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AMPLIFON (INDIA) PRIVATE LIMITED,DELHI vs ACIT, CENTRAL CIRCLE 7, DELHI | BharatTax

AMPLIFON (INDIA) PRIVATE LIMITED,DELHI vs. ACIT, CENTRAL CIRCLE 7, DELHI

ITA 6056/DEL/2024Status: DisposedITAT Delhi22 January 2026AY 2021-2220 pages

AI SummaryAllowed

Facts

Eight assessee companies challenged the validity of their assessment orders for AY 2021-22, arguing they were passed beyond the limitation period prescribed by Section 153 of the Income Tax Act, 1961. The core issue was whether Section 144C, dealing with Dispute Resolution Panel (DRP) proceedings, and Section 153 were mutually inclusive or exclusive in determining the time limit for final assessment orders.

Held

The Tribunal held that Section 144C and Section 153 are mutually inclusive and overlapping, meaning the limitation period for final assessment orders under Section 144C(13) is governed by Section 153. Based on the undisputed dates provided, the final assessment orders in all eight cases were passed beyond the stipulated deadlines, rendering them barred by limitation.

Key Issues

Whether Section 144C and Section 153 of the Income Tax Act are mutually inclusive for determining the limitation period for passing final assessment orders, and if the assessment orders in question were passed within such period.

Sections Cited

144C, 153, 144C(13), 153(2A), 153(3), 92CA

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, DELHI BENCH “I”NEW DELHI

Before: SHRIVIKAS AWASTHY & SHRISANJAY AWASTHI

For Appellant: Shri Vishal Kalra, Advocate &Ms. Snigdha Gautam, Advocate

For Respondent: Shri Dharm Veer Singh, CIT DR

Hearing: 22.01.2026

सुनवाईक�तारीख/ Date of hearing: 22.01.2026 22.01.2026 उ�ोषणाक�तारीख/Pronouncement on आदेश /O R D E R PER SANJAY AWASTHI, ACCOUNTANT MEMBER:

1.The present adjudication involves eight assessees as under:

1) NEC Corporation India Pvt. Ltd.- (AY 2021-22) 2) Lintec India Pvt. Ltd. - (AY 2021-22)

3) Federal Mogul Goetze India Ltd. - (AY 2021-22)

4) Benetton India Pvt. Ltd. - (AY 2021-22) 5)Amplifon (India) Pvt. Ltd.- (AY 2021-22) 6) Boeing India Pvt. Ltd.- (AY 2021-22) 7) Ericsson India Pvt. Ltd.- (AY 2021-22) 8) Genpact Mobility Services India Pvt. Ltd.- ITA No.6133/D/24 (AY 2021-22)

In all these appeals the assessees have challenged the validity of the assessment order on the ground of limitation considering the provisions of section 144C(13) r.w.s. 153 of the Income Tax Act, 1961 (hereafter as “the Act”).Since all these appeals involve the common issue of limitation, hence, they are being disposed of through this single order.

1.1 The challenge to the validity of the impugned order arises from the case of Commissioner of Income Tax vs. Roca Bathroom Products (P) ltd. reported in 445 ITR 537 (Mad.), Sections 144C and 153 are mutually inclusive and not mutually exclusive as both contain provisions relating to section 92CA and are interdependent and overlapping and hence, period of limitation prescribed under section 153(2A) or 153(3) of the Act areapplicable only. The specific grounds challenging the limitation raised by the assessee are as under:

1.

NEC Corporation India Pvt. Ltd. (AY 2021-22): Ground no.1 as per Form 36.

2. Lintec India Pvt. Ltd. (AY 2021-22): Ground no.1 as per Form 36.

3. The Ld. DR objected to the adjudication of these appeals and submitted that the issue was sub-judice before the Hon’ble Supreme Court. He also filed detailed written submissions. It was argued that the Hon’ble Apex Court in the case of Shelf Drilling Ron Tappmeyer Ltd. reported in 177 taxmann.com 262 (SC), has examined this issue but due to divergent opinions expressed by the Hon’ble Judges, the issue is now referred for constituting a larger Bench. It was pointed out that even otherwise the Hon’ble Supreme Court in the case of Shelf Drilling Ron Tappmeyer Ltd. has held, vide interim order dated 22.09.2023, that the operative portion of the judgment delivered by the Hon’ble Bombay High court [153 taxmann.com 162 (Bom)] would not be cited as a precedent. This interim order dated 22.09.2023 was placed before us for perusal. It was the further submission that in light of the said order passed by the Hon’ble Apex Court it would not be in the interest of judicial propriety to proceed with an identical matter. The Ld. DR further pointed out that the judgment of Hon’ble Bombay High Court in the case of PayPal Payments P. Ltd. in Writ Petition (L) No.30944 of 2023 decided on 13.08.2024, that the Hon’ble Bombay High Court refused to entertain the writ petition involving identical issue after taking note of the fact that the Hon’ble Apex Court stayed the operative part of the judgment in the case of Shelf Drilling (supra). The Ld. DR further referred to the decision of Hon’ble Supreme Court in the case of UP Rashtriya Chini Mill Adhikari Parishad Lucknow vs. State of U.P. & Others reported as (1995) AIR SC 2148, to argue that when an issue is referred to a larger Bench then during the pendency of such reference, matters involving identical issues should not be taken up for adjudication. Thereafter the Ld. DR read out from his detailed written submissions as under: - “A. Introductory submission “2. The present appeals raise the issue as to whether in cases governed by section 144C of the I.T. Act, the time consumed in the proceedings undertaken after draft assessment order under section 144C of the I.T. Act before the Dispute Resolution Panel ("DRP") and the Assessing officer get subsumed within the time limitation prescribed under section 153 of the I.T. Act or whether section 144C operates as a special statutory mechanism with its own distinct timelines for completing the assessment after passing of the draft assessment order.

11.

It is respectfully. submitted that the ratio laid down by the Hon'ble Bombay High Court in Shelf Drilling Ron Tappmeyer Ltd. and by the Hon'ble Madras High Court in Roca Bathroom Products (P.) Ltd. arises on the same legal controversy, namely the computation of limitation involving the interplay of sections 144C and 153. The principle enunciated in both decisions is, in substance, identical-i.e., that the timelines under section 153 continue to govern and must subsume the DRP mechanism under section 144C. In this context, it is material that the Hon'ble Supreme Court has passed a specific interim direction that the judgment of the Hon'ble Bombay High Court in case of Shelf Drilling shall not be cited as a precedent in any other subsequent matter. The Revenue, therefore, submits that, when the Supreme Court has expressly restrained reliance on the Shelf Drilling ratio, the same ratio cannot be permitted to be applied indirectly through relying on another non- jurisdictional decision ( Such as Roca Bathroom decision of Madras High Court) laying down an identical preposition, particularly when said Roca Bathroom decision of Madras High Court itself is under appeal, and leave has been granted by the Hon'ble Supreme Court. Accordingly, Roca Bathroom decision or any other decision on the said issue cannot be treated as determinative or enforced as a basis to conclude the controversy in present appeals, and the issue ought to await authoritative settlement by the Hon'ble Supreme Court. (v) Hon'ble Supreme Court judgment in case of UP Rashtriya Chini Mill Adhikari Parishad, Lucknow Vs. State of U.P. and others, I.A No. 4 of 1995 in SLP(C) no 19963 of 1992 dated 2nd July 1995 (copy enclosed) : 12. In this case, Hon'ble Supreme Court had made following observation when a Division Bench of High Court decided an issue which was pending consideration before Full Bench of High Court. "The matter was pending consideration before a Full Bench of High Court. Needless to say that the appropriate course for the Division Bench would have been to wait the decision of the Full Bench which finally delivered his verdict on 15.11.1994overruling the Division Bench." The above observation of Hon'ble Supreme Court even if in the nature of obiter dicta would be binding on this Hon'ble Bench as in present appeals too, the issue of time limitation agitated by the assessee is pending for consideration of Larger Bench of Hon'ble Supreme Court.”

5.

At this stage it deserves to be mentioned that in a Coordinate Bench decision rendered by this very same combination,in and in the case of Li & Fung (India) P. Ltd., vide order dated 21.01.2026, the arguments of the Ld. DR and from the assessee’s side have been discussed and recorded at length. Since the surrounding facts and circumstances are similar, hence, the operative portion of this Coordinate Bench order deserves to be extracted as under: - “5. Both sides heard. The issue which arises for consideration before us at the preliminary stage is whether we can proceed with the hearing of issue in appeal when on a similar issue the operative portion of the judgment passed by the Hon’ble High Court in the case of Shelf Drilling Ron Tappmeyer Ltd. (supra) has been stayed by the Hon’ble Supreme Court of India. In the present case, the appellant/assessee has placed reliance on the decision rendered in the case of Roca Bathroom Products P. Ltd. (supra). The identical objection now raised by the ld. DR was examined by the Hon’ble Bombay High Court in the case of PayPal Payments P. Ltd. (supra). The Hon’ble High Court deferred hearing of the issue for the reason that the hearing may not bring about any concrete conclusion as the similar question of law is pending determination before the Hon’ble Supreme Court of India. The Hon’ble Court further observed that similarly placed assessees who have succeeded before the Hon’ble Madras High Court inter alia in Roca Bathroom Products P. Ltd. (supra) as also before the Hon’ble Delhi High Court in Nokia 10 India P. Ltd. (supra), the proceedings arising from said decisions of the Hon’ble Madras High Court and the Hon’ble Delhi High Court are pending before the Hon’ble Supreme Court of India. The said orders of the Hon’ble High Courts setting aside the assessment orders are not stayed by the Hon’ble Apex Court. Thus, it is evident that in so far as the decision rendered in the case of Roca Bathroom Products P. Ltd. (supra) by the Hon’ble Madras High Court, the same is not stayed. It is a well settled legal proposition that when the operation of a specific order is stayed by the Higher Court, then its enforcement is stayed but the ratio decidendi of such order/judgment is not nullified unless explicitly set aside. The Hon’ble Supreme Court of India in the case of Shree Chamundi Mopeds Ltd. v. Church of South India Trust (supra) has held that an order of interim stay does not result in quashing of the impugned order. It only means that the order will not be operative from the date that it is stayed. In the case of Govt of AP vs. N. Rami Reddy& Others 2011 AIR- AP 226,one of the issue for consideration before the Hon’ble High Court was; Whether the interim stay of a High Court order by the Hon’ble Supreme Court of India has the effect of wiping out the ratio of the High Court’s order or otherwise nullifying the precedent relied upon by the petitioner? The Hon’ble High Court held that the ratio of judgment represents the reasons assigned in support of the conclusion. An order of interim stay actually stays the operative part of the decision, but does not wipe out its ratio decidendi.

18. In case, interpretation provided by the assessee is accepted, then it would lead to many absurdities in operation of 144C provisions. Firstly, at the stage of passing of draft assessment order, it is not known to the A.O. as to whether the assessee would choose DRP route or not. If the interpretation furthered by the assessee is accepted, then in every case of eligible assessee, which involved issue of draft assessment order, the AO would be required to pass draft assessment order at least 11 months before the time barring date prescribed under section 153 of the Act irrespective of the fact whether the assessee chooses DRP route or not. If Assessee does not choose DRP route, then while on one hand, such early finalization of assessment cuts down time available with the AO to pass assessment order affecting level of inquiries/verifications, on the other hand the DRP route would go unutilized. This contradiction itself shows that interpretation of section 144C of the Act relied upon by the assessee is required to be discarded. Secondly, with the overall time limits for completing assessments as prescribed under section 153 of the Act ever decreasing as an effort by the legislature to cut down overall time, if period of 11 months is counted backward from such shortened time limit allowed under section 153, then in many cases (such as not involving TP reference), the draft assessment order would be required to be issued even before end of the relevant assessment year. In many cases even involving Transfer Pricing Reference, such time available with the A.O. and T.P.O will be only few months, effectively scuttling possibility of any meaningful verification or scrutiny of details frustrating very purpose of entire scrutiny assessment related provisions under the I.T. Act. Such a situation will be hit by doctrine of impossibility or doctrine of frustration and courts should avoid any interpretation of 144C and 153 provisions of the Act which leads to such situations as 'Law does not compel the impossible'. This aspect having serious repercussions has not been considered while interpreting the interplay between section 153 and 144C of the Act. This again creates a very absurd situation which could never have been contemplated by the Legislature. Thirdly, it needs to be appreciated that overall mandate to reduce time lines for completing the assessment is being achieved by the Legislature over the years by way of shortening time lines given in section 153 of the Act. Section 144C is not meant for that as it has already very shortened and stiff timelines prescribed. Section 144C is meant for providing the alternate dispute resolution mechanism to eligible assessee and for doing away with one appellate level i.e. CIT(A) from entire chain of tax litigation. This objective requires to be appreciated for interpretation of section 144C of the Act.

21.

In view of the above, it is submitted that time limits prescribed under section 144C are in addition to the time limit prescribed under section 153 of the I.T. Act. In present appeals, the final assessment order has been passed within the time limit prescribed under section 144C of the Act. Further the case of Roca Bathroom is distinguishable on facts and hence, no applicable to present appeals. Hence, the assessee's contention is required to be rejected on merit on this count.” 8. We have considered the submissions made by rival sides on merits of the issue before us for adjudication. The crux of submissions on merits by the department is, thatlimitation for passing the final assessment order under section 144C(13) of the Act is to be seen only with reference to the timeline specified u/s. 144C of the Act only without referring to provisions of section 153 of the Act. We find that identical submissions were made by the Department before the Hon’ble Madras High Court in the case of Roca Bathroom Products P. Ltd. (supra). The Hon’ble High Court rejected the arguments of the Department and held that provisions of section 144C and 153 of the Act are mutually inclusive as both contain provisions relating to section 92CA of the Act and are inter-dependent and are overlapping. Hence, the period of limitation for passing the final assessment order u/s.144C(13) of the Act has to be determined with reference to section 144C r.w.s 153 of the Act. For the sake of completeness, the relevant excerpts from the judgment rendered in the case of Roca Bathroom ProductsP. Ltd. (supra) are reproduced herein below:- “18. The main contentions of the Department, through their counsel are that Section 144C is a code in itself and hence on remand by the ITAT, the power of DRP to take up the dispute on additions by TPO, is not circumscribed by Section 153 and that in the absence of any express time limits contemplated under the Act, the time limits under Section 153 for reassessment cannot be read into Section 144C more particularly when the provisions of Section 153 are excluded by the non-obstante clause in section 144C(13) and hence the proceedings are not barred by limitation. Per contra, it has been contended by the learned senior counsels appearing for the respondent(s)/assessees that the outer time limit under Section 153 is applicable to every proceedings on remand and the department having slept over the issue for several years, cannot now redo the proceedings afresh, after certain rights have vested with the assessees. Even if specific provisions are not there to deal with this situation, the proceedings must be concluded within a reasonable time and hence the impugned proceedings are liable to be struck down and rightly done so by the learned Judge.

21. As held above, the assessment has to be concluded within 21 months when there is no reference and when there is a reference, it has to be concluded within 33 months. In the additional 12 months, the draft order is to be passed, the objections have to be filed, the DRP has to issue the directions and the final order is to be passed. The provisions under section 144C and section 153 are not mutually exclusive as both contain provisions relating to Section 92CA and are inter-dependent and overlapping. On remand, prior to amendment as per Section 153 (2A), the Assessing officer is given 12 months to pass a fresh assessment order. Therefore, it is incumbent on him to do so, irrespective of the fact that DRP has completed the hearing and issued the directions or not. As rightly held by the learned judge, we are of the view that the DRP ought to have concluded the proceedings within 9 months from the date of receipt of the Tribunal's order, when it had issued a notice on 19-2-2014 and conducted the hearing as early as on 10-3-2014 and on several dates. The DRP at Chennai, in fact ought to have passed orders before 19-11-2014, even if the date of receipt of the notice is taken as 19-2-2014. In that event, the assessing officer ought to have passed the order before 31-12-2014 or at the latest before 31-3-2015 considering that the order was received during the Financial year 2013-14. The transfer of the files to Bengaluru, after the lapse of the time, will not indefinitely extend the time and can have no impact on the time lines. It is an inter-department arrangement and it cannot defeat the rights of the assessee.”[Emphasized by us] 9. The stand of the Revenue is that section 144C of the Act is a complete code in itself for completing the assessments where reference is made to Dispute Resolution Panel (DRP) and in sub section (1) to section 144C of the Act there is “non obstante” clause which mandates exclusion of all other provisions contained in the Act.The Hon’ble Single Judge of the Madras High Court in the case of Roca Bathroom Products (P.) Ltd. vs. Dispute Resolution Panel-2, 127 taxman.com 332 (Madras) while dealing with aforesaid arguments made on behalf of the Department in a lucid manner explained the reason for reading section 144C & 153 of the Act together for determining limitation for passing the final assessment order, and held:- “15. No doubt, section 144C is a self contained code of assessment and time limits are inbuilt each stage of the procedure contemplated. Section 144C envisions a special assessment, one which includes the determination of Arms Length Price (ALP) of international transactions engaged in by the assessee. The DRP was constituted bearing in mind the necessity for an expert body to look into intricate matters concerning valuation and transfer pricing and it is for this reason that specific timelines have been drawn within the framework of section 144C to ensure prompt and expeditious finalisation of this special assessment.

18.

Barring this, I find nothing in the language of sections 144C or 153 to lead me to the conclusion that the latter is operated from the operation of the former. The specific exclusion of section 153 from section 144C(13) can be read only in the context of that specific sub-section and once again, reiterates the urgency that sets the tone for the interpretation of section 144C itself.” The Division Bench affirmed aforesaid findings of the Hon’ble Single Judge and further after considering various decisions viz.Sultana Begum vs. Prem Chand Jain [1997] 1 SCC 373; CIT vs. Hindustan Bulk Carriers [2023] 126 Taxman 321/259 ITR 449; & Franklin Templeton Trustee Services (P.) Ltd. vs Amruta Garg 124 taxmann.com 326, held as under:- “23. Further, similar non-obstante clause is also used in section 144C(4) with a same limited purpose to imply, even though there might be a larger time limit under Section 153, once the order of TPO is accepted or not objected to, causing a deeming fiction of acceptance, the final order is to be passed immediately. The object is to conclude the proceedings as expeditiously as possible and the authority need not wait for the last date to pass the orders. The limitation prescribed under the statute is for the assessing officer and therefore, it is his duty to pass order in time irrespective of whether the directions are received from DRP or not. As held by us above, the DRP will have no authority to issue directions after nine months and a further period of one month as per section 144C (13) and three months under section 153 (2A) is available, within which period no orders have been passed in the present cases. The reference made by the learned senior counsels on the judgments in Nokia India (P.) Ltd. (supra) and Vedanta Ltd. (Supra) is well founded. The timeline given under the Act is to be strictly followed.”[Emphasized by us] Thus, the Hon’ble High Court negatived the arguments made by the Department on ‘non obstante’ clause used in section 144C of the Act. The Hon’ble High Court thus, concluded:- “27. For the reasons set out herein before, we conclude as under: (a) The provisions of Sections 144C and 153 are not mutually exclusive, but are rather mutually inclusive. The period of limitation prescribed under Section 153 (2A) or 153 (3) is applicable, when the matters are remanded back irrespective of whether it is to the Assessing Officer or TPO or the DRP, the duty is on the assessing officer to pass orders. (b) Even in case of remand, the TPO or the DRP have to follow the time limits as provided under the Act. The entire proceedings including the hearing and directions have to be issued by the DRP within 9 months as contemplated under section 144C(12) of the Income-tax Act, (c) Irrespective of whether the DRP concludes the proceedings and issues directions or not, within 9 months, the Assessing officer is to pass orders within the stipulated time, (d) In matter involving transfer pricing, upon remand to DRP, the Assessing officer is to pass a denovo draft order and the entire proceedings as in the original assessment, would have to be completed within 12 months, as the very purpose of extension is to ensure that orders are passed within the extended period, as otherwise the extension becomes meaningless. (e) The outer time limit of 33 months in case of reference to TPO under Section 153, would not refer to draft order, but only to final order and hence, the entire proceedings would have to be concluded within the time limits prescribed, (f) The non-obstante clause would not exclude the operation of Section 153 as a whole. It only implies that irrespective of availability of larger time to conclude the proceedings, final orders are to be passed within one month in line with the scheme of the Act, (g) When no period of limitation is prescribed, orders are to be passed within a reasonable time, which in any case cannot be beyond 3 years. However, when the statute prescribes a particular period within which orders are to be passed, then such period, irrespective of whether it is short or long, shall be applicable.”