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TMI Blog2017 (6) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... y to law and to the facts and circumstances of the case. 2. On the facts and in the circumstances of the case and in law, the learned Commissioner of Income-tax (Appeals)-IT/TP has erred in holding that the assessment order u/s 144 r.w.s 147 of the IT Act, 1961 was barred by limitation. 3. On the facts and in the circumstances of the case and in law, the Commissioner of Income-tax (Appeals)-IT/TP has erred in not taking into account the draft order passed on 23.12.2011 as required under section 144C(1) of the Income-tax Act, 1961 even though there was variation, which was prejudicial to the interest of the assessee, to be made in the income or loss returned. 4. On the facts and in the circumstances of the case and in law, the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ured that the notice would be handed over to the concerned Director. However, the latest address and contact number of the Director of the assessee company was not given. The learned Departmental Representative for the Revenue pleaded that the notice has been served and the matter be heard. However, none appeared on behalf of the assessee nor any application was filed adjournment. 4. Briefly, in the facts of the case, the assessee had filed the return of income declaring Nil income. Thereafter, notice under section 148 of the Act was issued on 14.01.2011 and served upon the assessee on 24.01.2011. The Assessing Officer notes in the reasons recorded for reopening the assessment that the TPO vide order passed under section 92CA(3) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opening the assessment in the present case was the order passed by the TPO under section 92CA(3) of the Act, wherein he had worked out the upward adjustment of Rs. 1.46 crores to the international transactions undertaken by the assessee. The said order is dated 29.10.2010. Thereafter, the Assessing Officer records reasons for reopening the same under section 147 of the Act and issued notice under section 148 of the Act, which was served upon the assessee on 24.01.2011. The provisions of section 153(2) of the Act lays down the time limit for re-assessment and it is provided that where the notice under section 148 of the Act is served on or after 1st day of April, 2005 but before the 1st day of April, 2011, then for completing the assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 148 was served on or after the 1st day of April, 1999 but before the 1st day of April, 2000, such assessment, reassessment or recomputation may be made at any time up to the 31st day of March, 2002: Provided further that where the notice under section 148 was served on or after the 1st day of April, 2005 but before the 1st day of April, 2011, the provisions of this sub-section shall have effect as if for the words "one year", the words "nine months" had been substituted: Provided also that where the notice under section 148 was served on or after the 1st day of April, 2006 but before the 1st day of April, 2010 and during the course of the proceedings for the assessment or reassessment or recomputation of total income, a reference under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... according to the facts mentioned as above, reference to the TPO in this case, was made before the proceedings of re-assessment (TPO's Order is dated 29.10.2010 and notice u/s 148 was issued on 14.01.2011). At the time of making reference to the TPO, no assessment or re-assessment proceedings were pending. Therefore, the fourth proviso, which deals with the extension of the time limit for re-assessment because the reference was made to the TPO would not be applicable. 3.10 Therefore, this case will be governed by the second proviso, which deals with the situation in which, notice u/s 148 was served before 01.04.2011 (In this case, notice u/s 148 was issued on 14.01.2011). According to this proviso, the AO is required to complete the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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