Assessment order passed without ‘draft assessment’ as mandated by Section 144-C, IT Act – Held without jurisdiction

Bombay High Court: A Division Bench comprising of M.S. Sanklecha and Sandeep K. Shinde, JJ., allowed a writ petition filed against the assessment order passed by the Revenue against the petitioner for the year 2011-12.

The petitioner was a foreign company and as such an eligible assessee as defined in Section 144-C(15) of the Income Tax Act, 1961. The Revenue passed the impugned assessment order under Section 144(3) read Section 144-C(13) read with Section 254. The petitioner challenged the said order contending that it was passed without following the procedure as mandated by Section 144-C. It is pertinent to note that the said section provides that a draft assessment order has to be made before the final order for certain assessees that also include a foreign company.

The High Court observed that passing a draft assessment order wherever provided for by Section 144-C is mandatory. The object being to ensure that the disputes of foreign companies are resolved expeditiously, as the eligible assessees are given an opportunity to submit objections prior to passing the final order. The said procedure not being complied with by the Revenue in present case where the petitioner – a foreign company – was an eligible assessee, the High Court held that the final order passed was sans jurisdiction. Accordingly, the impugned order was set aside while allowing the petition. The Revenue was given liberty to take steps as available to it in law. [Dimension Data Asia Pacific PTE Ltd. v. CIT,2018 SCC OnLine Bom 2111, dated 06-07-2018]

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