Suretex Prophylactics (India) Limited, Bangalore V. Asst.C.I.T., Bangalore

ITA 430/BANG/2016

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 7764 (ITAT-BANGALORE)
• Duration Of Justice: 5 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 10-03-2021
• Assessment Year: 2011-2012
• Appeal Filed On: 14-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Transfer pricing; Opportunity of being heard; International transaction; Period of limitation; Procedural lapse; Set aside
• Section: 143(3); 144C; 274; 143(2); 158BC; 13; 153; 158BD; 145; 148; 144; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI. CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER IT(TP)A NO.430/BANG/2016 ASSESSMENT YEAR : 2011-12 M/S SURETEX PROPHYLACTICS (INDIA) LTD., NO.74-91, KIADB INDUSTRIAL ESTATE, JIGANI II PHASE, ANEKAL TALUK, BENGALURU-560 105. PAN AACCS 9648 F VS. THE ASST. COMMISSIONER OF INCOME-TAX, CIRCLE-6(1)(2), BENGALURU. APPELLANT RESPONDENT ASSESSEE BY : SHRI NAGESHWAR RAO, ADVOCATE REVENUE BY : MS. NEERA MALHOTRA, CIT (DR) DATE OF HEARING : 10-03-2021 DATE OF PRONOUNCEMENT : 01-04-2021 ORDER PER BEENA PILLAI, JUDICIAL MEMBER PRESENT APPEAL HAS BEEN FILED BY ASSESSEE AGAINST O RDER DATED 13/12/2015 PASSED BY LEARNT ACIT UNDER SECTIO N 143 (3) READ WITH SECTION 144C(13) OF THE ACT. 2. AT THE OUTSET THE LD.COUNSEL SUBMITTED THAT ASSE SSEE HAS RAISED ADDITIONAL GROUNDS 7-9 VIDE APPLICATION DATE D 18/07/2019. HE SUBMITTED THAT GROUND NO. 9 RAISED I N THE PAGE 2 OF 16 IT(TP)A NO.430/BANG/2016 APPLICATION FOR ADMISSION OF ADDITIONAL GROUNDS CHA LLENGES THE VALIDITY OF THE DRAFT ASSESSMENT ORDER DATED 25/02/ 2015. WE FIND THAT THE FOLLOWING WERE THE ADDITIONAL GROU ND FILED BY ASSESSEE: 7. TRANSFER PRICING ADJUSTMENTS MADE BY LD. TPO ARE BAD IN LAW INTER-ALIA FOR THE REASON THAT LD TPO DID NOT R EJECT TP DOCUMENTATION PREPARED BY APPELLANT AND STILL MODIF IED ECONOMIC ANALYSIS UNDERTAKEN BY APPELLANT. 8. LD. TRANSFER PRICING OFFICER ERRED IN COMPARING APPELLANT WITH HLL LIFE CARE LIMITED. 9. IMPUGNED ORDER IS BAD IN LAW AS DEMAND NOTICE IS ISSUED ALONG WITH DRAFT ASSESSMENT ORDER. 3. THE LD.COUNSEL SUBMITTED THAT ISSUE RAISED IN GR OUND NO.9 GOES TO THE ROOT OF THE ASSESSMENT PROCEEDINGS, AND THEREFORE DESERVES TO BE ADMITTED. HE PLACED RELIANCE ON DECI SIONS OF HONBLE SUPREME COURT IN CASE OF N ATIONAL THERMAL POWER COMPANY LTD. VS CIT REPORTED IN 229 ITR 383 AND JUTE CORPORATION OF INDIA LTD. REPORTED IN 187 ITR 688. 4. THE LD.CIT.DR THOUGH VEHEMENTLY OBJECTED FOR THE ADMISSION, COULD NOT CONTROVERT THE NATURE OF THE I SSUE RAISED BY ASSESSEE IN GROUND NO.9. 5. WE HAVE PERUSED SUBMISSIONS ADVANCED BY BOTH SID ES IN THE LIGHT OF RECORDS PLACED BEFORE US. 6. WE NOTE THAT THIS ISSUE RAISED IN GROUND NO. 9 A RISES OUT OF THE RECORDS PLACED BEFORE US. THIS ISSUE BEING LEG AL IN NATURE, GOES TO THE ROOT CAUSE OF THE ASSESSMENT PROCEEDING S. WE ALSO NOTE THAT THERE IS NO ESTOPPEL THAT AN ISSUE ARISIN G OUT OF THE RECORDS COULD NOT BE ALLEGED BY ASSESSEE BEFORE THI S TRIBUNAL. PAGE 3 OF 16 IT(TP)A NO.430/BANG/2016 THEREFORE TO MEET ENDS OF JUSTICE IT IS NECESSARY T HAT THIS ISSUE DESERVES TO BE CONSIDERED. ACCORDINGLY WE ADMIT GROUND NO.9 RAISED BY ASSESSEE IN THE APPLICATION FOR ADDITIONAL GROUNDS. 7. THE ISSUE RAISED BY ASSESSEE IN GROUND NO. 9 IS A LEGAL GROUND WE ARE INCLINED TO ADJUDICATE THIS, BEFORE L OOKING INTO THE MERITS. 8. THE LD.COUNSEL AT THE OUTSET, DREW OUR ATTENTION TO THE DRAFT ASSESSMENT ORDER DATED 25/02/2015. HE SUBMITT ED THAT, THE SAID ORDER HAS BEEN PASSED BY THE LD.AO UNDER S ECTION 143 (3) READ WITH SECTION 144C (1) OF THE ACT, TITLING IT AS, DRAFT ASSESSMENT ORDER(HEREINAFTER REFERRED TO AS THE IM PUGNED ORDER). HE SUBMITTED THAT THE LD.AO WHILE PASSING T HE IMPUGNED ORDER, ISSUED THE DEMAND NOTICE UNDER SECTION 156 O F THE ACT IN FORM 7, ALONG WITH PENALTY NOTICE UNDER SECTION 274 READ WITH SECTION 271 OF THE ACT ON THE EVEN DATE. 9. IT IS A SUBMISSION OF THE LD.COUNSEL THAT ALLEGE D DRAFT ASSESSMENT ORDER WITH NOTICE UNDER SECTION 156 AND 274 DATED 25/02/2015 ARE BAD IN LAW, BEING CONTRARY TO THE PR OCEDURE PRESCRIBED UNDER THE LAW. HE THUS SUBMITTED THAT, T HE ALLEGED DRAFT ASSESSMENT ORDER DATED 25/02/2015, AND THE SU BSEQUENT ORDERS DATED 31/12/2015 TOGETHER WITH DEMAND NOTICE AND PENALTY NOTICE DESERVES TO BE TREATED AS NULL AND V OID IN THE EYES OF LAW. HE PLACED RELIANCE ON THE FOLLOWING DECISIO N IN SUPPORT OF HIS CONTENTIONS: PAGE 4 OF 16 IT(TP)A NO.430/BANG/2016 DECISION OF HONBLE SUPREME COURT IN CASE OF ACIT V S THE PVT.LTD., REPORTED IN (2018) 259 TAXMAN 91/DECISION OF HONBL E BOMBAY HIGH COURT IN CASE OF CIT VS LIONBRIDGE TECHNOLOGIE S PVT.LTD., REPORTED IN (2019) 260 TAXMANN 273/DECISION OF HON BLE BOMBAY HIGH COURT IN CASE OF INTERNATIONAL AIR TRANSPORT A SSOCIATION VS DCIT REPORTED IN (2016) 290 CTR 46/DECISION OF HON BLE DELHI HIGH COURT IN CASE OF JCB INDIA LTD. VS DCIT REPORT ED IN (2017) 398 ITR 189/DECISION OF HONBLE DELHI HIGH COURT IN CASE OF TURNER INTERNATIONAL INDIA PVT.LTD., VS DCIT REPORT ED IN (2017) 398 ITR 177/DECISION OF HONBLE MADRAS HIGH COURT IN CA SE OF VIJAY TELEVISION (2014) 369 ITR 113. 10. ON THE CONTRARY, THE LD.CIT.DR SUBMITTED THAT, ORDE R PASSED BY ASSESSING OFFICER IS VALID AS PER SECTION 144C OF THE ACT. SHE PLACED RELIANCE ON FOLLOWING DECISIONS IN SUPPORT OF HER SUBMISSIONS: DECISION OF HONBLE HYDRABAD TRIBUNAL IN CASE OF BS LTD. VS ACIT REPORTED IN (2000 1894 TAXMANN.COM 346 DECISION OF HONBLE KOLKATA TRIBUNAL IN CASE OF PRI CEWATERHOUSE COOPERS (P) LTD. VS DCIT REPORTED IN (2020) 117 TAX MANN.COM 276 11. WE HAVE HEARD BOTH SIDES IN LIGHT OF RECORDS PL ACED BEFORE US. AS PER SECTION 144C OF THE ACT, IT IS MANDATORY FOR THE LD.AO TO PASS DRAFT ASSESSMENT ORDER IN ACCORDANCE WITH T HE PROCEDURE LAID DOWN THEREIN. VARIOUS DECISIONS RELI ED BY THE LD.AR REPRODUCED HEREINABOVE HIGHLIGHT THAT, IT IS MANDATORY FOR LD.AO TO FOLLOW THE PROCEDURES LAID DOWN UNDER SECT ION 144C OF THE ACT IN AN ASSESSMENT THAT INVOLVES ASSESSMENT O F PAGE 5 OF 16 IT(TP)A NO.430/BANG/2016 INTERNATIONAL TRANSACTION. HONBLE MADRAS HIGH COURT IN CASE OF VIJAY TELEVISION (SUPRA) OBSERVED AS UNDER: ADMITTEDLY, THE CASE OF THE PETITIONER COMPANY WAS TAKEN UP FOR SCRUTINY BY THE SECOND RESPONDENT RELATING TO THE ASSESSMENT YE ARS 2009-2010 INASMUCH AS THE PETITIONER COMPANY HAD ENTERED INTO INTERNAT IONAL TRANSACTIONS DURING SUCH ASSESSMENT YEAR. ULTIMATELY, THE CASE WAS REFE RRED TO THE TPO FOR DETERMINATION OF THE ALP OF ALL SUCH INTERNATIONAL TRANSACTIONS REPORTED IN FORM 3CEB FILED BY THE PETITIONER COMPANY. THE TPO, AFTER CONDUCTING ENQUIRY, HAS ULTIMATELY PASSED AN ORDER ON 30.01.20 13. THEREAFTER, ACCORDING TO THE PETITIONER COMPANY, THE SECOND RESPONDENT, I NSTEAD OF PASSING A PROVISIONAL ORDER OR A DRAFT ASSESSMENT ORDER, HAS PASSED A FINAL ASSESSMENT ORDER DATED 26.03.2013 AS CONTEMPLATED UNDER SECTIO N 143(3) OF THE ACT. SECTION 143(3) AND 144(C) OF THE ACT READS AS FOLLO WS: '143(3) ON THE DAY SPECIFIED IN THE NOTICE, (I) ISSUED UNDER CLAUSE (I) OF SUB- SECTION (2), OR AS SOON AFTERWARDS AS MAY BE, AFTER HEARING SUCH EVIDENCE AND AFTER TAKIN G INTO ACCOUNT SUCH PARTICULARS AS THE ASSESSEE MAY PRODUCE, THE ASSESSING OFFICER SHALL, BY AN ORDER IN WRITING, ALLOW OR REJECT THE CLAIM O R CLAIMS SPECIFIED IN SUCH NOTICE AND MAKE AN ASSESSMENT DETERMINING THE TOTAL INCOME OR LOSS ACCORDINGLY, AND DETERMINE THE SUM PAYABLE BY THE ASSESSEE ON THE BASIS OF SUCH ASSESSMENT; (II) ISSUED UNDER CLAUSE (II) OF SUB- SECTION (2), OR AS SOON AFTERWARDS AS MAY BE, AFTER HEARING SUCH EVIDENCE AS THE ASSESSEE MAY PRODUCE AND SUCH OTHER EVIDENCE AS THE ASSESSING OFFICER MAY RE QUIRE ON SPECIFIED POINTS, AND AFTE R TAKING INTO ACCOUNT ALL RELEVANT MATERIAL WHICH H E HAS GATHERED, THE ASSESSING OFFICER SHALL, BY AN ORDER IN WRITING, MAKE AN ASSESSMENT OF THE TOTAL INCOME OR LOSS OF THE ASSES SEE, AND DETERMINE THE SUM PAYABLE BY HIM OR REFUND OF ANY AMOUNT DUE TO HIM ON THE BASIS OF SUCH ASSESSMENT: PROVIDED THAT IN THE CASE OF A (A) RESEARCH ASSOCIATION REFERRED TO IN CLAUSE (21) OF SECTION 10; (B) NEWS AGENCY REFERRED TO IN CLAUSE (22B) OF SECTION 10; (C) ASSOCIATION OR INSTITUTION REFERRED TO IN CLAUSE (2 3A) OF SECTION 10; (D) INSTITUTION REFERRED TO IN CLAUSE (23B) OF SECTION 10; (E) FUND OR INSTITUTION REFERRED TO IN SUB - CLAUSE (IV) OR TRUST OR INSTITUTION REFERRED TO IN SUB- CLAUSE (V) OR ANY UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION REFERRED TO IN SUB- CLAUSE (VI) OR ANY HOSPITAL OR OTHER MEDICAL INSTITUTION REFERRED TO IN SUB-CLAUS E (VIA) OF CLAUSE (23C) OF SECTION 10, WHICH IS REQUIRED TO FURNISH THE RETURN OF INCOME U NDER SUB- SECTION (4C) PAGE 6 OF 16 IT(TP)A NO.430/BANG/2016 OF SECTION 139, NO ORDER MAKING AN ASSESSMENT OF TH E TOTAL INCOME OR LOSS OF SUCH RESEARCH ASSOCIATION, NEWS AGENCY, ASS OCIATION OR INSTITUTION OR FUND OR TRUST OR UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION OR ANY HOSPITAL OR OTHER MEDICAL INSTITUTION, SHALL BE MADE BY THE ASSESSING OFFICER, WITHOUT GIVING EFFECT TO THE PRO VISIONS OF SECTION 10, UNLESS (I) THE ASSESSING OFFICER HAS INTIMATE D THE CENTRAL GOVERNMENT OR THE PRESCRIBED AUTHORITY THE CONTRAVENTION OF THE P ROVISIONS OF CLAUSE (21) OR CLAUSE (22B) OR CLAUSE (23A) OR CLAU SE (23B) OR SUB-CLAUSE (IV) OR SUB-CLAUSE (V) OR SUB-CLAUSE (VI ) OR SUB- CLAUSE (VIA) OF CLAUSE (23C) OF SECTION 1 0, AS THE CASE MAY BE, BY SUCH [RESEARCH ASSOCIATION], NEWS AGENCY, ASSOCIATION OR INSTITUTION OR FUND OR TRUST OR UNIVERSITY OR OTHER EDUCATIONAL INSTITUTION OR ANY HOSPITAL OR OTHER MEDICAL INSTITUTION, WHERE IN HIS VIEW SUCH CONTRAVENTION HAS TAKEN PLACE; AND (II) THE APPROVAL GRANTED TO SUCH RESEARCH ASSOCIATION O R OTHER ASSOCIATION OR FUND OR TRUST OR INSTITUTION OR UNIV ERSITY OR OTHER EDUCATIONAL INSTITUTION OR HOSPITAL OR OTHER MEDICA L INSTITUTION HAS BEEN WITHDRAWN OR NOTIFICATION ISSUED IN RESPECT OF SUCH NEWS AGENCY OR FUND OR TRUST OR INSTITUTION HAS BEE N RESCINDED : PROVIDED FURTHER THAT WHERE THE ASSESSING OFFICER I S SATISFIED THAT THE ACTIVITIES OF THE UNIVERSITY, COLLEGE OR OTHER INST ITUTION REFERRED TO IN CLAUSE (II) AND CLAUSE (III) OF SUB-SECTION (1) OF SECTION 35 A RE NOT BEING CARRIED OUT IN ACCORDANCE WITH ALL OR ANY OF THE CONDITIONS SUBJEC T TO WHICH SUCH UNIVERSITY, COLLEGE OR OTHER INSTITUTION WAS APPROVED, HE MAY, AFTER GIVING A REASONABLE OPPORTUNITY OF SHOWING CAUSE AGAINST THE PROPOSED W ITHDRAWAL TO THE CONCERNED UNIVERSITY, COLLEGE OR OTHER INSTITUTION, RECOMMEND TO THE CENTRAL GOVERNMENT TO WITHDRAW THE APPROVAL AND THAT GOVERN MENT MAY BY ORDER, WITHDRAW THE APPROVAL AND FORWARD A COPY OF THE ORD ER TO THE CONCERNED UNIVERSITY, COLLEGE OR OTHER INSTITUTION AND THE AS SESSING OFFICER: PROVIDED ALSO THAT NOTWITHSTANDING ANYTHING CONTAIN ED IN THE FIRST AND THE SECOND PROVISOS, NO EFFECT SHALL BE GIVEN BY THE AS SESSING OFFICER TO THE PROVISIONS OF CLAUSE (23C) OF SECTION 10 IN THE CAS E OF A TRUST OR INSTITUTION FOR A PREVIOUS YEAR, IF THE PROVISIONS OF THE FIRST PROVI SO TO CLAUSE (15) OF SECTION 2 BECOME APPLICABLE IN THE CASE OF SUCH PERSON IN SUC H PREVIOUS YEAR, WHETHER OR NOT THE APPROVAL GRANTED TO SUCH TRUST OR INSTIT UTION OR NOTIFICATION ISSUED IN RESPECT OF SUCH TRUST OR INSTITUTION HAS BEEN WITHD RAWN OR RESCINDED. 144C. REFERENCE TO DISPUTE RESOLUTION PANEL. (1) 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 OCTOBE R, 2009, ANY VARIATION IN PAGE 7 OF 16 IT(TP)A NO.430/BANG/2016 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 ASSESS ING OFFICER; OR ( B ) FILE HIS OBJECTIONS, IF ANY, TO SUCH VARIATION WITH , ( I ) THE DISPUTE RESOLUTION PANEL; AND ( 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 THE ACCEPTANCE O F THE VARIATION; OR (B) NO OBJECTIONS ARE RECEIVED WITHIN THE PERIOD SPECIF IED IN SUB-SECTION (2). (4) THE ASSESSING OFFICER SHALL, NOTWITHSTANDING AN YTHING CONTAINED IN SECTION 153 OR SECTION 153B, PASS THE ASSESSMENT ORDER UNDE R 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-SECTIO N (2) EXPIRES. (5) THE DISPUTE RESOLUTION PANEL SHALL, IN A CASE W HERE ANY OBJECTION IS RECEIVED UNDER SUB-SECTION (2), ISSUE SUCH DIRECTIO NS, AS IT THINKS 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 SUB- SECTION (5), AFTER CONSIDERING THE FOLLOWING, NAMEL Y: (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 MADE BY, IT. (7) THE DISPUTE RESOLUTION PANEL MAY, BEFORE ISSUIN G ANY DIRECTIONS REFERRED TO IN SUB-SECTION (5), - PAGE 8 OF 16 IT(TP)A NO.430/BANG/2016 (A) MAKE SUCH FURTHER ENQUIRY, AS IT THINKS FIT; OR (B) CAUSE ANY FURTHER ENQUIRY TO BE MADE BY ANY INCOME- TAX AUTHORITY AND REPORT THE RESULT OF THE SAME TO IT. (8) THE DISPUTE RESOLUTION PANEL MAY CONFIRM, REDUC E OR ENHANCE THE VARIATIONS PROPOSED IN THE DRAFT ORDER SO, HOWEVER, THAT IT SHALL NOT SET ASIDE ANY PROPOSED VARIATION OR ISSUE ANY DIRECTION UNDER SUB-SECTION (5) FOR FURTHER ENQUIRY AND PASSING OF THE ASSESSMENT ORDER. EXPLANATION. FOR THE REMOVAL OF DOUBTS, IT IS HER EBY DECLARED THAT THE POWER OF THE DISPUTE RESOLUTION PANEL TO ENHANCE THE VARI ATION SHALL INCLUDE AND SHALL BE DEEMED ALWAYS TO HAVE INCLUDED THE POWER T O CONSIDER ANY MATTER ARISING OUT OF THE ASSESSMENT PROCEEDINGS RELATING TO THE DRAFT ORDER, NOTWITHSTANDING THAT SUCH MATTER WAS RAISED OR NOT BY THE ELIGIBLE ASSESSEE. (9) IF THE MEMBERS OF THE DISPUTE RESOLUTION PANEL DIFFER IN OPINION ON ANY POINT, THE POINT SHALL BE DECIDED ACCORDING TO THE OPINION OF THE MAJORITY OF THE MEMBERS. (10) EVERY DIRECTION ISSUED BY THE DISPUTE RESOLUTI ON PANEL SHALL BE BINDING ON THE ASSESSING OFFICER. (11) NO DIRECTION UNDER SUB-SECTION (5) SHALL BE IS SUED UNLESS AN OPPORTUNITY OF BEING HEARD IS GIVEN TO THE ASSESSEE AND THE ASSESS ING OFFICER ON SUCH DIRECTIONS WHICH ARE PREJUDICIAL TO THE INTEREST OF THE ASSESSEE OR THE INTEREST OF THE REVENUE, RESPECTIVELY. (12) NO DIRECTION UNDER SUB-SECTION (5) SHALL BE IS SUED AFTER NINE MONTHS FROM THE END OF THE MONTH IN WHICH THE DRAFT ORDER IS FO RWARDED TO THE ELIGIBLE ASSESSEE. (13) UPON RECEIPT OF THE DIRECTIONS ISSUED UNDER SU B-SECTION (5), THE ASSESSING OFFICER SHALL, IN CONFORMITY WITH THE DIRECTIONS, C OMPLETE, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN SECTION 153 O R SECTION 153B, THE ASSESSMENT WITHOUT PROVIDING ANY FURTHER OPPORTUNIT Y OF BEING HEARD TO THE ASSESSEE, WITHIN ONE MONTH FROM THE END OF THE MONT H IN WHICH SUCH DIRECTION IS RECEIVED. (14) THE BOARD MAY MAKE RULES52 FOR THE PURPOSES OF THE EFFICIENT FUNCTIONING OF THE DISPUTE RESOLUTION PANEL AND EXPEDITIOUS DIS POSAL OF THE OBJECTIONS FILED UNDER SUB-SECTION (2) BY THE ELIGIBLE ASSESSEE. THE FOLLOWING SUB-SECTION (14A) SHALL BE INSERTED A FTER SUB-SECTION (14) OF SECTION 144C BY THE FINANCE ACT, 2013, W.E.F. 1-4-2 016 : (14A) THE PROVISIONS OF THIS SECTION SHALL NOT APPL Y TO ANY ASSESSMENT OR REASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WITH THE PRIOR APPROVAL OF THE COMMISSIONER AS PROVIDED IN SUB-SECTION (12) OF SECTION 144BA. PAGE 9 OF 16 IT(TP)A NO.430/BANG/2016 (15) FOR THE PURPOSES OF THIS SECTION, (A) 'DISPUTE RESOLUTION PANEL' MEANS A COLLEGIUM COMPRI SING OF THREE COMMISSIONERS OF INCOME- TAX CONSTITUTED BY THE BOARD54 FOR THIS PURPOSE; ( B ) 'ELIGIBLE ASSESSEE' MEANS, (I) ANY PERSON IN WHOSE CASE THE VARIATION REFERRED TO IN SUB- SECTION (1) ARISES AS A CONSEQUENCE OF THE ORDER OF THE TRANSFER PRICING OFFICER PASSED UNDER SUB- SECTION (3) OF SECTION 92CA; AND ( II ) ANY FOREIGN COMPANY.' 20. UNDER SECTION 144 (C) OF THE ACT, IT IS EVIDENT TH AT THE ASSESSING OFFICER IS REQUIRED TO PASS ONLY A DRAFT ASSESSMENT ORDER ON T HE BASIS OF THE RECOMMENDATIONS MADE BY THE TPO AFTER GIVING AN OPP ORTUNITY TO THE ASSESSEE TO FILE THEIR OBJECTIONS AND THEN THE ASSE SSING OFFICER SHALL PASS A FINAL ORDER. ACCORDING TO THE LEARNED SENIOR COUNSE L FOR THE PETITIONERS, THIS PROCEDURE HAS NOT BEEN FOLLOWED BY THE SECOND RESPO NDENT INASMUCH AS A FINAL ORDER HAS BEEN STRAIGHTAWAY PASSED WITHOUT PA SSING A DRAFT ASSESSMENT ORDER. 21. AS RIGHTLY POINTED OUT BY THE LEARNED SENIOR COUNS EL FOR THE PETITIONERS, IN THE ORDER PASSED ON 26.03.2013, THE SECOND RESPONDE NT 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 LIA BILITY. 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 DEMA ND UNDER SECTION 156 OF THE ACT WAS ISSUED PURSUANT TO SUCH ORDER DATED 26.03.2 013 OF THE SECOND RESPONDENT. BOTH THE ORDER DATED 26.03.2013 AND THE NOTICE FOR DEMAND THEREOF HAVE BEEN SERVED SIMULTANEOUSLY ON THE PETI TIONER. 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 PETIT IONER WAS GIVEN AN OPPORTUNITY OF HEARING ON 12.04.2013. SUBSEQUENTLY, THE SECOND RESPONDENT REALISED THE MISTAKE IN PASSING A FINAL ORDER INSTE AD 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 PASSE D 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 15.04.201 3, 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 PE TITIONER COMPANY APPROACHED THE FIRST RESPONDENT, BUT THE FIRST RESP ONDENT DECLINED TO ISSUE ANY DIRECTION TO THE ASSESSMENT OFFICER ON THE GROU ND THAT THE FIRST RESPONDENT PAGE 10 OF 16 IT(TP)A NO.430/BANG/2016 HAS GOT JURISDICTION ONLY TO ENTERTAIN SUCH AN APPE AL IF THE ORDER PASSED BY THE SECOND RESPONDENT IS A PRE-ASSESSMENT ORDER. THEREF ORE, IT IS EVIDENT THAT THE FIRST RESPONDENT DECLINED TO ENTERTAIN THE OBJECTIO NS 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 ORDE R. THUS, THE FIRST RESPONDENT HAD TREATED THE ORDER DATED 26.03.2013 OF THE SECON D RESPONDENT AS A FINAL ORDER AND THEREFORE IT REFUSED TO ENTERTAIN THE OBJ ECTIONS FILED ON BEHALF OF THE PETITIONER COMPANY. 22. 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 SECON D RESPONDENT-ASSESSING OFFICER HIMSELF HAS ADMITTED BY VIRTUE OF THE CORRI GENDUM DATED 15.04.2013, THAT THE ORDER DATED 26.03.2013 IS ONLY A FINAL ORD ER AND IT WAS DIRECTED TO BE TREATED AS A DRAFT ASSESSMENT ORDER. IN THIS CONTEX T, 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 APPEA RING 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 ASS ESSMENT YEAR 1995-96 HAD BEEN ANTI-DATED, THE ORDER WAS NULL AND VOID. IT WA S URGED THAT ASSESSMENT PROCEEDINGS AFTER THE EXPIRY OF THE PERIOD OF LIMIT ATION 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 TH E GRIEVANCE OF THE APPELLANT IS THAT IN REMANDING THE MATTER BACK TO T HE ASSESSING OFFICER, THE HIGH COURT HAS NOT ONLY EXTENDED THE STATUTORY PERI OD PRESCRIBED FOR COMPLETION OF ASSESSMENT, IT HAS ALSO CONFERRED JUR ISDICTION UPON THE ASSESSING OFFICER, WHICH HE OTHERWISE LACKED ON THE EXPIRY OF THE SAID PERIOD.' 23. IT IS EVIDENT FROM THE ABOVE DECISION OF THE HONOU RABLE SUPREME COURT THAT IF AN ORDER IS PASSED BEYOND THE STATUTORY PER IOD PRESCRIBED, SUCH ORDER IS A NULLITY AND HAS NO FORCE OF LAW. IN THAT CASE BEFORE THE HONOURABLE SUPREME COURT, THE PERIOD FOR ASSESSMENT PROCEEDING S EXPIRED AND THEREAFTER, FRESH ASSESSMENT ORDERS HAVE BEEN ISSUED BY ANTI-DA TING IT. IN THOSE CIRCUMSTANCES, IT WAS HELD THAT THE HIGH COURT OUGH T NOT TO HAVE REMANDED THE MATTER BACK TO THE ASSESSMENT OFFICER AND BY DO ING 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 OR DER WHICH IS A NULLITY AND AN ORDER WHICH IS IRREGULAR AND ILLEGAL. WHERE AN AUTH ORITY MAKING ORDER LACKS INHERENT JURISDICTION, SUCH AN ORDER WILL BE NULL A ND VOID AB INITIO, AS THE DEFECT OF JURISDICTION GOES TO THE ROOT OF THE MATT ER AND STRIKES AT HIS VERY PAGE 11 OF 16 IT(TP)A NO.430/BANG/2016 AUTHORITY TO PASS ANY ORDER AND SUCH A DEFECT CANNO T BE CURED EVEN BY CONSENT OF THE PARTIES. 24. THIS DECISION SQUARELY APPLIES TO THE FACTS OF THI S CASE. IN THIS CASE, THE ORDER PASSED BY THE SECOND RESPONDENT LACKS JURISDI CTION ESPECIALLY WHEN IT IS BEYOND THE PERIOD OF LIMITATION PRESCRIBED BY THE S TATUTE. WHEN THERE IS A STATUTORY VIOLATION IN NOT FOLLOWING THE PROCEDURES PRESCRIBED, SUCH AN ORDER CANNOT BE CURED BY MERELY ISSUING A CORRIGENDUM. 25. 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 T HAT THE MISTAKE OR DEFECT ON THE PART OF THE COMMISSIONER TO CONSULT THE CENT RAL BOARD OF REVENUE DID NOT RENDER HIS ORDER INVALID SINCE THE PROVISION AB OUT CONSULTATION IN TERMS OF SECTION 5 (3) OF PATIALA ACT WAS MERELY DIRECTORY A ND 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 MAND ATORY 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. 26. THE LEARNED SENIOR COUNSEL FOR THE PETITIONERS REL IED ON THE DECISION OF THE ALLAHABAD HIGH COURT IN THE CASE OF SHITAL PRASAD K HARAG PRASAD (SUPRA) WHEREIN THE DIVISION BENCH OF THE ALLAHABD HIGH COU RT HELD THAT A NOTICE CONTEMPLATED UNDER SECTION 148 OF THE INCOME TAX AC T IS A JURISDICTIONAL NOTICE AND IT IS NOT CURABLE BY ISSUING A NOTICE UN DER SECTION 292 B OF THE ACT, IF IT WAS NOT SERVED IN ACCORDANCE WITH THE PROVISI ONS OF THE ACT. 27. SIMILARLY, THE DIVISION BENCH OF THIS COURT IN THE DECISION IN THE CASE OF V. RAMAIAH (SUPRA) MADRAS HELD THAT WHEN AN ORDER IS P ASSED UNDER SECTION 158BC OF THE ACT INSTEAD OF SECTION 158BD, IT IS NO T VALID SINCE IT IS NOT A DEFECT CURABLE UNDER SECTION 292B OF THE ACT. IT WA S 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 PRE SCRIBED PROCEDURE CONTEMPLATED UNDER THE ACT OR IN A PARTICULAR SECTI ON AND IT IS VIOLATED, THEN IT CANNOT BE CURED. IN THE PRESENT CASE, CERTAIN PROCE DURE HAS BEEN CONTEMPLATED UNDER SECTION 144C OF THE ACT AND THEY HAVE BEEN VIOLATED BY THE SECOND RESPONDENT BY PASSING FINAL ORDER OF ASS ESSMENT AND THEREFORE SUCH ORDER PASSED BY THE SECOND RSPONDENT HAS GOT N O JURISDICTION OR IT CAN BE CURED BY VIRTUE OF ISSUING A CORRIGENDUM. 28. 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 MENTIO NED 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 TH AT CASE AND THEREFORE IT WAS PAGE 12 OF 16 IT(TP)A NO.430/BANG/2016 NOT DISCUSSED BY THE DIVISION BENCH IN THE ORDER DA TED 10.02.2014. FOR MORE CLARITY, THE RELEVANT PORTION OF THE DECISION OF TH E DIVISION BENCH OF THIS COURT IN THE CASE OF V. RAMAIAH (SUPRA) IS EXTRACTED HERE UNDER: 'CERTAINLY PASSING AN ORDER OF ASSESSMENT UNDER SEC TION 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, M UCH LESS A CURABLE ONE. WHEN DIFFERENT CONTINGENCIES ARE DEALT WITH UNDER D IFFERENT SECTIONS OF THE ACT, ALLOWING AN ILLEGALITY TO BE PERPETRATED AND THEN T AKING 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 ACTIO NS, THE REVENUE HAS ATTEMPTED TO NULLIFY THE SCHEME OF THINGS OF LIMITA TIONS LEGALLY PROPOUNDED UNDER THE ACT....' 29. IN YET ANOTHER DECISION OF THE DIVISION BENCH OF T HIS COURT IN THE CASE OF SMT. R.V. SAROJINI DEVI (SUPRA), WHICH WAS RELIE D ON BY THE LEARNED SENIOR COUNSEL FOR THE PETITIONERS, IT WAS HELD S FOLLOWS : 'UNDER SECTION 158BC OF THE ACT EMPOWERS THE ASSESS ING OFFICER TO DETERMINE THE UNDISCLOSED INCOME OF THE BLOCK PERIOD IN THE M ANNER LAID DOWN IN SECTION 158BB AND 'THE PROVISIONS OF SECTION 142, SUBSECTIO NS (2) AND (3) OF SECTION 143, SECTION 144 AND SECTION 145 SHALL, SO FAR AS M AY BE APPLY. THIS INDICATES THAT THIS CLAUSE ENABLES THE ASSESSING OF FICER, 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 SECT ION 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 ISSUE D 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.' 30. IT IS EVIDENT FROM THE ABOVE DECISION OF THE DIVIS ION 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, SUC H AN OMISSION CANNOT BE TERMED AS A MERE PROCEDURAL IRREGULARITY AND IT CAN NOT BE CURED. 31. IN IDENTICAL CASE AS THAT OF THE CASE ON HAND, THE DIVISION BENCH OF THE ANDHRA PRADESH HIGH COURT, IN AN UNREPORTED DECISIO N, HAD AN OCCASION TO CONSIDER THE SCOPE OF THE VALIDITY OF THE DEMAND NO TICE ISSUED BY THE ASSESSING OFFICER IN THE CASE OF ZUARI CEMENT LTD. (SUPRA), WHEREIN IT WAS HELD AS UNDER: 'A READING OF THE ABOVE SECTION SHOWS THAT IF THE A SSESSING 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 PAGE 13 OF 16 IT(TP)A NO.430/BANG/2016 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 PA NEL IN WHICH EVENT THE LATTER CAN ISSUE DIRECTIONS FOR THE GUIDANCE OF THE ASSESS ING OFFICER TO ENABLE HIM TO COMPLETE THE ASSESSMENT. IN THE CASE OF THE PETITIONER, ADMITTEDLY THE TPO S UGGESTED AN ADJUSTMENT OF RS.52.14 CRORES U/S.92CA OF THE ACT ON 20.09.2011 A ND FORWARDED IT TO THE ASSESSING OFFICER AND TO THE ASSESSEE UNDER SUBSECT ION (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 ASSESS ING 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 OR DER DATED 22.12.2011 STRAIGHT AWAY. THEREFORE, THE IMPUGNED ORDER OF ASS ESSMENT IS CLEARLY CONTRARY TO S.144C OF THE ACT AND IS WITHOUT JURISD ICTION, 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 A PPLY FOR THE ASSESSMENT YEAR 2008-09 AND WOULD APPLY ONLY FROM THE ASSESSMENT YE AR 2010-2011 AND LATER YEARS IS NOT TENABLE IN AS MUCH AS THE LANGUA GE 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 R ETURNED BY THE ASSESSEE WHICH IS PREJUDICIAL TO THE ASSESSEE, AFTER 01.10.2 009. THEREFORE, THIS PARTICULAR PROVISION INTRODUCED BY FINANCE (NO.2) A CT, 2009, WOULD APPLY IF THE ABOVE CONDITION IS SATISFIED AND OTHER PROVISIONS, IN WHICH SIMILAR CONTRARY INTENTION IS NOT INDICATED, WHICH WERE INTRODUCED B Y THE SAID ENACTMENT, WOULD APPLY FROM 01.04.2009 I.E., FROM THE ASSESSME NT YEAR 2010-2011. IT IS NOT DISPUTED THAT THE MEMORANDUM EXPLAINING T HE FINANCE BILL AND THE NOTES AND CLAUSES ACCOMPANYING THE FINANCE BILL WHI CH PRECEDED THE FINANCE (NO.2) ACT, 2009 CLEARLY INDICATED THAT THE AMENDME NTS 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.14 4C(1) AND THE SAID VIEW OF THE REVENUE IS UNACCEPTABLE. THE CIRCULAR MAY REPRE SENT ONLY THE UNDERSTANDING OF THE BOARD/CENTRAL GOVERNMENT OF TH E STATUTORY PROVISIONS, BUT IT WILL NOT BIND THIS COURT OR THE SUPREME COUR T. IT CANNOT INTERFERE WITH THE JURISDICTION AND POWER OF THIS COURT TO DECLARE WHA T THE LEGISLATURE SAYS AND TAKE A VIEW CONTRARY TO THAT DECLARED IN THE CIRCUL AR OF THE CBDT (RATAN MELTING AND WIRE INDUSTRIES CASE (1 SUPRA), INDRA I NDUSTRIES (2 SUPRA). THE PAGE 14 OF 16 IT(TP)A NO.430/BANG/2016 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 RESPONDEN T IS CONTRARY TO THE MANDATORY PROVISIONS OF S.144C OF THE ACT AND IS PA SSED IN VIOLATION THEREOF. THEREFORE, IT IS DECLARED AS ONE WITHOUT JURISDICTI ON, NULL AND VOID AND UNENFORCEABLE. CONSEQUENTLY, THE DEMAND NOTICE DATE D 23.12.2011 ISSUED BY THE RESPONDENT IS SET ASIDE.' 32. AS AGAINST THIS ORDER OF THE DIVISION BENCH OF THE ANDHRA PRADESH HIGH COURT, THE REVENUE WENT ON APPEAL BEFORE THE HONOUR ABLE SUPREME COURT. THE RECORD OF PROCEEDINGS OF THE SUPREME COURT INDICATE THAT THE SPECIAL LEAVE PETITION WAS DISMISSED ON 27.09.2013. 33. THE DECISION OF THE DIVISION BENCH OF THE ANDHRA P RADESH HIGH COURT DEALS WITH AN IDENTICAL ISSUE AS THAT OF THE PRESEN T 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 HER EIN AND THE FIRST RESPONDENT REFUSED TO ENTERTAIN IT BY STATING THAT THE ORDER P ASSED 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 OR DER DATED 26.03.2013 OF THE SECOND RESPONDENT CAN ONLY BE TERMED AS A FINAL ORD ER AND IN SUCH EVENT IT IS CONTRARY TO SECTION 144C OF THE ACT. AS MENTIONED S UPRA, IN AND BY THE ORDER DATED 26.03.2013, THE SECOND RESPONDENT DETERMINED THE TAXABLE AMOUNT AND ALSO IMPOSED PENALTY PAYABLE BY THE PETITIONER. ACC ORDING TO THE LEARNED SENIOR COUNSEL FOR THE PETITIONERS, EVEN AS ON THIS DATE, THE WEBSITE OF THE DEPARTMENT INDICATE THE AMOUNT DETERMINED BY THE SE COND RESPONDENT PAYABLE BY THE COMPANY INSPITE OF ISSUANCE OF THE C ORRIGENDUM ON 15.04.2013 AS A TAX DUE AMOUNT. THUS, WHILE ISSUING THE CORRIG ENDUM, THE SECOND RESPONDENT DID NOT EVEN WITHDRAW THE TAXABLE AMOUNT DETERMINED BY HIM OR UPDATED THE STATUS IN THE WEBSITE. IN ANY EVENT, SU CH 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 PR OVISIONS OF THE ACT. THE CORRIGENDUM DATED 15.04.2013 IS ALSO BEYOND THE PER IOD 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 CORRIG ENDUM, THE RESPONDENTS CANNOT BE ALLOWED TO DEVELOP THEIR OWN CASE. THEREF ORE, FOLLOWING THE ORDER PASSED BY THE DIVISION BENCH OF THE ANDHRA PRADESH HIGH COURT, WHICH WAS ALSO AFFIRMED BY THE HONOURABLE SUPREME COURT BY DI SMISSING THE SPECIAL LEAVE PETITION FILED THEREOF, ON 27.09.2013, THE OR DERS, WHICH ARE IMPUGNED IN THESE WRIT PETITIONS ARE LIABLE TO BE SET ASIDE. 12. IN THE PRESENT FACTS OF THE CASE WE NOTE THAT THE LD.AO PASSED ORDER UNDER SECTION 143(3) READ WITH SECTION 144C(1) OF PAGE 15 OF 16 IT(TP)A NO.430/BANG/2016 THE ACT DATED 25/02/2015 AND ALONG WITH DEMAND NOTI CE ISSUED UNDER SECTION 156 AND PENALTY NOTICE UNDER SECTION 274 READ WITH SECTION 271 OF THE ACT. RATIO OF HONBLE MADRA S HIGH COURT HAS EXPRESSED THE VIEW THAT SUCH ORDERS PASSED BY T HE LD.AO WITHOUT FOLLOWING DUE PROCESS OF LAW ARE LIABLE TO BE SET ASIDE. THUS, THIS RATIO WILL PREVAIL OVER THE VIEW TAKEN BY HONBLE KOLKOTTA & HYDERABAD TRIBUNAL (SUPRA). WE PLACE RE LIANCE ON THE DECISION OF KANEEL OILS & EXPORT INDS. LTD. VS. JCI T REPORTED IN (2009) 121 ITD 596, WHICH IS A THIRD MEMBER DECISIO N. AS THE ASSESSMENT ORDER PASSED DATED 25/2/2015 HAS BEEN QUASHED AND SET ASIDE, ALL OTHER ISSUES RAISED ON M ERITS BECOME ACADEMIC. ACCORDINGLY WE ALLOW ASSESSEES APPEAL ON GROUND N O.9 IN THE RESULT APPEAL FILED BY ASSESSEE STANDS ALLOW ED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST APRIL, 2021 SD/- SD/- (CHANDRA POOJARI) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL ME MBER BANGALORE, DATED, THE 1 ST APRIL, 2021. /VMS/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR, ITAT, BANGALORE PAGE 16 OF 16 IT(TP)A NO.430/BANG/2016 DATE INITIAL 1. DRAFT DICTATED ON ON DRAGON SR.PS 2. DRAFT PLACED BEFORE AUTHOR -4-2021 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER -4-2021 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. -4-2021 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS -4-2021 SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON -4-2021 SR.PS 7. DATE OF UPLOADING THE ORDER ON WEBSITE -4-2021 SR.PS 8. IF NOT UPLOADED, FURNISH THE REASON -4-2021 SR.PS 9. FILE SENT TO THE BENCH CLERK -4-2021 SR.PS 10. DATE ON WHICH FILE GOES TO THE AR 11. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 12. DATE OF DISPATCH OF ORDER. 13. DRAFT DICTATION SHEETS ARE ATTACHED NO SR.PS