TMI Blog2023 (8) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... ation u/s. 92CA (3). Once we have quashed the assessment order then, all the grounds raised by the Revenue becomes infructuous. Disallowance of interest of late payment of service tax u/s. 37(1) - Though this ground will become infructuous because once the assessment order itself has been quashed on the ground of limitation, then Section does not survive but in any case the interest of late payment of service tax is not penal in nature and same is compensatory. Now this issue is very well settled by the judgment in the case of Mahalaxmi Sugar Mills [ 1980 (4) TMI 1 - SUPREME COURT] and also by certain judgments of this Tribunal. Thus, on merits also, the disallowance is uncalled for. - SHRI AMIT SHUKLA, JUDICIAL MEMBER SHRI GAGAN GOYAL, ACCOUNTANT MEMBER For the Appellant : Shri Madhur Agrawal For the Respondent : Shri Rajneesh Yadav ORDER PER AMIT SHUKLA (J.M): The aforesaid cross appeals have been filed by the assessee as well as by the Revenue against final assessment order dated 30/12/2014 passed u/s. 143(3) r.w.s. 144C(13) in pursuance of directions given by the ld. DRP dated 14/11/2014 for the A.Y. 2010-11. 2. Apart from various grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal assessment order (please refer to section 153 of the ITA as in force in the year in which the final assessment order was passed by the Ld. AO) 36 months from the end of the AY in which the Income was first assessable. 2. Therefore, statutory due date as per section 153 of the ITA to pass final assessment order 31-03-2014 i.e., FY 2011-12: 12 months+ FY 2012-13: 12 months+ FY 2013-14: 12 months 3. Date of final assessment order 30-12-2014 Therefore, the final assessment order u/s 143(3) r.w.s. 144C (13)of the ITA is passed beyond the statutory due date. 4. Time limit to pass the Transfer pricing order u/s 92CA (please refer to Section92CA(3A)) as in force in year in which the Transfer pricing order was passed by Ld. TPO 60 days prior to the date on which the period of limitation u/s 153 expires 5. Statutory due date to pass Transfer pricing order u/s 92CA (3A) 29-01-2014 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itation by one day and in such scenario once the ld. TPO s order is barred by limitation, then ld. AO was required to pass final order on or before 31/03/2014 which here in this case it was passed on 31/12/2014. 8 In support of the said ground, Ld. Counsel has relied heavily upon the judgment of Hon ble Madras High Court in the case of M/s. Pfizer Healthcare India Pvt. Ltd. vs. JCIT (2021) 433 ITR 28 and the decision of the Co-ordinate Bench of Mumbai Tribunal in the case of Atos India Pvt. Ltd., in ITA No.1795/Mum/2017. The ld. Counsel submitted that the order of TPO is time barred in terms of section 92CA(3) of the Act read with Section 153) and consequently, the passing of draft assessment order and the entire proceedings initiated u/s 144C is bad in law, because in absence of valid TPO order, the assessee ceases to be an eligible assessee and therefore the provisions of section 144C are not applicable to the assessee. Therefore, the ld. AO was required to complete the assessment within the due date as prescribed u/s 153 of the Act. Since the Final assessment order has been passed beyond the time limit as prescribed u/s 153, the final assessment order is barred by limitat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... day of April, 1988, or any earlier assessment year, is filed under sub-section (4) or sub-section (5) of section 139, whichever is later.. Provided also that in case the assessment year in which the income was first assessable is the assessment year commencing on the 1st day of April, 2009 or any subsequent assessment year and during the course of the proceeding for the assessment of total income, a reference under sub-section (1) of section 92CA is made, the provisions of clause (a) shall, notwithstanding anything contained in the first proviso, have effect as if for the words two years , the words three years had been substituted. 20. The interpretation of Section 92CA (3) r.w.s. 153 has been dealt by the Hon ble Madras High Court in the case of Pfizer Healthcare India Pvt. Ltd. wherein the Hon ble High Court had made the following observations:- 22. From Section 153, the regular time for passing the assessment order ends on 31.12.2018 and with extension on the matter being referred to TPO, the time limit to pass assessment order would lapse on 31.12.2019. What is not to be forgotten, while interpreting a taxing statute, is the explicit and clear language ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch on one word and pay too little attention to other words. No provision in the statute and no word in any section can be construed in isolation. Every provision and every word must be looked at generally and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sententia legis 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 1 : 4 MIA 179] we cannot aid the legislature's defective phrasing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel for the appellants is that the usage of the word may in Section 92CA (3A) indicates that the time fixed is only directory, a guideline, not mandatory and is for the sake of internal proceedings. 32. Let us now examine the relevant procedures relating to Transfer Pricing. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atutes, Principles of Statutory Interpretation (1st Edn., Lexis Nexis 2015), which is quoted below for ready reference: The intention of the legislature thus assimilates two aspects: In one aspect it carries the concept of meaning i.e. what the words mean and in another aspect, 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 orde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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