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TMI Blog2024 (2) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... on 153(3) of the Act, the period of limitation is liable to be computed from the date when the order is received by the concerned statutory authority. Undisputedly, and as we had noticed on that occasion, the CIT(Judicial) had received the order of the ITAT on 31 January 2019. The respondents have failed to address any submission which may compel us to doubt the prima facie opinion that came to be recorded by us on that date. The period prescribed u/s 153(3) of the Act would thus have to necessarily be computed from the date when the order of the ITAT was received by the respondents. Even if the benefits of TOLA were extended to the respondents, undisputedly, the order of assessment was liable to be framed lastly by 30 September 2021. The respondents have thus abjectly failed to pass an order in terms of the mandatory provisions comprised in Section 153 of the Act. The order of 13 February 2023 is thus liable to be set aside on this score alone. Adjustments of certain refunds against a perceived demand - HELD THAT:- As respondents appear to have adjusted refunds payable against a perceived outstanding demand pertaining to AY 2011-12 on 20 May 2022 and 02 June 2022. The afor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. b) A Writ of Mandamus, or a writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 and 227 of the Constitution of India directing Respondents to issue the balance consequential refunds arising as a result of quashing the Impugned Order dated 13.02.2023 amounting to Rs. 1.94 crores along with statutory interest under section 244A of the Act forthwith, given that the Impugned Order dated 13.02.2023 (Annexure P-24) is barred by limitation and passed in violation of the provisions of section 144C of the Act. c) pass any other order(s) as this Hon ble Court may deem to be fit and more appropriate in order to grant interim relief to the petitioner; 2. With the consent of parties, we propose to dispose of both the writ petitions by way of this common judgment since the issues raised in WP(C) 17376/2022 are in a sense consequential to the judgment that would be rendered on WP(C) 4550/2023. The events leading up to the petitioner approaching this Court stand succinctly captured in WP(C) 4550/2023 and the salient facts that can be gathered from the disclosures made in that writ petition are as follows. 3. The Assessment Y ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely on account of its own business and any benefit to the AE was only incidental. From the records, it can be seen that the assessee is incurring its own selling and distribution expenses. There was no advertisement in media nor the products are available in the shop. It is made available only through order placed. There exist a distinction between product promotion and brand promotion. The mechanism used by the assessee company is altogether different for its product promotion. From the records, it can be seen that there is only a mail order marketing use as promotion for products sales. The Ld. AR has aptly relied on the various decisions regarding involvement of AMP expenses but in the present case, the facts are altogether different as here the method for using product sales and promotion are totally different. The assessee company s products are not available in market as such in general. Therefore, the TPO/DRP ignored these basic differences while holding that these expenses are international transaction itself. Besides that both the revenue authorities failed to bring on record as to how the said activity of the assessee company is having an element of international transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 153(3) accorded the respondents the right to frame an order of assessment by 31 October 2019. It was submitted additionally that the aforesaid period would stand further extended by virtue of Section 153(4) of the Act, since undisputedly in the facts of the present case a reference had been made to the TPO under Section 92CA. It is in the aforesaid backdrop that Mr. Pardiwalla submitted that by virtue of Section 153(4), the respondents had time up to 31 October 2020 to pass a final order of assessment. 9. In the meanwhile, the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 [TOLA] came to be promulgated consequent to the outbreak of the COVID-19 pandemic. The time limit for compliances in terms of TOLA which was originally prescribed to be 31 March 2021 was extended from time to time and the extension was to lastly operate up to 30 September 2021. According to Mr. Pardiwalla, 30 September 2021 would thus constitute the terminal date by which an assessment could have been framed. 10. However, and as is manifest from the record, that order of assessment ultimately came to be passed only on 13 February 2023 and thus evidently beyond the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , did not dispute or question the averments taken in the rejoinder affidavit. We thus find ourselves unable to either sustain or countenance the claim of the respondents that the order dated 30 January 2021 of the TPO was either not communicated to them or was not in their knowledge. That stand clearly appears to be wholly incorrect and factually untenable. 14. The period prescribed under Section 153(3) of the Act would thus have to necessarily be computed from the date when the order of the ITAT was received by the respondents. Even if the benefits of TOLA were extended to the respondents, undisputedly, the order of assessment was liable to be framed lastly by 30 September 2021. The respondents have thus abjectly failed to pass an order in terms of the mandatory provisions comprised in Section 153 of the Act. The order of 13 February 2023 is thus liable to be set aside on this score alone. 15. Insofar as the reliefs sought in WP(C) 17376/2022 are concerned, we note that the respondents proceeded to make adjustments of certain refunds pertaining to AYs 2008-09, 2009-10 and 2010-11 against a perceived demand relating to AY 2011-12. The details of those adjustments stand encaps ..... X X X X Extracts X X X X X X X X Extracts X X X X
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