9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (9) TMI 1027 - AT - Income TaxValidity of order passed u/s 92CA - Period of limitation - counting of 60 days - draft assessment order was passed u/s. 143(3) r.w.s. 144C(1) - HELD THAT - The period of limitation for making the assessment order as per Section 153(3) was 31/03/2014, i.e., 24 months from the end of the assessment year. The extension of period of limitation made u/s. 92CA (3) and also as per proviso to Section 153(1) was upto 31/03/2015 i.e. after a period of 12 months. The proceedings for the assessment have been completed before 31/03/2015 and prior to the date of which limitation expires as per Section 92CA(3A) was 29/01/2015 as the date prior to the date of which limitation expires is 30/03/2015 and 60 days expires on 31/02/2015. Accordingly, in view of the Section 92CA(3), TPO s order which has been passed u/s. 92CA(3) on 29/12/2015 wherein in this case it has been passed on 30/01/2015.The period of limitation for making the assessment order as per Section 153(3) was 31/03/2014, i.e., 24 months from the end of the assessment year. The extension of period of limitation made u/s. 92CA (3) and also as per proviso to Section 153(1) was upto 31/03/2015 i.e. after a period of 12 months. The proceedings for the assessment have been completed before 31/03/2015 and prior to the date of which limitation expires as per Section 92CA(3A) was 29/01/2015 as the date prior to the date of which limitation expires is 30/03/2015 and 60 days expires on 31/02/2015. Accordingly, in view of the Section 92CA(3), ld. TPO s order which has been passed u/s. 92CA(3) on 29/12/2015 wherein in this case it has been passed on 30/01/2015. Ergo, the TPO can pass an order u/s 92CA of the Act at any time before 60 days prior to the date on which period of limitation referred to u/s 153 expires. Thus 60 days have to be counted prior to the date of last date of limitation u/s 153. The time limit for passing the ld. TPO order in the case of the assessee was 29/01/2015 as noted above which is not in dispute. Since the ld. TPO order has been passed on 30/10/2015 which is clearly barred by limitation by one day by virtue of time limit provided u/s. 92CA (3) and consequently, the same has to be treated as bad in law and the same is hereby quashed. Thus, in such a situation, if there is no TPO order, consequently the entire transfer pricing adjustment proposed by the ld. TPO in international transaction becomes non-est and to be quashed and being barred by limitation. We quashed the final assessment order being barred by period of limitation u/s. 92CA (3).
Issues Involved:
1. Validity of the Transfer Pricing Officer (TPO) order. 2. Validity of the final assessment order passed by the Assessing Officer (AO). 3. Various grounds of appeal raised by the Assessee and the Revenue. Summary: Issue 1: Validity of the TPO Order The assessee argued that the TPO's order dated 30/01/2015 was "bad in law" and "time-barred by limitation" under Section 92CA(3A) of the Income-tax Act. The Tribunal noted that the TPO's order should have been passed on or before 29/01/2015, but was delayed by one day. Citing the judgment of the Hon'ble Madras High Court in M/s. Pfizer Healthcare India Pvt. Ltd. vs. JCIT, the Tribunal held that the TPO's order was indeed time-barred and thus "void ab-initio". Issue 2: Validity of the Final Assessment Order Following the quashing of the TPO's order, the Tribunal observed that the draft assessment order could not have been validly passed, as the assessee would no longer be treated as an "eligible assessee". The Tribunal referred to the case of Atos India Pvt. Ltd., where it was held that without a valid TPO order, the draft assessment order and subsequent final assessment order are invalid. Consequently, the Tribunal quashed the final assessment order dated 26/02/2016 as it was barred by the period of limitation under Section 153 of the Act. Issue 3: Grounds of Appeal by Assessee and Revenue The Tribunal noted various grounds of appeal raised by the assessee related to transfer pricing adjustments and corporate tax disallowances. Similarly, the Revenue's grounds of appeal included issues like rejection of comparables and tax holiday benefits. However, since the final assessment order was quashed, these grounds became infructuous and were not adjudicated upon. Conclusion: The Tribunal allowed the appeal of the assessee, quashing the final assessment order due to the invalidity of the TPO's order. Consequently, the Revenue's appeal was dismissed as infructuous.
|
