Agfa India Pvt. Ltd., Thane V. Assistant Commisioner of Income-tax,

ITA 1072/PUN/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 0938 (ITAT-PUNE)
• Duration Of Justice: 1 year(s) 5 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 26-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 21-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VERMA
• Assessee Lawyers: KADAMBARI DAVE
• Keywords: Transfer pricing; Opportunity of being heard; Principle of natural justice; International transaction; Procedural lapse; Competent authority; Prejudicial to interest; Tax effect
• Section: 92C; 143(3); 263; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , . . , BEFORE MS. SUSHMA CHOWLA, JM AND SHRI R.K. PANDA, AM . / ITA NO. 341 /PN/201 4 / ASSESSMENT YEAR : 200 8 - 09 AGFA INDIA PVT. LTD., (NOW MERGED WITH AGFA HEALTHCARE INDIA PVT. LTD.), TECHNOSOFT KNOWLEDGE GATEWAY, 2 ND FLOOR, B 14, ROAD NO.1, WAGLE INDUSTRIAL ESTATE, THANE (W) - 400604 / APPELLANT PAN: AABCB2567K VS. THE ASST. COMMISSIONER OF INCOME - TAX, CIRCLE 1, THANE / RESPONDENT . / ITA NO. 1072 /PN/201 4 . / ITA NO. 1072 /PN/201 4 / ASSESSMENT YEAR : 200 8 - 09 AGFA INDIA PVT. LTD., (NOW MERGED WITH AGFA HE ALTHCARE INDIA PVT. LTD.), TECHNOSOFT KNOWLEDGE GATEWAY, 2 ND FLOOR, B 14, ROAD NO.1, WAGLE INDUSTRIAL ESTATE, THANE (W) - 400604 / APPELLANT PAN: AABCB2567K VS. THE ASST. COMMISSIONER OF INCOME - TAX, CIRCLE 1, THANE / RESPONDENT / APPELLANT BY : S /S HRI GIRISH DAVE & K ADAMBARI DAVE / RESPONDENT BY : SMT. M.S. VERMA, CIT / DATE OF HEARING : 26 .0 8 .2015 / DATE OF PRONOU NCEMENT: 28 . 1 0.2015 ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 2 / ORDER PER SUSHMA CHOWLA, J M : OUT OF THESE TWO APPEALS, O NE APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF CIT - I, THANE , DATED 29 . 0 1 .20 1 4 RELATING TO ASSESSMENT YEAR 2008 - 09 AGAINST THE ORDER PASSED UNDER SECTION 263 OF THE INCOME TAX ACT, 1961. THE ASSESSEE ALSO FILED ANOTHER APPEAL AGAINST THE ORDER OF CIT(A) - II, THANE, DATED 25.03.2014 REL ATING TO ASSESSMENT YEAR 2008 - 09 AGAINST ORDER PASSED UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961. 2 . BOTH THE APPEALS REL ATING TO THE SAME ASSESSEE S WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. 3. IN ITA NO. 34 1/PN/201 4 , T HE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: - THE APPELLANT OBJECTS TO THE ORDER UNDE R SECTION 263 OF THE INCOME - TAX ACT, 1961 PASSED BY THE COMMISSIONER OF INCOME - TAX - I , THANE ('CLT') DATED 29 JANUARY 2014 FOR THE AFORESAID ASSESSMENT YEAR ON THE FOLLOWING AMONG OTHER GROUNDS: 1 . THE ORDER OF THE LEARNED CIT IS CONTRARY TO THE PROVISIONS OF LAW AND FACTS OF THE CASE AND WITHOUT APPRECIATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE IN THEIR RIGHT PERSPECTIVE. 2 . THE LEARNED CIT ERRED IN INVOKING THE PROVISIONS OF SECTION 263 AND HOLDING THAT THE ORDER DATED 14 DECEMBER 2011 PASSED BY THE ASSESSING OFFICER ('AO') WAS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 3 . THE LEARNED CIT ERRED IN NOT APPRECIATING THE FACT THAT THE ORDER OF THE AO IS NULL AND VOID AND ACCORDINGLY THE QUESTION OF INITIATING PROCEEDINGS UNDER SECTION 263 DO ES NOT ARISE. THE LEARNED CIT ERRED IN HOLDING THAT THE ORDER PASSED BY THE AO WITHOUT FOLLOWING LAW CANNOT BE CALLED AS VOID UNLESS THE SAID ORDER IS DECLARED AS NULL AND VOID BY A COMPETENT AUTHORITY. 4 . THE LEARNED CIT ERRED IN SETTING ASIDE THE ORDER PA SSED BY THE AO UNDER SECTION 143(3) AND DIRECTING THE AO TO PASS A DRAFT ORDER IN TERMS OF THE PROVISIONS OF SECTION 144C. THE LEARNED CIT ERRED IN NOT APPRECIATING THAT. THE STATUTORY TIME LIMIT TO PASS THE ASSESSMENT ORDER UNDER SECTION 144C FOR THE AF ORESAID ASSESSMENT YEAR HAS EXPIRED ON 31 DECEMBER 2011. ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 3 5 . THE LEARNED CIT ERRED IN OBSERVING THAT THE APPELLANT HAS NOT FILED ANY SUBMISSIONS WITH RESPECT TO THE FACT THAT THE ORDER PASSED BY THE AO IS ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVE NUE. 6 . THE LEARNED CIT ERRED IN NOT APPRECIATING THE FACT THAT SIGNIFICANT CORRESPONDENCE HAS BEEN EXCHANGED BETWEEN THE APPELLANT AND VARIOUS TAX AUTHORITIES ON THIS ISSUE OVER A PERIOD OF TIME, WHEREIN THE TAX AUTHORITIES HAVE MANY TIMES UPHELD AND REITE RATED THEIR STAND THAT THE ORDER PASSED BY THE AO IS VALID. 7 . THE LEARNED CIT ERRED IN NOT DIRECTING THE AO TO REFUND THE TAX OF RS.3,12,78,512 (ALONG WITH INTEREST UNDER SECTION 244A) TO THE APPELLANT. 8 . THE LEARNED CIT ERRED IN NOT APPRECIATING THE SUBMIS SIONS FILED BY THE APPELLANT IN PROPER PERSPECTIVE. 9 . EACH ONE OF THE ABOVE GROUNDS OF APPEAL IS WITHOUT PREJUDICE TO THE OTHER. 10 . THE APPELLANT RESERVES THE RIGHT TO AMEND, ALTER OR ADD TO THE GROUNDS OF APPEAL. 4. IN ITA NO.1072/PN/2014, THE ASSESSEE HAS RA ISED THE FOLLOWING GROUNDS OF APPEAL: - THE APPELLANT OBJECTS TO THE ORDER UNDER SECTION 250 OF THE INCOME - TAX ACT, 1961 PASSED BY THE COMMISSIONER OF INCOME - TAX (APPEALS) - II, THANE ('CIT(A)') DATED 25 MARCH 2014 FOR THE AFORESAID ASSESSMENT YEAR ON THE FOLLOWING AMONG OTHER GROUNDS: 1 . THE LEARNED CIT(A) ERRED IN DISMISSING THE APPEAL FILED BY THE APPELLANT AS 1 . THE LEARNED CIT(A) ERRED IN DISMISSING THE APPEAL FILED BY THE APPELLANT AS INFRUCTUOUS. 2 . THE LEARNED CIT(A) ERRED IN NOT HOLDING THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS BAD IN LAW AND NEEDS TO BE QUASHED. 3 . EACH ONE OF THE ABOVE GROUNDS OF APPEAL IS WITHOUT PREJUDICE TO THE OTHER. 4 . THE APPELLANT RESERVES THE RIGHT TO AMEND, ALTER OR ADD TO THE GROUNDS OF APPEAL. 5. THE ASSESSEE IN ITA NO.341/PN/2014 IS AGGRIEVED BY THE ORDER OF COMMISSIONER IN INVOKING THE JURIS DICTION UNDER SECTION 263 OF THE ACT. 6. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAD FURNISHED RETURN OF INCOME DECLARING TOTAL INCOME AT RS.18,50,34,493/ - ON 27.02.2009. THE CASE OF THE ASSESSEE WAS PICKED UP FOR SCRUTINY AND NOTICE UNDER SECT ION 1 43(2) OF THE ACT WAS ISSUED ON 24.08.2009. THE ASSESSING OFFICER MADE A REFERENCE UNDER SECTION 92CA OF THE ACT TO THE TRANSFER PRICE OFFICER (TPO) , IN VIEW OF THE INTERNATIONAL TRANSACTION ENTERED INTO BY THE ASSESSEE WITH ITS ASSOCIATE ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 4 ENTERPRISES . THE TPO IN THE ORDER PASSED UNDER SECTION 92CA(3) OF THE ACT HELD THAT ADJUSTMENT ON ACCOUNT OF ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTION WAS TO BE MADE TO THE EXTENT OF RS.5,70,49,840/ - , VIDE ORDER DATED 17.10.2011. THE ASSESSING OFFICER THEREAFT ER, COMPLETED THE ASSESSMENT UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 14.12.2011 AND SUM OF RS.5.70 CRORES WAS ADDED TO THE INCOME OF THE ASSESSEE IN VIEW OF THE ORDER PASSED UNDER SECTION 92CA(3) OF THE ACT. THE ASSESSEE FILED AN APPEAL AGAINST T HE SAID ASSESSMENT ORDER DATED 14.12.2011 ALLEGING THAT THE ORDER PASSED BY THE ASSESSING OFFICER WAS ULTRA - VIRUS, INVALID, BAD IN LAW AND WAS PASSED WITHOUT APPRECIATING THE FACTS OF THE CASE. THE ASSESSEE ALSO RAISED THE ISSUE AGAINST THE TRANSFER PRICI NG ADJUSTMENT MADE UNDER SECTION 92C A OF THE ACT. THE ASSESSEE THEREAFTER, FILED ADDITIONAL GROUNDS OF APPEAL DURING THE COURSE OF APPELLATE PROCEEDINGS, WHICH IS AS UNDER: - 1. WITHOUT PREJUDICE TO ANY OF THE GROUNDS OF APPEAL, THE ACIT ERRED IN PASSING THE FINAL ASSESSMENT ORDER WITHOUT PASSING THE DRAFT ASSESSMENT ORDER AS REQUIRED U/S. 144C(1) R.W.S. 143(3) OF THE I.T. ACT, 1961 THEREBY DENYING THE APPELLANT ITS RIGHT TO RAISE OBJECTIONS BEFORE THE DISPUTE DENYING THE APPELLANT ITS RIGHT TO RAISE OBJECTIONS BEFORE THE DISPUTE RESOLUTION PANEL. THUS THE APPELLANT HUMBLY PRAYS THAT THE ORDER OF THE A.O. IS BAD IN LAW AND NEEDS TO BE QUASHED. 2. EACH ONE OF THE ABOVE GROUNDS IS WITHOUT PREJUDICE TO THE OTHER. 3. THE APPELLANT RESERVES THE RIGHT TO AMEND, ALTER OR ADD TO THE GROUNDS OF APPEAL. 7. THE COMMISSIONER NOTED T HAT UNDER SECTION 144C OF THE ACT, IT IS PROVIDED THAT WHERE THE ASSESSING OFFICER WHILE ASSESSING THE INCOME OF INDIAN COMPANY PROPOSED TO MAKE ANY VARIATION IN THE INCOME OR LOSS RETURNED, WHICH IS PREJUDICIAL TO THE INTEREST OF ASSESSEE, THE ASSESSING O FFICER IS REQUIRED TO FORWARD A DRAFT OF THE PROPOSED ORDER OF ASSESSMENT TO THE ASSESSEE. HOWEVER, IN THE IMPUGNED ASSESSMENT, THE ASSESSING OFFICER PASSED THE ORDER UNDER SECTION 143(3) OF THE ACT ON 14.12.2011 MAKING ADDITION OF RS.5,70,49,840/ - AS DIR ECTED BY THE TPO, WITHOUT ISSUING DRAFT ORDER OF THE PROPOSED ADDITION TO THE ASSESSEE AS IS REQUIRED UNDER SECTION 144C OF THE ACT. THE COMMISSIONER WAS ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 5 OF THE VIEW THAT THE ORDER PASSED BY THE ASSESSING OFFICER WAS THUS, WAS NOT IN CONFORMITY WITH LAW A ND THEREFORE, WAS ERRONEOUS AND PREJUDICI AL TO THE INTERESTS OF REVENUE . H ENCE NOTICE UNDER SECTION 263 OF THE ACT WAS ISSUED TO THE ASSESSEE AND THE ASSESSEE WAS ASKED TO EXPLAIN AS TO WHY THE ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) , D ATED 14.12.2011 SHOULD NOT BE REVISED OR SET - ASIDE UNDER SECTION 263 OF THE ACT. IN RESPONSE, THE REPRESENTATIVE OF THE ASSESSEE OBJECTED TO THE PROPOSED REVISION OF THE ORDER OF ASSESSING OFFICER UNDER SECTION 263 OF THE ACT. THE FIRST OBJECTION RAISED BY THE ASSESSEE WAS THAT BY PASSING THE ORDER UNDER SECTION 143(3) OF THE ACT WITHOUT COMPLYING WITH THE PROVISIONS OF SECTION 144C OF THE ACT, THE ASSESSING OFFICER HAD DEPRIVED THE ASSESSEE COMPANY OF THE RIGHT OF APPROACHING THE DISPUTE RESOLUTION PANEL (DRP). IT WAS FURTHER CONTENDED THAT THE ASSESSEE COMPANY AND ITS AUTHORIZED REPRESENTATIVE HAD MET THE ASSESSING OFFICER, CIT(A) AND CCIT ON SEVERAL OCCASIONS TO DISCUSS THE ABOVE ISSUE AND THERE WAS CORRESPONDENCE EXCHANGE D BETWEEN THE PARTIES ON THIS ISSUE OVER PERIOD OF TIME AND AFTER THE APPEAL FILED, NOTICE UNDER SECTION 263 OF THE ACT HAD BEEN ISSUED, WHICH WAS NOT JUSTIFIED. FURTHER, RELIANCE WAS PLACED UPON THE DECISION OF HONBLE SUPREME COURT IN ACIT VS. M/S. ZUARI CEMENT LTD. VIDE SPECIAL LEA VE PETITION CC NO.16694/2013, JUDGMENT DATED 27.09.2013 FOR THE PROPOSITION THAT SINCE THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WAS WITHOUT FOLLOWING THE PROCEDURE, WAS NULL AND VOID, SUCH AN ORDER CANNOT BE SUBJECT MATTER OF REVISION UNDER SEC TION 263 OF THE ACT. FURTHER, RELIANCE WAS PLACED ON THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN JOH ILLA COALFIELDS CO. LTD. VS . CIT 39 ITR 137 (MP) AND THE DECISION OF INDORE BENCH OF TRIBUNAL IN RAJ GARH LIQUORS VS. CIT 89 ITD 8 4 (INDORE TRIB) . 8. THE COMMISSIONER WAS OF THE VIEW THAT UNDER SECTION 263 OF THE ACT, THE COMMISSIONER MAY CALL FOR OR EXAMINE THE RECORD OF ANY PROCEEDINGS UNDER THE ACT AND IF HE CONSIDERS THAT ANY ORDER PASSED BY THE ASSESSING OFFICER WAS ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 6 ERRONEOUS IN SO FAR AS I T WAS PREJUDICIAL TO THE INTERESTS OF REVENUE, HE MAY AFTER GIVING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MAKING OR CAUSING TO BE MADE SUCH ENQUIRIES, AS HE DEEMS NECESSARY, PASS SUCH ORDER THEREON AS THE CIRCUMSTANCES OF THE CASE JUSTIFY , IN CLUDING AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT OR CANCELLING THE ASSESSMENT AND DIRECTING A FRESH ASSESSMENT. RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY THE HONBLE MADHYA PRADESH HIGH COURT IN SIMRAN FARMS LTD. VS. CIT (2008) 300 ITR 270 (MP) FOR THE PROPOSITION THAT WHERE THE ASSESSING OFFICER PASSES AN ORDER WITHOUT FOLLOWING THE PROVISIONS OF LAW, SUCH AN ORDER WOULD BE ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTERESTS OF REVENUE. FURTHER, RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY THE H ONBLE MADRAS HIGH COURT IN VENKATKRISHNA RICE CO. VS. CIT (1987) 163 ITR 129 (MAD) FOR THE PROPOSITION THAT THE JURISDICTION OF COMMISSIONER UNDER SECTION 263 OF THE ACT WAS UNDOUBTEDLY A SUPERVISORY JURISDICTION AND THE EXPRESSION PREJUDICIAL TO INTEREST OF REVENUE MUST BE REGARDED AS INVOLVING A CONCEPTION OF ACTS OR ORDERS WHICH A RE SUBVERSE OF THE ADMINISTRATION OF REVENUE. AS PER COMMISSIONER , THE ORDER PASSED BY THE ASSESSING OFFICER WITHOUT FOLLOWING THE PROCEDURE AND LAW AND IF CONTAINING ANY GRIE VOUS ERROR, WOULD BE AN ORDER PREJUDICIAL TO THE INTERESTS OF REVENUE. SINCE IN THE INSTANT CASE AFTER RECEIPT OF THE ORDER OF TPO, THE ASSESSING OFFICER WAS REQUIRED TO SEND THE DRAFT ORDER OF PROPOSED ADDITION TO THE ASSESSEE UNDER SECTION 144C OF THE A CT, WHICH WAS NOT DONE, MAKES IT OBVIOUS THAT THE ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER WITHOUT FOLLOWING PROCEDURE AS LAID DOWN IN THE STATUTE AND ALSO IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE . THEREFORE, THE COMMISSIONER THUS HELD TH AT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WAS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTERESTS OF REVENUE. 9. THE CONTENTION OF THE ASSESSEE THAT AS THE ASSESSMENT ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER WITHOUT FOLLOWING PROCEDURE , WAS NULL AND VOID AND HENCE, THE COMMISSIONER WAS NOT AUTHORIZED TO TAKE ACTION UNDER SECTION ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 7 263 OF THE ACT IN RESPECT OF SUCH ORDER, WAS HELD TO BE NOT TENABLE. THE COMMISSIONER WAS OF THE VIEW THAT HE HAD THE AUTHORITY TO TAKE ACTION UNDER SECTION 26 3 OF THE ACT IN RESPECT OF ANY ORDER PASSED BY THE ASSESSING OFFICER. FURTHER VIEW OF THE COMMISSIONER WAS THAT EVEN IF IT IS ASSUMED THAT A NULL AND VOID ORDER CANNOT BE A SUBJECT MATTER OF REVISION UNDER SECTION 263 OF THE ACT, THE QUESTION AS TO WHEN A N ORDER OF ASSESSING OFFICER CAN BE CONSIDERED TO HAVE BECOME NULL AND VOID HAS TO BE ESTABLISHED. AN ORDER PASSED BY THE ASSESSING OFFICER WITHOUT FOLLOWING LAW MAY BE A VOID ORDER BUT SUCH AN ORDER CANNOT BE CALLED AS VOID UNLESS THE ORDER OF ASSESSING OFFICER IS DECLARED NULL AND VOID BY A COMPETENT AUTHORITY, WAS THE VIEW OF THE COMMISSIONER. TILL THE ORDER IS DECLARED AS NULL AND VOID, THE COMMISSIONER HAD JURISDICTION UNDER SECTION 263 OF THE ACT TO REVISE SUCH AN ORDER WHERE HE IS SATISFIED THAT TH E ORDER PASSED BY THE ASSESSING OFFICER WAS ERRONEOUS IN SO FAR AS IT WAS PREJUDICIAL TO THE INTERESTS OF REVENUE. RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY THE HONBLE MADRAS HIGH COURT IN V. RAJU VS. CIT (1984) 147 ITR 212 (MAD) WHEREIN, IT WAS HELD THAT ANY ORDER PASSED BY AN AUTHORITY WITHOUT FOLLOWING PRINCIPLES OF NATURAL JUSTICE WAS NULL AND VOID , EVEN THOUGH IT HAD BEEN PASSED WELL WITHIN ITS JURISDICTION. AS PER THE COMMISSIONER, THE ORDER PASSED IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE OR WITHOUT FOLLOWING THE LAW WAS VOIDABLE ORDER. HOWEVER, SUCH AN ORDER WOULD BECOME VOID ONLY WHEN IT IS DECLARED AS NULL AND VOID BY THE COMPETENT AUTHORITY AND UNTIL AND UNLESS SUCH AN ORDER PASSED BY THE ASSESSING OFFICER IS DECLARED NULL AND VOID BY THE COMPETENT AUTHORITY OR COURT, IT WOULD BE TREATED AS VALID ORDER AND WOULD HAVE EXISTENCE IN THE EYES OF LAW AS AN ENFORCEABLE ORDER. AS PER THE COMMISSIONER, SINCE TILL DATE NO COMPETENT AUTHORITY HAD DECLARED THE ORDER OF ASSESSING OFFICER AS NULL A ND VOID, THEREFORE, THE SAID ORDER COULD NOT BE CONSIDERED AS NULL AND VOID AS CLAIMED BY THE ASSESSEE. RELIANCE WAS PLACED ON THE RATIO LAID DOWN BY THE HONBLE PUNJAB & HARYANA HIGH COURT IN CIT VS. DES RAJ (1989) 178 ITR 686 (P&H) AND ALSO ON CIT VS. AM IN CHAND 46 TAXMANN.COM 22. IN VIEW THEREOF, THE COMMISSIONER HELD THAT SINCE THE ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 8 ASSESSMENT ORDER HAD BEEN PASSED WITHOUT FOLLOWING PROCEDURE AS LAID DOWN IN LAW, SUCH AN ORDER COULD BE REVISED UNDER SECTION 263 OF THE ACT. 10 THE OTHER ARGUMENT OF TH E ASSESSEE THAT THE MATTER HAD BEEN DI SCUSSED WITH THE THEN CIT AND CCIT AND THERE WAS SIGNIFICANT CORRESPONDENCE EXCHANGE BETWEEN THE PARTIES ON THE ISSUE AND THAT APPEAL HA S BEEN FILED BEFORE THE CIT(A) , WAS HELD TO HAVE NO BEARING ON THE ISSUE WHERE THE COMMISSIONER WAS TAKING COURSE UNDER SECTION 263 OF THE ACT. IN THE ENTIRETY OF THE ABOVE SAID FACTS AND CIRCUMSTANCES OF THE CASE, THE COMMISSIONER HELD THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WITHOUT FOLLOWING PROCEDURE AS LAID DOWN I N LAW FOR THE PURPOSE, WAS ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTERESTS OF REVENUE AND THE SAME WAS SET - ASIDE. THE ASSESSING OFFICER WAS DIRECTED TO PASS A FRESH ORDER FOLLOWING THE PROCEDURE AS LAID DOWN IN SECTION 144C OF THE ACT. 11. THE ASSESSEE IS IN APPEAL AGAINST THE SAID ORDER OF COMMISSIONER PASSED 11. THE ASSESSEE IS IN APPEAL AGAINST THE SAID ORDER OF COMMISSIONER PASSED UNDER SECTION 263 OF THE ACT HOLDING THE ASSESSMENT ORDER TO BE BOTH ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE. 1 2. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT AFTER THE TPO PROPOSED ADJUSTMENT OF RS. 5.70 CRORES IN THE ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTION, THE ASSESSING OFFICER HAD PASSED THE ORDER UNDER SECTION 143(3) OF THE ACT WITHOUT RESORTING TO THE PROVISIONS OF SECTION 144C OF THE ACT. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE PLACED RELIANCE ON THE RATIO LAID DOWN BY THE HONBLE HIGH COURT OF ANDHRA PRADESH IN M/S. ZUARI CEMENT LTD. IN WP NO.5557/2012, JUDGMENT DATED 21.02.2013 FOR THE PROPOSITION THAT SUCH AN ORDER PASSED BY THE ASSESSING OFFICER WAS WITHOUT JURISDICTION, NULL AND VOID AND UNENFORCEABLE. CONSEQUENTLY, IT WAS POINTED OUT THAT THE DEMAND NOTICE ISSUED PURSUANT TO THE ORDER PASSED UNDER SECTION 143(3) OF THE ACT WITHOUT RESORTING TO THE PROVISIONS OF SECTION 144 C OF THE ACT, WAS SET - ASIDE BY ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 9 THE HONBLE HIGH COURT OF ANDHRA PRADESH. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER POINTED OUT THAT UPON HEARING THE COUNSEL, THE HONBLE APEX COURT DISMISSED THE SPECIAL LEAVE PETITION IN CC NO.16694/2 013 VIDE JUDGMENT DATED 27.09.2013 . THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER PLACED RELIANCE ON THE RATIO LAID DOWN BY THE HONBLE MADRAS HIGH COURT IN VIJAY TELEVISION PVT. LTD. VS. DRP & OTHERS IN WP NOS1526 AND 1527 /2014 AND M.P N OS.1 AND 1 /2014. FURTHER CONTENTION OF THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS THAT THE ORDER PASSED BY THE ASSESSING OFFICER WITHOUT RESORTING TO THE MANDATORY PROVISIONS OF LAW WAS VOID AB - INITIO AND UNENFORCEABLE AND SINCE IT WAS INV ALID, THE COMMISSIONER COULD NOT EXERCISE JURISDICTION UNDER SECTION 263 OF THE ACT. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER CLAIMED THAT ADDITIONAL GROUNDS OF APPEAL WERE RAISED BEFORE THE CIT(A) ON 10.04.2013 AND EVEN OTHERWISE, T HE JURISDICTION UNDER SECTION 263 OF THE ACT WAS NOT THERE WITH THE COMMISSIONER WHEN THE SHOW CAUSE NOTICE WAS ISSUED ON 17.12.2013. ANOTHER PLEA RAISED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS THAT THE ORDER PASSED BY THE ASSESSING OFFICER WAS NOT PREJUDICIAL AS DEMAND AFTER GIVING EFFECT TO THE ORDER UNDER SECTION 263 OF THE ACT WOULD BE NIL AND HENCE, NOT PREJUDICIAL TO THE INTERESTS OF REVENUE. RELIANCE IN THIS REGARD WAS PLACED ON THE RATIO LAID DOWN BY CHA NDIGARH BENCH OF TRIBU NAL IN PUNJAB WOOL SYNDICATE VS. ITO (2012) 0 17 ITR (TRIB) 0439 (CHD) . 1 3 . THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE AFTER TAKING US THROUGH THE ORDER PASSED UNDER SECTION 263 OF THE ACT POINTED OUT THAT THE ASSESSMENT ORDER PASSED IN THE F ACT S OF THE ASSESSEE WAS WITHOUT DUE PROCESS OF LAW AND HENCE, WAS ERRONEOUS. RELIANCE IN THIS REGARD WAS PLACED ON THE RATIO LAID DOWN BY THE HONBLE MADHYA PRADESH HIGH COURT IN SIMRAN FARMS LTD. VS. CIT (SUPRA) AND VENKATKRISHNA RICE CO. VS. CIT (SUPRA ). IT WAS FURTHER POINTED OUT BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE THAT ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 10 WHERE THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS ENFORCEABLE AND IT BECOME S PREJUDICIAL TO THE INTERESTS OF REVENUE, THEN THE COMMISSIONER IS EMPOWE RED TO EXERCISE THE JURISDICTION UNDER SECTION 263 OF THE ACT. RELIANCE IN THIS REGARD WAS PLACED ON THE RATIO LAID DOWN BY THE HONBLE PUNJAB & HARYANA HIGH COURT IN CIT VS. DESRAJ , IT REFERENCE NO.4/1980 , JUDGMENT DATED 22.11.1988. ANOTHER CONTENTION R AISED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE WAS WHEN THE ORDER BECOMES INVALID. I T WAS POINTED OUT BY HER THAT THE ORDER PERSE CANNOT BE INVALID AND IT HAS TO BE DECLARED INVALID AS HELD BY THE INDORE BENCH OF TRIBUNAL IN RAJGARH LIQU ORS VS. CIT (SUPRA) AND THE HONBLE PUNJAB & HARYANA HIGH COURT IN CIT VS. AMIN CHAND (SUPRA). ANOTHER RELIANCE WAS PLACED UPON BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE RATIO LAID DOWN BY PANAJI BENCH OF TRIBUNAL IN GIGAB Y TE TECHN OLOGY (INDIA) (P.) LTD. VS. CIT (2015) 53 TAXMANN.COM 30 (PANAJI) , WHEREIN SIMILAR ORDER WAS PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE ACT WITHOUT COMPLYING TO THE PROVISIONS OF SECTION 144C OF THE ACT AND WHERE THE COMMISSIONER HAD EXERC ISE D THE JURISDICTION UNDER SECTION 263 OF THE ACT, IT WAS HELD THAT SUCH NON - COMPLIANCE OF THE PROVISIONS OF SECTION 144C OF THE ACT WAS AKIN TO NON - COMPLIANCE WITH THE PRINCIPLES OF NATURAL JUSTICE, WHICH IN TURN PROVES THAT THERE WAS AN ERROR IN THE ORD ER PASSED BY THE ASSESSING OFFICER AND COMPLETING THE ASSESSMENT WITHOUT COMPLYING WITH THE PROVISIONS TANTAMOUNT TO ORDER BEING ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. IT WAS POINTED OUT BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE RE VENUE THAT FACTS BEFORE THE PANANI BENCH OF TRIBUNAL IN GIGAB Y TE TECHNOLOGY (INDIA) (P.) LTD. VS. CIT (SUPRA) WERE SIMILAR TO THE FACTS OF THE PRESENT CASE BEFORE US. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE FURTHER POINTED OUT THAT THE SAI D BENCH HAD ALSO CONSIDERED THE RATIO LAID DOWN IN M/S. ZUA RI CEMENTS LTD. VS. ACIT (SUPRA) AND ALSO VIJAY TELEVISION PVT. LTD. VS. DRP & OTHERS (SUPRA) W ITH REGARD TO THE ORDER BEING PREJUDICIAL. ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 11 1 4 . IN REJOINDER, THE LEARNED AUTHORIZED REPRESENTATIVE FO R THE ASSESSEE POINTED OUT THAT THE HONBLE SUPREME COURT LAYS DOWN THE LAW OF LAND, WHICH HAS BEEN LAID DOWN IN ACIT VS. M/S. ZUARI CEMENTS LTD. (SUPRA), WHICH IN TURN HAS NOT BEEN CONSIDERED BY THE TRIBUNAL IN GIGAB Y TE TECHNOLOGY (INDIA) (P.) LTD. VS. CI T (SUPRA). ANOTHER DISTINGUISHING FEATURE POINTED OUT BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS THAT THE ASSESSEE IN THE GIGABYTE TECHNOLOGY (INDIA) (P.) LTD. VS. CIT (SUPRA) HAD NOT FILED ANY APPEAL AGAINST THE ORDER OF ASSESSING OFFI CER PASSED UNDER SECTION 143(3) OF THE ACT. OUR ATTENTION WAS DRAWN TO THE NOTINGS IN PARA 47 OF THE ORDER OF THE TRIBUNAL IN THIS REGARD. ANOTHER SUBMISSION MADE BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS THAT AS HELD BY THE HONBLE M ADRAS HIGH COURT IN VIJAYA TELEVISION PVT. LTD. (SUPRA) WHERE THERE IS AN OMISSION, IT IS NOT MERE PROCEDURAL IRREGULARITY AND THE ASSESSMENT ORDER PASSED IS VOID FROM DAY ONE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE FURTHER POINTED OUT THA T WHERE THE COMMISSIONER HELD THAT SUCH ORDERS WERE VOIDABLE, IT IS INCORRECT AND WHERE THE ASSESSMENT WAS VOID, THEN THE COMMISSIONER SHOULD HAVE DECLARED THE SAME TO BE VOID. 1 5 . WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE COMMISSIO NER UNDER SECTION 263 OF THE ACT IS EMPOWERED TO EXERCISE JURISDICTION WHERE HE CONSIDERS THAT ANY ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF REVENUE. THE COMMISSIONER IN THIS REGARD MAY CALL FOR AND EXAMINE THE RECORD O F ANY PROCEEDINGS UNDER THE ACT AND AFTER GIVING ASSESSEE AN OPPORTUNITY OF BEING HEARD AND AFTER MAKING OR CAUSING TO MAKE SUCH ENQUIRIES AS HE MAY DEEM NECESSARY, PASS SUCH ORDERS AS THE CIRCUMSTANCES OF THE CASE JUSTIFY, INCLUDIN G AN ORDER ENHANCING OR MODIFYING THE ASSESSMENT OR CANCELLING THE ASSESSMENT AND DIRECTING A FRESH ASSESSMENT. BOTH THE CONDITIONS OF THE ORDER BEING ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 12 REVENUE ARE TO BE SIMULTANEOUSLY FULFILLED BEFORE THE COMMI SSIONER CAN EXERCISE THE JURISDICTION UNDER SECTION 263 OF THE ACT. 1 6 . IN THE FACTS OF THE PRESENT CASE, THE ASSESSING OFFICER DURING THE COURSE OF ASSESSMENT PROCEEDINGS NOTED THAT THE ASSESSEE HAD ENTERED INTO INTERNATIONAL TRANSACTION WITH ITS AES. A REFERENCE WAS MADE BY THE ASSESSING OFFICER TO THE TPO ON 10.06.2010 UNDER THE PROVISIONS OF SECTION 92CA OF THE ACT FOR DETERMINING THE ARM'S LENGTH PRICE OF THE INTERNATIONAL TRANSACTION OF THE ASSESSEE. THE TPO PASSED AN ORDER UNDER SECTION 92CA(3) OF THE ACT ON 17.10.2011 PROPOSING AN ADJUSTMENT OF RS. 5,70,49,840/ - TO THE INCOME OF THE ASSESSEE ON ACCOUNT OF IMPORT FROM AES IN THE MEDICAL IMAGING S EGMENT . THE ASSESSING OFFICER ON RECEIPT OF SUCH ORDER FROM THE TPO COMPLETED THE REGULAR ASSESSMENT U NDER SECTION 143(3) OF THE ACT WITHOUT RESORTING TO THE PROVISIONS OF SECTION 144C OF THE ACT. THE ASSESSEE FILED AN APPEAL AGAINST THE ORDER OF ASSESSING OFFICER , WHICH WAS PENDING. THE ASSESSEE RAISED THE ISSUE OF ASSESSMENT BEING VOID IN THE SAID APPE AL. ASSESSMENT BEING VOID IN THE SAID APPE AL. 1 7 . THE ISSUE ARISING IN THE PRESENT APPEAL BEFORE US IS WHETHER SUCH AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER BEING VOID AB - INITIO, CAN BE HELD TO BE ERRONEOUS ORDER WHICH IS PREJUDICIAL TO THE INTEREST OF REVENUE AND WHETHER THE COMMISSIO NER CAN EXERCISE THE JURISDICTION UNDER SECTION 263 OF THE ACT ON SUCH AN ORDER. THE COMMISSIONER ON THE EXAMINATION OF THE RECORD NOTED THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WITHOUT ISSUING DRAFT ORDER OF THE PROPOSED ADDITION TO THE ASSESSEE AS IS REQUIRED UNDER SECTION 144C OF THE ACT, HAD PASSED AN ORDER UNDER SECTION 143(3) OF THE ACT MAKING ADDITION OF RS.5,70,49,840/ - . THE SAID ORDER PASSED BY THE ASSESSING OFFICER, AS PER THE COMMISSIONER WAS NOT IN CONFORMITY WITH LAW AND WAS HELD TO BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE AND ACCORDINGLY, SHOW CAUSE NOTICE WAS ISSUED UNDER SECTION 263 OF THE ACT ASKING THE ASSESSEE TO EXPLAIN AS TO WHY THE ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 13 SAID ORDER PASSED BY THE ASSESSING OFFICER UNDER SECTION 143(3) OF THE A CT SHOULD NOT BE REVISED OR SET - ASIDE UNDER SECTION 263 OF THE ACT. THE CASE OF THE ASSESSEE BEFORE US IS THAT WHERE THE ASSESSING OFFICER HAD NOT COMPLIED WITH THE PROVISIONS OF SECTION 144C(2) OF THE ACT I.E. PROVIDING TIME TO THE ASSESSEE TO FILE OBJEC TIONS BEFORE THE DRP MAKES THE ORDER PASSED BY THE ASSESSING OFFICER TO BE BOTH ILLEGAL AND VOID AB - INITIO. 1 8 . UNDER THE PROVISIONS OF SECTION 144C OF THE ACT, IT IS PROVIDED THAT WHERE THE ASSESSING OFFICER PROPOSES TO MAKE , ON OR AFTER 01.10.2009 , ANY VARIATION IN THE INCOME OR LOSS RETURNED, WHICH IS PREJUDICIAL TO THE INTEREST OF ASSESSEE, THEN THE ASSESSING OFFICER SHALL IN THE FIRST INSTANCE FORWARD THE DRAFT OF THE PROPOSED ORDER OF ASSESSMENT TO THE ELIGIBLE ASSESSEE. UNDER SUB - SECTION (2) OF SEC TION 144C OF THE ACT ON RECEIPT OF THE DRAFT ORDER, THE ELIGIBLE ASSESSEE SHALL WITH IN 30 DAYS OF THE RECEIPT, FILE HIS ACCEPTANCE OF THE VARIATION TO THE ASSESSING OFFICER OR FILE HIS OBJECTIONS, IF ANY, TO SUCH VARIATION WITH THE DISPUTE RESOLUTION PANEL AND THE ASSESSING OFFICER. UNDER SUB - SECTION (3) OF SECTION 144C OF THE ACT, THE THE ASSESSING OFFICER. UNDER SUB - SECTION (3) OF SECTION 144C OF THE ACT, THE ASSESSING OFFICER SHALL COMPLETE THE ASSESSMENT ON THE BASIS OF DRAFT ORDER IF THE ASSESSEE INTIMATES TO THE ASSESSING OFFICER THE ACCEPTANCE OF THE VARIATION OR NO OBJECTIO NS ARE RECEIVED WITHIN PERIOD SPECIFIED IN SUB - SECTION (2) OF SECTION 144C OF THE ACT. THEREAFTER, THE ASSESSING OFFICER IS EMPOWERED TO PASS THE ASSESSMENT ORDER WITHIN ONE MONTH FROM THE END OF MONTH, IN WHICH THE ACCEPTANCE IS RECEIVED OR THE PERIOD OF FILING OBJECTIONS UNDER SUB - SECTION (2) OF SECTION 144C OF THE ACT EXPIRES. UNDER SUB - SECTION (5) OF SECTION 144C OF THE ACT, IT IS PROVIDED THAT THE DISPUTE RESOLUTION PANEL SHALL IN CASE WHERE OBJECTION IS RECEIVED UNDER SUB - SECTION (2) ISSUE SUCH DIRE CTIONS AS IT THINKS FIT FOR THE GUIDANCE OF THE ASSESSING OFFICER TO ENABLE HIM TO COMPLETE THE ASSESSMENT. UPON RECEIPT OF THE SAID DIRECTIONS, THE ASSESSING OFFICER SHALL IN CONFORMITY WITH THE SAME, COMPLETE THE ASSESSMENT WITHOUT PROVIDING ANY FURTHER OPPORTUNITY OF BEING HEARING TO THE ASSESSEE WITHIN ONE MONTH FROM THE END OF THE MONTH IN ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 14 WHICH SUCH DIRECTION IS RECEIVED, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN SECTION 153 OR 153B OF THE ACT , AS PER SUB - SECTION (13) TO SECTION 144C OF T HE ACT. IN VIEW OF THE PROVISIONS OF SECTION 144C OF THE ACT IMPLIEDLY WHERE THE TPO PROPOSES ANY VARIATION IN THE INCOME OR LOSS RETURNED BY THE ASSESSEE , WHICH IS PREJUDICIAL TO THE INTEREST OF ASSESSEE , THE ASSESSING OFFICER SHALL IN THE FIRST INSTANCE FORWARD THE DRAFT OF THE PROPOSED ASSESSMENT ORDER TO THE ASSESSEE AND THEREAFTER, IF NO OBJECTIONS ARE RECEIVED AND / OR THE ASSESSEE FILES HIS ACCEPTANCE TO THE VARIATION TO THE ASSESSING OFFICER, THEN THE ASSESSING OFFICER IS EMPOWERED TO COMPLETE THE ASSESSMENT WITHIN ONE MONTH FROM THE END OF THE MONTH THEREOF. IN CASE, THE ASSESSEE FILES HIS OBJECTION BEFORE THE DRP AND WHERE THE SAID PANEL ISSUES DIRECTIONS AS IT THINKS FIT, THEN THE ASSESSING OFFICER ON RECEIPT OF SUCH DIRECTIONS SHALL COMPLETE TH E ASSESSMENT IN CONFORMITY WITH SUCH DIRECTIONS. IN VIEW OF THE SAID PROVISIONS OF THE ACT, THE COMPLIANCE TO SECTION 144C OF THE ACT IS MANDATORY IN ALL SUCH CASES, WHERE THE TPO PROPOSES VARIATION IN THE INCOME OR LOSS RETURNED, WHICH IS PREJUDICIAL TO THE INTERESTS OF ASSESSEE. ONLY AFTER COMPLYING WITH THE CONDITIONS LAID DOWN IN SECTION 144C OF THE ACT, THE ASSESSING OFFICER IS EMPOWERED TO PASS THE ORDER UNDER SECTION 143(3) R.W.S. 144C OF THE ACT COMPLETING THE ASSESSMENT ON SUCH ENHANCED INCOME OR VARIATION IN THE LOSS RETURNED BY THE ASSESSEE. 1 9 . IN THE CASE OF VIJAY TELEVISION WRIT PETITION NOS.1526 AND 1527 OF 2014 & M.P. NOS.1 AND 1 OF 2014 , IT WAS HELD THAT NON - PASSING OF DRAFT ASSESSMENT ORDER AFTER ADJUSTMENT MADE BY THE TPO RENDERS PROCEE DINGS NULL & VOID BY OBSERVING AS UNDER: - UNDER SECTION 144C(1) OF THE ACT, WITH EFFECT FROM 1 ST OCTOBER 2009, THE ASSESSING OFFICER HAS TO MANDATORILY ISSUE A DRAFT ASSESSMENT ORDER IF THERE IS A PROPOSED VARIATION TO THE RETURN WHICH ARE PREJUDICIAL TO THE ELIGIBLE ASSESSEE. THE FACT THAT THE PETITIONER IS AN ELIGIBLE ASSESSEE IS NOT IN DISPUTE. WHILE SO, UNDER SECTION 144C(2) OF THE ACT, THE ELIGIBLE ASSESSEE HAS THE OPTION, EITHER TO ACCEPT THE VARIATION OR TO FILE THEIR OBJECTIONS BEFORE THE DRP AND SUCH OPTION HAS TO BE EXERCISED WITHIN 30 DAYS. ON SUCH OBJECTIONS FILED BY THE ASSESSEE, THE DRP SHALL ISSUE APPROPRIATE DIRECTION FOR THE GUIDANCE OF THE ASSESSING OFFICER UNDER SECTION 144C(5) OF THE ACT. IT IS ONLY THEREAFTER, THE AO IS BOUND TO PAS S A FINAL ORDER OF ASSESSMENT IN COMPLIANCE WITH THE DIRECTIONS ISSUED BY THE DRP UNDER SECTION 144C(3) OF THE ACT. IN THE PRESENT CASE, WITHOUT FOLLOWING THE ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 15 ABOVE MANDATORY PROCEDURE, THE AO HAS PASSED THE ORDER OF ASSESSMENT ON 26.03.2013 AND SUBSEQUEN TLY ISSUED A CORRIGENDUM ON 15.04.2014 TO RECTIFY THE MISTAKE COMMITTED IN PASSING THE FINAL ORDER OF ASSESSMENT INTER ALIA TO TREAT IT AS A DRAFT ASSESSMENT ORDER. THIS COURSE OF ACTION ADOPTED BY THE SECOND RESPONDENT IS CONTRARY TO THE MANDATORY PROVIS IONS CONTAINED IN THE ACT AND THE CORRIGENDUM ISSUED BY THE AO COULD NOT CURE THE DEFECT. THE VERY FACT THAT THE ASSESSING OFFICER HAS SIGNED THE ORDER OF ASSESSMENT AND ALSO ASSESSED THE AMOUNT PAYABLE BY THE ASSESSEE HAS BECOME COMPLETE AND IT CANNOT BE SIMPLY TREATED AS A DRAFT ASSESSMENT ORDER OR IT CAN BE RECTIFIED BY ISSUING THE CORRIGENDUM. IN FACT, PURSUANT TO THE ORDER OF ASSESSMENT UNDER SECTION 143C, DEMAND WAS ALSO MADE FOR PAYMENT OF THE AMOUNT AND SUCH DEMAND HAS NOT BEEN WITHDRAWN BY THE SE COND RESPONDENT EVEN AFTER ISSUING THE CORRIGENDUM. EVEN AS PER THE WEBSITE OF THE DEPARTMENT, THE DEMAND MADE TO THE PETITIONER COMPANY CONTINUES TILL DATE AND THEREFORE, THE FINAL ORDER AS WELL AS THE THE CORRIGENDUM ISSUED BY THE SECOND RESPONDENT ARE VITIATED BY ERRORS APPARENT ON THE FACE OF THE RECORD AND THEY ARE LEGALLY NOT SUSTAINABLE. 20 . THE HONBLE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD IN M/S. ZUA RI CEMENTS LTD. VS. ACIT (SUPRA) ON SIMILAR ISSUE WHERE AFTER RECEIPT OF THE ORDER PASSED BY THE TPO UNDER SECTION 92CA(3) OF THE ACT, THE ASSESSING OFFICER HAD PASSED THE ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT RAISING A DEMAND OF RS.27,40,71,913/ - WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSEE UNDER SECTION 144C OF THE ACT , OBSERVED THA T WHERE THE ASSESSING OFFICER PROPOSES TO MAKE ON OR AFTER 01.10.2009 , ANY VARIATION IN THE INCOME OR LOSS RETURNED BY THE ASSESSEE, OR AFTER 01.10.2009 , ANY VARIATION IN THE INCOME OR LOSS RETURNED BY THE ASSESSEE, THEN NOTWITHSTANDING TO THE CONTRARY CONTAINED IN THE ACT, HE SHALL FIRST PASS THE DRAFT ASSESSMENT ORDER , FORWARD THE SAME TO THE ASSESSEE AND AFTER ASSESSEE FILES HIS OBJECTIONS, IF ANY, THE ASSESSING OFFICER SHALL COMPLETE THE ASSESSMENT WITHIN ONE MONTH, IN VIEW OF THE PROVISIONS OF SECTION 144C OF THE ACT. IT WAS FURTHER OBSERVED THAT THE ASSESSEE IS ALSO GIVEN AN OPTION TO FILE AN OBJECTION BEFORE THE DRP, IN WHICH THE LATTER CAN ISSUE DIRECTIONS FOR THE GUIDANCE OF ASSESSING OFFICER TO ENABLE HIM TO COMPLETE ASSESSMENT. WHERE THE ASSESSING OFFICER ACCEPTED THE VARIATION SUBMITTED BY THE TPO WITHOUT GIVING THE PET ITIONE R ANY OPPORTUNITY TO OBJECT TO IT AND PASS THE ASSESSMENT ORDER, IT WAS HELD BY THE HONBLE HIGH COURT OF A.P THAT THE IMPUGNED ORDER OF ASSESSMENT WAS CLEARLY CONTRARY TO SECTION 144C OF THE ACT AND WAS WITHOUT JURISDICTION , NULL AND VOID. THE OBJECTION OF THE REVENUE THAT THE CIRCULAR NO.5/2010 OF THE CBDT WHICH LAID DOWN THAT THE PROVISIONS OF SECTION 144C OF THE ACT SHALL NOT APPLY FOR THE ASSESSMENT YEAR 2008 - 09 AND WOULD ONLY APPLY FROM ASSESSMENT YEAR 2010 - 11 ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 16 AND LATER YEARS WAS HELD TO BE NO T TENAB LE WHERE THE LANGUAGE OF SUB - SECTION (1) OF SECTION 144C OF THE ACT REFERRED TO THE CUTOFF DATE OF 01.10.2009 INDICATES THE INTENTION OF LEGISLATURE TO MAKE IT APPLICABLE. THE HONBLE HIGH COURT OF A.P FURTHER HELD THAT THE CIRCULAR NO.5/2010 ISSUED BY TH E CBDT STATING THAT SECTION 144C(1) OF THE ACT WOULD APPLY ONLY FROM ASSESSMENT YEAR 2010 - 11 AND SU BSEQUENT YEARS AND NOT FROM ASSESSMENT YEAR 2008 - 09 WAS CONTRARY TO THE EXPRESSED LANGUAGE OF THE SECTION AND THE SAID VIEW OF THE REVENUE WAS HELD TO BE NOT ACCEPTABLE. THE HONBLE HIGH COURT OF A.P THEREAFTER HELD THAT THE IMPUGNED ORDER OF ASSESSMENT DATED 23.12.2011 PASSED BY THE RESPONDENT WAS CONTRARY TO THE MANDATORY PROVISIONS OF SECTION 144C OF THE ACT IS DECLARED AS ONE WITHOUT JURISDICTION, NULL AN D VOID AND UNENFORCEABLE. THE HONBLE HIGH COURT OF ANDHRA PRADESH HELD AS UNDER: - IN THIS VIEW OF THE MATTER WE ARE OF THE VIEW THAT THE IMPUGNED ORDER OF ASSESSMENT DT. 23.12.2011 PASSED BY THE RESPONDENT IS CONTRARY TO THE MANDATORY PROVISIONS OF S.14 4C 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. 2 1. THE HONBLE SUPREME CO URT (SUPRA) IN ACIT VS. ZUAR I CEMENT S LTD. (SUPRA) HAD DISMISSED THE SPECIAL LEAVE PETITION FILED BY THE DEPARTMENT UPON HEARING THE COUNSEL. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE CONTENDED THAT S INCE THE SAID SPECIAL LEAVE PETITION WAS D ISMISSED AFTER HEARING THE COUNSEL AND THE VIEW TAKEN BY THE HONBLE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD HAS BEEN APPROVED BY THE APEX COURT AND ANY ORDER CONTRADICTING THE CONDITIONS LAID DOWN IN SECTION 144C OF THE ACT IS NULL AND VOID AND UNENFORC EABLE IN LAW. 22. FURTHER, THE DELHI BENCH OF TRIBUNAL IN THE CASE OF CAPSUGEL HEALTHCARE LIMITED IN ITA NO.1356/DEL/2012, VIDE ORDER DATED 30.09.2014 HAVE UPHELD THE SIMILAR VIEW THAT FAILURE TO PASS DRAFT ASSESSMENT ORDER AFTER TPOS ORDER ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 17 RENDERS PR OCEEDINGS VOID. SHOW CAUSE NOTICE CANNOT BE QU O TED WITH DRAFT ASSESSMENT ORDER. 23. THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE AND ALSO THE C OMMISSIONER HAD PLACED RELIANCE ON THE RATIO LAID DOWN IN SIMRAN FARMS LTD. VS. CIT (SUPRA) . THE HONBLE MADHYA PRADESH HIGH COURT WHILE DECIDING THE ISSUE OF INVOKING JURISDICTION UNDER SECTION 263 OF THE ACT NOTED THAT ACCORDING TO COMMISSIONER, THE ASSESSING OFFICER HAD COMMITTED AN ERROR OF LAW IN GRANTING BENEFIT OF DEDUCTION UNDER SECTION 80HHA AND 80I OF THE ACT, WHERE THE ASSESSEE WAS NOT ENGAG ED IN ANY INDUSTRIAL ACTIVITY AS HELD BY THE HONBLE SUPREME COURT IN CIT VS. VENKATESHWARA HATCHERIES PVT. LTD . (1999) 237 ITR 174 (SC). THE HONBLE HIGH COURT UPHELD THE EXERCISE OF JURISDICTION BY TH E COMMISSIONER UNDER SECTION 263 OF THE AC T , IN VIEW OF THE LAW HAVING BEEN SETTLED BY THE DECISION OF HONBLE SUPREME COURT IN CIT VS. VENKATESHWARA HATCHERIES PVT. LTD. (SUPRA). THE HONBLE HIGH COURT FURTHER HELD THAT THE COMMISSIONER WITHIN HIS JURISD ICTION UNDER SECTION 263 OF THE ACT WAS TO SEE THAT THE ORDER OF ASSESSING OFFICER WAS MADE IN CONFORMITY WITH THE LAW LAID DOWN BY THE HONBLE SUPREME COURT. THE HONBLE HIGH COURT ALSO HELD THAT INDEED, IT MUST BE SINCERE ENDEAVOR OF ALL THE AUTHORITIES , TRIBUNALS AND COURTS WHILE DECIDING THE CASES TO ENSURE SUBJECT TO ANY LEGAL LIMITATION, IF THERE ARE, THAT TH EIR CONCLUSION IS IN CONFORMITY WITH THE LAW LAID DOWN BY THE HONBLE SUPREME COURT. THIS IS WHAT ARTICLE 141 OF THE CONSTITUTION OF INDIA PROV IDES FOR. NON - OBSERVANCE OF LAW LAID DOWN BY THE APEX COURT VITIATES THE ORDER. IT IS AN ERROR APPARENT ON ITS FACE. 24. THE COMMISSIONER IN THE PRESENT C ASE WHILE EXERCISING HIS JURISDICTION UNDER SECTION 263 OF THE ACT AND IN TURN RELYING ON THE RAT IO LAID DOWN BY THE HONBLE MAD HYA PRADESH HIGH COURT IN SIMRAN FARMS LTD. VS. CIT (SUPRA) FOR THE PROPOSITION THAT WHERE THE ASSESSING OFFICER PASSED AN ORDER WITHOUT ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 18 FOLLOWING THE PROVISIONS OF LAW, SUCH AN ORDER WOULD BE ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTERESTS OF REVENUE , HELD THE PRESENT ORDER UNDER APPEAL TO BE BOTH ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF REVENUE . HOWEVER, THE COMMISSIONER HAS NOT CONSIDERED THE PROPOSITION LAID DOWN BY THE HONBLE HIGH COURT OF ANDHRA PRADESH IN M/S. ZUARI CEMENTS LTD. VS. ACIT (SUPRA) , WHICH WAS THE DECISION OF HONBLE HIGH COURT ON THE ISSUE BEFORE THE COMMISSIONER. THE HONBLE SUPREME COURT IN ACIT VS. ZUARI CEMENTS LTD. (SUPRA) HA VE DISMISSED THE SPECIAL LEAVE PETITION FILED BY THE DEPARTMENT AND HENCE, THE RATIO LAID DOWN BY THE HONBLE HIGH COURT OF ANDHRA PRADESH IS AVAILABLE AND IS TO BE APPLIED WHILE DECIDING IDENTICAL ISSUE. THUS, WHERE AN ORDER IS PASSED BY THE ASSESSING OFFICER, WHICH IS CONTRARY TO THE MANDATORY PROVISIONS OF SECTION 144C OF THE ACT, THEN THE SAME IS TO BE DECLARED ONE WITHOUT JURISDICTION, NULL AND VOID AND UNENFORCEABLE IN LAW. ACCORDINGLY, WE HOLD SO. 25. ANOTHER RELIANCE WAS PLACED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE RATIO LAID DOWN BY THE HONBLE MADRAS HIGH COURT IN V. FOR THE REVENUE ON THE RATIO LAID DOWN BY THE HONBLE MADRAS HIGH COURT IN V. RAJU VS. CIT (1984) 16 TAXMAN 249 (MAD.) , WHEREIN IT HAS BEEN HELD THAT IN VIEW OF THE PRINCIPLES OF NATURAL JUSTICE HAVING BEEN EMBEDDED IN SECTION 263 OF THE ACT ITSELF, ORDER PASSED BY THE COMMISSIONER UNDER SECTION 263 OF THE ACT WITHOUT GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE SUFFERS FROM O NLY PROCEDURAL IRREGULARITIES AN D COULD NOT BE VOID AB - INITIO AND NON - EST IN LAW. THE HONBLE HIGH COURT FURTHER HELD THAT IT IS WELL ESTABLISHED THAT ANY ORDER PASSED B Y AN AUTHORITY WITHOUT FOLLOWING THE PRINCIPLES OF NATURAL JUSTICE IS NULL AND VOID AND EVEN THOUGH IT HAS BEEN PASSED WELL WITHIN ITS JURISDICTION. HOWEVER, THOUGH NOT GIVING DUE OPPORTUNITY OF BEING HEARD TO ANY PARTY BEFORE THE ORDER IS PASSED AGAINST HIM BY WAY OF STATUTORY AUTHORITY CAN BE TAKEN TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. THE COURTS, HOWEVER, FURTHER HELD THAT VIOLATION OF PRINCIPLES OF NATURAL JUSTICE, WHICH IS PROCEDURAL VIOLATION AND THE ORDER OF THE TRIBUNAL SETTING ASIDE THE ORDER OF COMMISSIONER WITH DIRECTION TO PASS A FRESH ORDER AND AFTER ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 19 GIVING THE ASSESSEE DUE OPPORTUNITY OF HEARING, WAS APPROVED BY THE HONBLE HIGH COURT. 2 6 . THE PLEA RAISED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE AND THE COMMISSIO NER IN THIS REGARD WAS THAT WHERE THE ORDER HAS BEEN PASSED IN VIOLATION OF PRINCIPLES OF NATURAL JUSTICE OR WITHOUT FOLLOWING LAW, THEN SUCH AN ORDER IS VOIDABLE ORDER. WE FIND NO MERIT IN THE SAID OBSERVATIONS OF THE COMMISSIONER. ADMITTEDLY, WHERE AN ORDER HAS BEEN PASSED WITHOUT FOLLOWING PRINCIPLES OF NATURAL JUSTICE AND WHERE THE VIOLATION IS A PROCEDURAL VIOLATION, THE HONBLE MADRAS HIGH COURT HAS HELD THAT THE SAME COULD BE SAID TO BE VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. HOWEVER, IN THE F ACTS OF THE PRESENT CASE, VIOLATION BY THE ASSESSING OFFICER IS NOT A PROCEDURAL VIOLATION, BUT A STATU TORY VIOLATION, WHEREIN THE ASSESSING OFFICER HAS FAILED TO TAKE INTO CONSIDERATION THE STATUTORY PROVISIONS OF THE ACT AND PASSED THE ORDER WITHOUT RESO RTING TO THE PROVISIONS OF SECTION 144C OF THE ACT. IN SUCH CIRCUMSTANCES, WHERE THE ASSESSING OFFICER HAS EXCEEDED HIS JURISDICTION BY NOT COMPLYING WITH THE EXPRESS PROVISIONS OF THE ACT, THEN THE SAME CANNOT BE SAID TO BE A PROCEDURAL VIOLATION AS HELD BY THE HONBLE HIGH COURT OF ANDHRA PRADESH IN M/S. ZUARI CEMENTS LTD. VS. ACIT (SUPRA) AND BY THE HONBLE MADRAS HIGH COURT IN VIJAY TELEVISION PVT. LTD. VS. DRP & OTHERS (SUPRA) . THE ORDER PASSED BY THE ASSESSING OFFICER WITHOUT COMPLYING TO THE PROVIS IONS OF SECTION 144C OF THE ACT IS NULL AND VOID. SUCH AN ORDER WHICH IS NULL AND VOID AND HAS B EEN PASSED WITHOUT RESORTING TO THE PROVISIONS OF THE ACT, CANNOT BE SAID TO BE VOIDABLE. 2 7 . THE NEXT CONTENTION RAISED BY THE LEARNED DEPARTMENTAL REPRESE NTATIVE FOR THE REVENUE WAS THAT SUCH AN ORDER WOULD BECOME ONLY VOID ONLY IF IT IS DECLARED AS NULL AND VOID BY THE COMPETENT AUTHORITY OR COURT. IN THE FACTS OF THE PRESENT CASE, THE ASSESSEE HAD FILED AN APPEAL BEFORE THE CIT(A) AND HAS RAISED AN ADDIT IONAL GROUND OF APPEAL NO.3 ON 10.04.2013 BEFORE THE CIT(A) THAT THE ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 20 ACIT HAD ERRED IN PASSING THE FINAL ASSESSMENT ORDER WITHOUT PASSING DRAFT ASSESSMENT ORDER AS REQUIRED UNDER SECTION 144C(1) R.W.S. 143(3) OF THE ACT , THEREBY DENYING THE ASSESSEE ITS RI GHT TO RAISE THE OBJECTIONS BEFORE THE DRP. BEFORE THE SAID APPEAL FILED BY THE ASSESSEE COULD BE DECIDED BY THE CIT(A), THE COMMISSIONER ON ITS OWN MOTION ISSUED SHOW CAUSE NOTICE ON 17.12.2013 AND HAD EXERCISED THE J URISDICTION UNDER SECTION 263 OF THE ACT AND ON THE PREMISE THAT THE ASSESSMENT ORDER PASSED WAS WITHOUT JURISDICTION AND WITHOUT FOLLOWING PROCEDURE OF LAW AND HENCE, WAS ERRONEOUS. IN THE FIRST INSTANCE, THE ASSESSEE HAD ALREADY AGITATED THE ISSUE IN APPEAL, WHICH WAS PENDING. FURTHER , W H ERE THE ORDER HAS BEEN PASSED BY THE ASSESSING OFFICER, WHICH IS BOTH NULL AND VOID AND IS NOT SUSTAINABLE IN LAW, THEN IN SUCH CIRCUMSTANCES, WE FIND NO MERIT IN THE EXERCISE OF JURISDICTION BY THE COMMISSI ONER SINCE FOR SUCH EXERCISE A VALID ORDER SHOULD BE IN EXISTENCE AND WHEN NO SUCH VALID ORDER IS IN EXISTENCE, THE REVENUE AUTHORITIES CANNOT TAKE THE SHELTER OF INITIATING THE PROCEEDINGS UNDER SECTION 263 OF THE ACT IN ORDER TO CORRECT NULL AND VOID ORDER PASSED BY THE ASSESSING OFFICER. WE FIND NO M ERIT IN THE EXERCISE OF JURISDICTION BY THE COMMISSIONER UNDER SECTION 263 OF THE ACT. 2 8 . ANOTHER ISSUE RAISED BY THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE WAS THAT THE ORDER PASSED BY THE ASSESSING OFFICER CANNOT BE SAID TO BE PREJUDICIAL TO THE INTEREST OF REVENUE SINCE IN THE ORIGINAL ORDER, THE ADJUSTMENT HAS BEEN MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ORDER PASSED BY THE TPO UNDER SECTION 92CA(3) OF THE ACT PROPOSING AN ADJUSTMENT OF RS.5.70 CRORES. IN CASE, THE ORDER IS SET - ASID E AS PER THE DIRECTIONS OF COMMISSIONER UNDER SECTION 263 OF THE ACT, THEREAFTER ALSO, THE SAME ADJUSTMENT PROPOSED BY THE TPO IS TO BE MADE AFTER FOLLOWING THE DUE PROCESS OF LAW LAID DOWN UNDER SECTION 144C OF THE ACT. IN SUCH CASES, WHERE THERE IS N IL TAX EFFECT, THEN THE ORDER PASSED BY THE ASSESSING OFFICER CANNOT BE SAID TO BE PREJUDICIAL TO THE INTERESTS OF REVENUE. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 21 IN THIS REGARD PLACED RELIANCE ON THE ORDER OF PUNJAB WOOL SYNDICATE VS. ITO (S UPRA) . WE FIND MERIT IN THE PLEA OF THE ASSESSEE IN THIS REGARD AND EVEN ON THIS ACCOUNT, THE ORDER PASSED BY THE COMMISSIONER IN EXERCISE OF JURISDICTION UNDER SECTION 263 OF THE ACT DOES NOT STAND. 2 9 . NOW, COMING TO ANOTHER RELIANCE PLACED BY THE CIT - LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE ON THE RATIO LAID DOWN BY THE PANAJI BENCH OF TRIBUNAL IN GIGABYTE TECHNOLOGY (INDIA) (P.) LTD. VS. CIT (SUPRA), WHEREIN SIMILAR ISSUE AROSE BEFORE THE TRIBUNAL AND THE TRIBUNAL HELD THAT WHERE THERE IS N ON - COMPLIANCE OF PROVISIONS OF SECTION 144C OF THE ACT I.E. PROVIDING AN OPPORTUNITY OF HEARING TO THE ASSESSEE ITSELF PROVES THAT THERE WAS AN ERROR IN THE ORDER PASSED BY THE ASSESSING OFFICER AND THE SAID ORDER TANTAMOUNT TO ORDER BEING ERRONEOUS AND PR EJUDICIAL TO THE INTERESTS OF REVENUE. THOUGH, A CONTRARY VIEW HAS BEEN TAKEN BY ANOTHER BENCH OF TRIBUNAL BUT THE SAID VIEW IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE , AS IN THE CASE BEFORE THE PANAJI BENCH OF TRIBUNAL , AFTER THE RECEIPT OF THE O RDER PASSED UNDER SECTION 143(3) OF THE ACT, NO TRIBUNAL , AFTER THE RECEIPT OF THE O RDER PASSED UNDER SECTION 143(3) OF THE ACT, NO ACTION WAS TAKEN BY THE ASSESSEE THEREIN I.E. BY WAY OF FILING AN APPEAL BEFORE THE CIT(A). HOWEVER, IN THE FACTS OF THE PRESENT CASE BEFORE US, THE ASSESSEE HAD AGITATED THE EXERCISE OF JURISDICTION BY THE ASSESSING OFFICER BEFORE THE CIT(A) AND ONCE AN ISSUE WAS PENDING BEFORE THE CIT(A), THE COMMISSIONER COULD NOT EXERCISE HIS JURISDICTION UNDER SECTION 263 OF THE ACT. THE PANAJI BENCH OF TRIBUNAL HAS TAKEN NOTE OF THE FACT THAT THE ASSESSEE HAD N OT FILED ANY APPEAL BEFORE THE TRIBUNAL IN THIS REGARD BY WHICH THE ASSESSMENT ORDER COULD HAVE BEEN QUASHED. AS ON TODAY, THE ASSESSMENT ORDER IS VERY MUCH IN EXISTENCE. THE SAID ASSESSMENT WAS IN EXISTENCE WHEN THE COMMISSIONER INVOKES THE JURISDICTION UNDER S ECTION 263 OF THE ACT . THE TRIBUNAL FURTHER HELD THAT SINCE THE ASSESSEE HAD COME IN APPEAL AGAINST THE ORDER UNDER SECTION 263 OF THE ACT AND NOT AGAINST THE ASSESSMENT ORDER, WHICH WAS VERY MUCH IN EXISTENCE, THE TRIBUNAL HELD THAT IN OUR OPINION, THE T RIBUNAL DOES NOT HAVE ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 22 JURISDICTION TO EXAMINE AND HOLD THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IN VIOLATION OF PROVISIONS OF SECTION 144C(2) OF THE ACT WAS ILLEGAL AND VOID. THE JURISDICTION OF THE TRIBUNAL UNDER SECTION 254 OF THE ACT I S LIMITED TO THE GROUNDS OF APPEAL BEFORE THE TRIBUNAL, SUCH WAS OF THE VIEW TAKEN BY PANAJI BENCH OF TRIBUNAL. HOWEVER, AS POINTED OUT AND AS REFERRED TO BY US IN THE PARAS HEREINABOVE, THE FACTS OF THE PRESENT CASE ARE AT VARIANCE, WHEREIN THE ASSESSEE HAD AGITATED THE ISSUE BEFORE THE CIT(A) AND HAD RAISED ADDITIONAL GROUND OF APPEAL ON 10.04.2013 I.E. EVEN BEFORE THE ISSUE OF SHOW CAUSE NOTICE BY THE COMMISSIONER ON 17.12.2013 . IN SUCH FACTS AND CIRCUMSTANCES, WE FIND NO MERIT AND FOR THE REASONS STAT ED ABOVE AND IN VIEW OF THE RATIO LAID DOWN BY THE APEX COURT IN ACIT VS. M/S. ZUARI CEMENT LTD. (SUPRA) AND ALSO BY THE HONBLE MADRAS HIGH COURT IN VIJAY TELEVISION PVT. LTD. VS. DRP & OTHERS (SUPRA) , WE FIND NO MERIT IN THE EXERCISE OF JURISDICTION BY T HE COMMISSIONER UNDER SECTION 263 OF THE ACT AGAINST THE ASSESSMENT ORDER WHICH WAS PASSED BY THE ASSESSING OFFICER WITHOUT FOLLOWING PROCEDURE AND CONDITIONS LAID DOWN IN SECTION 144C OF THE ACT. IT IS NOT A CASE WHERE ONLY REASONABLE OPPORTUNITY OF HEAR ING WAS NOT GIVEN TO THE ASSESSEE BUT IS A CASE WHERE THE DUE PROCESS OF LAW PROVIDED IN THE ACT ITSELF HAS NOT BEEN FOLLOWED BY THE ASSESSING OFFICER , THE SAID ORDER BEING NULL AND VOID AND UNENFORCEABLE IN LAW AND ONCE AN ORDER IS NULL AND VOID AND IS IN VALID, THEN THE COMMISSIONER HAS NO POWER TO EXERCISE JURISDICTION UNDER SECTION 263 OF THE ACT. ACCORDINGLY, WE HOLD THAT THE ORDER OF REVISION PASSED BY THE COMMISSIONER UNDER SECTION 263 OF THE ACT IS THUS, CANCELLED. 30 . NOW, IN ITA NO.1072/PN/2014 , THE ONLY ISSUE RAISED IS AGAINST THE DISMISSAL OF ORDER OF CIT(A) IN NOT HOLDING THE ORDER PASSED BY THE ASSESSING OFFICER TO BE BAD IN LAW AND TO BE QUASHED. IN VIEW OF OUR DELIBERATION OF THE ISSUE I.E. N ON - FOLLOWING OF THE CONDITIONS LAID DOWN IN SECTION 144C OF THE ACT, WE HOLD THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WAS BOTH NULL ITA NO S. 34 1 AND 1 072 /PN/20 1 4 AGFA INDIA PVT. LTD. 23 AND VOID AND HAS TO BE QUASHED. WE REVERSE THE ORDER OF CIT(A) IN THIS REGARD AND ALLOW THE GROUNDS OF APP EAL RAISED BY THE ASSESSEE. 31 . IN THE RESULT, BOTH THE APPEAL S OF THE ASSESSEE ARE ALLOWED. ORDER P RONOUNCED ON THIS 28 TH DAY OF OCTOBER , 201 5 . SD/ - SD/ - ( R.K. PANDA ) ( SUSHMA CHOW L A ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE ; DATED : 28 TH OCTOBER , 2015. GCVSR / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT; 3. ( ) / THE CIT (A) - II , THANE ; 4. / THE CIT - II , THANE ; 4. / THE CIT - II , THANE ; 5. / THE CIT - I, THANE ; 6. , , / DR A , ITAT, PUNE; 7. / GUARD FILE . / BY ORDER , // TRUE COPY // / SR. PRIVATE SECRETARY , / ITAT, PUNE