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TMI Blog2024 (9) TMI 954X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. Consequently, the final assessment was also bad in law. Assessee appeal allowed. - Shri Amarjit Singh, Accountant Member And Shri Rahul Chaudhary, Judicial Member For the Assessee : Shri Dhanesh Bafna For the Revenue : Shri Dhivya Ruth J, Sr. DR ORDER PER AMARJIT SINGH, ACCOUNTANT MEMBER: This appeal of the assessee for the assessment year 2016-17 is directed against the order dated 26.02.2021 passed by the ld. CIT (DRP- 2), Mumbai-2. The assessee has raised the following grounds before us: 1. General Nil 2. Depreciation on contracts - Acquisition from Glaxosmithkline Pharmaceuticals Ltd in AY 2008-09 76,90,736 3. Depreciation on contracts - Acquisition from Chemito Technologies Private Limited in AY 2009-10 3,00,736 4. Allowance of brought forward unabsorbed depreciation of AY 2008-09 14,33,95,675 5. Allowance of brought forward unabsorbed depreciation of AY 2009-10 13,29,53,828 6. Allowance of brought forward unabsorbed depreciation of AY 2010-11 12,43,95,142 7. Allowance of brought forward unabsorbed depreciation of AY 2011-12 11,08,38,823 8. Allowance of brought forward unabsorbed depreciation of AY 2012-13 8,94,67,868 9. Allowance of brought forward unabsorbed depreciati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent order u/s 144C of the Act on 23.12.2019. 3. The assessee has filed objections before the Dispute Resolution Panel (DRP) against the additions proposed by the assessing officer in the draft assessment order. The DRP issued direction vide order u/s 144C(5) of the Act dated 26.02.2021. In accordance with the direction of the DRP, the assessing officer has revised the adjustment to the amount of Rs. 14,05,00,568/- as against of Rs. 33,83,31,881/- recommended by the TPO as referred above in this order. Following the direction of the DRP the AO has also disallowed the claim of Rs. 2,30,91,400/- in the final assessment order. The final assessment order was passed by the assessing officer on 30.03.2021 and total income of the assessee was assessed at Rs. 30,02,91,672/-. The assessee has also filed the following additional ground of appeal: 1. Challenging the period of limitation for passing the transfer pricing order by the Transfer Pricing Officer (TPO). 2. Entire proceedings initiated by the Assessing Officer (AO) under section 144C of the Act is bad in law in the absence of a valid TP order. 3. In absence of valid TPO s order the AO is required to complete the assessment within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Particulars Pfizer Healthcare India Private Limited (Madras High Court) Appellant A Assessment Year 2016-17 2016-17 B Period of limitation for making an order of assessment as per section 153 of the Act 21 months from the end of the assessment year i.e. 31.12.2018 21 months from the end of the assessment year i.e. 31.12.2018 C Extension of period of limitation in case reference is made u/s 92CA of the Act 12 months i.e. 31.12.2019 12 months i.e. 31.12.2019 D Proceeding for assessment should be completed on/before this date 31.12.2019 31.12.2019 E A date prior to the date on which period of limitation expires (stated in Sr. No. C) 30.12.2019 30.12.2019 F Sixty-day period expires 01.11.2019 01.11.2019 G TPO order to be passed any time on/before this date 31.10.2019 31.10.2019 H Date on which TPO order is passed 01.11.2019 01.11.2019 I Date of draft assessment order u/s 143(3) r.w.s. 144C(1) of the Act 23.12.2019 J Date of DRP Directions u/s 144C(5) of the Act 26.02.2021 K Date of final assessment order u/s 143(3) r,w,s, 144C(13) of the Act 30.03.2021 Note 1: Calculation of break-up of sixty days December: 30 days (excluding 31.12.2019) November: 30 December 30 days (excluding 31.12.2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upra by the ld. Counsel is reproduced as under: 28. The word date in section 92CA(3A) would indicate 31-12-2019. But the preceding words prior to would indicate that for the purpose of calculating the 60 days, 31-12-2019 must be excluded. The usage of the word prior is not without significance. It is not open to this court to just consider the word to by ignoring prior . The word prior in the present context, not only denotes the flow of direction, but also actual date from which the period of 60 days is to be calculated. It is settled law that while interpreting a statute, it is not for the courts to treat any word(s) as redundant or superfluous and ignore the same. In this connection, it is pertinent to note the judgment of the Apex Court in Grasim Industries Ltd. v. Collector of Customs 2002 taxmann.com 1803, wherein, it was held as follows : 10. No words or expressions used in any statute can be said to be redundant or superfluous. In matters of interpretation one should not concentrate too much on one word and pay too little attention to other words. No provision in the statute and no word in any section can be construed in isolation. Every provision and every word must be loo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the scope of section 9 of the General Clauses Act, it is to be noted that an inverted calculation of the period of limitation takes place here. If the last date is taken to be the first date from which the period of 60 days is to be calculated, reading down the provision with the use of the word from , which denotes the starting point or period of direction in general parlance, would mean that 60 days from the last date . Even going by section 9 of the General Clauses Act, when the word from is used, then, that date is to be excluded, implying here that 31-12-2019 must be excluded. After excluding 31- 12-2019, if the period of 60 days is calculated, the 60th day would fall on 1-11-2019 and the TPO must have passed the order on or before 31-10-2019 as orders are to be passed before the 60th day. Therefore, either way the contention of the Revenue is a fallacy and has no legs to stand. Mandatory or Directory 31. The next contention that has been raised by the learned senior standing counsel for the appellants is that the usage of the word may in section 92CA (3A) indicates that the time fixed is only directory, a guideline, not mandatory and is for the sake of internal proceedings. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the reference to the TPO, the time limit for completing the assessment would only be 21 months from the end of the assessment year. It is only if a reference is pending, the department gets another 12 months. Once reference is made and after availing the benefit of the extended period to pass orders, the department cannot claim that the time limits are not mandatory. Hence, the contention raised in this regard is rejected. 36. As rightly pointed out by Mr. Ajay Vohra, learned senior counsel for the respondents in WA. Nos.1148 and 1149/2021, the word may has to be sometimes read as shall and vice versa depending upon the context in which it is used, the consequences of the performance or failure on the overall scheme and object of the provisions would have to be considered while determining whether it is mandatory or directory. 37. At this juncture, it is noteworthy to mention the commentary of Justice G.P.Singh on the interpretation of statutes, Principles of Statutory Interpretation (1st Edn., Lexis Nexis 2015), which is quoted below for ready reference: ' The intention of the legislature thus assimilates two aspects: In one aspect it carries the concept of meaning i.e. wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, as the Board, in the Central Action Plan, has specified 31-10-2019 as the date on which orders are to be passed by the TPO, reiterating the time limit to be mandatory. After taking into consideration the material placed on record it is undisputed fact that transfer pricing officer has passed order u/s 92CA(3) on 01.11.2019 whereas the limitation for passing the said order u/s 92CA(3) expires on 31.10.2019 Therefore, taking into consideration the provision of the Act and decision of Hon ble Madras High Court in the cases referred supra the order u/s 92CA(3) of the Act is time barred by 1 day. Further the ld. Counsel has mentioned the provisions of Sec. 144C(15) of the Act pertaining to the eligible assessee the same is reproduced as under: (b) eligible assessee means (i) Any person in whose case the variation referred to in subsection( 1) arises as a consequence of the order of the Transfer Pricing Officer passed under sub-section (3) of section 92CA; and (ii) (ii) any non-resident not being a company, or any foreign company. After referring the aforesaid provisions the ld. Counsel contended that since the order of the TPO was barred by limitation, therefore, there was no eligib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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