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2017 (2) TMI 585 - AT - Income TaxValidity of order beyond time mentioned u/s.144C(13) - whether Revenue cannot rely on Sec.153 of the Act for extending period of limitation set out in Sec. 144C(13)? - Held that:- We cannot say that in the instant case the proceedings had reached the stage where Sec. 144C(13) of the Act could be applied. This is because, as mentioned by us at para 6 above, ld. DRP had never issued any direction to ld. Assessing Officer under Sub-section (5) of Sec. 144C of the Act. That directions issued by the ld. DRP were to the ld. TPO, is clear from the notings of the ld. TPO himself in his order dated 10.02.2015. Coming to the contention of the ld. Authorised Representative that ld. TPO is having all the powers of an Assessing Officer and hence directions given by DRP to TPO had to be construed as given to the ld. Assessing Officer, it is necessary to have a look at Explanation to Sec. 92CA relied on by the ld. Departmental Representative which clearly indicate that ld. TPO is not the same as Assessing Officer. No authorization from the Board has been placed on record which equates that the powers vested on TPO as similar to that of an Assessing Officer. Section 92CA of the Act clearly sets out the powers of TPO. He has to determine the Arms Length Price in relation to the international transactions. However, power of making the assessment remains with the Assessing Officer only. Considering argument of DR that by virtue of Sub-Sec. (3) of Sec. 153 of the Act, no fetters on time can be placed on an Assessing Officer for passing a giving effect order by the ld. Assessing Officer cannot be accepted, as for the purpose of a proceedings which come under the ambit Sec.144C of the Act, there can be no application of Sec.153 of the Act. In the case before us, there is no direction given by the ld. DRP to ld. Assessing Officer but the directions were only given to the ld. TPO. This has in our opinion resulted in a procedural defect and not a jurisdictional error that could invalidate the proceedings in toto. It is only a curable defect and when the curing takes place, it puts back the proceedings to the original stage. Viz to a stage when the correct directions are issued by the ld. DRP. We are therefore constrained to setaside the order of the ld.DRP and remit the case back to it for issuing proper directions in accordance with law.
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