NHAVA SHEVA INTERNATIONAL CONTIANER TERMINAL P.LTD, MUMBAI V. ADDL CIT RG 2(2), MUMBAI

ITA 3092/MUM/2012

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 9874 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 4 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Next Hearing Date: 20-11-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 07-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: GRISH DAVE WITH MISS KADAMBARI
• Keywords: Transfer pricing; Rectification of order
• Section: 143(3); 115JB; 154

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL J BENCH MUMB AI BEFORE SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER AND SHRI PAWAN SINGH, JUDICIAL MEMBER ITA NO. 3092/MUM/2012 (ASSESSMENT YEAR 20 07-08 ) NHAVA SHEVA INTERNATIONAL CONTAINER TERMINAL PVT. LTD. LEVEL 1, DARABSHAW HOUSE, N. M. MARG, BALLARD ESTATE, MUMBAI-400038. PAN: AABCN01851 VS. ACIT RANGE-2(2) AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. APPELLANT RESPONDE NT ITA NO. 2936/MUM/2012 (ASSESSMENT YEAR 2007-08 ) ACIT RANGE-2(2) AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020. VS. NHAVA SHEVA INTERNATIONAL CONTAINER TERMINAL PVT. LTD. LEVEL 1, DARABSHAW HOUSE, N. M. MARG, BALLARD ESTATE, MUMBAI-400038. PAN: AABCN01851 APPELLANT RESPONDE NT APPELLANT BY : SHRI GRISH DAVE ADVOCATE WITH MISS. KADAMBARI ADVO CATE RESPONDENT BY : SHRI KIRAN UNAVEKAR (DR) DATE OF HEARING : 24.09.2018 DATE OF PRONOUNCEMEN T : 26.09.2018 ORDERUNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER; 1. THESE CROSS APPEAL UNDER SECTION 253 OF INCOME-TAX ACT (THE ACT) ARE DIRECTED AGAINST THE ORDER OF LD. CIT(A)-15, MUMBAI DATED 22.02.2012 FOR ASSESSMENT YEAR 2007-08. THE ASSESSEE HAS RAISED TH E FOLLOWING GROUNDS OF APPEAL: (EACH GROUND OF APPEAL IS WITHOUT PREJUDICE TO AND INDEPENDENT OF EACH OTHER) ITA NO. 3092 & 2936 MUM 2012-NHAVA SHEVA INTERNATIO NAL CONTAINER TERMINAL PVT. LTD. 2 BASED ON THE FACTS AND THE CIRCUMSTANCES OF THE CAS E AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 15, MUMBAI ( ,CIT (AN ERRED IN UPHOLDING THE ASSESSMENT ORDER DATED 30 NOVEMBER 20 10 ISSUED BY THE LEARNED ADDITIONAL COMMISSIONER OF INCOME-TAX, RANGE- 2(2), MUMBAI (HEREINAFTER REFERRED TO AS 'THE AO') UNDER SECTION 143(3) OF TH E INCOME-TAX ACT, 1961 ('THE ACT') IN RELATION TO THE AY 2007-2008 IN THE CASE O F YOUR APPELLANT ON CERTAIN GROUNDS. YOUR APPELLANT'S GROUNDS OF APPEAL AGAINST THE ORDE R OF THE CIT (A) ARE SPECIFICALLY STATED BELOW: GROUND 1: ADDITIONS MADE UNDER SECTION 115JB OF THE ACT - RS 68,402,962 THE CIT(A) ERRED IN TREATING AMOUNT OF RS 68,402,96 2 AS UNASCERTAINED LIABILITY THEREBY CONFIRMING THE ADDITION TO THE BOOK PROFIT COMPUTED THE INCOME UNDER SECTION 115JB OF THE ACT. THE CIT(A) FAILED TO APPRECIATE THE FACT THAT SUCH ACCRUED LIABILITY WAS DETERMINED ON THE BASIS OF THE AGREEMENT ENTERED IN TO WITH VARIOUS VENDORS. YOUR APPELLANT PRAYS THAT THE AO BE DIRECTED TO TRE AT THE PROVISION OF RS 68,402,962 AS PROVISION TOWARDS AN ASCERTAINED LIAB ILITY. ACCORDINGLY, THE ADDITION MADE TO THE BOOK PROFIT COMPUTED UNDER SEC TION 115JB OF THE ACT BE DELETED. GROUND 2: DEDUCTION UNDER SECTION 80-IA OF THE ACT FOR OTHER INCOME RS 60,536,836 THE CIT (A) ERRED IN NOT ALLOWING DEDUCTION, UNDER SECTION 80-IA OF THE ACT, IN RESPECT OF THE FOLLOWING INCOME EARNED BY YOUR APPE LLANT PARTICULARS OF OTHER INCOME AMOUNT (IN RS) RENT RECOVERY 374,403 SCRAP SALES 2,183,659 MISCELLANEOUS INCOME 1,175,975 INTEREST 56,802,799 TOTAL 60,536,836 THE CIT(A) FAILED TO APPRECIATE THAT THE OTHER INCO ME EARNED BY YOUR APPELLANT IS DERIVED FROM THE BUSINESS OF OPERATING AND MAINTAIN ING THE CONTAINER TERMINAL. THE CIT(A) FAILED TO APPRECIATE THE FACT THAT THE S AID INCOME WOULD NOT HAVE BEEN RECEIVED BY YOUR APPELLANT, HAD YOUR APPELLANT NOT BEEN CARRYING ON ITS BUSINESS OF OPERATING AND MAINTAINING THE CONTAINER TERMINAL . WITHOUT PREJUDICE TO THE ABOVE, THE CIT (A) ERRED IN NOT OBSERVING THE PRINCIPLES OF JUDICIAL CONSISTENCY OF ALLOWING DEDU CTION UNDER SECTION 80-IA OF THE ACT IN RESPECT OF SCRAP SALES AND MISCELLANEOUS INCOME ALLOWED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) IN A Y 2004-05 . YOUR APPELLANT PRAYS THAT THE AO BE DIRECTED TO ALL OW DEDUCTION UNDER SECTION 80-IA OF THE ACT FOR OTHER INCOME EARNED BY YOUR AP PELLANT. ITA NO. 3092 & 2936 MUM 2012-NHAVA SHEVA INTERNATIO NAL CONTAINER TERMINAL PVT. LTD. 3 2. THE ASSESSEE VIDE ITS APPLICATION DATED 14 TH AUGUST 2012 RAISED FOLLOWING GROUNDS OF APPEAL; (GROUND NO. 4 TRANSFER PRICING ADJUSTMENT RS. 18, 848,591/-) THE CIT(A) ERRED IN MAKING PROPORTIONATE ADJUSTMENT FOR ARMS LENGTH PAYMENT OF TECHNICAL SERVICES BY REJECTING 50 PERCENT OF TH E BENEFITS RECEIVED FROM SEVEN CATEGORIES OF SERVICES. THE CIT(A) FAILED TO APPRECIATE THE FACT THAT TECHN ICAL SERVICES AGREEMENT WITH THE ASSOCIATED ENTERPRISE IS A CONSOLIDATED CONTRAC T AND INDIVIDUAL SEGREGATION UNDER VARIOUS HEADS OF TECHNICAL SERVICES SHOULD NO T BE DONE. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND, MO DIFY OR WITHDRAW ALL OR ANY OF THE ABOVE GROUND(S) OF APPEAL EITHER AT THE TIME OF HEARING OF THIS APPEAL OR BEFORE THE HEARING OF THIS APPEAL. 3. THE ASSESSEE AGAIN VIDE ITS APPLICATION DATED 06.04 .2016 RAISED THE FOLLOWING ADDITIONAL GROUND OF APPEAL: THE ASSESSMENT ORDER DATED 30 NOVEMBER 2010 PASSED BY THE LEARNED ASSESSING OFFICER IS CONTRARY TO THE PROCEDURE PRESCRIBED BY THE SECTION 144C OF THE INCOME TAX ACT, 1961 AND WAS WITHOUT JURISDICTION, NULL AN D VOID. 4. THE REVENUE IN ITS CROSS APPEAL HAS RAISED THE FOLL OWING GROUNDS OF APPEAL: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE LD. CIT(A), ERRED IN ALLOWING RELIEF TO THE ASSESSEE TO THE EXT ENT IMPUGNED IN THE GROUND ENUMERATED BELOW:- 1. THE ORDER OF THE CIT(A) IS OPPOSED TO LAW AND FA CTS OF THE CASE. 2. 'ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN GIVING GENERAL DIRECTIONS FOR RESTRICTING DISALLOWA NCE OF TECHNICAL SERVICES FOR THE YEAR CONCERNED PROVIDED BY THE ASSOCIATED ENTERPRIS ES (AE) TO 50% OF AMOUNT CLAIMED BY THE APPELLANT, WITHOUT GIVING ANY SPECIF IC FINDING ON THE ISSUE CONTRARY TO THE FINDING GIVEN BY THE TPO THAT SERVICES RENDE RED WERE ONLY FOR THREE ASPECTS OF AGREEMENT?' 5. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE-COMPA NY IS ENGAGED IN THE BUSINESS OF CONSTRUCTION, OPERATION, MANAGEMENT, AN D MAINTENANCE OF A CONTAINER HANDLING AND UNIT LOADING/UPLOADING FACIL ITIES AT JAWAHARLAL NEHRU PORT TRUST (JNPT). THE ASSESSEE FILED ITS RETURN OF INCOME FOR ASSESSMENT ITA NO. 3092 & 2936 MUM 2012-NHAVA SHEVA INTERNATIO NAL CONTAINER TERMINAL PVT. LTD. 4 YEAR 2007-08 ON 06.11.2007 DECLARING TOTAL INCOME O F RS. 110.64 CRORE UNDER THE MINIMUM ALTERNATIVE TAX (MAT) PROVISIONS. THE ASSESSMENT WAS COMPLETED ON 30.11.2010 UNDER SECTION 143(3) (RECTI FIED TO HAVE BEEN PASSED UNDER SECTION 143(3) R.W.S 144C(5) VIDE ORDER DATED 30.12.2010. THE ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDE R MADE THE ADJUSTMENT/ADDITION OF RS. 2,15,41,247/- UNDER SECT ION 92CA(3) AND DENIED THE DEDUCTION UNDER SECTION 80IA OF RS. 6,05,56,386 /- (CONSISTING OF RENT RECOVERY OF RS. 3,74,403/-, SCRAP SALE OF RS. 21,83 ,659/-, MISCELLANEOUS INCOME OF RS. 1175975/- AND INTEREST INCOME OF RS. 5,68,02,799/-) AND MADE THE ADDITION UNDER SECTION 115JB OF RS. 6,84,02,692 /-. ON APPEAL BEFORE THE LD. CIT(A), THE TRANSFER PRICING ADJUSTMENT WAS RES TRICTED TO 50%, HOWEVER, THE ADDITION UNDER SECTION 115JB AND DENIAL OF DEDU CTION UNDER SECTION 80IA WAS CONFIRMED. THUS, AGGRIEVED BY THE ORDER OF LD. CIT(A), BOTH THE PARTIES HAVE FILED THEIR APPEAL RAISING THE GROUNDS OF APPE AL AS REFERRED ABOVE. 6. WE HAVE HEARD THE LD. AUTHORIZED REPRESENTATIVE (A R) OF THE ASSESSEE AND LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE REVENU E AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR OF THE ASS ESSEE SUBMITS THAT THE ASSESSEE HAS RAISED ADDITIONAL GROUND OF APPEAL THA T ASSESSING OFFICER PASSED THE ASSESSMENT ORDER IN VIOLATION OF PROVISI ONS OF SECTION 144C OF THE ACT. THE LD. AR OF THE ASSESSEE SUBMITS THAT ADDITI ONAL GROUND OF APPEAL RELATES TO THE JURISDICTIONAL ISSUE AND MAY BE DECI DE FIRST. IT WAS SUBMITTED THAT ALL FACTS RELATED TO RAISING OF ADDITIONAL GRO UND OF APPEAL ARE AVAILABLE ON ITA NO. 3092 & 2936 MUM 2012-NHAVA SHEVA INTERNATIO NAL CONTAINER TERMINAL PVT. LTD. 5 RECORD. THE ADDITIONAL GROUNDS OF APPEAL EMANATES F ROM THE FACTS AVAILABLE ON RECORD. THE LD. AR OF THE ASSESSEE INVITED OUR A TTENTION TO THE DRAFT ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R.W.S 144C(1) DATED 29.09.2010. THE LD. AR OF THE ASSESSEE SUBMITS THAT IN PARAGRAPH 5.3, THE ASSESSING OFFICER HAS REFERRED THE REPLY OF ASSESSE E DATED 29.10.2010 AND IN PARAGRAPH NO. 5.5 HAS REFERRED THE REPLY OF ASSESSE E DATED 29.11.2010. THE ASSESSING OFFICER HAS EXTRACTED THE CONTENTS OF REP LY DATED 29.10.2010 AND 29.11.2010 IN PARAGRAPH 5.3 AND 5.5 RESPECTIVELY. I N FACT, THE DRAFT ASSESSMENT ORDER WAS NEITHER PASSED NOR SERVED UPON THE ASSESSEE. THE ASSESSEE HAS NO OPPORTUNITY TO FILE OBJECTION AGAIN ST THE DRAFT ASSESSMENT DATED 29.09.2010. THE ASSESSING OFFICER PASSED THE FINAL ASSESSMENT ORDER ON 30.11.2010 UNDER SECTION 143(3). THE CONDUCT OF ASSESSING OFFICER IS APPARENT BY PASSING THE RECTIFICATION ORDER UNDER S ECTION 154 ON 30.12.2010 WHEREIN IT WAS REFERRED THAT ASSESSMENT ORDER UNDER SECTION 143(3) R.W.S 144C(1) WAS SENT TO THE ASSESSEE ON 29.10.2010 AND THAT ASSESSEE OPTED NOT TO FILE OBJECTION BEFORE THE DRP OR THAT THE PERIOD FOR FILING OBJECTION IS EXPIRED ON 29.11.2010, THEREFORE, THE ASSESSMENT OR DER UNDER SECTION 143(3) WAS PASSED. THEREFORE, THE ASSESSING OFFICER RECTIF IED THE ORDER MENTIONING THAT THE ORDER SHOULD BE AS PASSED UNDER SECTION 14 3(3) R.W.S 144C(5). THE LD. AR OF THE ASSESSEE FURTHER SUBMITS THAT REFEREN CE OF ALL DATES MENTIONED ON THE DRAFT ASSESSMENT, IN THE RECTIFICATION ORDER CLEARLY GOES TO SHOW THAT NEITHER THE DRAFT ASSESSMENT ORDER WAS PASSED NOR I T WAS SERVED UPON THE ITA NO. 3092 & 2936 MUM 2012-NHAVA SHEVA INTERNATIO NAL CONTAINER TERMINAL PVT. LTD. 6 ASSESSEE AND THE FINAL ASSESSMENT ORDER UNDER SECTI ON 143(3) WAS PASSED BY ASSESSING OFFICER IN GROSS VIOLATION OF PROCEDURE P RESCRIBED UNDER SECTION 144C OF THE ACT. THEREFORE, THE ASSESSEE HAS RAISED THE ADDITIONAL GROUND OF APPEAL THAT THE ASSESSMENT ORDER DATED 30.11.2010 I S CONTRARY TO THE PROCEDURE PRESCRIBED UNDER SECTION 144C. AND THE AS SESSMENT ORDER PASSED IN VIOLATION OF PROCEDURE PRESCRIBED UNDER SECTION 144C IS VOID AB-INITIO . HENCE, ALL SUBSEQUENT ACTIONS OF ASSESSING OFFICER ARE INVALID AND NONEST IN THE EYES OF LAW. 7. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE SUPPO RTED THE ORDER OF ASSESSING OFFICER. THE LD. DR FURTHER SUBMITS THAT THERE MAY BE TYPOGRAPHICAL MISTAKE WHILE PASSING THE DRAFT ASSES SMENT ORDER UNDER SECTION 143(3) R.W.S 144C(1). THE DRAFT ASSESSMENT ORDER WAS SERVED UPON THE ASSESSEE ON 29.10.2010. 8. IN REJOINDER SUBMISSION, THE LD. AR OF THE ASSESSEE SUBMITS THAT AS PER DIRECTION OF THE BENCH VIDE ORDER DATED 17.08.2017 HE HAS FILED AN AFFIDAVIT OF DEVANG MANKODI CONTENDING THAT THE LETTER (REPLY ) OF ASSESSEE DATED 29.11.2010 WAS FILED BEFORE ASSESSING OFFICER ONLY ON 29.11.2010. THE ASSESSING OFFICER HAS NO OCCASION TO REFER THE CONT ENTS OF ASSESSEES LETTER DATED 29.11.2010 WHILE PASSING THE DRAFT ASSESSMENT ORDER ON 29.10.2010. 9. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PART IES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE HAVE NO TED THAT THE ASSESSEE HAS RAISED ADDITIONAL GROUND OF APPEAL, WHICH RELATES T O JURISDICTIONAL ISSUE. WE ITA NO. 3092 & 2936 MUM 2012-NHAVA SHEVA INTERNATIO NAL CONTAINER TERMINAL PVT. LTD. 7 HAVE NOTED THAT NO ADDITIONAL FACTS OR EVIDENCE IS NECESSARY TO BRING ON RECORD FOR ADJUDICATION OF ADDITIONAL GROUND OF APP EAL. THEREFORE, WE ADMIT THE ADDITIONAL GROUND OF APPEAL RAISED BY ASSESSEE VIDE ITS APPLICATION DATED 06.04.2016 THAT THE ASSESSMENT ORDER DATED 30.11.20 10 IS CONTRARY TO THE PROCEDURE PRESCRIBED UNDER SECTION 144C OF THE ACT. 10. WE HAVE NOTED THAT ON 17.08.2017, WHILE HEARING THE APPEALS FOR THE YEAR UNDER CONSIDERATION, THE LD. DR FOR REVENUE WAS DIR ECTED TO FILE THE ORDER- SHEET OF FILE OF ASSESSING OFFICER FROM 27.08.2009 ONWARDS. ON THE DIRECTION OF BENCH, THE ORDER-SHEET OF ASSESSING OFFICER WAS FILED. THE PERUSAL OF ORDER-SHEET OF ASSESSING OFFICER REVEALS THAT THE H EARING WAS FIXED ON 28.10.2010 AND MISS MADHAVI MEHTA ATTENDED ON BEHAL F OF ASSESSEE AND FILED SUBMISSION AND RECONCILIATION OF CREDITORS AN D A SHOW-CAUSE NOTICE WAS ISSUED TO THE ASSESSING OFFICER AS TO WHY PROVISION OF RS. 6.84 CRORE MADE AS AN ESTIMATED LIABILITY, WHICH BEING AS UNASCERTA INED LIABILITY, MAY NOT BE ADDED BACK WHILE COMPUTING BOOK PROFIT UNDER MAT IN TERM OF EXPLANATION (C) OF SECTION 115JB AND CASE WAS ADJOURNED TO 29.1 0.2010. ON 29.09.2010 MISS MADHAVI MEHTA ATTENDED THE HEARING AND FILED S UBMISSION AND CASE WAS DISCUSSED WITH HER. NO FURTHER REFERENCE ABOUT PASSING OF DRAFT ASSESSMENT ORDER, ISSUANCE OF NOTICE/SHOW-CAUSE NOT ICE FOR SERVICE OF DRAFT ASSESSMENT ON ASSESSEE, IS MENTIONED IN THE ORDER-S HEET, NOR PASSING OF FINAL ASSESSMENT ORDER UNDER SECTION 143(3) DATED 30.11.2 010 MENTIONED IN THE ORDER-SHEET. FURTHER, THERE IS NO REFERENCE ABOUT O RDER OF RECTIFICATION DATED ITA NO. 3092 & 2936 MUM 2012-NHAVA SHEVA INTERNATIO NAL CONTAINER TERMINAL PVT. LTD. 8 30.12.2010, RECTIFYING THE OF ASSESSMENT ORDER UNDE R SECTION 143(3) R.W.S 144C(5) ON THE ORDER-SHEET. 11. FOR BETTER APPRECIATION OF FACTS SECTION 144-C IS EXTRACTED BELOW :- ' REFERENCE TO DISPUTE RESOLUTION PANEL. 144C. (1) THE ASSESSING OFFICER SHALL, NOTWITHSTAND ING ANYTHING TO THE CONTRARY CONTAINED IN THIS ACT, IN THE FIRST INSTANCE, FORWA RD A DRAFT OF THE PROPOSED ORDER OF ASSESSMENT (HEREAFTER IN THIS SECTION REFERRED TO A S 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. (2) ON RECEIPT OF THE DRAFT ORDER, THE ELIGIBLE ASS ESSEE SHALL, WITHIN THIRTY DAYS OF THE RECEIPT BY HIM OF THE DRAFT ORDER, ( A ) FILE HIS ACCEPTANCE OF THE VARIATIONS TO THE ASSE SSING OFFICER; OR ( B ) FILE HIS OBJECTIONS, IF ANY, TO SUCH VARIATION WI TH,- ( I ) THE DISPUTE RESOLUTION PANEL; AN D ( II ) THE ASSESSING OFFICER. (3) THE ASSESSING OFFICER SHALL COMPLETE THE ASSESS MENT ON THE BASIS OF THE DRAFT ORDER, IF ( A ) THE ASSESSEE INTIMATES TO THE ASSESSING OFFICER T HE ACCEPTANCE OF THE VARIATION; OR ( B ) NO OBJECTIONS ARE RECEIVED WITHI N THE PERIOD SPECIFIED IN SUB - SECTION (2). (4) THE ASSESSING OFFICER SHALL, NOTWITHSTANDING AN YTHING CONTAINED IN SECTION 153, PASS THE ASSESSMENT ORDER UNDER SUB- SECTION (3) WITHIN ONE MONTH FROM THE END OF THE MONTH IN WHICH, ( A ) THE ACCEPTANCE IS RECEIVED; OR ( B ) THE PERIOD OF FILING OF OBJECTIONS UNDER SUB-SECT ION (2) EXPIRES. (5) THE DISPUTE RESOLUTION PANEL SHALL, IN A CASE W HERE ANY OBJECTION IS RECEIVED UNDER SUB-SECTION (2), ISSUE SUCH DIRECTIONS, AS IT THINK S FIT, FOR THE GUIDANCE OF THE ASSESSING OFFICER TO ENABLE HIM TO COMPLETE THE ASSESSMENT. (6) THE DISPUTE RESOLUTION PANEL SHALL ISSUE THE DI RECTIONS REFERRED TO IN SUBSECTION (5), AFTER CONSIDERING THE FOLLOWING, NAMELY: ( A ) DRAFT ORDER; ( B ) OBJECTIONS FILED BY THE ASSESSEE; ( C ) EVIDENCE FURNISHED BY THE ASSESSEE; ( D ) REPORT, IF ANY, OF THE ASSESSING OFFICER, VALUATION OFFICER OR TRANSFER PRICING OFFICER OR ANY OTHER AUTHORITY; ( E ) RECORDS RELATING TO THE DRAFT ORDER; ( F ) EVIDENCE COLLECTED BY, OR CAUSED TO BE COLLECTED BY, IT; AND ( G ) RESULT OF ANY ENQUIRY MADE BY, OR CAUSED TO BE MA DE BY, IT. ITA NO. 3092 & 2936 MUM 2012-NHAVA SHEVA INTERNATIO NAL CONTAINER TERMINAL PVT. LTD. 9 12. A CAREFUL READING OF SECTION 144C MANDATES THE ASSE SSING OFFICER, IN THE FIRST INSTANCE, TO FORWARD A DRAFT OF THE PROPOSED ORDER OF ASSESSMENT TO THE ELIGIBLE ASSESSEE IN RELATION TO ANY VARIATION IN T HE INCOME OR LOSS RETURNED, WHICH IS PREJUDICIAL TO THE INTEREST OF SUCH ASSESS EE, WHO ON RECEIPT OF THE SAID DRAFT ORDER, WITHIN THE TIME PRESCRIBED, SHALL EITHER FILE HIS ACCEPTANCE OF THE VARIATIONS TO THE ASSESSING OFFICER OR FILE HIS OBJECTIONS TO THE VARIATION WITH THE DRP AND THE ASSESSING OFFICER. 13. WE HAVE ALSO PERUSED THE CONTENTS OF DRAFT ASSESSME NT DATED 29.10.2010, FORWARDING LETTER OF DRAFT ASSESSMENT DATED 29.10.2 010, ASSESSMENT ORDER DATED 30.11.2010 PASSED UNDER SECTION 143(3) AND RE CTIFICATION ORDER PASSED UNDER SECTION 154 DATED 30.12.2010. THE PERUSAL OF DRAFT ASSESSMENT SHOWS THAT IT WAS FRAMED IN A HURRIEDLY MANNER. THE ASSES SING OFFICER REFERRED THE REPLY OF ASSESSEE DATED 29.10.2010 (PARA 5.3) AND R EPLY DATED 29.11.2010 (PARA 5.5). THE REFERENCE OF ASSESSEES REPLY DATED 29.11.2010 IN THE DRAFT ASSESSMENT ORDER PASSED ALLEGEDLY UNDER SECTION 143 (3) R.W.S 144C(1) IS FAR FROM IMAGINATION. EVEN IF IT IS PRESUMED AS PER THE CONTENTION OF LD. DR FOR THE REVENUE, THAT THERE MAY BE TYPOGRAPHICAL MISTAK E (MAY HAVE BEEN PASSED ON 29.11.2010), THE ASSESSING OFFICER HAS TO WAIT F OR 30 DAYS FOR FILING OF OBJECTION BEFORE DISPUTE RESOLUTION PANEL, BEFORE P ASSING THE FINAL ASSESSMENT ORDER. THE FINAL ASSESSMENT ORDER WAS PA SSED ON 30.11.2010, THEREFORE, THE CONTENTION OF LD. DR FOR THE REVENUE THAT THERE MAY BE SOME TYPOGRAPHICAL MISTAKE IN WRITING THE DATES IS NOT C ONVINCIBLE. ITA NO. 3092 & 2936 MUM 2012-NHAVA SHEVA INTERNATIO NAL CONTAINER TERMINAL PVT. LTD. 10 14. THE HONBLE DELHI HIGH COURT IN TURNER INTERNATIONA L INDIA (P.) LTD. V DCIT [2017] 398 ITR 177/82 TAXMANN.COM 125 (DELHI) , HAD AN OCCASION TO CONSIDER A SIMILAR ISSUE, AS RAISED IN THIS WRIT PE TITION AND IT WAS HELD AS UNDER: 10. THE SHORT GROUND ON WHICH THE AFOREMENTIONED F INAL ASSESSMENT ORDERS AND THE CONSEQUENT DEMAND NOTICES HAVE BEEN CHALLENGED IS THAT THERE WAS NON- COMPLIANCE WITH THE MANDATORY PROVISION CONTAINED I N SECTION 144C(1) OF THE ACT REQUIRING THE AO TO FIRST FRAME DRAFT ASSESSMENT OR DERS. 11. THE QUESTION WHETHER THE FINAL ASSESSMENT ORDER STANDS VITIATED FOR FAILURE TO ADHERE TO THE MANDATORY REQUIREMENTS OF FIRST PASSI NG DRAFT ASSESSMENT ORDER IN TERMS OF SECTION 144C(1) OF THE ACT IS NO LONGER RE S INTREGRA. THERE IS A LONG SERIES OF DECISIONS TO WHICH REFERENCE WOULD BE MAD E PRESENTLY. 12. IN ZUARI CEMENT LTD. V. ACIT (DECISION DATED 21ST FEBRUARY, 2013 IN WP(C) NO. 5557/2012), THE DIVISION BENCH (DB) OF THE ANDH RA 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 F INAL ASSESSMENT ORDER 'WITHOUT JURISDICTION, NULL AND VOID AND UNENFORCEABLE.' IN THAT CASE, THE CONSEQUENT DEMAND NOTICE WAS ALSO SET ASIDE. THE DECISION OF T HE ANDHRA PRADESH HIGH COURT WAS AFFIRMED BY THE SUPREME COURT BY THE DISMISSAL OF THE REVENUE'S SLP (C) [CC NO. 16694/2013] ON 27TH SEPTEMBER, 2013. 15. FURTHER HONBLE BOMBAY HIGH COURT IN DIMENSION DATA ASIA PACIFIC PTE LTD. VS. DEPUTY COMMISSIONER OF INCOME-TAX [2018] 96 TAXMANN .COM 182 (BOMBAY) HELD THAT WHEREIN, ASSESSING OFFICER PASSE D FINAL ASSESSMENT ORDER UNDER SECTION 144C(13), READ WITH SECTION 143 (3) WITHOUT PASSING A DRAFT ASSESSMENT ORDER UNDER SECTION 144C(1), SAID ORDER BEING VIOLATIVE OF PROVISIONS OF SECTION 144C(1), DESERVED TO BE SET A SIDE. CONSIDERING THE FACTUAL DISCUSSION AS DISCUSSED ABOVE THE ASSESSING OFFICER HAS NOT PASSED THE DRAFT ASSESSMENT ORDER NOR WAS THE COPY OF IT S ERVED UPON THE ASSESSEE. THEREFORE, THE ASSESSING OFFICER ACTED IN VIOLATION OF PROVISIONS OF SECTION ITA NO. 3092 & 2936 MUM 2012-NHAVA SHEVA INTERNATIO NAL CONTAINER TERMINAL PVT. LTD. 11 144C. THUS, THE ASSESSMENT ORDER DESERVES TO BE SET -ASIDE/QUASHED. HENCE, WE ALLOWED THE ADDITIONAL GROUNDS OF APPEAL RAISED BY ASSESSEE. 16. AS WE HAVE ALLOWED THE ADDITIONAL GROUND OF APPEAL WHICH RELATES TO JURISDICTIONAL ISSUE AND SET-ASIDE/QUASHED THE ASSE SSMENT ORDER. HENCE, THE DISCUSSION ON OTHER ISSUES HAS BECOME ACADEMIC. 17. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ITA NO. 2936/MUM/2012 18. CONSIDERING THE FACT OF THE CASE THAT WE HAVE ALREA DY ALLOWED THE APPEAL OF ASSESSEE ON JURISDICTIONAL ISSUE AND SET-ASIDE/QUAS HED THE ASSESSMENT ORDER. THEREFORE, THE GROUNDS OF APPEAL RAISED BY REVENUE HAVE BECOME INFRUCTUOUS. 19. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COUR T ON 26/09/2018. SD/- SD/- SHAMIM YAHYA PAWAN SINGH ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE: 26.09.2018 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR J BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI