2023 (4) TMI 1154 - AT - Income Tax

Validity of TP order - Period of limitation - Validity of Assessment order - draft assessment order passed by the ld. AO is without jurisdiction having been passed beyond the prescribed time limit and as such, consequent assessment order is liable to be annulled - HELD THAT - Undisputedly, sub-section (3A) to section 92CA has been inserted w.e.f. 01.06.2007 providing time limit for the TPO to pass the order i.e. within a period of 60 days prior to the date of completion of assessment as per section 153. So, u/s 92CA (3A) read with section 153, TPO was required to pass the order within the period of 60 days prior to the date on which the period of limitation referred to in section 153 expires i.e. 21 months. In the instant case undisputedly assessment order in this case was passed on 26.02.2022 and the Ld. TPO was required to pass the order within 60 days prior to the date on which period of limitation as prescribed under section 153 of the Act expires. How the period of 60 days prior to the date of TP order i.e. 31.03.2013 is to be computed? - Hon ble Madras High Court in case of M/s. Pfizer Healthcare India Pvt. Ltd. 2021 (2) TMI 1152 - MADRAS HIGH COURT while dealing with the issue held that for computing the period of 60 days, the last date as per section 153 should be excluded. Also see Honda Trading Corporation 2015 (9) TMI 846 - ITAT DELHI Computation period of 60 days given by the taxpayer cannot be faulted with on any ground because from 26.02.2022, the date of passing order of the AO, 60 days was to be computed by excluding the date of order i.e. 31.01.2021. So while excluding the date of passing assessment order i.e. 26.02.2022, the order was required to be passed by the Ld. TPO by 29.01.2021 whereas the impugned order has been passed on 31.01.2021 which is barred by limitation. Thus as per mandate of section 92CA (3) read with section 153 of the Act, impugned order passed by the ld. TPO is barred by limitation which was required to be passed by 29.01.2021 and as such is hereby quashed. Decided in favour of assessee.

Summary

Issues Involved:

1. Assessment of total income.
2. Issuance of assessment orders for a non-existing entity.
3. Validity of Transfer Pricing (TP) order and assessment order.
4. Rejection of economic analysis and comparables in TP documentation.
5. Margin computation and treatment of operating and non-operating income.
6. Grant of economic adjustment.
7. Incorrect consideration of losses.
8. Initiation of penalty proceedings.

Detailed Analysis:

1. Assessment of Total Income:
The taxpayer challenged the assessment of total income at INR 4,21,99,209 against a declared loss of INR 11,70,61,334. They argued that additions were made without issuing a show-cause notice, violating Section 144B(1)(xvi)(b) of the Act, rendering the draft and consequent orders invalid.

2. Issuance of Assessment Orders for a Non-Existing Entity:
The taxpayer contended that assessment orders were issued in the name of a non-existing entity, Le Panalpina India, despite the merger with DSV Air & Sea Pvt. Ltd. being communicated to the authorities. This included multiple orders issued on the same day, which were claimed to be invalid and bad in law.

3. Validity of TP Order and Assessment Order:
The taxpayer argued that the TP order dated 31 January 2021 was passed beyond the time limit prescribed under Section 92CA(3A) of the Act, making it invalid. Consequently, the assessment order incorporating this TP adjustment was also deemed unsustainable. The Tribunal agreed, noting that the TP order should have been passed by 29 January 2021, but was instead passed on 31 January 2021, thus barred by limitation.

4. Rejection of Economic Analysis and Comparables in TP Documentation:
The taxpayer's economic analysis for benchmarking international transactions was rejected by the TPO. The TPO selected six comparables with a margin of (-)1.50% against the taxpayer's margin of (-)0.15%, leading to a proposed adjustment of INR 4,19,53,631. The Tribunal found the rejection of the taxpayer's comparables and the selection of additional comparables by the TPO to be functionally different from the taxpayer, thus not appropriate.

5. Margin Computation and Treatment of Operating and Non-Operating Income:
The TPO considered certain incomes like liabilities no longer required written back, gain on foreign exchange fluctuation, and miscellaneous income as non-operating, which the taxpayer disputed. The Tribunal noted inconsistencies in this approach and directed that a consistent method be applied for both income and expenses.

6. Grant of Economic Adjustment:
The taxpayer sought a working capital adjustment to account for differences in working capital levels between comparable companies and itself. The Tribunal found merit in this claim and directed the authorities to allow the adjustment.

7. Incorrect Consideration of Losses:
The taxpayer argued that the AO incorrectly considered book loss under Section 115JB instead of the net loss reported under normal provisions for computing revised assessed income. The Tribunal directed the AO to rectify this mistake within two months.

8. Initiation of Penalty Proceedings:
The taxpayer challenged the initiation of penalty proceedings under Sections 270A and 271AA of the Act. The Tribunal did not provide a detailed analysis on this issue, focusing instead on the main grounds of appeal.

Conclusion:
The Tribunal partly allowed the taxpayer's appeal, quashing the TP order and the consequent assessment order due to being barred by limitation. The AO was directed to rectify the incorrect consideration of losses and dispose of the taxpayer's application for rectification within two months.