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2018 (7) TMI 822 - AT - Income TaxReference matter to the TPO for determining the ALP of the international transaction u/s 153 (1) - period of limitation - Held that - Since the facts of the instant case are identical to the facts of the case decided by the Tribunal in the case of Calance Software Pvt. Ltd. (2018 (3) TMI 1310 - ITAT DELHI) and since the time limit for issue of the order by the Assessing Officer in case of the TPO reference u/s 153 (1) of the IT Act expired on 31.12.2009, therefore, we hold that impugned assessment order is bad in law and is barred by limitation. Ground raised by the assessee is accordingly allowed.
Issues Involved:
1. Validity of the reference to the Transfer Pricing Officer (TPO) by the Assessing Officer (AO). 2. Determination of Arm's Length Price (ALP) of international transactions. 3. Disallowance of depreciation on computer peripherals. 4. Admissibility of additional grounds of appeal. Detailed Analysis: 1. Validity of the Reference to the TPO by the AO: The assessee contended that the reference to the TPO by the AO was invalid as the quantum of international transactions was below the prescribed monetary limit of ?5 crores, as per CBDT Instruction No.3/2003. The Tribunal agreed with the assessee, noting that the AO should have determined the ALP himself rather than referring the matter to the TPO. The Tribunal cited the case of Calance Software Pvt Ltd vs. DCIT, where it was held that such references are not sustainable if the transaction amount is below the limit, making the assessment order time-barred. Consequently, the Tribunal declared the assessment order void-ab-initio and barred by limitation. 2. Determination of ALP of International Transactions: The AO, based on the TPO's findings, made an upward adjustment to the ALP of the international transactions. The assessee challenged this on several grounds, including the erroneous rejection of comparable companies, defective FAR analysis, and improper rejection of adjustments for underutilization of capacity and excise/custom duty. However, since the Tribunal found the reference to the TPO itself invalid, these grounds became academic and were not adjudicated. 3. Disallowance of Depreciation on Computer Peripherals: The AO restricted the depreciation on computer peripherals to 15% instead of the 60% claimed by the assessee. The Dispute Resolution Panel (DRP) deleted this disallowance. Since the Tribunal allowed the additional ground regarding the invalid reference to the TPO, the issue of depreciation disallowance was rendered academic and not adjudicated. 4. Admissibility of Additional Grounds of Appeal: The assessee raised an additional ground, arguing that the reference to the TPO was illegal based on CBDT Instruction No.3/2003 and the decision in Aztec Software and Technology Services Ltd. The Tribunal admitted this additional ground, noting that it was a legal issue with all necessary facts already on record. The Tribunal allowed this ground, leading to the conclusion that the assessment order was barred by limitation. Conclusion: The Tribunal held that the reference to the TPO was invalid due to the transaction amount being below the prescribed limit, rendering the assessment order time-barred and void-ab-initio. As a result, the other grounds of appeal became academic and were not adjudicated. Both appeals filed by the assessee were allowed, and the assessment orders were declared invalid.
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