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2022 (7) TMI 542 - AT - Income TaxValidity of the orders passed by the first appellant u/s 92CA (3) on the ground of limitation as contemplated u/s 153 of the Act - Period of limitation applicable to TPO u/s 92CA(3A) and incidentally u/s 153 - how the period of 60 days prior to the date of transfer pricing order i.e. 01.11.2019 is to be computed? - HELD THAT:- Undisputedly, sub-section (3A) to section 92CA has been inserted w.e.f. 01.06.2007 providing time limit for the Transfer Pricing Officer to pass the order i.e. within a period of 60 days prior to the date of completion of assessment as per section 153 of the Act. So, under section 92CA (3A) read with section 153, Ld. TPO was required to pass the order within the period of 60 days prior to the date on which the period of limitation referred to in section 153 expires i.e. 21 months. Undisputedly, the TP order was passed by the Ld. TPO on 01.11.2018 whereas the Ld. TPO was required to pass the order within 60 days prior to the date on which the period of limitation referred to in section 153 of the Act expires i.e. 31.10.2018. Hon'ble Madras High Court in case of M/s. Pfizer Healthcare India Pvt. Ltd. [2022 (4) TMI 808 - MADRAS HIGH COURT] while dealing with the issue held that for computing the period of 60 days, the last date as per section 153 should be excluded. Identical issue has been decided by the co-ordinate Bench of the Tribunal in case of ECL Finance Ltd. [2021 (9) TMI 1399 - ITAT MUMBAI] in favour of the assessee by following M/s. Pfizer Healthcare India Pvt. Ltd. (supra) Thus we are of the considered view that as per limitation prescribed under section 153 of the Act that assessment order was required to be passed within a period of 21 months from the end of assessment year i.e. A.Y. 2015-16 i.e. 31.03.2016, meaning thereby the assessment order under section 153(1) was to be completed within 21 months from the end of assessment year i.e. on 31.12.2017 with further extension of 12 months in case of transfer pricing reference as per section 153(4) of the Act was made which expires on 31.12.2018. So the limitation for passing the order under section 92CA(3) is 60 days prior to the date prescribed under section 153 of the Act. In the instant case due date for passing the order under section 92CA(3) of the Act is 31.10.2018 whereas the TP order in this case is passed on 01.11.2018 which is beyond the period of limitation because the same was required to be passed 60 days before the date of which limitation expires under section 153 of the Act i.e. o. 31.10.2018, hence barred by limitation. Disallowance on account of late deposit of employees’ contribution on account of PF & ESIC on the ground that the same were not deposited within the due date prescribed under the Act - Scope of amendment - HELD THAT:- As we are of the considered view that since the amended provisions contained under section 43B read with section 36(1)(va) of the Act are not applicable for the year under consideration i.e. A.Y. 2015-16 as the amendment will be effective from A.Y. 2021-22 and the AO/ Ld. CIT(A) have erred in disallowing the same. Consequently, impugned order passed by the Ld. CIT(A) is set aside and as such ground determined in favour of the assessee.
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