Dismissed

The Prl. Commissioner of income Tax - 2, v. M/s. Hyundai Motor India Engineering Pvt. Ltd.

Telangana HC11 Sept 2023ITTA/29/2023

Case brief

AI extract

What is this about?

The Income Tax Appellate Tribunal allowed the assessee\'s appeal, treating the impugned order as a final assessment passed in violation of mandatory Section 144-C procedure. The Supreme Court rejected this reasoning, holding that enclosing a demand notice characterized the order as final.

What did the court decide?

The appeal was rejected and the Tribunal\'s order allowing the assessee\'s appeal was set aside.

The Prl. Commissioner of income Tax - 2, Vs M/s. Hyundai Motor… — Income Tax | Telangana HC (2023)

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[³³⁸⁶¹

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: Il ; i I !i I t

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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MONDAY ,THE ELEVENTH DAY OF SEPTEMBER TWO THOUSAND AND TWENW THREE

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PRESENT

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THE HONOURABLE SRI JUSTICE P.SAM KOSHY

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THE HONOURABLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

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INCOME TAX TRIBUNAL APPEAL NO: 29 OF 2023

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(Income Tax Tribunal Appeal Under Section 260-A. of the Income Tax Act, against the order of the Income Tax Appellate Tribunal, Hyderabad Bench 'B', Hyderabad in ITA No. [23MYD/2020 for assessment Year 2015-16 dated 29.07.2O22, preferred against the Order of the Commissioner of Income Tax (Appeals) - 2 Hyderabad, Appeal No.l02l71201819/CIT(A)-2 dated 05.12.2019, preferred against the Order of the Depury Commissioner of Income ta:q Circle2(2), Hyderabad, PAN/GIR No.AABCJH7867C dated 27.07.2022

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Between:

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The Prl. Commissioner of lncome Tax - 2, Hyderabad.

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,..APPELLANT

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AND

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M/s. Hy_undaiJvlotor lndia Engineering Pvt. Lld-, Sy. No.5/2 and 5/3, Opp. Hitech City Railway Station. lzzatnagar, Lingampally Mandat, Hyderabad- 50dd84. PAN No. AABCJH7867C ...RESPONDENT

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Counsel for the Appellant :Smt K. MAMATA CHOUDARY

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Counsel for the Respondent :SRl K. RAGHAVENDRA RAO

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The Court made the following:

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THE HON'BLE SRI JUSTICE P.SAM KOSHY AND

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THE HON'BLE SRI JUSTICE LAXMI NARAYANA ALISHETTY

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I.T.T.A.No.29 of 2023

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JUDGMENT:. er Hon'ble Sri Justice P.SAM KOSHYI

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The challenge in the instant appeal is to the order dated 29.07.2022 passed by the Income^'i'ax Appellate Tribunal (for short the Tribunal'), Hyderaba:d Bench 'B' Hyderabad, in I.T.A.No.123/Hyd/2020 for thr: assessment year 2O15-16. Vide the said impugned order, the Tribunal has allowed the appeal preferred t,)' the respondent/ assessee by setting aside the ordt:r passed by the Commissioner of Income Tax (Appeals) (for short '(CIT (Appeats)') dated 05. 12.2O19 and also the assesism(:nt order passed on 11.12.2018.

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Heard Ms. K. Mamata Choudary, learned counsel for the appellant and Mr.Raghavendra Rao, learned coltnsel for the respondent-Department.

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The issue involved in the present appeal is rr,hether thc Tribunal was^justified in setting aside tl-rc ,rsse ssment

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order dated^{ll .12.2018, treatingthe same as final} assessment^{order' Rather than, treating it to be a draft} assessment order^{under Section144-C of the IncomeTax} Act, 1961^{(for short the Act')'}

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The brief facts^{which led to the hling of the instant} appeal is ttrat^{the respondent/assessee is involved in the} business of rendering^{supportservices in computer aided} engineering^{freld. For theassessmentyear 20 I 5- 16 '} respondent/^{assessee filed its return on 27 'l l '2Ol5 The} assessment of^{the respondent/assesseewas subsequently} subjected to^{scrutiny under Section t3 (2) of thc Act and} referencewasmadetoTransferPricingofficer(TPo)for determination of^{the Arm's LengthPrice (ALP) ofthe} assessee's international^{transactions enteredwithits} associate enterPrises.

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In terms of^{the procedure prescribed bclorean} assessment^{is frnalized,the statute requires the Assessing} Authority to^{first forward a draftassessmentorder to the} assessee,^{callingupon his objectionsif any The objections} are to be submitted^{within thirty(3O) days from the date of}

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its receipt. And it is only thereafter that the Assessing Authority shall pass the final assessment order. It is this requirement under law which is in dispute in the present appeal

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The dispute in the instant case is that when the draft Assessment Order under Section 144-C was sent to the respondent/ assessee, it also was accompanie(l b1, a notice of demand and penalty under Section 271(1)(c) of the Act. It is said that thc respondent/ assessee did not respond to the said notice and as a consequence, the final assessment order r.vas passed on 10.0I.2019. The responde:nt/ assessee immediatel."- preferred an appeal before the CIT (Appeals) on the ven' same day i.e. on 10.01.2019, which rr'as rejected by the CIT (Appeals), leading to frling of an appeal before the Tribunal. The Tribunal aJter consi<lering the conlentions put forth by the parties, allowed the appeal, thereby setting aside the order passed by the CI'f (Appeals) It is this order under challenge by the respondentDepart.mcnt bt' u,a1, of the instant appeal

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The contenLion^{of thetearned counsel forthe} 7, respondent-Department^{allalongwas that infact the} authorities^{concerned had issued a draft AssessmentOrder} on I I .12.20L8^{calling for theobjectionsfromthe} respondent/^{assesseeon the draJt AssessmentOrder'And it} is only when the^{respondent/assesseefailed to submit any} response to the^{dra-ft AssessmentOrder' nor aly objections} before the authorities^{concerned, the final assessment} order was^{passedon 10.01'2019'}

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According to^{the learned counsel for the appellant'} the statutory^{requirement as such has been duly complied} u,ith.However,itwasonlybecauseofaninadvertencethat the draft assessment^{ordergot accompanied rvith the notice} of demand and^{penalty. But the siune was inconsequential} for the reason^{that since the respondent/assessee did not} respond to this^{draft assessmentorder, they were left \r'ith} no other option,^{but to pass the Iinal assessment order'} which theY did Pass^{on 10'O1'2019'}

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g. According^{to the learned counselfor the appellant} only because^{there was a notice of demand andpenaltS'}

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which inadvertently got enclosed along with the draft assessment order b_y itself will not vitial.e the entire proceedings. As the respondent/ assessee had the occasion of submitting his objections to the draft assessment order, the authorities concerned would have still considered the same and thereafter, passed the final assessmr:nt order.

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The learned counsel for the appelant rr:ferred to an earlier decision rendered by the Tribunal in this regard and which was rclied upon by the CIT (Appeals) i.e. in the case of M/s. BS Hgderabad us. ACIT 2(3) in ITA No.2186/ Hyd I 2OI7 . Therefore, the order of the CIT (Appeals) u'as se lf-contradictory in itself.

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According to the learned counsel for the appellant the Tribunal erred in not considering the fact- that the respondent / assessee w,aited till the final assessment order was passed on 10.01.2019 and thereafter challenged the same by u,a,y of an appeal before the CIT (Appeals).

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According to the learned counsel for the appellant there is no dispr-rte to the fact that he did not receive the draft Assessment Order, yet, he chose not to srrbmit any

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objections. And^{it is only when the final assessment order} was passed on^{10.01.2019that the respondent/assessee} filed an appeal^{before the CIT (Appeals)'It isfurther} contended that^{the reliance by the Tribunal tothe} judgement of the Hon'ble^{SupremeCourt also was not} proper, as the said^{judgement was renderedunderan} entirely different^{contextual background and the samewas} distinguishable^{on facts itself.}

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Having heard^{the contentions put forth on either side} and on perusal^{of records, what is necessaryto be taken} note of at this^{juncture, isthe requirementoflau''} The reference to^{dispute resolution panel isrvhat is} envisaged under^{Sectio n144-C of the Act' The relevant} provision of Section^{144-C is reproduced hereunder:}

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" 144C. (1) Tle Assessing Officer shall,^{notuithstanding} anAthing to tle^{contrary containedin this Act, jn the first} in{tan Z, fonuard a^{drafi of the proposedorderof} o."r".-.rrt^{(hereafier in tlis section refered to os the} drafi order) to the^{eligible ossessee if he proposes to make'} on'or aTei tlLe^{1st dag of October, 20O9, ang} -uanationⁱⁿ tLe inime or^{loss ritumedtahich is preiudtcioLto the} interest of such^dssessee.

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(2) On receipt of tlLe d.rafi order,^{the eligible asses"ee sholl'} '*litnin tnirtA digs of the receipt bg him of the draft order'(a) fite his acceptance of^{the uaiationstothe} Assessing Olficer;^or

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(b) fle his oblections, i"f ang, to such uaiation u-tith,-

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(i) the Dispute Resolution Panel; and

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/iil^{the AssessingOffcer.}

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(3/ ?he Assessing Officer shall complete the as:;essment on the basis of the drafi. order, if-

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(a) the assessee intimates to the Assessing Officer tLLe acceptance ofthe uariation; or

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(b) no objectlons o.re receiued uithin the peiod specified in sub section (2).

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(4) The Assessing Officer shall, notu.titLtstandir,g anything contained in section 1.53, pass fhe assessment order under sub-sectlon (3) within one month from the end o"r the month in which,-

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(a) Lhe accepLance is receiued; or

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(b) the peiod of liling of objections tnder subsection (2) expires.

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(5) The Dispute Resolution Panel sholl, in a case where ang objection is receiued under sub-section (2), issue :;uch directions, as it thinks Jit, for the guidance of the Ass€ssing Officer to enab[e hint to conlplete the assessment.

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(6) The Dispute Resolulion Panel shall i"ssue the directions rekffed ro in sub-.section (5), afier consideing *Le fottouing,^narnelq:-

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(u) draJi orrler;

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(b) objections Jited bLt the a-ssessee;

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(d) reporl, lj ctny, of the Assessing Officer, Valuation

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Olficer or T'ransfer Pictng OfJicer or any other autL'-oity;

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(e ) recorcls relating to the draft order;

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(f ) evidence collecLed by, or caused to be collected. by, it; ond

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(g ) result of ang enquiry made by, or cau:;ed to be made bg, it.

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(7) The Dispute Resolutiort Panel nag, before issutng ang directlons refened to tt sub-section (5|-

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(a) rnake such fulher enquiry, as it thidcs fit: or (b) ceLtse onq furlher etlquiry Lo be mad<: bg ang income tctr autllontll atld reporl the result ol the sarne to it.

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(8) The Dispute Resolution Panel may^{confirm" reduce or} enhonce the uariations^{proposedin the drafi order so,} horueuer, tLnt it shalt not set aside^{anA proposeduaiation} or issue ang direction under sub-section⁽⁵⁾ for further enquiry and passing of the assessnent order.

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(9) If the members of the Dispute Resolution Panel differ in opinion on ang point, the point shall be decided according to the opinion of the majoitA of the members.

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(1O) Euery direction issued bg the Di.spute Resolution Panel shall be binding on the Assessing Offtcer.

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(11) No direction under sub-section (5) sLnll be issued unless an opportunitg of being heard is^giuen to the assessee and the Assessing Offier on such directions uthich are preludicial to the interest of the assessee or the lnterest of the reuentle, respectiuelg.

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(12) No direction under sub-section (5) shn)l be issued afier nlne months from the end of the month in uhich the drofi order is foru.tarded to the eligible assessee.

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(I 3) Upon receipt of the directions issued. und.er sub-section (5), the Assessing Officer shall, in anformity uith the directlons, complete, nottuith,stand.ing anAthing to the contrary contoined in section 153, the ossessment uithout prouiding any further opportunitg of being heard to the assessee, ulithin one month from the end of the month in which such direction is receiued.

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( 1 4 ) The Board mag moke rules for tle purposes of the effcient functioning of the Dispute Resolution Panel and. expeditious disposal of the objections ftled und.er subsection (2) by the eligible assessee.

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( I5) For the purposes of this section,-

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(a)^'Dispute Resolution Panel" means a collegium comprising of three Commissioners of Iname-tax constiluted bg the Board for this purpose;

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(b) "eligible assessee " ftteans,-

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(i) any person in uhose case the uariation refened to in sub-section (l) arbes as a consequence of the order of the Transfer Pricing Offier po-ssed under subsection⁽³⁾ of section 92CA; and

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(ii) ang foreign compang.'.

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A plain reading of sub-sections 1, 2, 6, 8 anc 13 of Section 144-C would clearly spell out the requirement of law. Admittedly in the instant case, in addition to the draft assessment order, there was also a notice of demand and penalty which was enclosed. A plain reading of sub-section 8 of Section 144-C would further make it amply clear that the demand has to be raised only aJter the final assessment order is passed, more particularly, for the reason that the dispute resolution panel has got the power to confirm, reduce or enhance the variations proposed in tfe draft.

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In the given context. rI thc draft assessment order is accompanied by a notice o[ dcmand arld penaltv that itself would force one to reach to the collclusion that though it is termed as draft assessment order, in fact, it.s the hnal assessment order and the notice ol demand and penalty was accompanying the same. To further weaken the case of the appellant, the operative parr of the draft assessment order reads as under:

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"?he assessment is completed under section 143(31 r.ut.s. 92CA of the Incomc tax Act, I 961 . Crerltt for prepaid t<txes is giuen. Penalty proceeditgs u/s 27 IAA & 27lBA are beitg initiated separotelA. A copy of [hr: n-sscssnrent order alotLg tpith demand nottce is issuecl to the as.se.s-see,'.

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A perusal of^{the aJoresaidoperative part of the so called} draft assessment^{order would further establishthat it was} not a draft^{assessmentorder, but was a final assessment} order after^the assessment^was concluded' The operative^{part also clearly mentioned about the raising} notice of demand^{underSection27 1-AA ald Section 271-} BA of the Act.

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The High^{Court of Judicature at AndhraPradeshin} the case of^{M/s.ZuariCement Ltd' as' The Assistant}

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Commissioner^{o;f IncomeTax has held as under:}

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"As thi-s has occurred'^{after O1 10'2009,the cut off date} prescnbed in sub'section^{(1) oJ S'laaC, the Assessing} 'Off u, it mantlated to f.rst pass a draft assessm'e-nt order' ctmmunicate it^{lo the as.sessee, hearhisobjections} ,and lhen complele^{a.sses-smenl AdmittedlA this h,asnot been} don orri^{the respondenthas passeda finato-ssessment} order dt.23.12.r011^{straight auagTherefore'the} impugned^{order of assessmentis clearly contraryto} "i.iiii it the Act and is tuithout jurisdiction' null and uoid".

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The said^{judgement has also been affirmedby the Hon'ble} Supreme Court^{of India vide its orderdated 27 'O9'2013 in} Special Leave^{to Appeal (Civil) C'C'NoJ6694of 2Ol3'} Similarly,^{the Single Benchof the Madras High Court in the} case of Viiag^{Teleaision (P') Ltd' a' Dispute Resolution}

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Panel, Chennai) at paragraph Nos.2O and 21 held as

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under:

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"Under Section 144^(C) oJ the Act, it is eui(lenl that the assessing oJficer is reEtired to pass only a draJi assessment ord.er on the basis of the recommendations mad':: by the TPO afier giuing an opportunitA lo [he asses-s ee to Jile their objections and then the assessing oflicer shall pass a f.nal order- According to the leamed senior courtsel for the petitioners, thi-s procedure has not been follorued L'q the second respondent inasmuch as a final order has been :;traightanuay passed uitlaut passing o drafi assessment order.

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"As ightly^pointed out bg the leamed senior^counsel for^the petitioners, in the order passed on 26.03.2013, the second respond.ent euen roised a demand as also imposed penaltg. Such demand hzs to be raised. on[y alter a Jirutt order hos been po.ssed determining the tax liabilittl. The u:ry fact that the taxable omount has been determined itself uould shotu that it LUos passed os a ftnal order. ln facl, t notice Jor demand under Section 156 of the Act uas [ssued pursuont to such order dated 26.03.2013 of the secon<l respcndert. Both th.e order dated 26.03.2O13 and the not[ce For den and thereof have been serued. simultaneously on lhe petiLtotrcr^'fherefore, not only the assessment is complele, but^(.lso tt rtolict' d.ated 28.O3.2O13 uas issued thereon calling upon ttrc petltioner to paA the tox amount as also penaLlg unde,r Sccttor, 271 of the Act. l'hereafier, the petitioner u)as guen an opltortunitg of heaing on 12.O4-2013. Subsequently, the secorLd respondent realised the mistake in passing a final ortler insteacl oJ a draft ossessmen, order u.thich resulted in issuing tt corngendum on 15.04.2013. In the corrtgend.um it LUas only state.d tfLat the order passed. on 26.03.2013 under Section I a3C of the Act has to be read and treated as o draft ossessnent orcler as per Section 143C read uith Section 93CA (1) rearl tuith Section 143 (3) of the Act. In an by the order dated 15.04.20 13, r.he second respondent granted thirty dags lime lo e:rutble lhe .!s'-sessee lo file^{their objections.On re-ceiptof lLrc c'orrigenctttrndoted} 15.O4.2O13, the petitioner componA approachea the frrst respondent, but the first respondent cleclined to Lssue ang direction fo the assessment off.cer on the ground thut the !.rst respondent has got juisdiction onlg to et ertetr such on appeal if the order passed by the second respondent is a preassessment order- Therefore, [t is euident thot the rtrst respondent declined to entertatn the objectiorts raised bA the petitioner componA on the ground that the order pos.;ed lry the

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second respondent is not a d.raft assessment order, rather it b a rtnal order. Thus, the ftrst respondent hod trealed the order dated 26.03.2O13 of the second respondent as a final order and therefore refused to entertain the objection-s filed on beholf of the petitioner companA".

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The said decision has been further affirmed by the Division Bench of the Madras High Court in the case of the Assistant Commissioner o.f Income-tax, Media Circle77, Chennai u. Vijag Teleuision (P.) Ltd.2 wherein, the Division Bench at paragraph Nos.31 to 34 and 39 held as

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under:

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"A perusol of the moteials auoilable in the typed set of documents reueal that the order dated 26-3.13 not onlg has Jinalised lhe assessment, but goes one step ahead by making a demand for tcu, therebg implging that the assessment is ftnal ond. not prouisions. Adding insult to injury, penaLtA has ol-so been imposed in the uery same order. A notice of demand has also been made under Section 156 of the Act. Therefore, it is a conclusiue order completing lhe as.se-ssrnent and making a consequential demand and by no stretch of imagination it can be consttued as pre e-s-se.s-s,rrcnl order.

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It is further sttident from the mateials auoilable on reard that uhen the cssessee approached the DRP again-st the aboue assessment order u/s 144-C (2), the DRP hns categoricalLy refused to entertain the appeal pointing out that no drolt assessment order hn-s been placed before it for takiry up the matter. In essence, the DRP itsetf has conftrmed that Lhe order passed by the AO is a f.nal order and not a d.raft assessment order.

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Tlerefore, it is uery clear that uthnt has been r-ssued is not a Draft Assessment Order, as contemplated u/s 144-C of the Income Tax Act, but a finol order, as mandated u/s 143(.3) o[ the Act. Hou-tever, tlrc contention nou raised is that the mistake stood corrected by

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'z[2018]^{95 taxmann.com101 (Madras)}

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t ! j

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2:::^: 2f^{t\3 conisendumdated 15.4.2()13 and,} I,neleJo:, -Jor all purposes the assessment ord,_:r should be treated aslftnal assess ment order.

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th_e corrigendum, uthich has been i:;sueci on t^:.: , . , z ^!:,1 ,U,i^{S cure the defect that h,.s creptinto} tne orae, and, tnerebA, rectifA the mistake cimmitted bi tne Reuenue and enablZ- te"t^""l il tn"^{"i","lrJ,i,iro"ra",} as a_drafi. assessrlent ord.er is ti" poiii,-iii.; ;;;;;,", lhe determination oI thb Court.

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. From the aboue it is unambiguously clear that the Assesstng officer is dutg bouni n iai.i'i.in" mandatory requtrement *oidot.d. unan x"tioui l i"+ r: o1 ,!:1, o:, 2, firs.t passing a drat osrers^.ni- ,rnr", ' rn Ja -ure of u_thich uLould inuatidate the Jinat ".r.r..r=)n,,", o_rder 11d the consequent demand. i"ii"", i.i',r.irrv proceedings".

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Similar view has also been taken by t ee Division Bench of the High court of Karnataka in the case of Commission er of Income-tax (International Taxation) u. Cisco Systems Senrices B. t/.s wherein at paragraph

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Nos. 13 to 16 it was held as under:

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"Undisputed facts of the case ore, in th( dr(Lft assessmen, order, the ACIT has ordered issuc,rce o7 demand notice and. to inittate p.""ttg ;ri"."Ji"r'"7o* sec.tion 271(t)(c) of tLe Act. Bith ,i; ,,4";;,;Zr:^.,., order and the demand notice are a"ria-'o"f,")"i,,'r'zs, 2018.

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Argument cnnuassed. by the Reuenue is, tilouqh d.emand nottce has been issuei, assessee ioi r'na.l,l*on the-order dated December 28, 2'otB as-i1r$ ;;;'r:s;.", "^::?r.^":d^{fit"!.itsobjectiotts beforethe} oni. ii. ,t.,:,t ,f ana .ts a curable one. On the other hnnd, Shi. w"i"'riru Rao's argument b that tn icrr ioi'"r,^i!r'")" ,n, ::..:,""-rT,^{at the.stage of passing the draft o".r.,.,n",,,} oraer ancl ssued. the demand notice. Thus, thc re,

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r lzOZ:1 t+s taxmann.com 486 (Karnataka)

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ossessment^{proceeding LDas complete'Thisprocedure} jitio-.a bg ACIT is cintrary to tau. Lttid doun^{in Vijag} 'Tetevision iP.) ttd. "or" (supra) and other^authoities'

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Section 144C^{lags dotun o detailedprocedure',Under} Sedion 144C(1),^{the Ab ls requiredto fonaarda draft of the} proposed order of^{assessmentto the assessee Assessee} '*ig frt a its acceptance or objection before tle DRP and th.e AO. I/^{assesseeintimatesits acceptanccor no} ii1.iUo""^{"are receiuedtaithin 3o dags,the AO slnll} ii"rpt"t" th.e^{assessment.where the DRP receiues ang} obieAion from^{the assessee,itshcJl issue necessary} diiections' to^{tleAO to enable him to completethe} o.rt"s-rrt afier^{consideing the doanments/material} ientioned in *ction^14aC @)(a)^{to (g) tuhich includes the} drai order.^{Before issuing the directtons,tlrc DRPmny also} make such [uiher^{enquiry bg any lncometax Authoilg'}

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Upon receipt of^{the directions} from^{DRPunder sub-} section 5, the^{AO shau, in conJomutywith the d.irecttons'} i"rpit"'rt*^{assessmenttuithinone month from the end' of} ii"'i"tn in which such^{directionis receiuedA noticeof} d.emand" und.er^{section156 mag be lssued after completion} of the assessment^{under section 144C(13)"'}

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L7. The Bombay^{High Court eLlso in somewhat similar}

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circlrmstances^{in the case of SHL (India) PrluateLimlted}

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Vs. Deputg Commissioner^{o!Income Tdx at paragraph}

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Nos.25 and^{26 heldas under:}

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"In^{our uieul, the} follouing^{principlesemergefromtheaboue} disczssion^:-

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(t) thcit the procedure^{prescnbed under Sectton144C of} the IT Act is a^{mandatory procedure and not} directory

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(it) failure^io follotu^{the procedureunder Section144C(1)} -would bL a iurisdictional error and. not merely procedural ercor or ireguLaritg.

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(ii/ Therefore, Section 2928^{of theIT Act cannot soueon} order passed in breach of^{the prouisionsof Section} 144C(1), the same betng on incurable illegotitg.

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It b important to note^{Lhat Seclion l44C(1) is onon'} obstante pg-uision, tuhich^{requires its compliance irrespectiue}

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of the other proutsions that^m@A be contained^{in the IT Act.} Th.ere is no dispute tlat Petitioner^i.s an^{eLigibLe as.sessee and} also there is no dispute as to tlrc^{applicabilitg} of^Section 144C. It is also nof in dbpute that^the final^Assessment Order h:i,s been^passed uitlaut tle^{drofiAssessrnentOrder} as contemplated. under Section 144C(1)^{of the IT Act. The} Assessing OIJicer ought to haue in the firs'l^in-stance Jonaarded^{a drofi of the proposed order of ass(,ssment[o} Petltioner, o-s thare tua.s a^proposed uariation^{prt:.ludicialto} the interest of the assessee. This^{important step has been} completely omitted bg the Respondent^{taktnga u,sA a uery} necessary ight of Petitioner to^jile objections^{to the' proposed} uariation uith the DRP and the A-ssessing^{Officeruthichin} our uiew, strikes to the root of the^{procedure contemptated} by Section 144C".

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Given the aforesaid legal position as it^{:;tands,as is} required under Section 144-C of the Act and^a-lsotaking note of the contents of the operative^part of^{the so called} assessment order, in the considered opinion^{ol this Bench} Ieads to the only conclusion of the order^{being a hnal} assessment order, more particularly, when^{ttre authorifi'} concerned has also ordered and directed^{for initiationof} penalty proceedings simultaneously along^{vvith the draft} assessment order. Hence,^{this Bench has no he sitation in} reaching to the conclusion^{that the findingsalrived at by} the Tribunal while allowing^{theappea I ofthe} respondent/ assessee was^{proper,legal and justified That} the present appeal thus being^{devoid of merits,dest:rvesto}