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| The Tax Publishers2020 TaxPub(DT) 2444 (Kol-Trib) INCOME TAX ACT, 1961
Section 144C
When AO specifically stated that the section and sub-section under which Order was made was section 144C and gave the heading of order as 'Draft Assessment Order', attachment of draft Notice of Demand in Form No. 7 could not be taken as deciding circumstance, leading to conclusion that order in question was a final assessment order passed under section 143(3).
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Assessment - Transfer pricing - Validity of draft assessment order - Draft demand notice and penalty notice without striking off irrelevant columns issued along with the order
TPO passed order under section 92CA(3). Accordingly, AO passed Order, dt. 27-11-2015 under section 144C, which was titled 'DRAFT ASSESSMENT ORDER'. Also, AO issued notice of demand under section 156 and notice under section 274 read with section 271 along with the notice. As per assessee the so-called draft assessment order issued along with notice of demand and penalty notice was final assessment order and was, therefore, invalid. Held: When AO specifically stated that the section and sub-section under which Order was made was section 144C and gave the heading of order as 'Draft Assessment Order', it would be legally incorrect to hold that the Order is not passed under section 144C, but was actually an order passed under section 143(3). None has the power to change the section under which an order is passed. The attachment of a Notice of Demand in Form No. 7 could not be taken as deciding circumstance, leading to conclusion that order in question was a Final Assessment Order passed under section 143(3). In fact, it was a Draft Notice of Demand attached to the Draft Assessment Order. This notice of demand was non est in law as no demand could be created by an order passed under section 144C. Hence, such notice had no bearing on the Order. Coming to the notice issued for levy penalty under section 274, it was apparent that none of the columns in the notice had been struck off by AO. Under such circumstances such a notice was illegal and bad-in-law and such non est notice could not be a basis for coming to a conclusion that assessment Order was a final assessment order and not a draft assessment order. Accordingly, Order passed on 27-11-2015 was a draft assessment order passed under section 144C.
REFERRED :
FAVOUR : Against the assessee.
A.Y. : 2011-12
INCOME TAX ACT, 1961
Section 199
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