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TMI Blog2024 (6) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... counting from 31.03.2017, the assessment was to be framed on or before 31.12.2019. The period of 60 days prior thereto would run till 01.11.2019 and any date prior thereto would mean 31st of October or before. Since the order was passed on 01.11.2019, the same would be barred by limitation. Since Transfer Pricing proceedings were barred by limitation of time, the transfer pricing adjustment would be non-est. Consequently, the assessee would cease to be an eligible assessee as defined u/s 144C(15)(b) of the Act and therefore, the machinery provisions of Section 144C of the Act would not get triggered in the assessee s case. In such a scenario, the assessment in the case of the assessee ought to have been completed within 33 months from the end of the Assessment year as per Sec. 153(1) read with Section 153(4) of the Act, i.e., on or before 31-12-2019. The argument of Ld. CIT-DRP that it was not possible for Ld. AO to predict that fate of Ld. TPO s order do not appeal to us since any order passed beyond prescribed statutory time limit, for whatever reasons, could not be held to be a valid order. In the result, the corporate additions made in the assessment order would not survive. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly, the transfer pricing adjustment is non-est. Consequently, the Appellant cease to be an eligible assessee as defined under section 144C(15)(b) of the Act and therefore, the machinery provisions of Section 144C of the Act would not get triggered in the Appellant's case. Accordingly, the assessment in the case of the Appellant ought to have been completed within 33 months from the end of the Assessment year as per Section 153(1) read with Section 153(4) of the Act, i.e., on or before December 31, 2019 . However, since the assessment was concluded vide the final assessment order dated February 28, 2020, the impugned assessment is clearly barred by statutory limitation. Accordingly, the impugned assessment for the subject year is null and void-ab-initio. In this regard, the Appellant relies upon the following rulings of this Hon'ble Tribunal, wherein the above position was upheld for the same assessment year: M/s Verizon Data Services India Pvt Ltd ((TS-825-ITAT-2022(CHNY)-TP)) M/s.Eaton Power Quality (P.) Ltd. (152 taxmann.com 258) M/s.Durr India Pvt. Ltd. (2023 (8) TMI 714) It is also pertinent to note that the above position has been upheld by the Coordinate Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion on part of the Assessing Officer to perform the impossible. iv) In this context, reference is made to the following case laws: (a) Shyamal Sarkar vs Commissioner of Income-tax, Siliguri reported in 250 Taxman 18(SC) (b) VLS Finance Ltd vs Commissioner of Income-tax, reported in 239 Taxman 404(SC) 2.2. In the first case under reference, the Hon'ble Supreme Court observed as follows: 7. We have not been impressed by this submission. The fact that the audit was in fact made is ample proof of the fact that an order for audit was also passed without which the audit could not have taken place. There is a presumption in law that all official and judicial acts were regularly performed. The presumption is reinforced by the fact that it is an admitted position that the assessee had paid the fees of the auditor. The defect, if any, in the proceeding which culminated into the order for audit and the submission of the audit report are mere irregularities which shall not invalidate the proceeding. Reference in this regard may be made to section 292B of the Income-Tax which provides as follows: 292B. Return of income, etc., not to be invalid on certain grounds. No return of income, assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of such an order of the assessing officer directing special audit ultimately holds that such an order is wrong (for whatever reason) that event happens at a later date and would not mean that the benefit of exclusion of the period during which there was a stay order is not to be given to the Revenue. Explanation 1 which permits exclusion of such a time is not dependent upon the final outcome of the proceedings in which interim stay was granted. 24. We, therefore, answer this question in favour of Revenue. 3. In the instant case, having made a reference u/s 92CA, the AO could not be expected to pass an order at an earlier date as raised by the appellant in its grounds of appeal. Prayer: It is earnestly requested that the above submissions be considered and the grounds of the assessee that the assessment is barred by limitation, be dismissed. However, the sequence of events as narrated by Ld. AR remains undisputed before us. In the light of above submissions, the appeal is disposed-off as under. 5. The Ld. AR has submitted that the assessment proceedings would be nullity in terms of decision of Hon ble High Court of Madras in bunch of appeals titled as M/s Pfizer Healthcare India Pv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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