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2023 (8) TMI 628 - AT - Income TaxValidity of TP order stating that the orders are passed u/s 92CA (3) - late by 1 day therefore is not passed within the due time - HELD THAT:- Provisions of section 153 prescribes time limit for passing assessment order. It provides that no order of assessment shall be made u/s 143 or section 144 at any time after the expiry of two years from the end of the assessment year in which the income was first assessable. By virtue of the first proviso, this time limit was curtailed to 21 Months. Therefore for AY 2011-12, the time limit for passing assessment order u/s 143 (3) would be 31/12/2013. By virtue of second proviso if a reference u/s 92CA is made then this time limit is further extended to 33 months from the end of the Assessment year. Thus for AY 2011-12, it would be 33 months from 31/12/2013 i.e. 31/3/2015. TPO as per provisions of section 92CA (3A) of the Act is bound to pass the TP Order at any time before sixty days prior to the date on which the period of limitation referred to in section 153, or as the case may be, in section 153B for making the order of assessment or reassessment or recomputation or fresh assessment, as the case may be, expires. Therefore, 60 days period from 31/3/2015 expires on 29 January 2015. But the ld TPO has passed TP Assessment order u/s 92CA (3) of the Act on 30th January 2015. Thus, the order of ld TPO is passed beyond statutory time available. Whether assessee ceases to be an 'eligible assessee' within the meaning of section 144C (15) (b)? - The moment an assessee ceases to be an 'eligible assessee' in absence of valid transfer pricing order, the ld AO should not have passed the draft assessment order. Thus provision of section 144C does not apply to the assessee. Thus, the time limit for completion of the assessment reverts back to 21 Months from the end of the assessment year. Therefore, as held by the co-ordinate Bench in ATOS India Private Limited [2023 (2) TMI 1112 - ITAT MUMBAI] the final assessment order passed by AO on 26th February, 2016 is also barred by limitation. Therefore, following the decision of the co-ordinate Bench, we quash the assessment order passed for A.Y. 2011-12 by the learned Assessing Officer on 26th February, 2016 as it is barred by limitation.
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