2022 (3) TMI 347 - HC - Income Tax

Failure to take any action by the department after the Tribunal set aside the order of the DRP and also the assessment order The matter was restored to the file of the Assessing Officer with a direction to pass a fresh assessment order in accordance with law - Validity of order of TPO passed u/s 143(3) read with Section 92CA read with Section 144C(13) - Time limit for completion of assessments and reassessments - submission of the revenue is that Section 144C is a complete code by itself, not governed by the time lines set out in Section 153 - Tribunal set aside the order of the DRP and also the assessment order and matter was restored to the file of the Assessing Officer with a direction to pass a fresh assessment order in accordance with law after receiving fresh appropriate directions from the DRP - HELD THAT - The issue raised by the writ applicant in the present writ application appears to be prima facie covered by a direct decision of the Madras High Court in the case of Roca Bathroom Products (P.) Ltd. 2021 (4) TMI 355 - MADRAS HIGH COURT wherein the case of the assessee was that the proceedings before the DRP are definitely circumscribed by the limits of time imposed by Section 153 of the Act whereas the revenue took the stance that the proceedings before the DRP are unfettered by time. The Madras High Court ultimately took the view as aforesaid that the proceedings before the DRP do get circumscribed by the limits of time imposed by Section 153 of the Act. Our attention was also drawn to one decision of the Bombay High Court in the case of Principal Commissioner of Income-tax-15 Vs. Lionbridge Technologies (P.) Ltd. 2018 (12) TMI 764 - BOMBAY HIGH COURT wherein the Assessing Officer had passed the final assessment order, which was sought to be corrected by issue of a corrigendum. The High Court took the view that as the time limit to pass the draft assessment order had expired, the order of the Assessing Officer was without jurisdiction. In NOKIA INDIA PRIVATE LIMITED VERSUS DEPUTY COMMISSIONER OF INCOME TAX 2017 (9) TMI 1298 - DELHI HIGH COURT observed that the period of limitation prescribed under Section 153(2A) of the Act would apply. In short, the Delhi High Court addressed itself on the question as posed in para 25 of the said judgment, whether remand is to the TPO or the DRP would not make any difference so long as the ultimate result of the remand is a fresh assessment of the issue. In such circumstances, the time limit for completing that exercise would be governed by Section 153(2A) of the Act. It is very unfortunate to note that although the writ applicant has been knocking the doors of the Deputy Commissioner of the Income Tax, Vadodara, past almost two years, yet the Deputy Commissioner has not even bothered to give any formal reply to even one of the representations. We dispose of this writ application with a direction to the respondent No.1 herein to take up the entire matter of the writ applicant for consideration at the earliest and take an appropriate decision in accordance with law, more particularly, the law which has been discussed in this order, within a period of four weeks from the date of the receipt of the writ of this order and pass an appropriate order in writing.

Summary

Issues Involved:
1. Legality of the assessment order dated 23.12.2014.
2. Delay in action by the Dispute Resolution Panel (DRP).
3. Entitlement to refund with interest under Section 244A of the Income Tax Act.
4. Applicability of the time limit under Section 153 of the Income Tax Act.

Detailed Analysis:

1. Legality of the Assessment Order Dated 23.12.2014:
The writ applicant challenged the assessment order dated 23.12.2014 issued by the Transfer Pricing Officer under Section 143(3) read with Sections 92CA and 144C(13) of the Income Tax Act for the Assessment Year 2010-11. The Income Tax Appellate Tribunal (ITAT) set aside this assessment order and the order of the DRP, citing that the DRP did not provide adequate opportunity for the assessee to be heard. The Tribunal directed the DRP to allow adequate opportunity and then pass a speaking order. Consequently, the assessment order was also set aside and remanded back to the Assessing Officer for fresh assessment based on the DRP’s new directions.

2. Delay in Action by the Dispute Resolution Panel (DRP):
Despite the ITAT's order dated 07.08.2015, the DRP had not taken any action till the date of the writ application. The writ applicant made several representations to the Deputy Commissioner of Income Tax and other authorities, including letters dated 18.09.2020 and 12.02.2021, requesting action on the ITAT's order. However, these representations did not yield any response.

3. Entitlement to Refund with Interest Under Section 244A of the Income Tax Act:
The writ applicant argued that since the original assessment order was set aside and no new order was passed within the prescribed time limit under Section 153(3), the assessment proceedings had become time-barred. Consequently, the taxes paid should be refunded with interest. The applicant claimed a refund amounting to INR 3,59,65,324, including interest under Section 244A(1), and additional interest at 3% per annum under Section 244A(1A) for the delay beyond the prescribed time limit.

4. Applicability of the Time Limit Under Section 153 of the Income Tax Act:
The writ applicant's case was supported by the Madras High Court's decision in Roca Bathroom Products (P.) Ltd. vs. Dispute Resolution Panel-2, Bangalore, which held that proceedings before the DRP are circumscribed by the time limits imposed by Section 153 of the Act. The Madras High Court emphasized that the Assessing Officer must complete the assessment within the stipulated time frame. Similar views were echoed by the Bombay High Court in Principal Commissioner of Income-tax-15 vs. Lionbridge Technologies (P.) Ltd., and the Delhi High Court in Nokia India (P.) Ltd. vs. Deputy Commissioner of Income-tax, which underscored the necessity of adhering to the time limits for completing assessments post-remand.

Conclusion:
The High Court observed that despite multiple representations, the Deputy Commissioner of Income Tax had not responded to the writ applicant. The court directed the respondent to consider the writ applicant's case and make an appropriate decision in accordance with the law within four weeks. The decision must be communicated to the writ applicant, and the writ application was disposed of with this direction.