TMI Blog2016 (9) TMI 601X X X X Extracts X X X X X X X X Extracts X X X X ..... pite of the fact that the period stipulated in sub-section (12) would have expired by 31-5-2015. In view of the above, the writ petition is allowed, the order of the Dispute Resolution Panel, Bengaluru, dated 22-6-2015 is set aside and the DRP, Bengaluru is directed to take up Form 35A filed by the petitioner along with the annexures and the evidence for a consideration on merits. The DRP shall give opportunity of hearing to both parties, follow the procedure prescribed in Section 144C and issue appropriate directions under sub-section (5), within a period of three months from the date of receipt of a copy of this order. As a consequence of our setting aside the DRPs order dated 22-6-2015, the final assessment order passed by the Assessing Officer on 28-8-2015 is set aside. The Assessing Officer shall pass a final assessment order, after and on the basis of the directions issued by the DRP, as per our directions. The miscellaneous petitions, if any, pending in this writ petition shall stand closed. There will be no order as to costs. - Writ Petition No.33342 of 2015 - - - Dated:- 31-8-2016 - SRI V.RAMASUBRAMANIAN AND SMT ANIS, JJ. For The Petitioner: Mr. Deepak Chopra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not served on them, for a full period of about five months. It is claimed by the petitioner that the draft assessment order was served by hand on the petitioner only on 22-8-2014. 10. Within 30 days of receipt of the draft assessment order, the petitioner filed their objections before the Disputes Resolution Panel, at Hyderabad on 18-9-2014. This was in terms of Section 144-C (2) (b). 11. When the objections of the petitioner were pending before the Disputes Resolution Panel, at Hyderabad, the Central Board of Direct Taxes issued instructions dated 01-01-2015, reconstituting the jurisdiction of the Disputes Resolution Panel. As per these instructions, the Disputes Resolution Panel, Bengaluru assumed jurisdiction over the States of Andhra Pradesh and Telangana. Therefore the objections raised by the petitioner were transferred to the Disputes Resolution Panel, Bengaluru. 12. The Disputes Resolution Panel, Bengaluru, issued a notice of hearing and the petitioner participated in the hearing on 18-6-2015. The petitioner also made written submissions on 22-6-2015. 13. However, the Disputes Resolution Panel, Bengaluru, passed an order dated 22-6-2015 holding that the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nything 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 acceptance of the variations to the Assessing Officer; or (b) file his objections, if any, to such variation with, (i) the Dispute Resolution Panel; and (ii) the Assessing Officer. (3) The Assessing Officer shall complete the assessment on the basis of the draft order, if (a) the assessee intimates to the Assessing Officer the acceptance of the variation; or (b) no objections are received within the period specified in sub-section (2). (4) The Assessing Officer shall, notwithstanding anything contained in section 153 or section 153B, pass the assessment order under sub-section (3) within one month from the end of the month in which, (a) the acceptance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the end of the month in which the draft order is forwarded to the eligible assessee. (13) Upon receipt of the directions issued under sub-section (5), the Assessing Officer shall, in conformity with the directions, complete, notwithstanding anything to the contrary contained in section 153 or section 153B, the assessment without providing any further opportunity of being heard to the assessee, within one month from the end of the month in which such direction is received. (14) The Board may make rules for the purposes of the efficient functioning of the Dispute Resolution Panel and expeditious disposal of the objections filed under sub- section (2) by the eligible assessee. 48b[(14A)The provisions of this section shall not apply to any assessment or reassessment order passed by the Assessing Officer with the prior approval of the 49[Principal Commissioner or] Commissioner as provided in sub-section (12)of section 144BA.] (15) For the purposes of this section, (a) Dispute Resolution Panel means a collegium comprising of three 49[Principal Commissioners or] Commissioners of Income-tax constituted by the Board for this purpose; (b) eligible assessee means, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as follows: (1) The Dispute Resolution Mechanism presently in place, is time consuming and finality in high demand cases is attained after long drawn litigation to the Supreme Court. Therefore in order to address the concern of the multi- national companies and to provide mechanism for speedy disposal of their cases, this new provision was inserted to facilitate expeditious resolution of disputes. (2) The Dispute Resolution Panel is vested with the same powers as are vested in a Court under the CPC. This was done by amending Section 131(1). (3) An order passed under Section 143(3) or Section 147 in pursuance of the directions of the DRP, is not made appealable under Section 246A(1) to the Commissioner or under Section 253(1) to the Appellate Tribunal. It means a finality was sought to be attached to the directions issued by the Dispute Resolution Panel. (4) Since the Dispute Resolution Panel is provided as an alternative mechanism for the resolution of disputes, the choice is upon the assessee whether to file an objection against the draft assessment order before the DRP or to pursue the normal channel of filing of appeal against the assessment order before the Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee or the Assessing Officer, to rectify any mistake or error found in the directions issued under sub-section (5). 27. Another important aspect of the Rules is that under Rule 14 of these Rules, an appeal against the assessment order passed in pursuance of the directions issued by the Panel under sub-section (5), should be filed before the Appellate Tribunal in Form No.36B. Therefore para 45.4 of Circular No.5/2010, has to be understood to convey a limited meaning that an assessee is not entitled to file an appeal against the draft assessment order. But once a final assessment order is made as per the directions issued by DRP, the same can be the subject matter of an appeal before the Tribunal. Fact Situation on Hand: 28. Having seen the history and object of Section 144C and the manner in which the Department had understood the same, let us now come to the facts of the case on hand. 29. Admittedly the draft assessment order was passed on 26-3-2014. According to the petitioner, it was received by them only on 22-8-2014. But according to para 3 of the proceedings dated 22-6-2015, they did not find any credible evidence placed on record as to the date of service of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditional Counter Affidavit filed by the Joint Commissioner of Income Tax, she has indicated that the office copy of the forwarding letter dated 26-3-2014 contains an endorsement of the Notice Server to the effect that the door of the petitioner-companys office was locked. Therefore the Assessing Officer seeks to contend that the service of the draft assessment order should be deemed to be complete. 35. But we fail to understand as to why the draft assessment order was sought to be sent through a Notice Server, rather than by post. Interestingly the endorsement of the Notice Server, by name Venkataiah does not even contain a date. Even the Tear off acknowledgment slip that contains the endorsement of the Notice Server on the reverse, does not bear a date. On the contrary, the Tear off acknowledgment slip relating to the copy of the draft assessment order actually served on the writ petitioner, contains the date 22-8-2014. Therefore the claim made in the Additional Counter Affidavit by the Assessing Officer that the draft assessment order was sent on 26-3-2014, is completely contrary to truth. 36. Moreover the letter dated 15-4-2016 sent by the Tax Recovery Officer (Former Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be 22-8-2014. Hence, the period stipulated under sub-section (12) would expire by 31-5-2015. But the DRP passed an order on 22-6-2015 holding that it had lost jurisdiction to pass an order on 31-12-2014 itself. Even though the date mentioned is not correct, the fact remains that the DRP could not have issued any direction after 31-5-2015, even on undisputed facts. 41. The question that then arises is as to whether this Court can now issue a direction to the DRP to consider the matter on merits and pass an order. 42. While construing the provisions relating to limitation, the Supreme Court has made it clear that if the Statute has stipulated even the upper time limit up to which a delay in filing an appeal could be condoned by an Appellate Authority, the Courts cannot direct the Appellate Authorities to consider the applications for condonation of the delay of a period exceeding the upper limit. It has also been held that even the Court cannot condone such a delay. Therefore a doubt arises as to whether the prescription contained in sub- section (12) is mandatory that goes to the root of the jurisdiction of the DRP to pass an order. If what is prescribed by sub-section (12) is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
