2019 (5) TMI 1505 - AT - Income Tax

Scrutiny Assessment u/s 143(3) after direction of DRP u/s. 144C - TP Adjustment - time barred assessment - final assessment order has been passed after the end of one month from the date of receipt of the directions of the DRP - HELD THAT - Provisions of section 144C(13) of the IT Act 1961 provides that the Assessing Officer is required to pass the final assessment order within 30 days from the end of the month in which the directions passed by the DRP is received by the A.O. However, in the present case, the order has been passed after the end of one month from the date of receipt of directions of the Ld. DRP by the A.O., he submitted that the A.O. received the directions of the Ld. DRP on June 17, 2010. The last date permissible under the Act to pass the final assessment order was accordingly July 30, 2010. However, the final assessment order was passed on August 27, 2010, which is beyond the limitation period stipulated under the Act. Thus, the order of the AO is voidab- initio, and liable to be quashed as the final assessment order is time barred. The final assessment order has been passed after the end of one month from the date of receipt of the directions of the DRP by the Assessing Officer. Therefore, order passed by the Assessing Officer is void ab initio and liable to be quashed as the final assessment order is time barred. Since the assessment records were not produced being not readily available, therefore, we give liberty to the revenue to file miscellaneous application for recalling of this order as per law in case the revenue is able to show that the dates given by the assessee on the basis of certified copies obtained from the department are contrary to facts on record. - Decided in favour of assessee.

Issues Involved:
1. Legality of the final assessment order dated 27.08.2010.
2. Adjustment of ?2,28,67,960/- to the arm's length price of international transactions.
3. Additions of ?2,07,648/- on account of interest income and ?3,120/- on account of late deposit of PF.
4. Alleged errors in the computation of the Net Profit Margin (NPM) and selection of comparables by the TPO.
5. Adherence to the principles of consistency by the TPO.
6. Consideration of authenticated data relevant to the financial year 2005-06.
7. Validity of the draft assessment order dated 27-11-2009 and the order passed by the DRP dated 03-06-2010.

Detailed Analysis:

1. Legality of the Final Assessment Order:
The primary issue was whether the final assessment order dated 27.08.2010 was passed within the statutory time limit. The Tribunal noted that the directions from the Dispute Resolution Panel (DRP) were received by the Assessing Officer (AO) on 17.06.2010, and as per Section 144C(13) of the Income Tax Act, 1961, the AO was required to pass the final assessment order within one month from the end of June 2010, i.e., by 31.07.2010. However, the final assessment order was passed on 27.08.2010, which was beyond the permissible period. Consequently, the Tribunal held that the final assessment order was void ab initio and liable to be quashed as it was time-barred.

2. Adjustment to the Arm's Length Price:
The Tribunal addressed the assessee's contention regarding the adjustment of ?2,28,67,960/- made by the Transfer Pricing Officer (TPO) to the arm's length price of international transactions. The assessee argued that the TPO had erred in the selection of comparables and the computation of the Net Profit Margin (NPM). However, since the appeal was primarily decided on the basis of the additional ground related to the legality of the final assessment order, the Tribunal did not adjudicate on this issue.

3. Additions on Account of Interest Income and Late Deposit of PF:
The assessee contested the additions of ?2,07,648/- on account of interest income and ?3,120/- on account of the late deposit of Provident Fund (PF). These grounds were not argued during the hearing, and thus, the Tribunal did not adjudicate on them, deeming them academic in nature due to the quashing of the final assessment order.

4. Errors in Computation of NPM and Selection of Comparables:
The assessee claimed that the TPO had made errors in computing the NPM and in the selection of comparables. Specifically, the TPO was alleged to have deviated from the comparables chosen in previous years without providing reasons, thereby violating the principles of consistency. However, these grounds were not addressed in the Tribunal's final decision as the appeal was allowed based on the additional ground.

5. Principles of Consistency:
The assessee argued that the TPO had deviated from the comparables used in previous years without justification, which was contrary to the principles of consistency. This issue was not adjudicated due to the primary decision on the legality of the final assessment order.

6. Consideration of Authenticated Data:
The assessee contended that the TPO did not consider authenticated data relevant to the financial year 2005-06 obtained from the Registrar of Companies' website. This ground was also not adjudicated as the appeal was allowed on the basis of the additional ground.

7. Validity of Draft Assessment Order and DRP Order:
The assessee challenged the validity of the draft assessment order dated 27-11-2009 and the DRP's order dated 03-06-2010. These grounds were not adjudicated due to the decision on the additional ground regarding the time-barred final assessment order.

Conclusion:
The Tribunal allowed the appeal filed by the assessee, quashing the final assessment order dated 27.08.2010 as it was passed beyond the statutory time limit. The Tribunal provided liberty to the revenue to file a miscellaneous application for recalling the order if it could show that the dates provided by the assessee were contrary to the facts on record. Other grounds raised by the assessee were not adjudicated as they were deemed academic in nature following the quashing of the final assessment order.

← Previous Next →