section 254 of the Act relating to the Assessment Year 2008-09 and 2009-10. On receipt of the said order from TPO, Assessing Authority passed an order under Section 143(3) of the Act against which the assessee preferred an appeal before the CIT(A), primarily on the ground that the Assessing Authority has failed to pass draft assessment order, which came to be dismissed. Being aggrieved, the assessee preferred an appeal before the Tribunal. The Tribunal has allowed the assessee’s appeal for the Assessment Year in question dismissing the Revenue’s appeal. Being aggrieved by the same, the Revenue has preferred this appeal. 3. Learned counsel Sri. E.I. Sanmathi, appearing for the appellant/Revenue submitted that the order of the Tribunal is not in conformity with the procedure laid down under Section 144C of the Act in passing the assessment order. The Tribunal has failed to appreciate the mandate of Section 144C of the Act that the assessing authority shall, in the first instance, forward a draft of the proposed order of assessment to the eligible assessee for acceptance or filing of objections. In the present case, draft order was issued in the first instance, but after remand from the Tribunal, it was not mandatory for the Assessing Officer to pass the draft order. The Tribunal failed to appreciate this vital aspect of the matter in allowing the assessee’s appeal. Further the Tribunal grossly erred in holding that the assessment order itself has been passed under Section 263 of the Act. Placing reliance on the CBDT Circular No.9/2013 dated 19.11.2013, the learned counsel argued that in terms of the said circular, it is clear that Section 144C is applicable to any order which supposed to make any variation income or loss returned by an eligible assessee and there being no such variation in the income or loss returned by the eligible assessee in the second round of re-adjudication, it is not mandatory on the Assessing Officer to pass draft assessment order. Reliance was placed on section 292B and 292BB of the Act in support of his contention that such mistake if any, is curable. Thus, it was argued that the order of the Tribunal is wholly perverse and suffers from infirmity. Accordingly, seeks to answer the Substantial Questions of Law raised, in favour of the Revenue and against the assessee. 4. Learned counsel Sri. Nageswara Rao, appearing through video conferencing for the respondent/assessee justifying the impugned order of the Tribunal, has placed reliance on the judgment of the Hon’ble High Court of Delhi, in the case of DCIT Vs. JCB India Ltd., [(2017) 85 taxmann.com 155 (Delhi)]and argued that the very same arguments now canvassed by the revenue were advanced by the learned Additional Solicitor General of India before the Hon’ble High Court of Delhi. On considering the identical arguments, the Hon’ble High Court of Delhi has negated the contentions of the Revenue and has held that passing of the draft of the proposed order under Section 144C of the Act is mandatory even after the remand from the Tribunal and it cannot be held to be the requirement of Section 144C of the Act only in the first instance and not after remand from the ITAT, such draft assessment order requires to be passed. the contentions of the Revenue and has held that passing of the draft of the proposed order under Section 144C of the Act is mandatory even after the remand from the Tribunal and it cannot be held to be the requirement of Section 144C of the Act only in the first instance and not after remand from the ITAT, such draft assessment order requires to be passed. 5. It was further argued that similar orders were passed by the Hon’ble High Court of Andhra Pradesh and Hon’ble High Court of Madras. The Special Leave Petitions Additional commissioner of Income Tax Vs.Nokia India Pvt., Ltd., (Special Leave Petition (Civil) Diary No(s).7302/2018) and The Deputy Commissioner of Income Tax Delhi Vs.Control Risks India Pvt., Ltd.,(Special Leave Petition (Civil) Diary No.7090/2018) filed by the Revenue have been dismissed. Hence, the Substantial Question of Law raised herein being fully covered by the judgment of the Hon’ble High Courts referred to supra, confirmed by the Hon’ble Apex Court, appeal of Revenue deserves to be dismissed answering substantial questions of law in favour of the assessee and against the Revenue. 6. We have considered the rival submissions of the learned counsel appearing for both the parties and perused the material on record. Regarding Substantial Questions of law No.1 and 2: 7. Section 144C of the Act reads thus: “144C. (1) The 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 1[st] day of October, 2009, any variation, which is prejudicial to the interest of such assessee.” 8. Learned counsel for the Revenue has emphasized on the words ‘first instance’ to contend that after remand from the Tribunal there was no mandate on the part of the Assessing Officer to pass draft assessment order and reliance was placed on Section 292B of the Act to contend that the such mistake is curable. This issue is no more res-integra. The Hon’ble High Court of Delhi in the case of JCB India Ltd., (supra) has observed thus: “In almost identical facts, in Turner International (supra), this Court held in favour of the Assessee on the ground that it was mandatory for the AO to have passed a draft assessment order under Section 144C of the Act prior to issuing the final assessment order. The following passages from said decision are relevant for the present purposes: 11. The question whether the final assessment order stands vitiated for failure to adhere to the mandatory requirements of first passing draft assessment order in terms of Section 144C(1) of the Act is no longer res -integra. There is a long series of decisions to which reference would be made presently. 12. In Zuari Cement Ltd., v. ACIT (decision dated 21[st]February, 2013 in WP(C) No.5557/2012), the Division Bench (DB) of the Andhra Pradesh High Court categorically held that the failure to pass a draft assessment order under Section 144C(1) of the Act would result in rendering the final assessment order “without jurisdiction, null and void and unenforceable.” In that case, the consequent demand notice was also set aside. The decision of the Andhra Pradesh High Court was affirmed by the Supreme Court by the dismissal of the Revenue’s SLP(C) [CC No.16694/2013] on 27[th]September, 2013. 12. In Zuari Cement Ltd., v. ACIT (decision dated 21[st]February, 2013 in WP(C) No.5557/2012), the Division Bench (DB) of the Andhra Pradesh High Court categorically held that the failure to pass a draft assessment order under Section 144C(1) of the Act would result in rendering the final assessment order “without jurisdiction, null and void and unenforceable.” In that case, the consequent demand notice was also set aside. The decision of the Andhra Pradesh High Court was affirmed by the Supreme Court by the dismissal of the Revenue’s SLP(C) [CC No.16694/2013] on 27[th]September, 2013. 13. In Vijay Television (P.) Ltd. V. Dispute Resolution Panel [2014] 369 ITR 113 (Mad.), a similar question arose. There, the Revenue sought to rectify a mistake by issuing a corrigendum after the final assessment order was passed. Consequently, not only the final assessment order but also the corrigendum issued thereafter was challenged. Following the decision of the Andhra Pradesh High Court in Zuari Cement Ltd., v. ACIT (supra) and a number of other decisions, the Madras High Court in Vijay Television (P.) Ltd. v. Dispute Resolution Panel (supra) quashed the final order of the AO and the demand notice. Interestingly, even as regards the corrigendum issued, the Madras High Court held that it was beyond the time permissible for issuance of such corrigendum and, therefore, it could not be sustained in law. 14. Recently, this Court in ESPN Star Sports Mauritius S.N.C. ET Compagnie v. Union of India [2016] 388 ITR 383 (Del.). following the decision of the Andhra Pradesh High Court in Zuari Cement Ltd., v. ACIT (supra), the Madras High Court in Vijay Television (P.) Ltd. v. Dispute Resolution Panel, Chennai (supra) as well as the Bombay High Court in International Air Transport Association v. DCIT (2016) 290 CTR (Bom.) 46, came to the same conclusion.” 9. The arguments advanced by the learned Additional Solicitor General of India has also been recorded in para -16, which is quoted hereunder for ready reference: “16. In response, Mr. Sanjay Jain, learned Additional Solicitor General of India appearing for the Revenue, submitted that there was an efficacious alternative remedy available to the Petitioner to file appeals against the impugned final assessment orders passed by the AO. It is denied that it was mandatory on the part of the AO to pass a draft assessment order since this was a second round before the TPO pursuant to remand by the ITAT. Moreover, it was not as if the ITAT had set aside the entire assessment order of the AO. The setting aside was only in respect of the transfer pricing adjustment and that too with a specific direction to the AO for determining the arms length price “after considering fresh comparables.” Since the assessment itself was not cancelled by the ITAT or completely set aside, it is the provisions of Section 153 (3) (ii) of the Act which would apply. Mr. Jain submitted that the requirement of passing a draft assessment order under Section 144C was only in the first instance and not after the remand by the ITAT.” 10. Considering the similar arguments advanced by the Revenue even the Hon’ble Gujarat High Court in the case of Commissioner of Income Tax, Vadodara-2 Vs. C-Sam (India) (P.) Ltd., reported in [2017] 84 10. Considering the similar arguments advanced by the Revenue even the Hon’ble Gujarat High Court in the case of Commissioner of Income Tax, Vadodara-2 Vs. C-Sam (India) (P.) Ltd., reported in [2017] 84 taxmann.com 261 (Gujarat) has categorically observed that even in remand proceedings it was mandatory for the Assessing Officer to have passed draft assessment order under Section 144C of the Act prior to issuing of the final assessment order, issuance of final assessment order sans the draft order is bad in law. In the light of these judgments and perusing the circular instructions, which has been relied upon by the learned counsel for the Revenue that the provisions of Section 144C of the Act would be applicable to any order which proposed to be variation in income or loss returned by the eligible assessee, irrespective of the Assessment Year to which it pertains, it is mandatory that the draft of the proposed order of assessment has to be passed by the Assessing Officer even after remand from the Tribunal. The interpretation of the Revenue inasmuch as the phrase ‘at the first instance’, is wholly misconceived. The mandatory requirement of passing draft order has to be strictly adhered to, irrespective of the remand order passed by the Tribunal. Having regard to the language employed by the legislature under Section 144C of the Act, it is mandatory to the Assessing Officer to pass draft assessment order before issuing the final order, breach of the same would result in violation of the principles of natural justice making the order itself voidab-initio. It is well settled law, if the order of the assessment itself is not valid then the further action of the Commissioner in initiating revision proceedings under Section 263 is not valid in the eye of law. 11. For the reasons aforesaid, substantial questions of law No.1 and 2 are answered in favour of the assessee and against the Revenue. Regarding substantial question of law No.3: 12. Learned counsel for the assessee brought to our notice that ITA No.27/2019 filed by the Revenue challenging the order of the Tribunal relating to the order passed by the Commissioner under Section 263 of the Act relating to the Assessment Year 2008-09 has been dismissed by this Court on 18.06.2021. We have perused the copy of the order of this Court in ITA No.27/2019, wherein the Co-ordinate Bench of this Court has dismissed the appeal filed by the Revenue answering the Substantial Question of Law in favour of the assessee and against the Revenue. The Substantial Question of Law considered therein reads thus: “Whether on the facts and in the circumstances of the case, the Tribunal is right in law in setting aside the order passed by the Pr. Commissioner of Income Tax under Section 263 of the Act by Tribunal relying on the decision of the Hon’ble Supreme Court in the case of Malabar Industrial Company Ltd., v/s. CIT even when the said authority passed the 263 order in terms of parameters of said section and as the order of assessment passed by assessing authority was erroneous and prejudicial to the interests of the Revenue as the assessing authority ignored the issue of ownership of assets to ascertain that whether assessee is eligible to claim depreciation or not?” In view of the aforesaid ruling of this Court, answering question of law No.3 does not arise. In the result, appeal stands dismissed. Sd/- JUDGE Sd/- JUDGE