9911796707
TMI Blog2023 (3) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment order dated 30.12.2019 which were subjected to assessee's objections before Ld. DRP and finally, a final assessment order was passed by Ld. AO which is under challenge before us. The ground nos. 1 & 2 questions the validity of assessment proceedings and the same read as under: - 1. Transfer Pricing Order passed by the Learned Transfer Pricing Officer ('Ld. TPO') is barred by limitation and the j transfer pricing adjustments sustained by the National e-Assessment Center ('Learned Assessing Officer' or 'Ld. AO') | and confirmed by the Learned Dispute Resolution Panel ('Ld. DRP') are bad in law and are liable to be quashed 1.1. The Transfer Pricing Order issued by Ld. TPO, is barred by limitation as it had been passed beyond the time limit prescribed under sub-section (3A) to section 92CA of the Act, which expired on 31 October 2019, upheld by the Hon'ble Madras High Court in the case of M/s Pfizer Healthcare India Private Limited (Writ petition no. 32699 of 2019). 1.2. The Final Assessment Order passed by the Ld. AO is also barred by limitation as it had been passed beyond the period of limitation provided under section 153(1) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same would be that the assessee would cease to be an eligible assessee u/s 144C(15)(b) and therefore, the machinery of Sec.144C would not be triggered. Ergo, the AO is not required to pass the draft assessment order; DRP would not have any jurisdiction to adjudicate the matter. Consequently, the final assessment order passed on 30.04.2021 would be barred by limitation since in terms of Sec. 153(1), the same should have been passed within a period of 21 months from the end of the relevant assessment year i.e., on or before 31.12.2018. Even considering the extended time period as envisaged u/s 153(4), the last date to make the assessment would be 31.12.2019 whereas final assessment order has been passed on 30.04.2021 which is clearly barred by statutory limitation. For the same, Ld. Sr. Counsel drew support from the decision of Hon'ble High Court of Madras in the case of M/s Roca Bathroom Products Pvt. Ltd. (445 ITR 537) and the decision of Delhi Tribunal in Super Brands Ltd. vs. ADIT (ITA No.3115/Del/2009 & ors. order dated 20.09.2022) wherein it has been held that the provisions of Sections 144C and 153 are not mutually exclusive, but are rather mutually inclusive. The time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'in conformity with'. Thus, according to the revenue, the AO hardly need apply his mind with respect to the ALP determined and the prescription of 60 days is merely for internal convenience of the different officers to facilitate step by step completion of assessment. 20. Much has been stated about the use of the words in the computation itself, such as 'may', 'shall', the absence of reference to 'month' as it may have led to an ambiguity of whether the period should be reckoned as 30 or 31 days and the absence of the phrase 'no order shall be made' as used in Section 153. This, according to the revenue, leads to the conclusion that there is nothing sacrosanct about the period of 60 days which must be construed as flexible. 21. On the question of alternate remedy, I see no reason to relegate the petitioners to the Assessing Authority for completion of draft assessment that may be challenged before the DRP. Limitation, which is the issue raised in these writ petitions, is a mixed question of law and facts, but there are no disputes on factual aspects in the present case. The writ petitions are thus, held to be maintainable. 22. Limitation has been prescribed for each stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of assessment can be passed at 12 a m on 01.01.2020, whereas, in my view, such an order would be held to be barred by limitation as proceedings for assessment should be completed before 11.59.59 of 31.12.2019. The period of 21 months therefore, expires on 31.12.2019 that must stand excluded since Section 92CA(3A) states 'before 60 days prior to the date on which the period of limitation referred to Section 153 expires'. Excluding 31.12.2019, the period of 60 days would expire on 01.11.2019 and the transfer pricing orders thus ought to have been passed on 31.10.2019 or any date prior thereto. Incidentally, the Board, in the Central Action Plan also indicates the date by which the Transfer Pricing orders are to be passed as 31.10.2019. The impugned orders are thus, held to be barred by limitation. It has been pointed out that the present assessee was also a party to this litigation. Since at that stage, the draft assessment order was under challenge by assessee before Ld. DRP, it was directed by Hon'ble Court that the petitioner would pursue the remedy opted by them. 6. The revenue's writ appeals against this decision came up for hearing before Division Bench of Hon'ble Court whic ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
