9911796707
TMI Blog2023 (3) TMI 654X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in these appeals, hence, they were heard together and are being disposed of by this consolidated order. 2. For the assessment year 2010-2011, 39 grounds are raised (including additional grounds) and for assessment year 2011-2012, 38 grounds are raised (including additional grounds). The additional grounds for both the assessment years are raised vide application dated 03.01.2020. The additional grounds 25 and 30 for assessment year 2010-2011 and 2011-2012 raises the issue that the Transfer Pricing Officer's (TPO) order for the respective assessment years are barred by limitation in terms of section 92CA(3A) of the I.T.Act. Since the above said additional grounds are purely legal and jurisdictional issue, which does not require examination of new facts, we admit the above additional grounds. The additional grounds, namely, grounds 25 and 30 for assessment years 2010-2011 and 2011-2012 are identical and they read as follows:- "25. The order of the learned TPO is bad and void being not as per time limit set out in section 92CA(3A) of the Act." 3. The brief facts in relation to the above grounds are as follows: For the assessment years 2010-2011 and 2011-2012, the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a time limit of 36 (Thirty Six) months from the end of the assessment year for completion of assessment (where a reference is made to the TPO for determination of ALP). Accordingly, the due date for passing the assessment order in the case of the assessee for assessment year 2010-2011 is 31.03.2014 and 2011-2012 is 31.03.2015. Consequently, in terms of section 92CA(3A) of the I.T.Act, the 60th day prior to 30.03.2014 and 30.03.2015 is 29.01.2014 and 29.01.2015. The chronology of events in assessee's case are detailed below:- Assessee's Case Assessment Year 2010-2011 Description Date Date on which intimation to pass assessment order expires 31.03.2014 "Prior to the date" i.e., date before 31.03.2014 30.03.2014 Sixtieth day (reckoned from 30.03.2014 backwards) Month Date March, 2014 30 February 2014 28 January 2014 (balance) 2 30.01.2014 Any time before sixty days (i.e., before 30.01.2014) By29.01.2014 Assessment Year 2011-2012 Description Date Date on which intimation to pass assessment order expires 31.03.2015 "Prior to the date" i.e., date before 31.03.2015 30.03.2015 Sixtieth day (reckoned from 30.03.2015 backwards) Month Date March, 2014 30 February ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. 15. As per the details given In the website of National Institute of Standards and Technology of the United States Government, the Times and Frequency Division, while dealing with FAQ's on times of day suggests the following: "Is midnight the end of a day or the beginning of a day? When someone refers to "midnight tonight" or "midnight last night" the reference of time is obvious. However, if a date/time is referred to as flat midnight on Friday, October 20th" the intention could be either midnight the beginning of the day or midnight at the end of the day. To avoid ambiguity, specification of an event as occurring on a particular day at 11:59 p.m. or 12:01 a.m. is a good idea, especially legal documents such as contracts and insurance policies. Another option would be to use 24-hour clock, using the designation of 0000 to refer to 'midnight at the beginning of a given day (or date) and 2400 to designate the end of a given day (or date). " 16. As per the International Standards Organization, ISO 8601- :2019 midnight may only be referred to as "00:00", corresponding to the beginning of a calendar day. The earlier ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on "by the said date" here means by the date of commencement of the Arbitration (Orissa Amendment) Act, 1982. The first expression clearly means an arbitration proceeding pending before any arbitrator on the date of commencement of the Act. namely. 26-3-1983. The meaning of the second expression should he consistent with. that of the first expression since the two could not be used to create a conflict. The purpose of sub-section (7) is to divest the arbitrator of authority to make the award in 011 such arbitration proceedings which were pending before the arbitrator on the date of commencement of / the said Act and to provide for their automatic transfer to the Arbitration Tribunal. The General Clauses Act, 1897 provides that unless the contrary is expressed. (In Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. There being no contrary indication in the Act, it must be held that the said Act come into force on the midnight on the expiration of the day preceding its commencement. i.e., the midnight between 25-3-1983 and 26-3-1983. There can be no doubt that if the second expression "in which 110 award has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or before a certain time; .... " The New Shorter Oxford English Dictionary " ... On or before, not later than. ... " 9.No doubt the word 'by' means "before a certain time" as well as "on or before a certain time". The question is: whether, the word 'by' in the expression "by the said date" would mean in other words 'before' or 'on' 26-3- 1983 in the present context? We have already indicated the meaning of the first expression "pending before any arbitrator on the date of commencement" to mean clearly and unambiguously pending up to the midnight between 25-3-1983 and 26-3-1983, i.e., before commencement of the date 26-3-1983 or at the time of expiry of the preceding day i.e. 25-3-1983. The other expression must, therefore. be construed in this context and since the word 'by' means 'before' also, in this context it must be held to mean 'before' and not 'on' the date of commencement of the Act. So construed, the second expression would read as "in which no award has been made before the said date" i.e. in. which no award has been made before the date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h falls for interpretation, the Court must necessarily refer to the provisions of the statute. " 24. The finding so rendered by the Constitutional Bench of the Hon'ble Supreme Court can be related to Article 367 (l) of the Constitution of India, which reads as follows: IT(TP)A No.418/B/2015 & 596/B/2016. M/s.Sigma Aldrich Chemicals Private Limited. 11 "367. Interpretation (I) Unless the context otherwise requires, the General Clauses Act, 1897, shall, subject to any adaptations and modifications that may be made therein under Article 372, apply for the interpretation of this Constitution as it applies for the interpretation of an Act of the Legislature of the Dominion of India" 25. The above Article commences with the words, "unless the context otherwise requires". Therefore, the interpretation sought to be projected by the department cannot be accepted as the General Clauses Act cannot override any interpretation propounded by the parliament/Legislature in the clear, distinct and express language with an intention to convey a certainty as to how time is to be calculated. The ratio laid down by the Constitutional Bench of the Apex Court is s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sententialegis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to take upon itself the task of amending or alternating (sic altering) the statutory provisions. Wherever the language is clear the intention of the legislature is to be gathered from the language used. While doing so, what has been said in the statute as also what has not been said has to be noted. The construction which requires for its support addition or substitution of words or which results in rejection of words has to be avoided. As stated by the Privy Council in Crawford v. Spooner [(1846) 6 Moore PC I : -I MIA I79J "we cannot aid the legislature's defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there". In case of an ordinary word there should be no attempt to substitute or paraphrase of general app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, a guideline, not mandatory and is for the sake of internal proceedings. 32. Let us now examine the relevant procedures relating to Transfer Pricing. After an international transaction is noticed subject to satisfaction of section 92B, a reference is made to the TPO under sub-Section (1) of Section 92CA of the Act. The TPO after considering the documents submitted by the assessee is to pass an order under Section 92CA (3) of the Act. As per Section 92CA (3A), the order has to be passed before the expiry of 60 days prior to the date on which the period of limitation under Section 153 expires. As per 92CA(4), the assessing officer has to pass an order in conformity with the order of the TPO. After receipt of the order from the TPO determining ALP, the assessing officer is to forward a draft assessment order to the assessee, who has an option either to file his acceptance of the variation of the assessment or file his objection to any such variation with the Dispute Resolution Panel and also the Assessing Officer. Sub-Section (5) of Section 144C of the Act provides that if any objections are raised by the assessee before the Dispute Resolution Panel, the Panel is empowered to iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quot;The intention of the legislature thus assimilates two aspects. In one aspect it carries the concept of "meaning" i.e. what the words mean and in another aspect, it conveys the concept of "purpose and object" or the "reason and spirit" pervading through the statute. The process of construction, therefore, combines both literal and purposive approaches. In other words the legislative intention i.e. the true or legal meaning of an enactment is derived by considering the meaning of the words used in the enactment in the light of any discernible purpose or object which comprehends the mischief and its remedy to which the enactment is directed. This formulation later received the approval of the Supreme Court and was called the "cardinal principle of construction." 38. In case of assessments involving transfer pricing, fixing of time limits at various stages sets forth that the object of the provisions is to facilitate faster assessment involving such determination. In the present case, as rightly held by the learned Judge in paragraphs 22 to 29 of the order dated 07.09.2020, the order of the TPO or the failure to pass an order before 60 days wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 01.11.2019 Note-1: Calculation of break-up of sixty days December:30 days (excluding 31.12.2019) November: 30 days 9. Similar view has been taken by the Tribunal in the following cases:- (i) DCIT v. Tata Power Solar Systems Ltd (supra), (ii) M/s.Swiss Re Global Business Solutions India Pvt. Ltd. (supra) (iii) ECL Finance Ltd. (supra). 10. Since the order passed by the TPO u/s 92CA of the I.T.Act for A.Y.2010-2011 and 2011-2012 are beyond the period of limitation and bad in law, the addition in respect of international taxation (TP adjustments) stands quashed. Therefore, grounds on merits on TP adjustments in both the appeals of the assessee are not adjudicated. 11. The surviving grounds, namely, grounds 22 to 22.3 relating to corporate tax issues for assessment year 2010- 2011, reads as follows:- "22. Disallowance of stock write-off on account of physical difference and errors in receipt of stock amounting to Rs.9,21,745. 22.1 That on the facts and in the circumstances of the case and in law, the learned AO has erred in disallowing the amount of Stock write-off on account of physical difference and errors in receipt of stock. 22.2 The learned AO ought to have al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in not considering partial credit for Advance Tax, while passing the final assessment order. The learned AO erred in granting incorrect advance tax amount of Rs.110,000,000/- as against claimed by the assessee amounting to Rs.110,100,000/- which has resulted in short credit of TDS amounting to Rs.100,000/-.
11.2 The learned AO erred in not granting interest under section 244A of the Act, on the refund amount received by the Appellant along with intimation under section 143(1) of the Act in January 2012.
11.3 The learned AO erred in levying interest under section 234D of the Act. Levy of interest is consequential in nature."
17. We have heard the rival submissions and perused the material on record. The ground 11.1 is restored to the files of the A.O. The A.O. is directed to examine the matter and give TDS credit in accordance with law. It is ordered accordingly. In the result, ground 11.1 for assessment year 2011-2012 is allowed for statistical purposes.
18. The grounds 11.2 and 11.3 are only consequential and the same are dismissed.
19. In the result, the appeals filed by the assessee are partly allowed.
Order pronounced on this 11th day of July, 2022. X X X X Extracts X X X X X X X X Extracts X X X X
|
