9911796707
TMI Blog2023 (12) TMI 1419X X X X Extracts X X X X X X X X Extracts X X X X ..... es to its associated enterprises. The petitioner is a 100% export-oriented unit (EOU) and in connection with its business activities, they obtained registration as a new Software Technology Park of India (STPI) unit in Techno Park, Thiruvananthapuram. Being a 100% export-oriented unit, the petitioner was claiming the benefit of deduction envisaged under Section 10B of the Act. Subject to the compliance of the conditions under Section 10B of the Act, the said deduction was to run consecutively for a period of ten years. For the assessment year 2009-10, the petitioner filed return on 29.09.2009 declaring a total income of Rs. 66,66,453/-. The case was selected for scrutiny and notices dated 01.09.2010 and 23.06.2011 under Sections 143(2) and 142(1) of the Act respectively were issued. Since the petitioner had entered into international transactions with its associated enterprises, the file was referred to the Transfer Pricing Officer under Section 92CA of the Act to determine the Arm's Length Price (for short, "ALP") in respect of such transactions. The Transfer Pricing Officer, vide order dated 24.01.2013, made a total adjustment of Rs. 6,03,55,394/- in the internation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of assessment issued under Section 144C(13) of the Act is patently without jurisdiction. 3. Heard Sri. M.Gopikrishnan Nambiar, learned counsel appearing for the petitioner; and Sri. Ravindranatha Menon, learned Senior Standing Counsel appearing for the respondents. 4. Learned counsel for the petitioner submitted that Ext. P4 order issued by the third respondent was beyond the time frame stipulated under Section 144C(13) of the Act, and therefore, non-est. Ext. P3 order of the DRP is dated 09.12.2013. According to the learned counsel, Ext. P4 order, in order to conform to the statutory time frame envisaged under Section 144C(13) of the Act, must have been received by the assessing authority either during December, 2013 or during January, 2014. Ext. P4 order does not reveal the date of receipt of Ext. P3 order by the assessing authority and the absence of evidence on the part of the third respondent to adduce proof showing the date of receipt of Ext. P3 order to rebut the challenge made against Ext. P4 order on the ground of limitation, totally justifies the case of the petitioner that Ext. P4 order is ultra vires Section 144C(13) of the Act. Relying on the decisions in Calc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n as it stood then, a provision with a non-obstante clause, and this Court, in several cases, have interpreted the said provision and found the same to be illegal. To substantiate the above contentions, the learned Standing Counsel relied on Panchamahal Steel Ltd. v. U.A. Josehi, ITO & Another [1997 (225) ITR 458]. 6. The issues that arise for consideration are whether the assessing authority, while passing an order under Section 144C of the Act is bound to comply with the time frame stipulated under Section 144C(13) of the Act and whether the impugned order passed by the assessing authority was without jurisdiction. 7. Ext. P3 directions issued by the DRP under Section 144C(5) r/w sub-section 8 of Section 144C of the Act is dated 09.12.2013. For a better understanding, it is relevant to extract Section 144C of the Act, which reads thus; 144C. Reference to dispute resolution panel.- (1) The Assessing Officer shall, notwithstanding anything to the contrary contained in this Act, in the first instance, forward a draft of the proposed order of assessment (hereafter in this section referred to as the draft order) to the eligible assessee if he proposes to make, on or after the 1st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer in opinion on any point, the point shall be decided according to the opinion of the majority of the members. (10) Every direction issued by the Dispute Resolution Panel shall be binding on the Assessing Officer. (11) No direction under sub-section (5) shall be issued unless an opportunity of being heard is given to the assessee and the Assessing Officer on such directions which are prejudicial to the interest of the assessee or the interest of the revenue, respectively. (12) No direction under sub-section (5) shall be issued after nine months from the end of the month in which the draft order is forwarded to the eligible assessee. (13) Upon receipt of the directions issued under sub-section (5), the Assessing Officer shall, in conformity with the directions, complete, notwithstanding anything to the contrary contained in section 153 or section 153B, the assessment without providing any further opportunity of being heard to the assessee, within one month from the end of the month in which such direction is received. (14) The Board may make rules for the purposes of the efficient functioning of the Dispute Resolution Panel and expeditious disposal of the objections file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irm, reduce or enhance the variations proposed in the draft order. In subsection (9), it is stated that if the members of the DRP differ in opinion on any point, the point shall be decided according to the opinion of the majority of the members. As per sub-section (10), every direction issued by the DRP shall be binding on the assessing officer. As per subsection (11), without affording an opportunity of being heard to the assessee and the assessing officer, no direction under sub-section (5) shall be issued by the DRP. It is stated in sub-section (12) that no direction under sub-section (5) shall be issued after nine months from the end of the month, in which the draft order is forwarded to the eligible assessee. The provision in dispute, i.e., sub-section (13), states that on receipt of the directions issued under subsection (5) from the DRP, the assessing officer, in conformity with the directions, has to complete the assessment without providing any further opportunity of being heard to the assessee within one month from the end of the month, in which such direction is received. 8. Admittedly, Ext. P3 is dated 09.12.2013. Hence, the assessing officer was bound to pass the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act deals with the time limit contemplated for the completion of assessments and re-assessments under the Act. It is relevant to note that in addition to the non-obstante clause under Section 144C(1) with respect to other provisions of the Act, there is a specific exclusion of the application of Section 153 from the frame work of Section 144C. This specific exclusion of Section 153 from the proceedings under Section 144C, exemplifies the rigour of the specific time limits provided under Section 144C. Under Section 153 of the Act, longer time limit is prescribed, whereas, specific time limit is prescribed under Section 144C of the Act. The specific exclusion of Section 153 from the ambit of Section 144C is a conscious action of the lawmaker. If the legislature does not have any intention to stick on with the time limit prescribed in Section 144C, there was no necessity of insertion of Section 144C, since there was already a provision under Section 153 contemplating time limit for completion of assessments or re-assessments. Hence, it cannot be said that Section 144C is procedural, but, on the other hand, it is a substantive provision specifying time limit for completing proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are clear and take into account the purpose of the statute. It is settled that the provisions should be examined in their literal sense and given their natural effect. This is the elementary golden rule of interpretation of statutes. Sub-section (13) of Section 144C is thus very clear that upon receipt of the directions issued under sub-section (5), the assessing officer shall, in conformity with the directions, complete the assessment without providing any further opportunity of being heard to the assessee, notwithstanding anything to the contrary contained in section 153 or section 153B, within one month from the end of the month in which such direction is received. There is no requirement of dwell in further inductive analysis of the above provision. The assessing officer has not filed any counter affidavit to affirm the date, on which Ext. P3 directions of the DRP was received. They only state that the provisions in Section 144C are only procedural and not substantive, to which I do not agree. Section 144C of the Act is very specific and clear as to the compliance of the statutory provisions. 14. In Vodafone Idea Ltd. v. Central Processing Centre and Others [2023 SCC OnLine B ..... X X X X Extracts X X X X X X X X Extracts X X X X
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