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TMI Blog2024 (12) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... ; c) For such further and other reliefs, as this Hon'ble Court may deem fit and proper in the nature and circumstances of the case;" 2. According to the petitioner, the assessments for assessment year (AY) 2012-13 are time barred and therefore, the income tax return furnished by the petitioner was required to be accepted. Consequently, the petitioner also prays that an amount of Rs. 45,51,85,614/-, which was refundable on the aforesaid basis be released to the petitioner along with interest under Section 244A of the Income Tax Act, 1961 (hereafter the Act). 3. The petitioner is a company registered under the Companies Act, 1956 and is a subsidiary of Huawei Technologies Coopertief U.A (Netherlands). The petitioner states that it is engaged in the business of distribution of telecom equipment and provision of technical services such as installation, commissioning, integration and other services relating to the telecom industry. 4. The petitioner filed its original return of income on 30.11.2012 for AY 2012-13 declaring a loss of Rs. 4,64,13,402/-. Subsequently, it filed its revised return on 31.03.2014 declaring a loss of Rs. 6,23,90,267/- and claimed refund of Rs. 1,05,57,15,0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice as determined by the assessee. Needless to say that TPO is to decide the issue afresh by providing an opportunity of being heard to the taxpayer." Disallowance for capital expenditure of advertisement expenses Additions were deleted by ITAT. Relevant portion reproduced below: "35. So in view of the matter and following the decisions rendered by the Hon'ble Supreme Court and Hon'ble High Court discussed in the preceding paras, we are of the considered view that disallowance of 30% of the advertisement expenses by the AO and confirming the same by the ld. DRP is not sustainable for the reasons inter alia that commercial expediency of any expenditure incurred by the taxpayer has to be examined with businessman standpoint and not with the perspective of tax authority; that advertisement expenses are revenue in nature; that merely because of the fact that advertisement expenditure incurred by the taxpayer has benefited the third party, the same cannot be disallowed; and that disallowance of any expenditure on ad hoc basis is not permissible in law, hence ordered to be deleted. Consequently, grounds no.3 to 3.4 of ITA No.7509/DEL/2017 & 7510/DEL/2017 for AYs 2012-13 & 2013-14 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -, which was adjusted against the amount refunded to the petitioner. However, the same has not been processed. 11. Notice in the present petition was issued on 28.05.2024 and the Revenue was granted two weeks' time to file a counter affidavit. However, no such affidavit was filed controverting the assertions made by the petitioner. On 12.11.2024, a final opportunity was granted to the Revenue to file a counter affidavit traversing the facts before the next date of hearing, which was scheduled today. However, the counter affidavit has not been filed. The facts as stated in the present petition are, thus, not contested. 12. It is relevant to refer to Sub-section (3) and Sub-section (5) of Section 153 of the Act. The same are set out below: "153.(3) Notwithstanding anything contained in sub-sections (1), (1A) and (2), an order of fresh assessment or fresh order under section 92CA, as the case may be, in pursuance of an order under section 250 or section 254 or section 263 or section 264, setting aside or cancelling an assessment, or an order under section 92CA, as the case may be, may be made at any time before the expiry of nine months from the end of the financial year in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the assessee or any other person or where an opportunity of being heard is to be provided to the assessee, the order giving effect to the said order under section 250 or section 254 or section 260 or section 262 or section 263 or section 264 shall be made within the time specified in sub-section (3)." 13. Undisputedly, the learned ITAT had pronounced the order in open court on 24.02.2021 as is expressly set out in the said order. The order also indicates that the Revenue was duly represented by the departmental representative (Sh. Surender Pal, CIT). Thus, the timeline for passing an order under Section 153(5) of the Act commenced from 24.02.2021. 14. There is no controversy regarding the date on which the said order was received. 15. In Commissioner of Income-tax-7 v. Odeon Builders (P.) Ltd.: Neutral Citation No. 2017:DHC:1720-DB, a Full Bench of this court considered the question as to when the period of limitation to file an appeal under Section 260A of the Act against an order passed by the learned ITAT would commence. This court had also taken note of the decision in the case of CIT v. Sudhir Choudhrie: (2005) 278 ITR 490. In that case this court had directed the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d on the date given, the date of pronouncement may be deferred, subject to sub-rule (5)(c) above, to a further date and information thereof shall be given on the notice board." 17. In Commissioner of Income-tax-7 v. Odeon Builder (P.) Ltd. (supra), a Full Bench of this court had noted the directions issued by the court in CIT v. Sudhir Choudhrie (supra) as well as the amendment to Rule 34 of the Rules made following the said judgment and had observed as under: "40. The context in which the interpretive exercise is to be undertaken is that of the statute of limitation. Usually, the commencement of limitation is that point when there is 'knowledge' of an order or judgment. In the context of Section 260A (2) (a), the question that should be asked is: "when was the Department/Revenue aware of the order" and not "when was that particular CIT or Pr CIT having jurisdiction have knowledge of the order". Once a responsible officer or representative of the Department such as its DR or the CIT (Judicial) is aware of the order, then from that point it is a purely internal administrative arrangement as to how the said officer obtains and further communicates the order to the officer who has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by, say, its Managing Director (MD), an argument that the limitation does not begin till the order has reached the desk of the MD of that company will not be countenanced. Therefore, what applies to an Assessee should equally apply to the Revenue particularly since the legislature has not couched the language in a manner that brings out any difference in the treatment of both the parties to the appeal." 18. We also consider it relevant to set out the relevant extract of the said decision of the Full Bench of this court in regard to the first two questions that were referred for consideration. The same are set out below: "Q: (i) What is the correct interpretation to be placed on the expression "received by the Assessee or the Principal Chief Commissioner or the Chief Commissioner or Principal Commissioner" in Section 260A (2) (a) of the Act? Does it mean 'received' by any of the named officers including the CIT (Judicial)? Ans: The word 'received' occurring in Section 260A (2) (a) would mean received by any of the named officers of the Department, including CIT (Judicial). The provision at present names four particular officers i.e. the Principal Commissioner, Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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