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TMI Blog2024 (8) TMI 937X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt awaits the decision of the Supreme Court in the pending proceedings in Shelf Drilling Ron Tappmeyer Limited [ 2023 (8) TMI 460 - BOMBAY HIGH COURT] and Roca Bathroom Products Pvt. Ltd [ 2022 (6) TMI 848 - MADRAS HIGH COURT] We may also observe that Petitioner has also tendered circulars issued by the Revenue to all its representatives in Mumbai to seek adjournments in all pending cases involving this issue before the Income-tax Appellate Tribunal to submit that the piling up of the cases and the size of the amount involved is because the Revenue not pursuing the matters, awaiting the Supreme Court to decide the appeals. Insofar as the interim relief in the present petition is concerned, we may observe that assessees similarly placed as the petitioner, have succeeded before the Madras High Court inter alia in Roca Bathroom Products Pvt. Ltd. (supra) as also before the Delhi High Court in Nokia India Pvt. Ltd [ 2017 (9) TMI 1298 - DELHI HIGH COURT] As noted above, proceedings arising from such decisions of the Madras and the Delhi High Courts are pending before the Supreme Court. The orders of the High Courts setting aside the assessment orders are not stayed by the Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up of companies to act as an exclusive retail distributor of PayPal Payment Processing Services , to customers in India and to undertake marketing support activities. The present proceedings relate to the assessment year 2020-21. The petitioner electronically filed its Income-tax return on 14 February, 2021. On 29 June, 2021, a notice under section 143(2) of the Act was issued to the petitioner, which was responded by the petitioner by its letter dated 14 July, 2021 setting out all necessary details. Thereafter, again a notice dated 16 November, 2021 under section 142 (1) was issued to the petitioner, which too was responded by petitioner s reply dated 30 November, 2021. 3. On such backdrop, on 25 January, 2022, a notice was issued to the petitioner under Section 92CA of the Act, [ Reference to Transfer Pricing Officer ]. The petitioner replied to such notice by its letter dated 9 February, 2022 furnishing the relevant particulars, as also recording, that if any further particulars are required, the same would be provided. 4. Thereafter, a show cause notice dated 15 July, 2023 was issued to the petitioner under section 92CA (3) of the Act, which the petitioner responded by its lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act. His submission is that considering the facts of the case, the statutory time limit prescribed under section 153 for passing the final assessment order under Section 143 read with Section 144C expired on 30 September, 2023, rendering the assessment order being passed beyond the statutory period of limitation, as per the provisions of clause (ii) of the second proviso to Section 153 (1) read with Section 153(4) of the Act. It is contended that on a conjoint reading of clause (ii) of the second proviso to Section 153 (1) read with Section 153(4) of the Act, the statutory time limit to pass an assessment order under section 143 of the Act necessarily was a period of eighteen months plus twelve months from the end of the assessment year, in which the income was first assessable. According to Mr. Mistry, the following chart would show that the limitation for passing the order of assessment under Section 143 of the Act had expired:- Relevant AY 2020-21 End of the AY in which income was first assessable [(Section 153 (1)] 31.03.2021 18 months from the end of 31.03.2021 [clause (ii) of Second Proviso to Section 153 (1)] 30.09.2022 Extension of 12 months to the limitation period pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scribes inbuilt provisions on limitation, in the nature of sub-section (4) or sub-section (13) which are required to be read with the non-obstante clause as contained in sub-section (1) of Section 144C. It is submitted that in this view of the matter, the petitioner s contention that Section 153 becomes applicable to the proceedings under section 144C cannot be accepted. It is submitted that the decision of the Division Bench of this Court in Shelf Drilling Ron Tappmeyer Limited (supra) as also the decision of Madras High Court in Roca Bathroom Products P. Ltd. (supra) does not lay down the correct interpretation on the purport of Section 144C and the application of Section 153, to the proceedings under Section 144C. It is, therefore, his submission that it would not be correct to accept the petitioner s proposition that the impugned assessment order is barred by limitation, as provided under clause(ii) of second proviso to Section 153 (1) read with Section 153 (4), when the petitioner contends that in the present case the limitation expired on 30 September, 2023. Mr. Venkataraman has placed on record detailed written submissions in support of his contentions as to what according t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 144C(15) (b); and b) assessees who fall under the normal category from such perspective. It is submitted that the decision of the co-ordinate Bench of this Court in Shelf Drilling Ron Tappmeyer Limited (supra) does not take into consideration the effect of some of the specific provisions of the Act. He submits that in any event, this Court now would not consider the said decision as a precedent in view of the specific order passed by the Supreme Court and therefore, on a fresh consideration of such provisions and the position in law, an appropriate view needs to be taken. Mr. Venkataraman submits that on a correct reading of the law, Section 144C proceedings are required to be held to be independent from the applicability of Section 153. It is submitted that Writ Petition assailing the impugned order would in fact not warrant consideration and that even if the Writ Petition is admitted, interim reliefs deserve to be rejected. 12. Mr. Mistry has made submissions in rejoinder. He submits that the contentions as urged by Mr. Venkataraman are untenable. Mr. Mistry emphasized that the decision of this Court in Shelf Drilling Ron Tappmeyer Limited (supra) as also the decision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Section 144 in Section 153 (1) whereas a reference to Section 144C is conspicuously absent in Section 153 (1). It is also his submission that there is no reference to any draft assessment order or a timeline for completion of the same, under Section 153 (1), hence to trace Section 144C into section 153 qua the prescription of time limits, would amount to rewriting the legislative provision. It is also his submission that Section 144C is a provision which stands independent notwithstanding anything contained under section 153, when it specifically incorporates that it is a provision notwithstanding anything to the contrary contained in this Act . It is hence his submission that such exception carved out qua the proceedings under Section 144C (1) rules out anything contained in the Act to include anything contrary to the provisions of Section 144C, commencing from the passing of the draft assessment order till the passing of the order under section 144C (5) or Section 144C (13). Hence to envisage the applicability of Section 153 to the proceedings under Section 144C is wholly ruled out. Such is the complexion of the contentions as raised before us on behalf of the revenue. 15. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other High Courts (excluding in the case of Shelf Drilling Ron Tappmeyer Limited (supra), on any of these proceedings. Thus the issue of law, which would touch not only the present proceedings, but hundreds of other pending proceedings as urged by Mr. Venkataraman, is at large before the Supreme Court. The Supreme Court is seized of the proceedings in which the Supreme Court would decide on the correct purport and the determination on interpretation on the interplay between Section 144C and Section 153 of the Act. 18. In this view of the matter, we are not persuaded to accept Mr. Venkataraman s submission that as merely large number of proceedings are pending in which the stake of about Rs.5 lakh crores in tax is involved on such issue, we need to take a different view of the matter including to refer the issue for consideration of a Larger Bench. In our opinion, such approach would not bring about any concrete conclusion as such question of law is pending determination before the Supreme Court, arising not only from the decision of this Court, but also from the decision of the other High Courts. It would be thus appropriate and desirable, that this Court awaits the decision o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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