TMI Blog2024 (5) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s. 144C of the Act holding the assessee to be not an eligible assessee as per section 144C(15)(b)(i) of the Act. On the above observation, where this issue has been dealt with extensively by the Hon'ble High Court, we are inclined to hold the ld. TPO's order dated 01.11.2019, draft assessment order and the final assessment order dated 27.03.2021 is barred by limitation as per the provision of section 92CA(3) and, hence, the subsequent draft assessment order and the final assessment order is, therefore, liable to be quashed on this ground. Hence, the additional ground raised by the assessee are hereby allowed. - Ms. Kavitha Rajagopal, JM And Shri Gagan Goyal, AM For the Assessee : Shri Jeet Kamdar For the Respondent : Shri Asif Karmali ORDER PER KAVITHA RAJAGOPAL, J M: The captioned appeal has been filed by the assessee, challenging the assessment order dated 27.03.2021 passed in pursuance of the direction of Hon ble Dispute Resolution Panel ('Hon ble DRP' for short) on various corporate grounds and the transfer pricing grounds. 2. The assessee has also raised additional grounds, challenging the validity of the draft assessment order and the final assessment ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intimated to the ld. A.O. by the ld. TPO vide letter dated 21.12.2020 for giving effect as per the section 144C(13) of the Act. The ld. A.O. then passed the final assessment order dated 27.03.2021 determining the total income at Rs. 196,69,70,880/- after making addition on transfer pricing adjustment and other addition/disallowances. 5. Aggrieved, the assessee is in appeal before us. 6. It is observed that the assessee has raised various grounds on corporate tax grounds along with transfer pricing grounds and it is pertinent that the assessee has also by way of additional ground nos. 5, 6 7 raised legal grounds which is now taken up for consideration by us before getting into the merits of the case. As the legal ground raised by the assessee challenging the validity of the assessment order goes to the very root of the case, we deem it fit to admit the said ground after hearing the rival submissions and convincing ourself on the fact that the said grounds do not require any further verification and by also relying on the decision of Hon'ble Apex Court in the case of National Thermal Power Co. Ltd. vs. CIT [1998] 229 ITR 383 (SC). The additional ground nos. 5 to 7 are hereby admi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on/or before 31.10.2019 8 Transfer pricing order u/s. 92CA(3) actually passed on 01.11.2019 9 Draft Assessment order passed on 26.12.2019 10 DRP directions issued on 03.12.2020 11 Final assessment order passed on 27.03.2021 10. On the above factual matrix, it is evident that upon reference made by the ld. A.O. u/s. 92CA(1) of the Act for determination of ALP pertaining to the international transactions, notice u/s. 92CA(2) of the Act was issued by the ld. TPO on 19.11.2018 seeking for details and documents for the determination of the ALP. In response to the said notice, the assessee has made submissions on various dates and the same was duly considered and the impugned order dated 01.11.2019 was passed by the ld. TPO u/s. 92CA(3) of the Act which the assessee claims it to be time barred or barred by limitation. It is trite to refer the said provision hereunder for ease of ready reference: 92CA. [Reference to Transfer Pricing Officer. [Inserted by Act 20 of 2002, Section 42 (w.e.f. 1.6.2002).] (3) On the date specified in the notice under sub-section (2), or as soon thereafter as may be, after hearing such evidence as the assessee may produce, including any information or document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of an order of assessment relating to the assessment year commencing on the (i)1st day of April, 2019, the provisions of this sub-section shall have effect, as if for the words twenty-one months , the words twelve months had been substituted; (ii)1st day of April, 2020, the provisions of this sub-section shall have effect, as if for the words twenty-one months , the words eighteen months had been substituted:] [Provided also that in respect of an order of assessment relating to the assessment year commencing on or after the 1st day of April, 2021, the provisions of this sub-section shall have effect, as if for the words twenty-one months , the words nine months had been substituted.] [(1A) Notwithstanding anything contained in sub-section (1), where a return under sub-section (8A) of section 139 is furnished, an order of assessment under section 143 or section 144 may be made at any time before the expiry of nine months from the end of the financial year in which such return was furnished.] (2) .. (3) Notwithstanding anything contained in sub-sections (1) and (2), an order of fresh assessment [or fresh order under section 92CA, as the case may be,] in pursuance of an orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Hon ble Madras High Court in the case of Pfizer Healthcare India (P.) Ltd. (supra) which judgment was not before the Hon ble DRP to consider the ratio of the Judgment and the complete facts and reasoning placed before it and, hence, the Hon ble DRP rejected the objection raised by the assessee. Even before us, the assessee has relied on the said decision of the Hon'ble High Court of Madras which has held that the time period prescribed under the said provision is mandatory and not discretionary though the word used in the statute is may . The assessee has also placed reliance on the decision of the Hon ble Madras High Court in the case of Saint Gobain India (P) Ltd. (supra) which has again reiterated that on identical facts, the ld. TPO should have passed the order on or before 31.10.2019 and any order passed beyond this would be barred by limitation, holding the ld.TPO's order to be nonest in the eyes of law, consequently the draft assessment order is also held to be invalid. In the case of an invalid transfer pricing order and the draft assessment order, the ld. A.O. has no jurisdiction to assess u/s. 144C of the Act holding the assessee to be not an eligible a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
