CHANDANMALNAGARAJ, CHENNAI V. ACIT NON CORPORATE CIRCLE 4(1), CHENNAI

ITTPA 80/CHNY/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 4152 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 13-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2014-2015
• Appeal Filed On: 03-12-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M SRINIVASA RAO
• Assessee Lawyers: B RAMAKRISHNAN
• Keywords: Transfer pricing; International transaction; TDS; Set aside
• Section: 271(1)(c); 143(3); 92F; 234B; 144C; 274; 144; 92

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, D BENCH : CHENNAI . , !' # $! # % . & , ( * + [BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBE R AND SHRI DUVVURU RL REDDY , JUDICIAL MEMBER ] ./I.T.(TP)A. NO.80/CHNY/2018. / ASSESSMENT YEAR : 2014-2015. SHRI. CHANDANMAL NAGARAJ, PROP: MANOJ METALS, NO.26, KANNIAH NAIDU STREET, KONDITHOPE, CHENNAI 600 079. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, NON CORPORATE CIRCLE 4(1) CHENNAI. [PAN AACPN 6711D] ( ,- / APPELLANT) ( ./,- /RESPONDENT) / APPELLANT BY : SHRI. B. RAMAKRISHNAN, C.A. /RESPONDENT BY : SHRI. M. SRINIVASA RAO, CIT. /DATE OF HEARING : 27-02-2019 ! /DATE OF PRONOUNCEMENT : 13-03-2019 0 / O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER IN THIS APPEAL FILED BY THE ASSESSEE IT ASSAILS THE VALIDITY OF THE ORDERS PASSED BY THE LD. ASSESSING OFFICER AND ALSO ASSAIL THE ADJUSTMENT MADE ON SPECIFIED DOMESTIC TRANSACTIONS AS WELL AS CERTAIN DISALLOWANCES MADE U/S.40(A) (IA) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) IT(TP)A NO.80 /2018 :- 2 -: 2. GROUNDS 2 TO 4, WHICH ASSAIL THE VALIDITY OF THE PR OCEEDINGS CUMULATING IN THE IMPUGNED ASSESSMENT ARE REPRODUCE D HEREUNDER:- VALIDITY OF TH E DRAFT ASSESSMENT ORDER : 2. FOR THAT THE LEARNED DISPUTE RESOLUTION PANEL ERRED IN HOLDING THE 'DRAFT ASSESSMENT ORDER' PASSED BY THE LEARNED ASSE SSING OFFICER AS VALID, IN-SPITE OF SUCH ORDER BEING PASSED IN VIOLA TION OF THE PROCEDURE LAID DOWN U/S 144C OF THE ACT. 3. FOR THAT THE LEARNED DISPUTE RESOLUTION PANEL ERRED IN HOLDING THE 'DRAFT ASSESSMENT ORDER' PASSED BY THE LEARNED ASSE SSING OFFICER AS VALID WITHOUT CONSIDERING THE FACT THAT THE AO HAS ISSUED A DEMAND NOTICE U/S 156 AND A NOTICE U/S 271 (1)(C) OF THE ACT ALONG WI TH SUCH 'DRAFT ASSESSMENT ORDER'. VALIDITY OF TH E FINAL ASSESSMENT ORDER: 4. FOR THAT THE FINAL ASSESSMENT ORDER DATED 20-09-201 8 PASSED BY THE LEARNED ASSESSING OFFICER SERVED ON THE ASSESSEE ON 10-11-2018 IS TIME-BARRED AS PER SECTION 144C(13) AND HENCE THE S AME IS NOT VALID. SINCE THE ABOVE GROUNDS QUESTIONS THE VERY VALIDITY OF THE ASSESSMENT, THESE ARE CONSIDERED FIRST. 3. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT ASSESSE E HAD RECEIVED AN ORDER DATED 29.12.2017 WHICH WAS CAPTIO NED AS DRAFT ASSESSMENT ORDER. HOWEVER, AS PER THE LD. AUTHORISE D REPRESENTATIVE, IN REALITY, THIS WAS THE FINAL ASSESSMENT ORDER SIN CE LD. ASSESSING OFFICER HAD COMPUTED THE INCOME, TAXES THEREON, AN D ALSO ISSUED DEMAND NOTICE ALONG WITH IT. FURTHER AS PER THE LD . AUTHORISED REPRESENTATIVE, PENALTY PROCEEDINGS WERE ALSO INITI ATED IN THE VERY SAME ORDER. ACCORDING TO HIM, THE ORDER CAPTIONED AS DRAFT IT(TP)A NO.80 /2018 :- 3 -: ASSESSMENT ORDER WAS FOR ALL PURPOSES, THE FINAL ASSESSMENT ORDER SINCE TAX STOOD COMPUTED, DEMAND NOTICE ISSUED AND PENALTY PROCEEDINGS INITIATED. ACCORDING TO HIM, LD. ASSE SSING OFFICER HAD THUS BY-PASSED SECTION 144C OF THE ACT. AS PER THE LD. AUTHORISED REPRESENTATIVE, THE SAID SECTION REQUIRED THE LD. A SSESSING OFFICER TO FORWARD A DRAFT ASSESSMENT ORDER TO THE ASSESSEE, I F HE PROPOSED TO MAKE ANY VARIATION IN THE INCOME OR LOSS RETURNED . CONTENTION WAS THAT COMPLIANCE TO SECTION 144C OF THE ACT WAS MAN DATORY AND IF IT WAS NOT COMPLIED WITH, ANY ORDER THEREAFTER PASSED OSTENSIBLY UNDER SECTIONS 143(3) R.W. 144C OF THE ACT WOULD STAND V ITIATED. AS PER THE LD. AUTHORISED REPRESENTATIVE, LD. ASSESSING OFFICE R HAD NOT FOLLOWED THE PROCEDURE PRESCRIBED IN THE ACT WHICH WAS MAND ATORY IN NATURE, AND HENCE THE FINAL ASSESSMENT ORDER WAS VOID. REL IANCE WAS PLACED ON A DECISION OF PUNE BENCH OF THE TRIBUNAL IN THE CASE OF EATON FLUID POWER LTD VS. DCIT, (2018) 96 TAXMANN.COM 512. AS PER THE LD. AUTHORISED REPRESENTATIVE, THOUGH ASSESSEE HAD IN I TS PLEADINGS BEFORE LD. DRP SPECIFICALLY RAISED THIS ISSUE, LD. DRP HA D REJECTED IT TAKING AN ERRONEOUS VIEW THAT THE MISTAKE COMMITTED BY THE LD . ASSESSING OFFICER WAS AN INADVERTENT ONE AND STOOD CURED UND ER SECTION 292B OF THE ACT. 4. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE STRON GLY SUPPORTING THE ORDERS OF THE LOWER AUTHORITIES SUBM ITTED THAT LD. IT(TP)A NO.80 /2018 :- 4 -: ASSESSING OFFICER HAD CLEARLY CAPTIONED HIS ORDER D ATED 29.12.2017 AS A DRAFT. ACCORDING TO HIM, ASSESSEE HAD THEREAFTER , BASED ON SUCH DRAFT ASSESSMENT ORDER, MOVED AN APPLICATION BEFORE LD. DRP. AS PER THE LD. DEPARTMENTAL REPRESENTATIVE, LD. DRP HAD RI GHTLY CONSIDERED IT AS A CURABLE MISTAKE RELYING ON THE JUDGMENT OF HON BLE APEX COURT IN THE CASE SKY LIGHT HOSPITALITY LLP VS ACIT, (2018) 303 CTR 130. ACCORDING TO HIM, ASSESSEE HAVING CO-OPERATED IN TH E PROCEEDINGS SUBSEQUENT TO PASSING OF THE DRAFT ASSESSMENT ORDER , SUCH PROCEEDINGS HAD REACHED A FINALITY THROUGH THE FINAL ASSESSMEN T ORDER PASSED BY THE LD. ASSESSING OFFICER ON 20 TH SEPTEMBER, 2018. FURTHER, ACCORDING TO HIM, ASSESSEE COULD NOT NOW TURN AROUND AND SAY THAT THE FINAL ASSESSMENT ORDER WAS INVALID DUE TO A MISTAKE IN TH E DRAFT ASSESSMENT ORDER, WHICH WAS CURABLE UNDER SECTION 292B OF THE ACT. 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND PERUSE D THE ORDERS OF THE AUTHORITIES BELOW. THERE IS NO DISP UTE THAT THE ORDER DATED 29.12.2017 PASSED BY THE LD. ASSESSING OFFICE R WAS CAPTIONED AS A DRAFT ASSESSMENT ORDER. PARAS 2 TO 8 OF THE SAID ORDER IS REPRODUCED HEREUNDER:- IN THIS CASE, THE ASSESSEE ENTERED INTO SPECIFIED DOMESTIC TRANSACTIONS WITH ASSOCIATED ENTERPRISES OF VALUE OF H30,59,92,0 82/-. ONE OF THE REASONS FOR SELECTIONS OF THE ASSESSEES CASE FOR S CRUTINY WAS LARGE DOMESTIC TRANSACTIONS. SINCE THE SCRUTINY OF ASSESS EES CASE WAS COVERED UNDER TRANSFER PRICING RISK PARAMETERS IN R ESPECT OF SPECIFIED DOMESTIC TRANSACTIONS, THIS CASE WAS REFERRED TO TR ANSFER PRICING OFFICER WITH PRIOR APPROVAL OF THE PRINCIPAL COMMISSIONER O F INCOME TAX, CHENNAI-9, CHENNAI AS PER BOARDS DIRECTION. SUBSEQU ENTLY, THE TRANSFER IT(TP)A NO.80 /2018 :- 5 -: PRICING OFFICER HAS PASSED AN ORDER U/S.92CA OF THE INCOME TAX ACT, 1961 DATED 31.10.2017, VIDE F.NO.C-116/TPO-1(1)/A.Y . 2014-15, IN WHICH THE TRANSFER PRICING OFFICER HAS STATED THE F OLLOWING:- SINCE THE ARMS LENGTH PRICE DOES NOT FALL WITHIN +/-3% RANGE OF THE VALUE OF SPECIFIC DOMESTIC TRANSACTION, THE DOWNWARD ADJUSTMENT OF H1,81,99,469/- IS RECOMMENDED TO THE SPECIFIC DOMESTIC TRANSACTION ACCORDINGLY, THE AMOUNT OF H1,81,99,469/- AS RECOMM END BY THE TPO IS HEREBY ADDED. (ADDITION H1,81,99,469/-) DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSEE VIDE NOTICE U/S.142(1) DATED 8.12.2017 WAS GIVEN FINAL OPPORTUN ITY TO REPRESENT HIS CASE AND THE SAME WAS DULY SERVED ON THE ASSESSEE. THE SAID NOTICE IS REPRODUCED HEREIN BELOW. IT IS SEEN FROM THE RECORDS THAT YOU HAVE NOT RES PONDED TO THE NOTICE ISSUED U/S.142(1) AND VARIOUS CORRESPONDENCE SENT FORM THIS OFFICE. YOU WERE ALSO GIVEN THE FINAL OPPORTU NITY TO REPRESENT YOUR CASE VIDE NOTICE U/S.21.11.2017. HO WEVER, YOU HAVE NOT RESPONDED TO THIS NOTICE ALSO. IT IS SEEN FROM THE RECORD THAT SURVEY WAS CARRIED ON 11.07.2013 IN YOUR CASE AND DURING THE SURVEY PROCE EDINGS YOU HAVE OFFERED THE INCOME OF H2,05,00,000/- BUT THE S AME WAS NOT REFLECTED IN THE RETURN OF INCOME FILED BY YOU SUBSEQUENTLY FOR THE A.Y. 2014-15. YOU ARE REQUESTED TO SHOW CA USE AS TO WHY THE INCOME OF H2,05,00,000/- OFFERED DURING THE SURVEY PROCEEDINGS BUT NOT ADMITTED BY YOU IN THE RETURN O F INCOME SHOULD NOT BE ADDED TO YOUR TOTAL INCOME FOR THE A. Y. 2014-15. THIS COMMUNICATION MAY PLEASE BE TREATED AS LAST AN D FINAL OPPORTUNITY OFFERED TO YOU. IN CASE NO REPLY IS RE CEIVED BY YOU ON THE DATE SPECIFIED DATE, IT WILL BE PRESUMED THA T YOU HAVE NO EXPLANATION TO OFFER AND ACCORDINGLY THE ASSESSM ENT WOULD BE COMPLETED IN THE MANNER PROVIDED U/S.144 OF THE ACT AND WITHOUT ANY FURTHER REFERENCE TO YOU. THE ASSESSEE HAS NOT SUBMITTED ANY REPLY TILL DATE. AFTER THE SURVEY THE ASSESSEE IN HIS LETTER DATED 15 TH JULY, 2013 HAS STATED AS UNDER:- WE WISH TO STATE THAT DURING THE COURSE OF SURVEY, YOUR KIND AUTHORITY HAVE ASKED US TO PRODUCE CONFIRMATION FR OM SOME OF THE SUNDRY CREDITORS NAMELY M/S. SAMBHAV DISTRIBUTO RS, IT(TP)A NO.80 /2018 :- 6 -: M/S.SIDDARTH INDUSTRIAL SUPPLIERS, M/S. RISHAB ENTE RPRISES AND M/S. KUBER ENTERPRISES WHICH ARE DUE AS ON DATE. I N THIS REGARD, WE WISH TO SUBMIT THAT IN RESPECT OF PURCHA SES FROM THE SAID SUPPLIERS, THE PURCHASES WERE MADE THROUGH AGENTS OF THOSE SUPPLIERS AS PARTIES. THE GOODS WERE SUPPLIE D DIRECTLY AT OUR LOCATION AND WE DID NOT HAVE ANY DIRECT CONTAC T WITH THE SUPPLIER OF THOSE GOODS AND ACCORDINGLY, WE ARE CUR RENTLY NOT IN A POSITION TO PRESENT THE SUPPLIERS FOR CONFIRMA TION AND FOR YOUR PERSONAL VERIFICATION. THE GOODS ARE SUPPLIED ON CREDIT AND LATER ON PAYMENTS ARE MADE. THE CLOSING BALANC ES OF THESE SUPPLIERS ARE AS FOLLOWS:- SUPPLIERS CLOSING BALANCE (AMOUNT IN H M/S. SAMBHAV DISTRIBUTORS 10,995,585.00 M/S.SIDDARTH INDUSTRIAL SUPPLIERS, 9,847,198.00 M/S. RISHAB ENTERPRISES 4,005,720.00 M/S. KUBER ENTERPRISES 65,766,323.98 HOWEVER, WE WISH TO STATE THAT THE BALANCES AS STAT ED ABOVE ARE NOT CORRECT BALANCES AND ARE SUBJECT TO ADJUSTM ENTS AND RECONCILIATIONS. AT THE INSTANCES OF THOSE SUPPLIER S AND ON INSTRUCTIONS OF THEIR AGENTS, GOODS WERE SUPPLIED B Y OUR CONCERN TO VARIOUS PARTIES ON CREDIT. THE EX-ACCO UNTANT WHO IS NOT CURRENTLY WITH THE CONCERN HAS ERRONEOUSLY D EBITED THE VARIOUS PARTIES TO WHOM THE SALES WERE MADE FOR THE GOODS SUPPLIED. PAYMENTS FROM MANY OF THESE DEBTORS ARE STILL PENDING AS ON DATE FOR THE REASON THAT THE SAID DEB ATE WOULD HAVE PAID THE AMOUNT TO THE SUPPLIERS DIRECTLY. AC CORDINGLY, WE HAVE NOT MADE PAYMENT TO THE SAID SUPPLIERS, TIL L THE TIME THE ABOVE REFERRED TRANSACTIONS ARE RECONCILED. WE ARE CURRENTLY NOT IN A POSITION TO RECONCILE THE SAME A S THE ACCOUNTANT IS NO LONGER AVAILABLE WITH THE CONCERN AND THE SAME WOULD REQUIRED TIME AND EFFORTS. ACCORDINGLY, WE WISH TO OFFER H2.05 CRORES APPROXIMATELY (INCLUSIVE OF NET BALANCES OF THE SAID SUPPLIERS AFTER ADJUSTMENTS AND RECONCILAT IONS, RELATES AND DISCOUNTS, DISCREPANCIES IN STOCK AND OTHER OMI SSIONS AND COMMISSIONS) TO BUY PEACE WITH THE DEPARTMENT AND A VOID PROLONGED LITIGATION. IT WAS CLEARLY STATED BY THE ASSESSEE IN THE ABOVE LETTER THAT HE WAS NOT ABLE TO RECONCILE THE SUNDRY CREDITORS OR DEBTO RS AND ACCORDINGLY VOLUNTARILY OFFERED H2.05 CRORES. HOWEVER, THE ASS ESSEE HAS FAILED TO ADMIT THE ABOVE H2.05 CRORES IN HIS RETURN FOR THE A.Y. 2014-15 FILED BY HIM SUBSEQUENTLY. HENCE THIS AMOUNT OF H2.05 CR ORES IS NOW ADDED TO THE TOTAL INCOME OF THE ASSESSEE. IT(TP)A NO.80 /2018 :- 7 -: PENALTY PROCEEDINGS, U/S.271(1) (C) ARE INITIATED TO THIS ADDITION. ADDITION H2,05,00,000/- 4. IT IS SEEN FROM THE P &L ACCOUNT THE ASSESSEE H AS CLAIMED INTEREST ON TDS TO THE EXTENT OF H68,660/-. THOUGH THE ABOVE EXPENDITURE IS NOT AN ALLOWABLE ONE, THE ASSESSEE H AS NOT ADDED BACK THE SAME IN THE COMPUTATION OF TOTAL INCOME. HENCE , H68,660/- IS DISALLOWED U/S.37 OF THE ACT AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. DISALLOWANCE H68,660/-. 5. IT IS SEEN FROM THE DETAILS FILED BY THE ASSESS EE THAT THE ASSESSEE HAS MADE INTEREST PAYMENT OF H69,350/- TO KUSUM MEHTA WITHOUT DEDUCTING TAX AT SOURCE. THUS THE ASSESSEE HAS VIOLATED THE PROVISIONS OF SECTION 194A. HENCE, H69,350/- IS DI SALLOWED U/S.40(A) (IA) OF THE ACT AND ADDED TO THE TOTAL INCOME OF TH E ASSESSEE. DISALLOWANCE H69,350/-. 6. IT IS SEEN FROM THE DETAILS FILED BY THE ASSESSE E THAT THE ASSESSEE HAS MADE ACCOUNTING CHARGES OF H42,000/- W ITHOUT DEDUCTING TAX AT SOURCE. THUS, THE ASSESSEE HAS VI OLATED THE PROVISIONS OF SECTION 194J. WHEN THE ASSESSEE WAS ASKED TO OFFER HIS EXPLANATION, HE REPLIED AS UNDER: LEDGER STATEMENT COPY ATTACHED ACCOUNTING CHARGES WERE PAID TO THE PERSON WHO ODES THE WEEKLY BOOKS OF ACCOUNTS TO UPDATE THE BOOKS OF ACCOUNTS LIKE SALES PURCHASE, BANK STATEMENT ETC., THEREFORE IT IS PAID TO VARIOUS PERSONS WHO MAY DOE S THE WEEKLY ACCOUNTS IN SUBSEQUENT MONTHS. SO THERE MIGHT NOT BE TDS DEDUCTION FOR THOSE CHARGES. 7. IT IS SEEN FROM THE RECORDS THAT THE ASSESSEE HA S CLAIMED TRAVELING EXPENSES OF H1,29,750/-. THE ASSESSEE WAS ASKED TO FURNISH THE RELEVANT DETAILS IN THIS REGARD AND THE ASSESSE E HAS SUBMITTED COPY OF TRAVELS BILLS. ON GOING THE TRAVEL BILLS, IT IS SEEN THAT THE FOLL OWING BILLS ARE NOT RELATED TO THE ASSESSEE. IT(TP)A NO.80 /2018 :- 8 -: SL.NO. INVOICE/ DATE BILL RAISED IN THE NAME OF BILL AMOUNT REMARKS 1 0927/11.07.13 MANOJ LALITH 16,200 NOT RELATED TO THE ASSESSEE 2 0940/16.07.13 MANOJ LALITH 14,600 -- DO -- 3 1585/19.09.13 LALIT/PINKY 16,100 -- DO -- 4 2014/05.11.13 ANKITA KUMARI 5,500 BILL FOR 11 ,000/ - RAISED BOTH IN THE NAME OF THE ASSESSEE AND ANKITA KUMARI. HENCE, 50% DISALLOWED. 5 2126/16.11.13 ANKITA KUMARI 15,400 BILL FOR 30,800/ - RAISED BOTH IN THE NAME OF THE ASSESSEE AND ANKITA KUMARI. HENCE, 50% DISALLOWED. 6 2579/07.11.14 LALITH 8,80 0 NOT RELATED TO THE ASSESSEE TOTAL 76,600 SINCE THE ABOVE CLAIM OF THE ASSESSEE IS NOT RELATE D TO HIS BUSINESS, H76,600/- IS DISALLOWED U/S.37 OF THE I.T. ACT AND ADDED TO THE TOTAL INCOME. DISALLOWANCE H.76,600/- SUBJECT TO THE ABOVE DISCUSSION, THE ASSESSMENT IS COMPLETED AS UNDER:- RETURNED INCOME H 43,65,790 ADD: ADDDITION ON ACCOUNT OF TRANSFER PRICING ADJUSTMENT AS IN PARA 2 H 1,81,99,469 ADD: ADDITION/ DISALLOWANCE AS DISCUSSED IN PARA 3 H 2,05,00,000 ADD: ADDITION/ DISALLOWANCE U/ S.37 AS IN PARA 4 H 68,660 ADD: ADDITION/ DISALLOWANCE U/S.40(A) (IA) AS IN PARA 5 H 69,350 ADD: ADDITION/ DISALLOWANCE U/S.40(A) (IA) AS IN PARA 6 H 42,000 ADD: ADDITION/ DISALLOWANCE U/S.37 AS IN PARA 7 H 76,600 ASSESSED INCOME (ROUNDED OFF) H 4,33,21 ,869 IT(TP)A NO.80 /2018 :- 9 -: DEMAND RAISED H1,81,56,030/- 8. ASSESSED U/S.143(3) R.W.S. 92CA(3) OF THE I.T. A CT,1961 ISSUED NOTICE OF DEMAND AFTER GIVING CREDIT FOR PREPAID TA XES AFTER DUE VERIFICATION. CHARGED INTEREST U/S.234A, 234B & 234 C AS PER LAW. ACCORDINGLY, TAX CALCULATION SHEET ITNS-150 IS MADE PART OF THIS ORDER. IN OUR OPINION, A READING OF THE ABOVE ORDER CLEARL Y INDICATE THAT THE ASSESSMENT, FOR ALL PURPOSES, STOOD COMPLETE ON TH E SAID DATE. LD. ASSESSING OFFICER HAD COMPUTED THE INCOME, CALCULAT ED THE TAX THEREON, AND ISSUED DEMAND NOTICE. EVEN PENALTY PRO CEEDINGS WERE INITIATED. ONCE THE SPECIAL PROVISIONS SET OUT IN SECTIONS 92 TO 92F FOR COMPUTING ARMS LENGTH PRICING IN RELATION TO INTERN ATIONAL TRANSACTIONS OR SPECIFIED TRANSACTIONS ARE RESORTED TO, AND ONCE THE ASSESSING OFFICER REACHES A CONCLUSION THAT THERE NEED TO BE VARIATION TO THE RETURNED INCOME OR LOSS, THERE CAN BE NO DOUBT THAT THE MANDATE UNDER SECTION 144C(1) OF THE ACT HAS TO BE FOLLOWED . NOT FOLLOWING THE SAID MANDATE IN OUR OPINION CANNOT BE CONSIDERED AS A CURABLE MISTAKE. SECTION 292B OF THE ACT WHICH HAS BEEN R ELIED UPON BY THE LD. DEPARTMENTAL REPRESENTATIVE IS REPRODUCED HERE UNDER:- RETURN OF INCOME ETC, NOT TO BE INVALID ON CERTAI N GROUNDS:- NO RETURN OF INCOME, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING FURNISHED OR MADE OR ISSUED OR TAKEN OR PURPORTED TO HAVE BEEN FURNISHED OR MADE OR ISSUED OR TAKEN IN PURSUANCE OF ANY OF THE PROVISIONS OF THIS ACT SHALL BE INVALID OR SHALL BE DEEMED TO BE INVALID MERELY BY REASON OF ANY MISTAKE, DEFE CT OR OMISSION IN SUCH RETURN OF INCOME, ASSESSMENT, NOTI CE, SUMMONS OR OTHER PROCEEDING IF SUCH RETURN OF INCOM E, ASSESSMENT, NOTICE, SUMMONS OR OTHER PROCEEDING IS IN IT(TP)A NO.80 /2018 :- 10 -: SUBSTANCE AND EFFECT IN CONFORMITY WITH OR ACCORDIN G TO THE INTENT AND PURPOSE OF THIS ACT. HAVING ISSUED A DEMAND NOTICE, COMPUTED THE INCOME AND INITIATED PENAL PROCEEDINGS, WE CANNOT SAY THAT ORDER CAPTIO NED AS DRAFT ASSESSMENT ORDER WAS IN SUBSTANCE AND EFFECT ONLY A DRAFT ASSESSMENT ORDER. IT WAS IN SUBSTANCE AND EFFECT T HE FINAL ASSESSMENT ORDER. THUS THE MANDATORY REQUIREMENTS UNDER SECTIO N 144C(1) OF THE ACT WAS NOT ADHERED TO. LACK OF JURISDICTION, IN OU R OPINION, CANNOT BE OVERCOME BY PLEADING ACQUIESCENCE OF THE ASSESSEE T O ANY SUBSEQUENT PROCEEDINGS. IN A SIMILAR FACT SITUATION, PUNE B ENCH OF THIS TRIBUNAL IN THE CASE OF EATON FLUID POWER LTD (SUPRA) HAD HELD AS UNDER AT PARAS 6 TO 10 OF ITS ORDER. 6. ON HEARING BOTH THE PARTIES ON THE LEGAL ISSUE OF ADMISSION OF ADDITIONAL GROUNDS, WE FIND THE SAID ADDITIONAL GRO UNDS SHOULD BE ADMITTED AND ADJUDICATED IN THIS ORDER. FURTHER, ON THE MERITS OF THESE ADDITIONAL GROUNDS, WE FIND THE RELEVANT FACTS OF THE CASE INCLUDE THAT ASSESSEE IS A COMPANY AND IS ENGAGED IN THE MANUFACTURE AND DISTRIBUTION OF FLUI D POWER EQUIPMENT SUCH AS PUMPS, GEAR PUMPS, VALVES, CYLIND ERS AND RELATED COMPONENTS FOR MOBILE & INDUSTRIAL MARKETS. IN THIS CASE, A REFERENCE WAS MADE TO THE TRANSFER PRICING OFFICER (TPO) U/S. 92CA(1) OF THE ACT, WHO IN TURN, PASSED AN ORDER DA TED 24-01-2013 U/S. 92CA(3) OF THE ACT, PROPOSING TOTAL ADJUSTMENT S OF RS.344,308,840/-. THE AO THEREAFTER, PASSED DRAFT A SSESSMENT ORDER DATED 26-03-2013 U/S.143(3) R.W.S. 144C(1) OF THE ACT. LD. AR FOR THE ASSESSEE REFERRING TO THE SAID DRAFT ASS ESSMENT ORDER AND POINTED OUT THAT WHILE PASSING THE SAID DRAFT ORDER , THE AO CRYSTALLIZED THE DEMAND AT THIS STAGE ITSELF AND IS SUED NOTICE U/S.156 OF THE ACT AS WELL AS THE NOTICE U/S.274 R.W.S.271( 1)(C) OF THE ACT. THE COPIES OF THESE NOTICES ARE AVAILABLE IN THE RE CORDS. THE IT(TP)A NO.80 /2018 :- 11 -: DEMAND NOTICE U/S.156 OF THE ACT WAS ISSUED TO THE ASSESSEE WITH THE TAX DEMAND OF RS.13.93 CRORES (ROUNDED OFF) FOR FURNISHING INACCURATE PARTICULARS OF INCOME. IN THE SAID DRAFT ASSESSMENT ORDER ITSELF, VIDE PARA NO.24, THE AO CALLS IT A PR OPOSED ORDER OF ASSESSMENT, AGAINST WHICH THE ASSESSEE WAS GIVEN 30 DAYS EITHER TO ACCEPT THE SAME OR FILE OBJECTIONS BEFORE THE DISPU TE RESOLUTION PANEL (DRP). HE FURTHER SUBMITTED THAT OBJECTIONS W ERE RAISED BEFORE THE DRP ON MERITS BUT NO SUCH PRELIMINARY IS SUE WAS RAISED AND THE SAID OBJECTIONS WERE DISMISSED. THE AO THER EAFTER, PASSED ORDER U/S. 143(3) R.W.S. 144C(13) OF THE ACT, DATED 15-01-2014, WHEREIN THE SAID ADJUSTMENT ON ACCOUNT OF ARM'S LEN GTH PRICE OF INTERNATIONAL TRANSACTIONS WAS MADE IN THE HANDS OF ASSESSEE. LD. AR FURTHER SUBMITTED THAT DRAFT ASSESSMENT ORDER PA SSED BY THE AO RAISING THE DEMAND NOTICE ALONG WITH NOTICE FOR INI TIATION OF PENALTY PROCEEDINGS IS UNSUSTAINABLE. 7. LD. DR FOR THE REVENUE ON THE OTHER HAND RELIED ON THE ORDERS OF THE LOWER AUTHORITIES BELOW ON THIS LEGAL ISSUE AND STA TED THAT THERE IS NO MERIT IN THE PLEA OF LD. AR FOR THE ASSESSEE. 8. WE HEARD BOTH THE SIDES AND PERUSED THE ORDERS O F THE REVENUE AND THE TRIBUNAL ORDER IN THE CASE OF M/S. EATON INDUSTRIAL SYSTEMS PVT. LTD. (SUPRA). ON PERUSING THE SAME, WE FIND THE FACTS IN THE CASE OF SISTER CONCERN OF THE ASSESSEE ABOVE ARE IDENTICAL. THE TR IBUNAL DISCUSSED THE ISSUE ELABORATELY RELYING ON VARIOUS DECISIONS AND ALLOWED THE APPEAL OF THE ASSESSEE. CONTENTS OF PARA NO.9 TO 12 ARE RELEV ANT IN THIS REGARD. WE FIND THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE ARE COVERED BY THE SAID ORDER OF THE TRIBUNAL. FOR THE SAKE OF COMPLETENESS , RELEVANT FINDINGS OF THE TRIBUNAL ARE EXTRACTED HERE AS UNDER : 9. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ADDITIONAL GROUNDS OF APPEAL RAISED BY THE ASSESSEE DO NOT REQUIRE ANY INVESTIGATION OF FACTS AND HENCE, THE SAME ARE ADMI TTED. THE ISSUE WHICH IS RAISED IN THE PRESENT APPEAL IS WHETHER THE DRAF T ASSESSMENT ORDER PASSED IN THE CASE ALONG WITH ISSUE OF DEMAND NOTIC E IS CORRECT START OF PROCEEDINGS AGAINST THE ASSESSEE. THE REQUIREMENT O F THE ACT IS THAT IN THE DRAFT ASSESSMENT ORDER PROPOSED, ADDITIONS ARE TO BE MADE AND SHOW CAUSE NOTICE IS TO BE ISSUED TO THE ASSESSEE EITHER ACCEPTING THE SAME OR TO FILE OBJECTIONS BEFORE THE DRP. HOWEVER, IN THE FAC TS OF THE PRESENT CASE, THERE WAS NO PROPOSAL FOR MAKING ADDITION BUT THE F INAL ASSESSMENT ORDER WAS PASSED THOUGH THE ASSESSING OFFICER CALLS IT A DRAFT ASSESSMENT ORDER AND ALSO OBSERVED THAT THE ASSESSEE WAS AT LIBERTY TO FILE OBJECTIONS BEFORE THE DRP OR ACCEPT THE SAME. THE ASSESSING OFFICER I N THE DRAFT ASSESSMENT ORDER ITSELF CRYSTALLIZED THE DEMAND ON INCOME ASSESSED IN THE IT(TP)A NO.80 /2018 :- 12 -: HANDS OF ASSESSEE AND HE ALSO ISSUED DEMAND NOTICE UNDER SECTION 156 OF THE ACT. THE ASSESSING OFFICER FURTHER INITIATED PE NALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT BY ISSUING NOTIC E UNDER SECTION 274 OF THE ACT. THE CONTENTION OF LEARNED DEPARTMENTAL REP RESENTATIVE FOR THE REVENUE IS THAT THOUGH THE DEMAND NOTICE WAS ISSUED BUT THE SAME WAS NOT SERVED UPON THE ASSESSEE. HOWEVER, WE FIND THAT THE ASSESSEE IN THE APPEAL MEMO ITSELF HAD ATTACHED COPY OF DEMAND NOTI CE ISSUED AND HAS ALSO FILED THE SAME DURING THE COURSE OF HEARING BE FORE US. IN ANY CASE, THE DEMAND NOTICE ISSUED IS AVAILABLE ON RECORD AND THE SAME IS ISSUED AGAINST THE ASSESSEE. HENCE, THERE IS NO MERIT IN T HE PLEA OF LEARNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE IN THIS REGARD AND THE SAME IS DISMISSED. 10. WE FIND SIMILAR ISSUE AROSE BEFORE TRIBUNAL IN THE CASE OF DCIT VS. M/S. REHAU POLYMERS PVT. LTD. IN ITA NO.566/PUN/201 5, RELATING TO ASSESSMENT YEAR 2010-11 WITH CO NO.27/PUN/2017, ORD ER DATED 14.06.2017, WHEREIN IT WAS HELD AS UNDER:- 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSE D THE RECORD. THE ISSUE WHICH ARISES IN THE PRESENT APPEAL IS IN RELA TION TO THE DRAFT ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER UN DER SECTION 143(3) R.W.S. 144C(1) OF THE ACT. AFTER RECEIPT OF THE ORD ER UNDER SECTION 92CA(3) OF THE ACT FROM THE TPO, THE ASSESSING OFFI CER WAS SUPPOSED TO ISSUE DRAFT ASSESSMENT ORDER PROPOSING TO MAKE T HE ADDITION. HOWEVER, THE ASSESSING OFFICER CALLED THE SAID ORDER TO BE D RAFT ASSESSMENT ORDER BUT ASSESSED INCOME IN THE HANDS OF ASSESSEE AND FU RTHER ISSUED DEMAND NOTICE ALONG ITNS150, AFTER CHARGING INTEREST UNDER SECTIONS 234A, 234B & 234C, ETC. HE ALSO INITIATED PENALTY PROCEEDINGS UNDER SECTION 271(1)(C) OF THE ACT. UNDOUBTEDLY, THE ASSESSEE ON UNDERSTANDING THAT THE SAME WAS DRAFT ASSESSMENT ORDER, MADE OBJECTION S TO THE DRP, WHO GAVE CERTAIN DIRECTIONS AND THEREAFTER, THE ASSESSI NG OFFICER PASSED AN ORDER UNDER SECTION 143(3) R.W.S. 144C(13) OF THE A CT. HOWEVER, IN ORDER TO ADJUDICATE THE ISSUE RAISED, WE NEED TO MAKE REF ERENCE TO THE PROVISIONS OF SECTION 144C OF THE ACT. 11. WE FIND THAT SIMILAR ISSUE OF ASSESSMENT TO BE FRAMED UNDER SECTION 143(3) R.W.S. 144C OF THE ACT AROSE BEFORE THE PUNE BENCH OF TRIBUNAL IN SOKTAS INDIA (P) LTD. VS. ACIT (SUPRA). 12. THE TRIBUNAL AFTER NOTING THE FACTS THAT THE A SSESSING OFFICER HAD PASSED THE ORDER UNDER SECTION 143(3) R.W.S 92CA(3) AND 144C OF THE ACT AND HAD ALSO ISSUED DEMAND NOTICE UNDER SECTION 156 OF THE ACT AND HAD ALSO ISSUED NOTICE UNDER SECTION 274 R.W.S. 271(1)( C) OF THE ACT. HOWEVER, THE COVERING LETTER SAID THAT IT WAS DRAFT ASSESSMENT ORDER, AGAINST WHICH THE ASSESSEE WAS EITHER TO FILE OBJEC TIONS BEFORE THE DRP OR ACCEPT THE SAME. THE ASSESSEE FILED THE OBJECTIO NS BEFORE THE DRP, WHO DISMISSED THE SAME ON THE SURMISE THAT THE ORDE R PASSED BY THE ASSESSING OFFICER WAS FINAL ASSESSMENT ORDER, SINCE THE ASSESSING OFFICER HAD ALSO ISSUED THE DEMAND NOTICE AND HAD A LSO ISSUED SHOW IT(TP)A NO.80 /2018 :- 13 -: CAUSE NOTICE UNDER SECTION 274 R.W.S. 271(1)(C) OF THE ACT FOR LEVY OF PENALTY. IN VIEW OF THE SAID FACTS, THE TRIBUNAL OB SERVED AS UNDER:- 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. BRIEFLY, IN THE FACTS OF THE CASE, THE ASSE SSING OFFICER HAD MADE REFERENCE TO THE TPO VIS--VIS TO DETERMIN E THE ARM'S LENGTH PRICE OF INTERNATIONAL TRANSACTION ENT ERED INTO BY THE ASSESSEE WITH ITS ASSOCIATE ENTERPRISES. THE TP O VIDE ORDER DATED 28.01.2014 UNDER SECTION 92CA(3) OF THE ACT H AD PROPOSED THE ADJUSTMENT TO ARM'S LENGTH PRICE OF IN TERNATIONAL TRANSACTION AND HAD PASSED THE SAID ORDER. THE ASSE SSING OFFICER ON RECEIPT OF SAID ORDER PASSED ORDER UNDER SECTION 143(3) R.W.S. 92C(4) AND 144C OF THE ACT. THE SAID ORDER OF ASSESSING OFFICER WAS FORWARDED TO THE ASSESSEE ALO NG WITH LETTER DATED 28.02.2014, WHEREIN THE ASSESSING OFFI CER CATEGORICALLY SAID THAT THE DRAFT ASSESSMENT ORDER WAS BEING FORWARDED FOR NECESSARY ACTION AT THE END OF ASSESS EE. IT WAS CLEARLY MENTIONED IN THE SAID LETTER THAT ON RECEIP T OF DRAFT ORDER, THE ASSESSEE MAY WITHIN 30 DAYS OF THE RECEI PT OF DRAFT ORDER EITHER FILE ACCEPTANCE OF VARIATION AS PROPOS ED IN THE ORDER OR FILE OBJECTIONS TO THE VARIATION TO THE DR P OR TO THE UNDERSIGNED. HOWEVER, THE ASSESSING OFFICER ALSO IS SUED DEMAND NOTICE UNDER SECTION 156 OF THE ACT DATED 28 .02.2014 AND ALSO ISSUED NOTICE UNDER SECTION 274 R.W.S. 271 OF THE ACT. THE ASSESSEE ON UNDERSTANDING THAT IT WAS DRAFT ASS ESSMENT ORDER FILED OBJECTIONS BEFORE THE DRP ON 07.04.2014 I.E. WITHIN THE TIME ALLOWED UNDER THE STATUTE. HOWEVER, THE SAID OBJECTIONS OF ASSESSEE WERE NOT CONSIDERED BY THE D RP AND THE SAME WERE REJECTED ON THE SURMISE THAT THE ORDE R PASSED BY THE ASSESSING OFFICER WAS FINAL ASSESSMENT ORDER SI NCE THE ASSESSING OFFICER HAD ALSO ISSUED DEMAND NOTICE UND ER SECTION 156 OF THE ACT AND SHOW CAUSE NOTICE UNDER SECTION 274 R.W.S. 271 OF THE ACT FOR LEVY OF PENALTY. THE DRP OBSERVED THAT SINCE THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER WAS FINAL ASSESSMENT ORDER, IT DI D NOT HAVE ANY JURISDICTION TO ISSUE ANY DIRECTIONS ON SUCH FI NAL ASSESSMENT ORDER. AFTER RECEIVING THE DRPS ORDER, THE ASSESSEE FILED AN APPLICATION BEFORE THE ASSESSING OFFICER FOR NECESSARY ACTION. THE ASSESSING OFFICER IN REPLY, V IDE LETTER DATED 30.01.2015 STATED THAT THE DRP HAD CLEARLY ME NTIONED THAT THE ORDER PASSED ON 28.02.2014 WAS FINAL ORDER AND NOT DRAFT ORDER, SO THE ASSESSING OFFICER DOES NOT HAVE ANY JURISDICTION OVER THE CASE. 7. IN ORDER TO ADJUDICATE THE ISSUE, REFERENCE NEED S TO BE MADE TO THE PROVISIONS OF SECTION 144C OF THE ACT. UNDER THE PROVISIONS OF SECTION 144C OF THE ACT, IT IS PROVID ED THAT WHERE THE ASSESSING OFFICER PROPOSES TO MAKE, ON OR AFTER 01.10.2009, ANY VARIATION IN THE INCOME OR LOSS RET URNED, WHICH IS PREJUDICIAL TO THE INTEREST OF ASSESSEE, T HEN THE IT(TP)A NO.80 /2018 :- 14 -: ASSESSING OFFICER SHALL IN THE FIRST INSTANCE FORWA RD THE DRAFT OF THE PROPOSED ORDER OF ASSESSMENT TO THE ELIGIBLE ASSESSEE. UNDER SUB-SECTION (2) OF SECTION 144C OF THE ACT ON RECEIPT OF THE DRAFT ORDER, THE ELIGIBLE ASSESSEE SHALL WITHIN 30 DAYS OF THE RECEIPT, FILE HIS ACCEPTANCE OF THE VARIATION TO TH E ASSESSING OFFICER OR FILE HIS OBJECTIONS, IF ANY, TO SUCH VAR IATION WITH THE DISPUTE RESOLUTION PANEL AND THE ASSESSING OFFICER. UNDER SUB-SECTION (3) OF SECTION 144C OF THE ACT, THE ASS ESSING OFFICER SHALL COMPLETE THE ASSESSMENT ON THE BASIS OF DRAFT ORDER IF THE ASSESSEE INTIMATES TO THE ASSESSING OF FICER THE ACCEPTANCE OF THE VARIATION OR NO OBJECTIONS ARE RE CEIVED WITHIN PERIOD SPECIFIED IN SUB-SECTION (2) OF SECTI ON 144C OF THE ACT. THEREAFTER, THE ASSESSING OFFICER IS EMPOW ERED 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 SH ALL IN CASE WHERE OBJECTION IS RECEIVED UNDER SUB-SECTION (2) I SSUE SUCH DIRECTIONS AS IT THINKS FIT FOR THE GUIDANCE OF THE ASSESSING OFFICER TO ENABLE HIM TO COMPLETE THE ASSESSMENT. U PON RECEIPT OF THE SAID DIRECTIONS, THE ASSESSING OFFIC ER SHALL IN CONFORMITY WITH THE SAME, COMPLETE THE ASSESSMENT W ITHOUT PROVIDING ANY FURTHER OPPORTUNITY OF BEING HEARING TO THE ASSESSEE WITHIN ONE MONTH FROM THE END OF THE MONTH IN WHICH SUCH DIRECTION IS RECEIVED, NOTWITHSTANDING ANYTHIN G TO THE CONTRARY CONTAINED IN SECTION 153 OR 153B OF THE AC T, AS PER SUB-SECTION (13) TO SECTION 144C OF THE ACT. IN VIE W OF THE PROVISIONS OF SECTION 144C OF THE ACT IMPLIEDLY WHE RE THE TPO PROPOSES ANY VARIATION IN THE INCOME OR LOSS RE TURNED BY THE ASSESSEE, WHICH IS PREJUDICIAL TO THE INTEREST OF ASSESSEE, THE ASSESSING OFFICER SHALL IN THE FIRST INSTANCE F ORWARD THE DRAFT OF THE PROPOSED ASSESSMENT ORDER TO THE ASSES SEE AND THEREAFTER, IF NO OBJECTIONS ARE RECEIVED AND / OR THE ASSESSEE FILES HIS ACCEPTANCE TO THE VARIATION TO THE ASSESS ING OFFICER, THEN THE ASSESSING OFFICER IS EMPOWERED TO COMPLETE THE ASSESSMENT WITHIN ONE MONTH FROM THE END OF THE MON TH THEREOF. IN CASE, THE ASSESSEE FILES HIS OBJECTION BEFORE THE DRP AND WHERE THE SAID PANEL ISSUES DIRECTIONS AS I T THINKS FIT, THEN THE ASSESSING OFFICER ON RECEIPT OF SUCH DIREC TIONS SHALL COMPLETE THE ASSESSMENT IN CONFORMITY WITH SUCH DIR ECTIONS. IN VIEW OF THE SAID PROVISIONS OF THE ACT, THE COMP LIANCE TO SECTION 144C OF THE ACT IS MANDATORY IN ALL SUCH CA SES, WHERE THE TPO PROPOSES VARIATION IN THE INCOME OR LOSS RE TURNED, 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 COMPLET ING THE ASSESSMENT ON SUCH ENHANCED INCOME OR VARIATION IN THE LOSS RETURNED BY THE ASSESSEE. IT(TP)A NO.80 /2018 :- 15 -: 8. THE HONBLE MADRAS HIGH COURT IN THE CASE OF VI JAY TELEVISION WRIT PETITION NOS.1526 AND 1527 OF 2014 & M.P. NOS.1 AND 1 OF 2014, IT WAS HELD THAT NON-PASSING O F DRAFT ASSESSMENT ORDER AFTER ADJUSTMENT MADE BY THE TPO R ENDERS PROCEEDINGS NULL & VOID BY OBSERVING AS UNDER:- UNDER SECTION 144C(1) OF THE ACT, WITH EFFECT FROM 1ST OCTOBER 2009, THE ASSESSING OFFICER HAS TO MANDATOR ILY ISSUE A DRAFT ASSESSMENT ORDER IF THERE IS A PROPOSED VAR IATION TO THE RETURN WHICH ARE PREJUDICIAL TO THE ELIGIBLE ASSESS EE. THE FACT THAT THE PETITIONER IS AN ELIGIBLE ASSESSEE IS NOT IN DISPUTE. WHILE SO, UNDER SECTION 144C(2) OF THE ACT, THE ELI GIBLE ASSESSEE HAS THE OPTION, EITHER TO ACCEPT THE VARIA TION 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 144 C(5) OF THE ACT. IT IS ONLY THEREAFTER, THE AO IS BOUND TO PASS A FINAL ORDER OF ASSESSMENT IN COMPLIANCE WITH THE DIRECTIO NS ISSUED BY THE DRP UNDER SECTION 144C(3) OF THE ACT. IN THE PRESENT CASE, WITHOUT FOLLOWING THE ABOVE MANDATORY PROCEDU RE, THE AO HAS PASSED THE ORDER OF ASSESSMENT ON 26.03.2013 AND SUBSEQUENTLY 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 PROVISIONS CONTAINED IN THE ACT AND THE CORRIGENDUM ISSUED BY THE AO COULD NOT CURE THE DEF ECT. 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 SIMPL Y TREATED AS A DRAFT ASSESSMENT ORDER OR IT CAN BE RECTIFIED BY ISSUING THE CORRIGENDUM. IN FACT, PURSUANT TO THE ORDER OF ASSE SSMENT UNDER SECTION 143C, DEMAND WAS ALSO MADE FOR PAYMEN T OF THE AMOUNT AND SUCH DEMAND HAS NOT BEEN WITHDRAWN B Y THE SECOND RESPONDENT EVEN AFTER ISSUING THE CORRIGENDU M. EVEN AS PER THE WEBSITE OF THE DEPARTMENT, THE DEMAND MA DE TO THE PETITIONER COMPANY CONTINUES TILL DATE AND THEREFOR E, THE FINAL ORDER AS WELL AS THE CORRIGENDUM ISSUED BY THE SECO ND RESPONDENT ARE VITIATED BY ERRORS APPARENT ON THE F ACE OF THE RECORD AND THEY ARE LEGALLY NOT SUSTAINABLE. 9. THE SIMILAR ISSUE HAD ARISEN BEFORE THE PUNE BEN CH OF TRIBUNAL IN AGFA INDIA PVT. LTD. VS. ACIT IN ITA NOS.341/PN/2014 AND 1072/PN/2014, RELATING TO ASSES SMENT YEAR 2008-09, ORDER DATED 28.10.2015 AND REFERENCE WAS MADE TO THE DECISION OF THE HONBLE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD IN M/S. ZUARI CEMENTS LTD. VS. ACIT IN WP NO.5557/2012, VIDE JUDGMENT DATED 21.02.2013 AND TH E IT(TP)A NO.80 /2018 :- 16 -: HONBLE SUPREME COURT IN ACIT VS. M/S. ZUARI CEMENT LTD. VIDE SPECIAL LEAVE PETITION CC NO.16694/2013, JUDGM ENT DATED 27.09.2013 AND IT WAS HELD AS UNDER:- 20. THE HONBLE HIGH COURT OF ANDHRA PRADESH AT HYDERABAD IN M/S. ZUARI CEMENTS LTD. VS. ACIT (SUPR A) ON SIMILAR ISSUE WHERE AFTER RECEIPT OF THE ORDER P ASSED BY THE TPO UNDER SECTION 92CA(3) OF THE ACT, THE ASSES SING OFFICER HAD PASSED THE ASSESSMENT ORDER UNDER SECTI ON 143(3) OF THE ACT RAISING A DEMAND OF RS.27,40,71,9 13/- WITHOUT GIVING AN OPPORTUNITY TO THE ASSESSEE UNDER SECTION 144C OF THE ACT, OBSERVED THAT WHERE THE ASSESSING OFFICER PROPOSES TO MAKE ON OR AFTER 01.10.2009, ANY VARIATION IN THE INCOME OR LOSS RET URNED BY THE ASSESSEE, THEN NOTWITHSTANDING TO THE CONTRA RY 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 AS SESSING OFFICER SHALL COMPLETE THE ASSESSMENT WITHIN ONE MO NTH, IN VIEW OF THE PROVISIONS OF SECTION 144C OF THE AC T. IT WAS FURTHER OBSERVED THAT THE ASSESSEE IS ALSO GIVE N AN OPTION TO FILE AN OBJECTION BEFORE THE DRP, IN WHIC H THE LATTER CAN ISSUE DIRECTIONS FOR THE GUIDANCE OF ASS ESSING OFFICER TO ENABLE HIM TO COMPLETE ASSESSMENT. WHERE THE ASSESSING OFFICER ACCEPTED THE VARIATION SUBMITTED BY THE TPO WITHOUT GIVING THE PETITIONER ANY OPPORTUNITY T O OBJECT TO IT AND PASS THE ASSESSMENT ORDER, IT WAS HELD BY THE HONBLE HIGH COURT OF A.P THAT THE IMPUGNED ORD ER OF ASSESSMENT WAS CLEARLY CONTRARY TO SECTION 144C OF THE ACT AND WAS WITHOUT JURISDICTION, NULL AND VOID. TH E OBJECTION OF THE REVENUE THAT THE CIRCULAR NO.5/201 0 OF THE CBDT WHICH LAID DOWN THAT THE PROVISIONS OF SEC TION 144C OF THE ACT SHALL NOT APPLY FOR THE ASSESSMENT YEAR 2008-09 AND WOULD ONLY APPLY FROM ASSESSMENT YEAR 2010-11 AND LATER YEARS WAS HELD TO BE NOT TENABLE 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 CIR CULAR NO.5/2010 ISSUED BY THE CBDT STATING THAT SECTION 144C(1) OF THE ACT WOULD APPLY ONLY FROM ASSESSMENT YEAR 2010-11 AND SUBSEQUENT YEARS AND NOT FROM ASSESSMENT YEAR 2008-09 WAS CONTRARY TO THE EXPRESS ED LANGUAGE OF THE SECTION AND THE SAID VIEW OF THE RE VENUE WAS HELD TO BE NOT ACCEPTABLE. THE HONBLE HIGH 9 C OURT OF A.P THEREAFTER HELD THAT THE IMPUGNED ORDER OF ASSESSMENT DATED 23.12.2011 PASSED BY THE RESPONDEN T WAS CONTRARY TO THE MANDATORY PROVISIONS OF SECTION 144C OF THE ACT IS DECLARED AS ONE WITHOUT JURISDICTION, NULL AND VOID AND UNENFORCEABLE. THE HONBLE HIGH COURT OF ANDHRA PRADESH HELD AS UNDER:- IT(TP)A NO.80 /2018 :- 17 -: 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 PROVISI ONS OF S.144C OF THE ACT AND IS PASSED IN VIOLATION THEREO F. THEREFORE, IT IS DECLARED AS ONE WITHOUT JURISDICTI ON, NULL AND VOID AND UNENFORCEABLE. CONSEQUENTLY, THE DEMAN D NOTICE DATED 23.12.2011 ISSUED BY THE RESPONDENT IS SET ASIDE. 21. THE HONBLE SUPREME COURT (SUPRA) IN ACIT VS. ZUARI CEMENTS LTD. (SUPRA) HAD DISMISSED THE SPECIA L LEAVE PETITION FILED BY THE DEPARTMENT UPON HEARING THE COUNSEL. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE CONTENDED THAT SINCE THE SAID SPECIAL LEAV E PETITION WAS DISMISSED AFTER HEARING THE COUNSEL AN D THE VIEW TAKEN BY THE HONBLE HIGH COURT OF ANDHRA PRAD ESH AT HYDERABAD HAS BEEN APPROVED BY THE APEX COURT AN D ANY ORDER CONTRADICTING THE CONDITIONS LAID DOWN IN SECTION 144C OF THE ACT IS NULL AND VOID AND UNENFORCEABLE IN LAW. 22. FURTHER, THE DELHI BENCH OF TRIBUNAL IN THE CAS E 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 RENDERS PROCEEDINGS VOID. SHOW CAUSE NOTICE C ANNOT BE QUOTED WITH DRAFT ASSESSMENT ORDER. 10. FURTHER, THE HONBLE BOMBAY HIGH COURT IN INTERNATIONAL AIR TRANSPORT ASSOCIATION VS. DCIT (S UPRA) HAVE ALSO DOWN THE SIMILAR PROPOSITION AND HELD AS UNDER:- 4. THE PETITIONER HAD CONSEQUENT TO THE ASSESSMEN T D 23RD MARCH 2015 FILED ITS OBJECTION IN TERMS OF SEC TION 144C(2) OF THE ACT TO THE DISPUTE RESOLUTION PANEL (DRP). BY AN ORDER DATED 7TH OCTOBER, 2015, THE D RP REFUSED TO PASS ANY DIRECTION ON THE OBJECTIONS BEC AUSE THE OBJECTIONS HAD BEEN FILED IN RESPECT OF A FINAL ORD ER UNDER SECTION 143(3) OF THE ACT AND NOT IN RESPECT OF THE DRAFT ASSESSMENT ORDER PASSED UNDER SECTION 144C(1) OF TH E ACT. THE ORDER DATED 7TH OCTOBER, 2015 OF THE DRP H OLDS THAT ITS JURISDICTION IS ONLY TO ENTERTAIN OBJECTIO NS WITH REGARD TO DRAFT ASSESSMENT ORDER PASSED UNDER SECTI ON 144C(1) OF THE ACT. 5. HOWEVER, IT IS PERTINENT TO NOTE THAT THE ORDER DATED 7TH OCTOBER, 2015 OF THE DRP IN PARAGRAPH (3) THEREOF R ECORDS THAT THERE IS NO DISPUTE THAT THE ASSESSEE IS A FO REIGN COMPANY. THIS POSITION IS UNDISPUTED EVEN BEFORE U S. THEREFORE, IN VIEW OF SECTION 144C(15) OF THE ACT W HICH IT(TP)A NO.80 /2018 :- 18 -: DEFINES ELIGIBLE ASSESSEE TO WHOM SECTION 144C(1) O F THE ACT APPLIES TO INTER ALIA MEAN ANY FOREIGN COMPANY. THEREFORE, A DRAFT ASSESSMENT ORDER UNDER SECTION 1 44C(1) OF THE ACT IS MANDATED BEFORE THE ASSESSING OFFICER PASSES A FINAL ORDER UNDER SECTION 143(3) OF THE AC T IN CASE OF ELIGIBLE ASSESSEE. AN DRAFT ASSESSMENT ORDE R PASSED UNDER 10 SECTION 144C(1) OF THE ACT BESTOWS CERTAIN RIGHTS UPON AN ELIGIBLE ASSESSEE SUCH AS TO APPROAC H THE DRP WITH ITS OBJECTIONS TO SUCH A DRAFT ASSESSMENT ORDER. THIS IS FOR THE REASON THAT AN ELIGIBLE ASSESSEES GRIEVANCE CAN BE ADDRESSED BEFORE A FINAL ASSESSMENT ORDER IS PASSED AND APPELLATE PROCEEDINGS INVOKED BY IT. HOWEVER, T HESE SPECIAL RIGHTS MADE AVAILABLE TO ELIGIBLE ASSESSEE UNDER SECTION 144C OF THE ACT ARE RENDERED FUTILE, IF DIR ECTLY A FINAL ORDER UNDER SECTION 143(3) OF THE ACT IS PASS ED WITHOUT BEING PRECEDED BY DRAFT ASSESSMENT ORDER. 6. IN THE ABOVE VIEW, THE ASSESSMENT ORDER DATED 23 RD MARCH, 2015 PASSED BY THE ASSESSING OFFICER FOR THE ASSESSMENT YEAR 2012-13 IS COMPLETELY WITHOUT JURISDICTION. THIS IS SO AS IT HAS NOT BEEN PRECEDE D BY A DRAFT ASSESSMENT ORDER. HENCE, THE FOUNDATIONAL/BAS IC ORDER VIZ. THE ASSESSMENT ORDER DATED 23RD MARCH, 2 015 IS SET ASIDE AND QUASHED AS BEING WITHOUT JURISDICTION . CONSEQUENT ORDERS PASSED ON RECTIFICATION APPLICATI ON AS WELL AS ON PENALTY ARE ALSO QUASHED AND SET ASIDE B EING UNSUSTAINABLE. 11. THE LEARNED AUTHORIZED REPRESENTATIVE FOR THE ASSESSEE HAS PLACED RELIANCE ON THE RATIO LAID DOWN BY THE INTERNATIONAL AIR TRANSPORT ASSOCIATION VS. DCIT (S UPRA) AND THE HONBLE MADRAS HIGH COURT IN THE CASE OF VI JAY TELEVISION WRIT PETITION NOS.1526 AND 1527 OF 2014 & M.P. NOS.1 AND 1 OF 2014 VIS--VIS. WHEREAS THE LEA RNED DEPARTMENTAL REPRESENTATIVE FOR THE REVENUE STRONGL Y OPPOSED AND POINTED OUT THAT THE ASSESSING OFFICER HAS SENT THE DRAFT ASSESSMENT ORDER WHEREIN THE LETTER CLEARLY SAYS THAT IT IS DRAFT ASSESSMENT ORDER. HE POINTED OUT THAT THE DRP HAD MISINTERPRETED AND THE ISSUE MAY BE SEN T BACK TO THE FILE OF DRP. HE ALSO POINTED OUT THAT T HE FACTS BEFORE THE HONBLE BOMBAY HIGH COURT WERE DIFFERENT AND THE SAID PROPOSITION IS NOT APPLICABLE. WE FIND NO MERIT IN THE PLEA OF LEARNED DEPARTMENTAL REPRESENT ATIVE FOR THE REVENUE. THE ASSESSING OFFICER PASSED THE O RDER ON 28.02.2014 ALONG WITH WHICH IT ALSO ISSUED THE D EMAND NOTICE AND SHOW CAUSE NOTICE FOR LEVY OF PENALTY. I N OTHER WORDS, THE ASSESSING OFFICER HAS CRYSTALLIZED THE D EMAND IN THE CASE OF ASSESSEE. WHEREAS, AS PER THE PROVIS IONS OF THE ACT WHERE THE ASSESSING OFFICER PROPOSES TO VAR Y THE INCOME IN THE HANDS OF ASSESSEE, THERE WAS REQUIREM ENT TO IT(TP)A NO.80 /2018 :- 19 -: ISSUE SHOW CAUSE NOTICE TO THE ASSESSEE TO THE SAID ADDITIONS, BY WAY OF DRAFT ASSESSMENT ORDER. THE DE MAND DOES NOT GET CRYSTALLIZED IN DRAFT ASSESSMENT ORDER . UNDOUBTEDLY, THE ASSESSING OFFICER HAD ISSUED COVER ING LETTER WHERE IT SAYS THAT IT IS DRAFT ASSESSMENT OR DER BUT IN SPIRIT, IT HAD FINALIZED THE ASSESSMENT, WHEREIN TH E DEMAND WAS CRYSTALLIZED AND DEMAND NOTICE WAS ISSUED TO TH E ASSESSEE. THE ASSESSING OFFICER HAS NOT FOLLOWED TH E CORRECT PROCEDURE AS PROVIDED IN THE STATUTE AND HA S PASSED FINAL ASSESSMENT ORDER WITHOUT PASSING DRAFT ASSESSMENT ORDER WHICH IS AGAINST THE PROVISIONS OF THE ACT AND HENCE, THE SAME IS INVALID IN LAW. RELIANCE IS PLACED ON THE RATIO LAID DOWN BY THE HONBLE BOMBAY HIGH COURT IN INTERNATIONAL AIR TRANSPORT ASSOCIATI ON VS. DCIT (SUPRA) AND THE HONBLE MADRAS HIGH COURT IN VIJAY TELEVISION PVT. LTD. VS. DRP & OTHERS (SUPRA) AND THE HONBLE HIGH COURT OF ANDHRA PRADESH IN M/S. ZU ARI CEMENTS LTD. VS. ACIT (SUPRA). WE HOLD THAT THE ASSESSMENT ORDER PASSED IN THE CASE IS INVALID AND THE SAME IS SET ASIDE. SINCE WE HAVE DECIDED THE PRELIM INARY ISSUE IN FAVOUR OF ASSESSEE, THE OTHER GROUNDS OF A PPEAL AGAINST THE ADDITIONS MADE BECOME ACADEMIC AND THE SAME ARE DISMISSED. 13. THE FACTS BEFORE US ARE SIMILAR TO THE FACTS BE FORE IN SOKTAS INDIA (P) LTD. VS. ACIT (SUPRA). IN THE FACT S OF PRESENT CASE ALSO, THE DEMAND GOT CRYSTALLIZED ON P ASSING OF THE DRAFT ASSESSMENT ORDER, WHEREIN THE ASSESSIN G OFFICER HAD ISSUED DEMAND NOTICE IN ITNS-150 AND HA D ALSO INITIATED PENALTY PROCEEDINGS. UNDOUBTEDLY, TH E SAID ASSESSMENT WAS FRAMED AS DRAFT ASSESSMENT BUT IN AC TUAL FACT, THE ASSESSING OFFICER HAD MADE THE ASSESSMENT IN THE HANDS OF ASSESSEE BY NOT ONLY ASSESSING THE INCOME BUT ALSO DETERMINING THE DEMAND PAYABLE. IN THE CASE OF DRAFT ASSESSMENT ORDER, PROPOSED ADDITIONS ARE TO BE MADE AND THE ASSESSEE IS SHOW CAUSED EITHER TO ACCEPT THE SA ME OR FILE THE OBJECTIONS BEFORE THE DRP. HOWEVER, IN THE PRESENT FACTS, THERE WAS NOT A PROPOSAL FOR MAKING ADDITION BUT FINAL ASSESSMENT ORDER WAS PASSED. UNDOUBTEDLY, THE ASSESSING OFFICER SAID THAT HE IS PASSING DRAFT ASS ESSMENT ORDER AND THE ASSESSEE WAS ALSO AT LIBERTY TO FILE THE OBJECTIONS BEFORE THE DRP OR ACCEPT THE SAME, BUT I N ACTUAL FACT, THE ORDER PASSED BY THE ASSESSING OFFI CER WAS COMPLETE ASSESSMENT ORDER WHICH IS NOT ENVISAGED UN DER SECTION 143(3) R.W.S. 144C OF THE ACT. ACCORDINGLY, WE HOLD THAT DRAFT ASSESSMENT ORDER PASSED IN THE CASE IS INVALID IN LAW. 11. WE FURTHER FIND THAT THE HONBLE HIGH COURT OF B INDIA LTD. VS. DCIT (2017) 85 TAXMANN.COM 155 (DEL) IT(TP)A NO.80 /2018 :- 20 -: HAS LAID DOWN THAT EVEN IN REMAND PROCEEDINGS THE ASSESSING OFFICER CANNOT STRAIGHTAWAY PASS FINAL ASSESSMENT ORDER WITHOUT ISSUING DRAFT ASSESSMENT O RDER UNDER SECTION 144C OF THE ACT. THE HONBLE HIGH COU RT DID NOT ACCEPT THE STAND OF REVENUE THAT IT WAS AN IRREGULARITY WHICH WAS CURABLE UNDER SECTION 292B O F THE ACT. RELYING ON EARLIER DECISION OF THE SAID HIGH C OURT, IT WAS OBSERVED THAT SECTION 292B OF THE ACT COULD NOT SAVE AN ORDER NOT PASSED IN ACCORDANCE WITH THE PROVISIO NS OF THE ACT, WHERE THE ISSUE INVOLVED WAS NOT ABOUT THE MISTAKE IN THE SAID ORDER BUT THE POWER OF ASSESSIN G OFFICER TO PASS THE ORDER. FURTHER, REFERENCE WAS M ADE TO THE DECISION OF SAID HIGH COURT ITSELF IN TURNER INTERNATIONAL INDIA (P.) LTD. VS. DCIT (2017) 82 TAXMANN.COM 125 (DEL), WHEREIN IT WAS HELD THAT IT WAS MANDATORY FOR THE ASSESSING OFFICER TO PASS DRAFT ASSESSMENT ORDER UNDER SECTION 144C OF THE ACT PRIO R TO ISSUING FINAL ASSESSMENT ORDER. THE RELEVANT FINDIN GS OF THE HONBLE HIGH COURT ARE IN PARA 21 WHICH READS A S UNDER:- 21. IN ALMOST IDENTICAL FACTS, IN TURNER INTERNATIONAL (SUPRA), THIS COURT HELD IN FAVOUR OF THE ASSESSEE ON THE GROUND THAT IT WAS MANDATORY FOR TH E AO TO HAVE PASSED A DRAFT ASSESSMENT ORDER UNDER SECTI ON 144C OF THE ACT PRIOR TO ISSUING THE FINAL ASSESSME NT ORDER. THE FOLLOWING PASSAGES FROM SAID DECISION AR E RELEVANT FOR THE PRESENT PURPOSES: '11. THE QUESTIO N WHETHER THE FINAL ASSESSMENT ORDER STANDS VITIATED FOR FAILURE TO ADHERE TO THE MANDATORY REQUIREMENTS OF FIRST PASSING DRAFT ASSESSMENT ORDER IN TERMS OF SECTION 144C(1) OF THE ACT IS NO LONGER RES INTREGRA. THERE IS A LONG SERIES OF DECISIONS TO WHICH REFERENCE WOULD B E MADE PRESENTLY. 12. IN ZUARI CEMENT LTD. V. ACIT (DECISION DATED 2 1ST FEBRUARY, 2013 IN WP(C) NO.5557/2012), THE DIVISION BENCH (DB) OF THE ANDHRA PRADESH HIGH COURT CATEGORICALLY HELD THAT THE FAILURE TO PASS A DRAFT ASSESSMENT ORDER UNDER SECTION 144C (1) OF THE ACT WOULD RESULT IN RENDERING THE FINAL ASSESSMENT ORDER 'WIT HOUT JURISDICTION, NULL AND VOID AND UNENFORCEABLE.' IN THAT CASE, THE CONSEQUENT DEMAND NOTICE WAS ALSO SET ASI DE. THE DECISION OF THE ANDHRA PRADESH HIGH COURT WAS AFFIRMED BY THE SUPREME COURT 12 BY THE DISMISSAL O F THE REVENUE'S SLP (C) [CC NO. 16694/2013] ON 27TH SEPTEMBER, 2013. 13. IN VIJAY TELEVISION (P) LTD. V. DISPUTE RESOLUT ION PANEL [2014] 369 ITR 113 (MAD.), A SIMILAR QUESTION AROSE. THERE, THE REVENUE SOUGHT TO RECTIFY A MISTA KE BY ISSUING A CORRIGENDUM AFTER THE FINAL ASSESSMENT OR DER WAS IT(TP)A NO.80 /2018 :- 21 -: PASSED. CONSEQUENTLY, NOT ONLY THE FINAL ASSESSMENT ORDER BUT ALSO THE CORRIGENDUM ISSUED THEREAFTER WAS CHAL LENGED. FOLLOWING THE DECISION OF THE ANDHRA PRADESH HIGH C OURT IN ZUARI CEMENT LTD. V. ACIT (SUPRA) AND A NUMBER O F OTHER DECISIONS, THE MADRAS HIGH COURT IN VIJAY TELEVISION (P) LTD. V. DISPUTE RESOLUTION PANEL (SU PRA) QUASHED THE FINAL ORDER OF THE AO AND THE DEMAND NO TICE. INTERESTINGLY, EVEN AS REGARDS THE CORRIGENDUM ISSU ED, THE MADRAS HIGH COURT HELD THAT IT WAS BEYOND THE TIME PERMISSIBLE FOR ISSUANCE OF SUCH CORRIGENDUM AND, THEREFORE, IT COULD NOT BE SUSTAINED IN LAW. 14. RECENTLY, THIS COURT IN ESPN STAR SPORTS MAURIT IUS S.N.C. ET COMPAGNIE V. UNION OF INDIA [2016] 388 IT R 383 (DEL.), FOLLOWING THE DECISION OF THE ANDHRA PR ADESH HIGH COURT IN ZUARI CEMENT LTD. V. ACIT (SUPRA), TH E MADRAS HIGH COURT IN VIJAY TELEVISION (P) LTD. V. D ISPUTE RESOLUTION PANEL, CHENNAI (SUPRA) AS WELL AS THE BO MBAY HIGH COURT IN INTERNATIONAL AIR TRANSPORT ASSOCIATI ON V. DCIT (2016) 290 CTR (BOM) 46, CAME TO THE SAME CONCLUSION.' 12. APPLYING THE SAID RATIO TO THE FACTS OF THE PR ESENT CASE AND ALSO THE ISSUE ARISING BEFORE US BEING IDENTICA L TO THE ISSUE BEFORE TRIBUNAL IN DCIT VS. M/S. REHAU POLYME RS PVT. LTD. (SUPRA) AND IN M/S. SANDVIK ASIA PVT. LTD . VS. DCIT (SUPRA), WE HOLD THAT THE DRAFT ASSESSMENT ORD ER PASSED BY THE ASSESSING OFFICER WAS COMPLETE ASSESS MENT ORDER WHICH IS NOT ENVISAGED UNDER SECTION 143(3) R .W.S. 144C OF THE ACT. ACCORDINGLY, WE HOLD THAT THE DRAF T ASSESSMENT ORDER PASSED IN THE CASE IS INVALID IN L AW AND HENCE THE CONSEQUENT ORDER PASSED DOES NOT SURVIVE. IN VIEW OF OUR DECIDING THE JURISDICTIONAL ISSUE IN FA VOUR OF ASSESSEE, WE DO NOT ADDRESS THE ISSUES ON MERITS. T HE ADDITIONAL GROUNDS OF APPEAL NO.1 AND 2 RAISED BY T HE ASSESSEE ARE THUS, ALLOWED. 9. THE UNDISPUTED FACTS IN THIS CASE INCLUDE THAT T HE AO ISSUED NOTICE OF DEMAND U/S.156 OF THE ACT AS WELL AS ISSUE OF NOTICE U/S.2 74 R.W.S. 271(1)(C) OF THE ACT AT THE STAGE OF MAKING DRAFT ASSESSMENT ORDER AS PER THE P ROVISIONS OF SECTION 144C(1) OF THE ACT. NORMALLY, SUCH NOTICES ARE ISSUED AT THE E ND OF THE ASSESSMENT PROCEEDINGS AND AT THE TIME OF MAKING ASSESSMENT ORDER. THE FAC T THAT DEMAND IS RAISED IS EVIDENT ON THE FACT OF DRAFT ASSESSMENT ORDER WHICH BEARS T HE ENTRY OF THE DEMAND IN THE REGISTER OF DEMAND COLLECTION AND BALANCE (DCR 02/4 5, DATED 20-2-13). THE NOTICE U/S.274 OF THE ACT IS FOUND ISSUED FOR FURNISHING O F INACCURATE PARTICULARS OF INCOME. ON LAW, IT IS SETTLED LEGAL PROPOSITION AT THE LEVE L OF HIGH COURTS THAT THE ASSESSMENT ORDERS BASED ON SUCH DRAFT ASSESSMENT ORDERS NOT FO LLOWING THE MANDATORY PROVISIONS OF SECTION 144C OF THE ACT IS WITHOUT JURISDICTION AND THEREFORE, NULL AND VOID AND NOT ENFORCEABLE IN LAW. FURTHER, THE HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF M/S. ZUARI CEMENTS LTD. VS. ACIT IN WRIT PETITIO N NO.5557/2012, DATED 21-02- 2013 HELD THAT THE IMPUGNED ORDER DATED 12-12-2011 PASSED BY THE RESPONDENT WAS IT(TP)A NO.80 /2018 :- 22 -: CONTRARY TO THE MANDATORY PROVISIONS OF SECTION 144 C OF THE ACT IS DECLARED AS ONE WITHOUT JURISDICTION, NULL AND VOID AND UNENFORCEAB LE. (SLP FILED AGAINST THE JUDGMENT OF AP HIGH COURT IN THE CASE OF ACIT VS. M /S. ZUARI CEMENTS LTD. BY THE REVENUE STANDS DISMISSED ON THIS ISSUE). THEREFORE, WE HOLD THAT THE ASSESSMENT ORDER PASSED BY THE AO IN THE INSTANT CASE DATED 15-01-2014 IS WITHOUT JURISDICTION AND NULL A ND VOID. ACCORDINGLY, THE ADDITIONAL GROUNDS RAISED BY THE ASSESSEE ARE ALLOW ED IN HIS FAVOUR. 10. CONSEQUENT TO ALLOWING OF ADDITIONAL GROUNDS IN FAVOUR OF THE ASSESSEE, WE FIND ADJUDICATION OF THE ISSUES RAISED IN THE ORIGINAL G ROUNDS ON MERITS BECOME AN ACADEMIC EXERCISE. ACCORDINGLY, THE SAID GROUNDS AR E DISMISSED AS ACADEMIC. PUNE BENCH IN THE ABOVE DECISION HAD CONSIDERED A N UMBER OF ORDERS OF VARIOUS OTHER BENCHES AS WELL AS THE JUDGMENTS OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF VIJAY TELEVISION (P) LTD VS. DISPUTE RESOLUTION PANEL (369 ITR 113) , THAT OF HONBLE ANDHRA PRADESH HIGH COURT IN THE CASE OF ZUARI CEMENT LTD VS ACIT (WRIT PETITION 5557/2012 DATED 21-02-2013), THAT OF HONBLE DELHI HIGH COURT IN THE CASE OF JCB INDIA LTD VS. DCIT, (2017) 100 CCH 0006 AND A HOST OF OTHER JUDGMENTS. LD. DRP HAD ENDEAVOURED TO DISTINGUISH THE ABOVE CITED DECISION OF THE PUNE BENCH RELYING ON THE JUDGMENT OF HONBLE APEX COURT IN THE CASE OF SKY LIGHT HOSPITALITY LLP (SUPRA ). NO DOUBT THEIR LORDSHIPS HAD AFFIRMED THE ORDER OF HONBLE DELHI HIGH COURT IN THE CASE OF SKY LIGHT HOSPITALITY LLP VS. ASSISTANT COMMISSIONER OF INCOME TAX, (2018) 405 ITR 296 . HOWEVER, THE MISTAKE WHICH WAS HELD TO BE CURABLE U/S.292B OF TH E ACT IN THE SAID CASE, WAS RELATING TO THE ADDRESS TO WHICH THE NO TICE WAS SENT. THEIR LORDSHIP HELD THAT NOTICE BEING ADDRESSED TO A COM PANY WHICH WAS IT(TP)A NO.80 /2018 :- 23 -: DISSOLVED, WAS ONLY AN ERROR AND TECHNICAL LAPSE O N THE PART OF THE DEPARTMENT WHICH COULD BE CURED UNDER SECTION 292B OF THE ACT. IN OUR OPINION PASSING AN ASSESSMENT ORDER WITHOUT MEE TING THE MANDATORY REQUIREMENTS UNDER SECTION 144C OF THE AC T CANNOT BE EQUATED WITH AN ERROR IN ADDRESSING A NOTICE. IN T HE LIGHT OF THE ABOVE DISCUSSION WE HOLD THE IMPUGNED ASSESSMENT ORDER AS A NULLITY. GROUNDS 2 TO 4 OF THE ASSESSEE STAND ALLOWED. 6. SINCE GROUNDS IN RELATION TO THE LEGALITY OF THE OR DER HAS BEEN ADJUDICATED IN FAVOUR OF THE ASSESSEE, THOSE ON MER ITS ARE NOT CONSIDERED. 7. IN THE RESULT, THE APPEAL ASSESSEE STANDS ALLOWED . ORDER PRONOUNCED ON WEDNESDAY, THE 13TH DAY OF MAR CH, 2019, AT CHENNAI. SD/- SD/- ( # $! # % . & ) ( DUVVURU RL REDDY ) ( / JUDICIAL MEMBER ( . ) (ABRAHAM P. GEORGE) / ACCOUNTANT MEMBER '# / CHENNAI $% / DATED:13TH MARCH, 2019. KV %& '()( / COPY TO: 1 . / APPELLANT 3. *+, / CIT(A) 5. (-. / / DR 2. / RESPONDENT 4. * / CIT 6. .01 / GF IT(TP)A NO.80 /2018 :- 24 -: