INCOME TAX ACT, 1961

Section 253

Appeal (Tribunal) - Maintainability - Appeal being not against an appealable order -

AO framed draft assessment order, which was challenged by assessee-company before DRP. In pursuance to the directions of the DRP, the AO passed final assessment order. Assessee challenged the said final assessment order before Tribunal, wherein the Tribunal restored the disputed issues for fresh adjudication by the AO. In pursuance to the directions of the Tribunal, the AO passed order termed as “order giving effect to Tribunal's order”. Assessee challenged the said order of AO before the Tribunal alleging that the AO passed the final assessment order instead of forwarding a draft assessment order. It submitted that though the AO termed the order passed by him as order giving effect to the order of the Tribunal, however, it was nothing but an assessment order passed under section 143(3). Held: As contemplated under section 253(1), the assessee can file an appeal before the Tribunal against a final assessment order passed by AO only in case the assessee goes through the DRP route. In instant case, admittedly, the impugned order passed by AO was not in pursuance to the directions of the DRP. Thus, it would not come within the purview of section 253(1)(d). Moreover, in respect of assessment order passed in pursuance to restoration of the issues by the Tribunal, the appeal would lie to the first appellate authority, and not before the Tribunal. Hence, the assessee's appeal would not be maintainable being not against an appealable order as provided under section 253.

Followed:Tevapharm India Pvt. Ltd. v. ACIT [2018] 91 taxmann.com 103 (Del.): 2018 TaxPub(DT) 1183 (Del-Trib)

REFERRED :

FAVOUR : Against the assessee

A.Y. :

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