JUDGMENT :

K.R.Shriram, J.

1. Writ Petition No.1784 of 2022 and Writ Petition No.1791 of 2022 pertain to Assessment Years 2010-11 and 2009-10, respectively. The facts are identical and therefore, we decided to dispose both the matters together by this common order. With the consent of the Parties, the Petitions are taken up for hearing at this stage itself. Rule.

Rule made returnable forthwith.

2. Petitioner filed its return of income for the respective years and the return of income was processed under Section 143(1) of the Income-tax Act, 1961 ("Act"). Subsequently, the case was selected for scrutiny and statutory notices were issued in both. As there were international transactions, a reference was made by the Assessing Officer ("AO") to the Transfer Pricing Officer ("TPO") under Subsection (2) of Section 92CA of the Act. The TPO passed an order under Section 92CA(3) of the Act making upward adjustment. On the basis of the said order of the TPO, the AO passed draft assessment order. The draft assessment order which contained additions was objected to by Petitioner before the Dispute Resolution Panel ("DRP") under Sub-section 5 of Section 144C of the Act. The DRP rejected the contentions of Petitioner and upheld the additions made. Consequently, a final assessment order came to be passed under Section 143(3) read with Section 144C(13) of the Act. The assessment order was challenged by Petitioner before the Income Tax Appellate Tribunal ("ITAT"). The ITAT vide its common order dated 1st May 2019 disposed Petitioner's appeals by setting aside the transfer pricing adjustments made and remanded the matter to the AO/TPO for de-novo consideration. The AO/TPO was also directed to consider Petitioner's additional submissions. Accordingly, the matter was referred by the AO to the TPO under Section 92CA(2) of the Act. The TPO passed an order under Section 92CA(3) of the Act wherein the TPO made certain adjustments to the arms length price. This adjustment was a variation prejudicial to the interest of Petitioner. The AO, on receipt of the order from the TPO, proceeded to issue a final assessment order under Section 143(3) read with Section 92CA and Section 254 of the Act. This order contained additions proposed in the TPO's order but was passed without passing a draft assessment order under Section 144C(1) of the Act. Petitioner has impugned this assessment order in these Petitions.

3. It is Petitioner's case that Section 144C(1) mandates that the AO shall notwithstanding anything contained to the contrary in the Act, in the first instance, forward a draft of the proposed order of assessment called a draft assessment order to the eligible assessee if he proposes to make any variation which is prejudicial to the interest of such assessee. It is not disputed that Petitioner was an eligible assessee.

4. Mr. Kalra submitted that failure to pass this draft assessment order would render the assessment order itself as null and void. He relied upon two judgments of this Court one in Principal Commissioner of Income-tax v. Andrew Telecommunications (P) Ltd., [2018] 96 taxmann.com 613 (Bombay). and another ExxonMobil Company Private Limited v. The Deputy Commissioner of Income Tax 6(1)(1), Mumbai & Anr., Writ Petition No.451 of 2022 (Bombay) dated 18.4.2022 (Unreported).

5. We are in agreement with Mr. Kalra.

6. Section 144C of the Act reads as under:

"144C. Reference to dispute resolution panel.—(1) The 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 October, 2009, any variation in the income or loss returned which is prejudicial to the interest of such assessee.

(2) On receipt of the draft order, the eligible assessee shall, within thirty days of the receipt by him of the draft order,—

(a) file his acceptan