ADOBE SYSTEMS INDIA P.LTD,NOIDA vs. DCIT, NOIDA
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Income Tax Appellate Tribunal, DELHI BENCH ‘I-1’ : NEW DELHI
per the Postal Department and according to the said track consignment,
the deliver was confirmed on 27.01.2022. In this background, it is the
7 ITA No.928/Del./2022 submission of the ld. counsel that AO has received the order on
27.01.2022 and as per mandate of section 144C(13), the AO was required
to pass the final order within one month from the end of the month in
which such action was received. Hence, as per ld. counsel of the
assessee, since the AO has received the DRP’s directions on 27.01.2022,
it was incumbent upon him to pass the assessment order by 28.02.2022.
Since the assessment order has been passed on 06.04.2022 the same is
time barred.
Per contra, ld. DR for the Revenue submitted that pursuant to the
directions of the DRP, TPO was to give some effect and TPO has given
effect on 18.02.2022, hence it cannot be said that there is an issue of
assessment order being time barred.
Upon careful consideration, we find ourselves in agreement with
the submission of the ld. counsel for the assessee. Section 144C(13)
“144C ………… (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.
The DRP’s direction has to be given effect by the AO. The scheme
of Act does not postulate involvement of TPO in the giving effect of the
direction of the DRP, hence any verification or giving effect of the DRP’s
direction by the TPO is not under the scheme of Act which prescribes the
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time limit. A perusal of the provision of section 144C would clarify the
same. Section 144C in its entirety reads as under :-
“144C. (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 day of October, 2009, any variation which is prejudicial to the interest of such assessee.
(2) On receipt of the draft order, the eligible assessee shall, within thirty days of the receipt by him of the draft order,—
(a) file his acceptance of the variations to the Assessing Officer; or
(b) file his objections, if any, to such variation with,—
(i) the Dispute Resolution Panel; and
(ii) the Assessing Officer.
(3) The Assessing Officer shall complete the assessment on the basis of the draft order, if—
(a) the assessee intimates to the Assessing Officer the acceptance of the variation; or
(b) no objections are received within the period specified in sub-section (2).
(4) The Assessing Officer shall, notwithstanding anything contained in section 153 or section 153B, pass the assessment order under sub- section (3) within one month from the end of the month in which,—
(a) the acceptance is received; or
(b) the period of filing of objections under sub-section (2) expires.
(5) The Dispute Resolution Panel shall, in a case where any objection is received under sub-section (2), issue such directions, as it thinks fit, for the guidance of the Assessing Officer to enable him to complete the assessment.
(6) The Dispute Resolution Panel shall issue the directions referred to in sub-section (5), after considering the following, namely:—
(a) draft order;
(b) objections filed by the assessee;
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(c) evidence furnished by the assessee;
(d) report, if any, of the Assessing Officer, Valuation Officer or Transfer Pricing Officer or any other authority;
(e) records relating to the draft order;
(f) evidence collected by, or caused to be collected by, it; and
(g) result of any enquiry made by, or caused to be made by, it.
(7) The Dispute Resolution Panel may, before issuing any directions referred to in sub-section (5),—
(a) make such further enquiry, as it thinks fit; or
(b) cause any further enquiry to be made by any income-tax authority and report the result of the same to it.
(8) The Dispute Resolution Panel may confirm, reduce or enhance the variations proposed in the draft order so, however, that it shall not set aside any proposed variation or issue any direction under sub-section (5) for further enquiry and passing of the assessment order.
Explanation.—For the removal of doubts, it is hereby declared that the power of the Dispute Resolution Panel to enhance the variation shall include and shall be deemed always to have included the power to consider any matter arising out of the assessment proceedings relating to the draft order, notwithstanding that such matter was raised or not by the eligible assessee.
(9) If the members of the Dispute Resolution Panel differ 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
10 ITA No.928/Del./2022
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 filed under sub-section (2) by the eligible assessee.
(14A) The provisions of this section shall not apply to any assessment or reassessment order passed by the Assessing Officer with the prior approval of the Principal Commissioner or Commissioner as provided in sub-section (12) of section 144BA.
[(14B) The Central Government may make a scheme, by notification in the Official Gazette, for the purposes of issuance of directions by the dispute resolution panel, so as to impart greater efficiency, transparency and accountability by—
(a) eliminating the interface between the dispute resolution panel and the eligible assessee or any other person to the extent technologically feasible;
(b) optimising utilisation of the resources through economies of scale and functional specialisation;
(c) introducing a mechanism with dynamic jurisdiction for issuance of directions by dispute resolution panel.
(14C) The Central Government may, for the purpose of giving effect to the scheme made under sub-section (14B), by notification in the Official Gazette, direct that any of the provisions of this Act shall not apply or shall apply with such exceptions, modifications and adaptations as may be specified in the notification:
Provided that no direction shall be issued after the 31st day of March, [2024].
(14D) Every notification issued under sub-section (14B) and sub-section (14C) shall, as soon as may be after the notification is issued, be laid before each House of Parliament.] (15) For the purposes of this section,— (a) "Dispute Resolution Panel" means a collegium comprising of three Principal Commissioners or Commissioners of Income-tax constituted by the Board for this purpose; (b) "eligible assessee" means,— (i) any person in whose case the variation referred to in sub-section (1) arises as a consequence of the order of the Transfer Pricing Officer passed under sub-section (3) of section 92CA; and [(ii) any non-resident not being a company, or any foreign company.]”
11 ITA No.928/Del./2022
From the reading of above, it is amply clear from section 144C(7)
that DRP before issue of any direction referred to in sub-section(5) may make such further enquiry or calls any further enquiry and get the result reported to it. Hence there is no provision in the Act that DRP’s direction as contained in section 144C(5) may be subject to any further verification by any Income-tax authority other than giving effect by the AO. Hence the plea that since the TPO gave effect to the DRP’s direction subsequent
to the DRP’s direction cannot in any manner be considered to expand the time limit as prescribed in the Act. Even from this date of TPO’s giving effect, the final assessment order is time barred in any case. As already
noted by us, ld. DR’s plea that TPO’s giving effect to the DRP’s direction on 18.02.2022 can be considered as sufficient compliance to the time barring provision contained in section 144C(13) is not legally sustainable. 11. Undoubtedly, in this case, the assessment order has been passed beyond the time limit prescribed u/s 144C(13) being more than one month after the date of receipt of the directions of the DRP by the AO, as per the information provided in the paper book submitted by the
assessee’s counsel. The factual veracity of these dates has not been disputed by the Revenue. In this view of the matter, we agree with the contention that the order passed by the AO is void ab initio and liable to
12 ITA No.928/Del./2022 be quashed as the final assessment order is time barred. We hold and
direct accordingly.
In coming to the above conclusion, we draw support from the
following case laws to the same effect submitted by the ld. counsel of the
assessee :-
(i) ITAT, Delhi Bench in Dentsply India (P.) Ltd. vs. ITO (2019) 106 taxmann.com 420 (Delhi-Trib.) order dated 24.05.2019; (ii) ITAT, Cochin Bench in M/s. Envestnet Asset Management (India) Pvt. Ltd. in IT (TP) A.No.244/Coch/2014 for AY 2009-10 order dated 12.12.2014;
Since the appeal was heard only on the jurisdictional ground and
the other grounds on merits were never argued, these grounds raised by
the assessee are not adjudicated being academic in nature.
In the result, the appeal of the assessee is allowed.
In Stay Application No.121/Del/2022, the assessee seeks stay of
outstanding disputed demand in ITA No.928/Del/2022. Since we have
already decided the appeal in favour of the assessee, the above stay
application becomes infructuous and the same is dismissed as
infructuous. Order pronounced in the open court on this 16th day of June, 2022.
Sd/- sd/- (ANUBHAV SHARMA) (SHAMIM YAHYA) JUDICIAL MEMBER ACCOUNTANT MEMBER Dated the 16th day of June, 2022 TS
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