9911796707
TMI Blog2020 (2) TMI 1277X X X X Extracts X X X X X X X X Extracts X X X X ..... sion but also beyond the limitation period is ultra vires and hence cannot stand. We declare the assessment order to be time barred and ex consequenti null and void, with the effect that the returned income will automatically get accepted as finally assessed income. Appeal allowed. - ITA No.1810/PUN/2019 - - - Dated:- 26-2-2020 - Shri R.S. Syal, Vice President And Shri S.S. Viswanethra Ravi, Judicial Member For the Assessee : Shri Naresh Kumar For the Revenue : Shri T. Vijaya Bhaskar Reddy ORDER PER R.S.SYAL, VP : A short but interesting point has been raised in this appeal, which emanates from the final assessment order dated 24.10.2019 passed by the Assessing Officer (AO) u/s. 144C(13) r.w.s. 143(3) of the Income-tax Act, 1961 (hereinafter also called the Act ) in relation to the assessment year 2015-16. 2. Succinctly, the factual panorama of the case is that the assessee is a non-resident company having its head office at Germany and as such a tax resident of Germany. The assessee has a global presence in terms of having manufacturing plants, research and design centres and sales offices etc. throughout the world. The assessee e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anel) Rules, 2009 lay down the procedure for filing objections through Rule 4. Sub-rule (1) provides that the objections, if any, of the eligible assessee to the draft order may be filed in person or through his agent within the specified period in Form 35A . These rules do not spell out any meaning of the term `specified period for filing of Form 35A and as such, the term takes its genesis from section 144C(2) of the Act. Ergo, it becomes overt that an assessee, on receipt of the draft order, is obliged to file objections, if any, to the variation in the income before the DRP/AO within 30 days of the receipt of the draft order. 4. Before proceeding further, let us have a quick look at the following relevant dates of the case under consideration, which are material for our decision:- Date of the Draft order 21.12.2018 Date on which Draft order was received by assessee 24.12.2018 Date on which objections filed before DRP 24.01.2019 Date of the DRP direction 27.09.2019 Date of the fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such an express authorization that the concerned authority/forum can exercise its discretion and condone the delay, if satisfied with the reasonableness of the cause in late presentation. Although section 249(2) of the Act requires the filing of an appeal before the CIT(A) within 30 days, sub-section (3) empowers the CIT(A) to admit an appeal after the expiry of the said period if he is satisfied that the appellant had sufficient cause for not presenting the appeal within the period. 8. Similarly albeit section 253(3) requires the filing of an appeal before the Tribunal within sixty days, sub-section (5) empowers the Tribunal to admit an appeal after the expiry of the period of sixty days. As against the power of the Tribunal to admit an appeal belatedly after the expiry of relevant period in terms of sub-section (5) of section 253A, no specific provision has been enshrined empowering the Tribunal to entertain a Miscellaneous Application u/s. 254(2) of the Act beyond the period of six months from the end of the month in which the order was passed. 9. Prior to the insertion of sub-section (2A) of section 260A by the Finance Act, 2010 with retrospective effect from 01-10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision application u/s. 264 beyond the prescribed period if he is satisfied that the assessee was prevented by sufficient cause from making an application within that period. 11. It follows from the above discussion that whenever the parliament intended to empower the competent authority/forum to condone the delay and accept an appeal or an application beyond the stipulated time, it expressly stated so by inserting a specific provision in the Act. In the absence of such an enabling provision, no competent authority/forum can usurp the statutory power and bestow upon itself the power to condone the delay. The fortiori is that any application moved after the prescribed period, in the absence of an express provision in this regard, is liable to be dismissed as time barred. 12. Section 144C(2) of the Act provides a period of 30 days for filing of objections before the DRP. Unlike certain other provisions empowering the respective competent authorities/forums to condone the delay, no empowerment has been endowed upon the DRP to condone the delay and accept Form No. 35A beyond the prescribed period of 30 days. Subsection (2) of section 144C not only uses the word shall requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt effects as well. 15. The scheme of the relevant provisions in this regard is that when the AO makes a reference to the TPO, the latter passes an order u/s. 92CA(3) of the Act. On receipt of the order from the TPO, the AO passes a draft order u/s. 144C(1). If dissatisfied with the draft order, the assessee has an option to either approach the DRP route by filing objections before the DRP or choose the appellate recourse by filing an appeal before the CIT(A). If an assessee opts to be governed by the procedure enshrined for the DRP reference, then the DRP is supposed to issue directions within nine months from the end of the month in which the draft order is forwarded to the eligible assessee as per sub-section (12) of section 144C. Sub-section (13) provides that upon a receipt of the direction in sub-section (5), the AO shall complete assessment within one month from the end of the month in which such a direction is received. At this juncture, it is significant to have a glance at the mandate of sub-section (3) of section 144C, which runs as under :- `The Assessing Officer shall complete the assessment on the basis of the draft order, if- ( a ) the assessee intimat ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
