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TMI Blog2024 (8) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act (the Impugned Order); (ii) Notice of demand dated 17.10.2023 under Section 156 of the Act (the Impugned Demand Notice); (iii) Notice for penalty dated 30.07.2023 under Section 274 read with Section 271G of the Act (the Impugned Notice); (iv) Notice for penalty dated 17.10.2023 under Section 274 read with Section 270A of the act (the Impugned Penalty Notice); (v) Draft Assessment Order dated 30.08.2023 under Section 144C (1) of the Act (the Impugned Draft Order); (vi) Order dated 29.07.2023 under section 92CA of the Act (the Impugned TPO Order). b) That this Hon'ble Court be pleased to issue a Writ of Mandamus for setting aside the Impugned Order dated 17.10.2023 and subsequent and consequential proceeding(s) thereof. c) That this Hon'ble Court be pleased to issue a Writ of prohibition restraining the respondents from giving effect to and/or proceeding with the Impugned Order, the Impugned Demand Notice, the Impugned Notice, the Impugned Penalty Notice, the Impugned Draft Order and the Impugned TPO Order." 2. Briefly, the facts are: On 05 August 2009, the petitioner was incorporated under the Companies Act, 1956. The petitioner is stated to be engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e taken into consideration. 5. On such backdrop, a draft order dated 30 August, 2023 under section 144C (1) was communicated by the Assessing Officer to the petitioner on 30 August, 2023. A Final Assessment Order under section 143 (3) read with Section 144C (3) read with Section 144B was passed on 17 October, 2023, which was accompanied by a demand notice under section 156 and a penalty notice under section 274 read with Section 270A, which were served on the petitioner. It is on such conspectus, the petitioner is before the Court assailing the final assessment order and the notices issued as noted by us hereinabove. 6. Mr. Mistry, learned senior counsel for the petitioner, in support of the reliefs as prayed for, would submit that the impugned assessment order dated 17 October, 2023 as also the consequent demand and penalty notices are illegal and void ab initio and without jurisdiction, as such proceedings are ex-facie barred by limitation in view of the express provisions of Section 153 of the Act. It is submitted that the prescribed limitation / time limit for completion of the assessment is governed by the provisions of clause (ii) of second proviso to Section 153 (1) read w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period of limitation it provides is applicable to the proceedings under Section 144C of the Act. Mr. Mistry has submitted that such decision of this Court is challenged by the Revenue before the Supreme Court, in such proceedings, the Supreme Court has ordered that the said decision may not be cited as a precedent. It is, however, submitted that the view taken by this Court in Shelf Drilling Ron Tappmeyer Limited (supra) was also the view taken by the Division Bench of Madras High Court in a prior decision in Commissioner of Income Tax & Anr. vs. Roca Bathroom Products P. Ltd. (2022) 445 ITR 537 (Mad.) as also another decision of Madras High Court in Iljin Automotive Private Ltd. & Anr. vs. Dispute Resolution Panel & Ors. Writ Petition Nos. 7644 & 7645/2020, 7214 & 7219/2021 decided on 07.11.2022. It is submitted that even the Delhi High Court in Bid Services Division Mauritius Ltd. vs. Assistant Commissioner of Income Tax & Anr. Writ Petition (c) No. 11060/2023 decided on 21.08.2023., has taken a similar view. 7. On the other hand, Mr. Venkataraman, learned ASG has made extensive submissions. His submission is that different High Courts have consistently held that Section 144C i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Venkataraman would further submit that even the decisions of the Madras High Court in Roca Bathroom Products Pvt. Ltd., Freight Systems (India) Pvt. Ltd. and Delhi High Court in Nokia India Pvt. Ltd. Writ Petition No. 1773 of 2016 (decision dated 21 September, 2017) are assailed by the Revenue before the Supreme Court, and such proceedings are pending consideration before the Supreme Court, on which notices are issued. 10. Mr. Venkataraman's submission is to the effect that in view of the specific order passed by the Supreme Court in Shelf Drilling's Ron Tappmeyer Ltd., this Court ought not to look into the decision of the Division Bench in Shelf Drilling Ron Tappmeyer Ltd. (supra), as the Supreme Court has specifically directed that the same be not treated as precedent. It is, therefore, submitted that the Court needs to independently consider the contentions as urged on behalf of the revenue on the interpretation of Section 144C in the context of applicability of Section 153, and if the Court is convinced that a different view needs to be taken the issue needs to be referred to a larger bench. 11. Mr. Venkataraman has submitted that the Income-tax Act contemplates two methods o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the Revenue. Mr. Mistry thus, submits that Revenue's contentions on there being two distinct classes of assessments is not an acceptable proposition. 13. We have heard learned counsel for the parties. We have also perused the record as also the decisions cited before us. As seen from the submissions made at the bar, the question which falls for our consideration is in regard to the applicability of the provisions of Section 153, being the limitation provision to the proceedings under section 144C of the Act, which is to the effect, whether the period of eleven months as envisaged under section 144C, should be over and above the time limit prescribed under section 153 (1) r/w. 153 (4) or whether such time period needs to be subsumed within the timelines stipulated under Section 153. 14. As noted by us hereinabove, Mr. Venkataraman has made extensive submissions that in the decision of this Court in Shelf Drilling Ron Tappmeyer Limited (supra), wherein this Court has held that the limitation envisaged under section 144C should be subsumed within the outer limit of Section 153 (1) read with Section 153(4) would not be the correct position in law. Such submission of Mr. Ven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a position to dispose of the proceedings following the decision in Shelf Drilling Rono Tappmeyer Limited (supra), and that we need to independently consider the issue of law and the facts of the case, assuming that no precedent on the issue of law rendered by the jurisdictional High Court is available. However, considering the decisions as cited before us, it clearly appears that apart from the decision of this Court in Shelf Drilling Rono Tappmeyer Ltd. (supra), the Division Bench of Madras High Court in Roca Bathroom Products Pvt. Ltd. (supra) as also the Delhi High Court in Nokia India Pvt. Ltd. (supra) and in Bid Services Division Mauritius Ltd. (supra) have considered the relevant provisions as discussed by us, to reach a conclusion that Section 144C and Section 153 are not mutually exclusive. 17. At this stage of the proceedings, what is significant, is that the revenue has assailed the said decisions of this Court, of the Madras High Court and of the Delhi High Court, which are rendered on the very same question of law which has arisen for consideration in the present proceedings, before the Supreme Court. On such proceedings, notices have been issued by the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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