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TMI Blog2023 (9) TMI 907X X X X Extracts X X X X X X X X Extracts X X X X ..... the same be admitted as the additional ground raised by the Appellant was legal in nature and could be adjudicated on the basis of facts already on record. The Learned Departmental Representative opposed the admission of the additional ground stating that the Appellant had failed to raise the same before the authorities below and therefore, could not be permitted in the appellate proceedings to set up a new case. 3. We have heard both the sides regarding on admission of additional ground which reads as under: "1:0 Re: Final Assessment Order barred by limitation 1:1 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject, the impugned Order dated 31 March 2021 passed u/s 143(3) r.w.s 144C(13) of the Income-tax Act, 1961 is ab-initio void being barred by limitation and hence, ought to be struck down." 4. On perusal of the additional ground we find that the additional ground raised by the Appellant is a legal ground which can be adjudicated after taking into consideration material on record without inquiring into new facts. Thus, in view of the judgment of the Hon'ble Supreme Court in the case of National Thermal Po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1180/Mum/2021, dated 24/03/2023], quashed the order passed by the transfer pricing officer on 01/11/2019 and the Final Assessment Order, dated 17/04/2021. 8. Per Contra Learned Departmental Representative submitted that the Revenue has not accepted the judgment of the Hon'ble Madras High Court in the case of Pfizer Healthcare India Private Limited (supra) and has preferred Special Leave Petition before the Hon'ble Supreme Court which is pending. He vehemently contended that even if for the sake of arguments it is presumed that there was a delay of 1 day in passing the order by the Transfer Pricing Officer, the same does not, in any manner, causes any prejudice to the Appellant. In this regard, the Learned Departmental Representative relied upon the judgment of the Hon'ble High Court of Jharkhand in the case of M/s Prakash Lal Kahndelwal vs. CIT, Ranchi (Jharkhand) and ITO Ward-2, Ranchi (Jharkahnd) [W.P.(T) No. 1901 of 2022, dated 21/02/2023]. He further submitted that for the purpose of determining whether an assessee is an "Eligible Assessee" for the purpose of section 144C(15)(b) of the Act, all that is required to be seen is whether the Transfer Pricing Officer has propose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders thus ought to have been passed on 31-10-2019 or any date prior thereto. Incidentally, the Board, in the Central Action Plan also indicates the date by which the Transfer Pricing orders are to be passed as 31-10- 2019. The impugned orders are thus, held to be barred by limitation". (Emphasis Supplied) 10. The above judgment of Hon'ble Madras High Court been confirmed by the judgment of the Division of the Hon'ble Madras High Court in the case of DCIT vs. Saint Gobain India Pvt. Ltd. : 444 ITR 636 (Madras) wherein it has been held as under: "29. The language employed is simple. 31-12-2019 is the last date for the assessing officer to pass his order under section 153. The TPO has to pass order before 60 days prior to the last date. The 60 days is to be calculated excluding the last date because of the use of the words "prior to" and the TPO has to pass order before the 60th day. In the present case, the word "before" used before "60 days" would indicate that an order has to be passed before 1-11-2019 i.e on or before 31-10-2019 as rightly held by the Learned Judge. 30. Even considering for the purpose of alternate interpretation, the scope of section 9 of the General Clau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls provided in Clauses (A) to (G) thereof. Sub-section (13) of section 144C of the Act provides that upon receipt of directions issued under sub-section (5) of section 144C of the Act, the Assessing Officer shall in conformity with the directions complete the assessment proceedings. It goes without saying that if no objections are filed by the Assessee either before the DRP or the assessing officer to the determination by the TPO, section 92CA(4) would come into operation. Therefore, it is very clear that once a reference is made, it would have an impact on the assessment unless a decision on merits is taken by DRP rejecting or varying the determination by the TPO. 33. It would only be apropos to note that as per proviso to section 92CA (3A), if the time limit for the TPO to pass an order is less than 60 days, then the remaining period shall be extended to 60 days. This implies that not only is the time frame mandatory, but also that the TPO has to pass an order within 60 days. 34. Further, the extension in the proviso referred above, also automatically extends the period of assessment to 60 days as per the second proviso to section 153. 35. Also, but for the reference to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eeping in view the facts of the present case, the time limit for passing order under Section computed 92CA(3) of the Act per the above judgments of the Hon'ble Madras High Court can be computed as under: Sr. No. Particulars Relevant date/period Assessment Year involved 2016-17 1. Period of limitation for making an order of assessment as per section 153 of the Income-tax Act, 1961 ["the Act"] 31.12.2018 (i.e. 21 months from the end of the Assessment Year) 2. Extension of period of limitation in case reference is made u/s 92CA 12 months 3. Therefore, Assessment proceedings should be completed on/or before 31.12.2019 4. Date prior to the date on which period of limitation expired (stated in Sr. No. 3 above) 30.12.2019 5. Sixty day period expired on December = 30 days (excluding 31.12.2019) November = 30 days 01.11.2019 6. Transfer Pricing Order u/s 92CA(3) of the Act should have been passed on/or before 31.10.2019 7. Transfer Pricing Order u/s 92CA(3) actually passed on 01.11.2019 12. On perusal of the above it can be seen that the time limit for passing the order under Section 92CA(3) of the Act, computed as per the judgement of Hon'ble Madras High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion Data Asia Pacific PTE Ltd. (supra) forties appellant's contentions and the irresistible conclusion that the draft assessment order imbibes a jurisdictional power in terms of Sec. 144C(1) of the Act and creates/ envisages special rights upon the "eligible assessee". If such an order is passed on an assessee who is not an 'eligible assessee' as defined in section 144C(15)(b)(i) of the Act, then it would render the entire proceedings pursuant to such order null and void. 43. We find that section 153(1) of the Act, as it stood applicable for the AY 2012-13, provided a time limit of 3 years from the end of AY 2012-13 for completion of assessment under section 143(3) of the Act, i.e., on or before 31 March 2016. 44. In such a case if the Ld. AO invokes the provisions of section 144C of the Act and passes the final assessment order after 31 January 2016 i.e. beyond the period of limitation as stated above, such final assessment order u/s 143(3) r.w.s 144C of the Act is liable to be quashed as being barred by limitation. 45. In a recent decision of the Hon'ble Madras High Court in case of Virtusa Consulting Services Put. Ltd [TS-474-HC-2022(MAD)] dated 9 June 2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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