TMI Blog2022 (6) TMI 1378X X X X Extracts X X X X X X X X Extracts X X X X ..... 57 - SUPREME COURT ] - Therefore, we see no reason to interfere with the order of the CIT(A) on this issue. It is ordered accordingly. - ITA No.2025/Bang/2017,ITA No.2096/Bang/2017 : - - - Dated:- 16-6-2022 - Shri Chandra Poojari, AM Shri George George K, JM For the Revenue : Dr.Manjunath Karkihalli, CIT-DR For the Assessee : Sri.Aliasger Rampurwala, CA ORDER Per George George K, JM : These cross appeals are directed against CIT(A) s order dated 21.08.2017. The relevant assessment year is 2011- 2012. We shall first adjudicate the assessee s appeal. ITA No.2096/Bang/2017 (Assessee s appeal) 2. In the above appeal, eleven grounds are raised. The assessee has filed additional grounds 12 to 14 vide application dated 13.06.2022. Additional ground filed vide application dated 28.08.2020 was not pressed, hence, the same is rejected. For additional grounds, 13 and 14, no specific arguments were raised, hence, the same is not adjudicated. On the contrary, the learned AR submitted that if the Tribunal gives directions to the A.O. to compute the foreign tax credit that is due to the assessee as per law (ground 10) that would suffice. The surviving ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve heard rival submissions and perused the material on record. Section 92CA(3A) of the I.T.Act provides for the time limit for passing the transfer pricing order. The sub-section (3A) to section 92CA of the I.T.Act reads as follows:- (3A) Where a reference was made under sub-section (1) before the 1st day of June, 2007 but the order under subsection (3) has not been made by the Transfer Pricing Officer before the said date, or a reference under sub-section (1) is made on or after the 1st day of June, 2007, an order under sub-section (3) may be made at any time before sixty days prior to the date on which the period of limitation referred to in section 153, or as the case may be, in section 153B for making the order of assessment or reassessment or recomputation or fresh assessment, as the case may be, expires. 8.1 From the perusal of the above section 92CA(3A) of the I.T.Act, it can be seen that the TPO can pass an order at any time before 60 days prior to the due date u/s 153 of the I.T.Act for passing the assessment order. Section 153 of the I.T.Act (as applicable to A.Y.2012) prescribes a time limit of 36 (Thirty Six) months from the end of the assessment year for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). The date must not be reckoned with respect to sun rise but with respect to the time of 24 hours in a day. The moment last minute of the day expires, the day ends and the next moment which is the first moment of the next day becomes irrelevant for the purpose of reckoning the period of limitation. 15. As per the details given In the website of National Institute of Standards and Technology of the United States Government, the Times and Frequency Division, while dealing with FAQ's on times of day suggests the following: Is midnight the end of a day or the beginning of a day? When someone refers to midnight tonight or midnight last night the reference of time is obvious. However, if a date/time is referred to as flat midnight on Friday, October 20th the intention could be either midnight the beginning of the day or midnight at the end of the day. To avoid ambiguity, specification of an event as occurring on a particular day at 11:59 p.m. or 12:01 a.m. is a good idea, especially legal documents such as contracts and insurance policies. Another option would be to use 24-hour clock, using the designation of 0000 to refer to 'midnight at the begi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Arbitration Tribunal of all arbitration proceedings of the kind specified in subsection (1) which were pending before any arbitrator on the date of Commencement of the said Act and in which no award had been made by the said date . Obviously, the expression by the said date here means by the date of commencement of the Arbitration (Orissa Amendment) Act, 1982. The first expression clearly means an arbitration proceeding pending before any arbitrator on the date of commencement of the Act. namely. 26-3-1983. The meaning of the second expression should he consistent with. that of the first expression since the two could not be used to create a conflict. The purpose of sub-section (7) is to divest the arbitrator of authority to make the award in 011 such arbitration proceedings which were pending before the arbitrator on the date of commencement of / the said Act and to provide for their automatic transfer to the Arbitration Tribunal. The General Clauses Act, 1897 provides that unless the contrary is expressed. (In Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. There being no contrary indication in the Act, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid date , Meaning of the word 'by' in some of the dictionaries is: Black's Law Dictionary (Sixth Edn.) Before a certain time; ... not later than a certain time; on or before a certain time; .... The New Shorter Oxford English Dictionary ... On or before, not later than. ... 9.No doubt the word 'by' means before a certain time as well as on or before a certain time . The question is: whether, the word 'by' in the expression by the said date would mean in other words 'before' or 'on' 26-3- 1983 in the present context? We have already indicated the meaning of the first expression pending before any arbitrator on the date of commencement to mean clearly and unambiguously pending up to the midnight between 25-3-1983 and 26-3-1983, i.e., before commencement of the date 26-3-1983 or at the time of expiry of the preceding day i.e. 25-3-1983. The other expression must, therefore. be construed in this context and since the word 'by' means 'before' also, in this context it must be held to mean 'before' and not 'on' the date of commencement of the Act. So construed, the second exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r that when there is repugnancy or conflict as to the subject or context between the General Clauses Act and a statutory provision which falls for interpretation, the Court must necessarily refer to the provisions of the statute. 24. The finding so rendered by the Constitutional Bench of the Hon'ble Supreme Court can be related to Article 367 (l) of the Constitution of India, which reads as follows: 367. Interpretation (I) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India 25. The above Article commences with the words, unless the context otherwise requires . Therefore, the interpretation sought to be projected by the department cannot be accepted as the General Clauses Act cannot override any interpretation propounded by the parliament/Legislature in the clear, distinct and express language with an intention to convey a certainty as to how time is to be calculated. The ratio laid down by the Constitutio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sententialegis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to take upon itself the task of amending or alternating (sic altering) the statutory provisions. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so, what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided. As stated by the Privy Council in Crawford v. Spooner [(1846) 6 Moore PC I : -I MIA I79J we cannot aid the legislature's defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there . In case of an ordinary word there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary for deciding the particular cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After an international transaction is noticed subject to satisfaction of section 92B, a reference is made to the TPO under sub-Section (1) of Section 92CA of the Act. The TPO after considering the documents submitted by the assessee is to pass an order under Section 92CA (3) of the Act. As per Section 92CA (3A), the order has to be passed before the expiry of 60 days prior to the date on which the period of limitation under Section 153 expires. As per 92CA(4), the assessing officer has to pass an order in conformity with the order of the TPO. After receipt of the order from the TPO determining ALP, the assessing officer is to forward a draft assessment order to the assessee, who has an option either to file his acceptance of the variation of the assessment or file his objection to any such variation with the Dispute Resolution Panel and also the Assessing Officer. Sub-Section (5) of Section 144C of the Act provides that if any objections are raised by the assessee before the Dispute Resolution Panel, the Panel is empowered to issue such direction as it thinks fit for the guidance of the Assessing Officer after considering various details provided in Clauses (A) to (G) thereof. Sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect, it conveys the concept of purpose and object or the reason and spirit pervading through the statute. The process of construction, therefore, combines both literal and purposive approaches. In other words the legislative intention i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. This formulation later received the approval of the Supreme Court and was called the cardinal principle of construction. 38. In case of assessments involving transfer pricing, fixing of time limits at various stages sets forth that the object of the provisions is to facilitate faster assessment involving such determination. In the present case, as rightly held by the learned Judge in paragraphs 22 to 29 of the order dated 07.09.2020, the order of the TPO or the failure to pass an order before 60 days will have an impact in the order to be passed by the Assessing Officer, for which an outer time limit has been prescribed under Sections 144C and 153 and is hence mandatory. What is also not to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 E A date prior to the date on which period of limitation expires (stated in Sr.No.C) 30.12.2019 30.03.2015 F Sixty day period expires on (See Note 1) 01.11.2019 30.01.2015 G Transfer Pricing Officer s order to be passed any time on / before this date 31.10.2019 29.01.2015 H Date on which Transfer Pricing Officer s order is passed. 01.11.2019 30.01.2015 Note-1: Calculation of break-up of sixty days December:30 days (excluding 31.12.2019) November: 30 days March: 30 days (excluding 31.03.2015) February:28 days January: 2 days (being 31.01.2015 and 30.01.2015) 8.3 Similar view has been taken by the Tribunal in the following cases:- (i) DCIT v. Tata Power Solar Systems Ltd (supra), (ii) M/s.Swiss Re Global Business Solutions India Pvt. Ltd. (supra) (iii) ECL Finance Ltd. (supra). 8.4 Since the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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