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TMI Blog2023 (8) TMI 453X X X X Extracts X X X X X X X X Extracts X X X X ..... t for completing the assessment in the present case, as per section 153 of the Act, expired on 31/12/2019, after including the extended time period provided under section 153(4) as well as section 92CD(5)(b) - in the present case, the impugned final assessment order was passed by the AO on 06/04/2021, and therefore the same is also barred by limitation and is void ab initio. Accordingly, the impugned final assessment order passed on 06/04/2021, is quashed and the additional grounds raised by the assessee are allowed. - Shri B.R. Baskaran, Accountant Member And Shri Sandeep Singh Karhail, Judicial Member For the Assessee : Shri Nitesh Joshi For the Revenue : Shri Manoj Kumar ORDER PER SANDEEP SINGH KARHAIL, J.M. The present appeals have been filed by the assessee challenging the separate impugned final assessment orders dated 06/04/2021, for the assessment year 2015-16 and dated 31/03/2021, for the assessment year 2016-17, passed under section 143(3) read with section 144C(13) read with sections 143(3A) and 143(3B) of the Income Tax Act, 1961 ( the Act ), pursuant to the directions issued by the learned Commissioner of Income Tax (DRP 2), Mumbai 3, [ learned DRP ], issued under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pricing)-4(1) ('the learned TPO) under section 92CA of the the Act is beyond the time limit prescribed under section 92CA (3A) r.ws. 153 of the Act, thus making the transfer pricing order illegal, bad in law, null and void and liable to be quashed. Ground No. 34 On the facts and in the circumstances of the case and in law, the transfer pricing order being illegal and void on account of being barred by limitation in terms of section 92CA(3A) r.w.s. 153 of the Act, the action of the Assessing Officer in passing the draft assessment order dated 30 December 2019 by invoking section 144C of the Act is without jurisdiction and hence, all the proceedings consequent to the draft assessment order are also illegal and bad in law and liable to be quashed. Ground No.35 On the facts and in the circumstances of the case and in law, the transfer pricing order being illegal and void on account of being barred by limitation in terms of section 92CA (3A) r.ws. 153 of the Act, consequently. the final assessment order dated 06 April 2021 is also barred by limitation as prescribed under section 153 of the Act, thus making the final assessment order illegal, bad in law, null and void and liable to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... O/AO. The learned DRP issued the directions under section 144C(5) of the Act on 03/12/2020. In conformity, the AO passed the impugned final assessment order dated 06/04/2021, under section 143(3) read with sections 143(3A) and 143(3B) of the Act. Being aggrieved, the assessee is in appeal before us. 8. During the hearing, the learned AR submitted that the issue raised vide additional ground is squarely covered in favour of the assessee by the decision of the Hon ble Madras High Court in Pfizer Healthcare India Private Limited v/s JCIT, [2021] 433 ITR 28 (Mad.). The learned AR submitted that in the present case, the due date for passing the order under section 92CA(3) of the Act expired on 31/10/2019, however, the TPO passed the order on 01/11/2019. Therefore, the same is beyond the time limit prescribed under the Act. The learned AR further submitted that since the TPO s order is barred by limitation and thus is void ab initio, therefore the assessee is not an eligible assessee for the purpose of the Act. Accordingly, the impugned final assessment order is also beyond the time period provided under the Act and thus is bad in law and liable to be quashed. 9. On the other hand, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 153B for making the order of assessment or reassessment or re-computation or fresh assessment, as the case may be, expires: 11. We find that while interpreting the provisions of section 92CA(3A) of the Act, the Hon ble Madras High Court in Pfizer Healthcare India Private Ltd (supra), observed as under:- 30. Now, coming to the question of how the 60 day period is to be computed, the critical question would be whether the period of 60 days would be computed including the 31st of December or excluding it. Section 153 states that no order of assessment shall be made at any time after the expiry of 21 months from the end of the assessment year in which the income was first assessable. The submission of the revenue is to the effect that limitation expires only on 12 a m of 1-1-2020. However, this would mean that an order of assessment can be passed at 12 a m on 1-1-2020, whereas, in my view, such an order would be held to be barred by limitation as proceedings for assessment should be completed before 11.59.59 of 31-12-2019. The period of 21 months therefore, expires on 31-12-2019 that must stand excluded since section 92CA(3A) states 'before 60 days prior to the date on which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r including the extended time period provided under section 153(4) as well as section 92CD(5)(b) of the Act as noted above. However, in the present case, the impugned final assessment order was passed by the AO on 06/04/2021, and therefore the same is also barred by limitation and is void ab initio. 14. Accordingly, the impugned final assessment order passed on 06/04/2021, is quashed and the additional grounds raised by the assessee are allowed. As we have quashed the impugned order for this short reason, we see no need to deal with other issues raised by the assessee in the present appeal. Those aspects of the matter, as of now, are rendered academic and infructuous. 15. In the result, the appeal by the assessee is allowed. ITA no.881/Mum.2022 Assessee s Appeal A.Y. 2016 17 16. In the present appeal also, the assessee has sought admission of the following additional grounds of appeal filed vide application dated 03/04/2023:- Ground No. 34 On the facts and the circumstances of the case and in law, the final assessment order dated 31 March 2021 passed by the National e-Assessment Centre, Delhi ('the learned AO) under section 143(3) r.ws 144C(13) and 144C(13) read with sections 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a jurisdictional issue, therefore, we deem it appropriate to deal with this jurisdictional aspect first and if necessary thereafter, to deal with the other issues raised in the present appeal. 19. In the present appeal, the time limit for passing the order under section 92CA(3) of the Act can be computed as under:- Sr. no. Particulars Relevangt date / period 1. Assessment Year involved 2016 17 2. Period of limitation for making an order of assessment as per 31-11 section 153(1) of the Income-tax Act, 1961 [ the Act ] 31 12 2018 (i.e., 21 months from the end of the Assessment Year) 3. Extension of period of limitation in case reference is made u/s 92CA 12 months 4. Therefore, assessment proceedings should be completed on/or before 31 12 2019 5. Date prior to the date on which period of limitation expired 30-12 (stated in Sr. No. 3 above) 30 12 2019 6. Sixty-days period expired on [December = 30 days (excluding 31-12-2019) November 30 days] 01 11 2019 7. Transfer Pricing Order u/s 92CA(3) of the Act should have been passed on/or before 31 10 2019 8. Transfer Pricing Order u/s 92CA(3) actually passed on 01 11 2019 20. Thus, in the present case, the time limit for completion of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X
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