TMI Blog2019 (5) TMI 1505X X X X Extracts X X X X X X X X Extracts X X X X ..... al assessment order has been passed after the end of one month from the date of receipt of the directions of the DRP by the Assessing Officer. Therefore, order passed by the Assessing Officer is void ab initio and liable to be quashed as the final assessment order is time barred. Since the assessment records were not produced being not readily available, therefore, we give liberty to the revenue to file miscellaneous application for recalling of this order as per law in case the revenue is able to show that the dates given by the assessee on the basis of certified copies obtained from the department are contrary to facts on record. - Decided in favour of assessee. - ITA No.4387/Del/2010 - - - Dated:- 24-5-2019 - Sh. R.K Panda, Accountant Member And Sh. Sudhanshu Srivastava, Judicial Member For the Appellant : Sh. Himanshu Sinha, Advocate For the Respondent : Sh.Sanjay I. Bara, CIT DR ORDER PER R.K. PANDA, AM: 1. This appeal filed by the assessee is directed against the order dated 27.08.2010 passed u/s 143 (3) / 144 C of the IT Act 1961 for the A. Y. 2006-07. 2. This ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms length price aggregating to ₹ 2,28,67,960/-. 4A. That in any case and in any view of the matter, action of Ld. ITO in making the aggregate addition of ₹ 2,28,67,960/- is contrary to law and facts and the same has been made in violation of principles of natural justice and without giving adequate opportunity of hearing 5. That the transfer pricing order dated 29-07-2009 passed u/s 92CA(3) by the Addl. C1T, TPO-I(I), New' Delhi is bad in law. contrary to facts, illegal and is not sustainable on various legal and factual grounds such as:- (a) Ld. TPO has legally and factually erred in computing the arms length price by applying the incorrect and arbitrary selection of comparables that too in the incorrect manner and further erred in law and facts in denying the benefit of (+,-) 5% as prescribed in the proviso to section 92CA(3) of the Income Tax Act, 1961. (b) Ld. TPO has erred in law and on facts by incorrectly computing the NPM of the applicant. (c) Ld. TPO has erred in law and on facts by deviating from the comparables chosen by his predecessors in the previous years and not giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves the leave to add, modify, amend or delete any of the grounds of appeal at the time of hearing and all the above grounds are without prejudice to each other. 5. The assessee has also raised the following additional ground under Rule 11 of the Income Tax ( Appellate Tribunal) Rules, 1963 :- (1) That on the facts and circumstances of the case and in law, the order passed by the Ld. Assessing Officer ( Ld. AO ) dated August 27, 2010 under section 143 93) of the Income Tax Act, 1961 is bad in law and liable to be quashed since it has been passed after the period of limitation prescribed in the Act. 6. Relying on various decisions the Ld. Counsel for the assessee submitted that the above ground is purely legal in nature and does not require any fresh verification of facts, therefore, the same should be admitted for adjudication. 7. After hearing both the sides and considering the fact that the additional ground raised by the assessee is purely a legal one and no fresh facts are required to be investigated, the additional ground raised by the assessee is admitted for adjudication. 8. The Ld. Counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directions of the Ld. DRP on June 17, 2010. The last date permissible under the Act to pass the final assessment order was accordingly July 30, 2010. However, the final assessment order was passed on August 27, 2010, which is beyond the limitation period stipulated under the Act. Thus, the order of the AO is voidab- initio, and liable to be quashed as the final assessment order is time barred. 11. We have heard the Ld. Counsel for the assessee and the DR extensively. It was seen from the order sheet entries that the DR was directed a number of times to produce the assessment record for verification of the authenticity of the chronology of events filed by the ld. Counsel for the assessee. The Ld. Counsel for the assessee submitted that he has inspected the assessment records and the orders are certified by the Assessing Officer which are filed alongwith the additional ground of appeal. 12. On being asked by the bench to the Ld. CIT(DR) as to what has happened to the direction of the bench regarding production of the assessment records, he filed the following written submission :- In compliance to the directions of the Hon'ble 1-1 Be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing officer intimated that the relevant assessment folder could not be delivered either by the then assessing officer or by the record keeping agency . Record could not be traced with the record keeping agency. Also letter has been written to the concerned charge from where the case had been transferred u/s 127 of the I.T.Act. The copies of all the above mentioned letters have been enclosed herewith. 13. We have perused the record and heard both the sides on this issue. It is an admitted fact that the DRP passed the directions u/s. 144 C of the IT Act on 03.06.2010 which is not in dispute. We find from annexure-6 filed by the Ld. Counsel for the assessee duly certified by Shri Rakesh Kumar, Addl. CIT shows that the directions issued by the DRP on 03.06.2010 was received by the Assessing Officer on 17.06.2010. We find the final assessment order u/s. 143 (3) was passed on 27.08.2010. 14. The provisions of section 144 C (13) reads as under :- (13) Upon receipt of the directions issued under sub section (5), Assesesing Officer shall, in conformity with the directions, complete, notwithstanding anything to the contrary co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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