2025 (9) TMI 1632 - HC - Income Tax

Reassessment invalid where unilateral APA and ACR filed without TPO/CBDT report; modified s.92CD return accepted; s.151 breach

The HC held the reassessment and notices invalid: where a unilateral APA was executed and the ACR filed with no adverse TPO/CBDT report, the Assessing ... Reassessment proceedings u/s 147 read with Section 144B - notice issued u/s 148A(b) - Jurisdiction to examine ALP/modify income where APA and ACR filed but no adverse TPO/CBDT report - reassessment proceedings for the relevant assessment year pending on the date of filing of modified return, filed in terms of sub- section (1) of Section 92CD - income chargeable to tax - escaped assessment - belated remittance of employee contribution of provident fund - disallowance of Corporate Social Responsibility (CSR) expenses - addition u/s 43B read with Section 36(1)(va) - petitioner and the CBDT entered into a unilateral Advance Pricing Agreement (APA). Jurisdiction to examine ALP/modify income where APA and ACR filed but no adverse TPO/CBDT report - HELD THAT:- The petitioner had filed the ACR within ninety days on entering into APA in terms of Rule 10- O of the Rules. The TPO has not submitted any finding of failure on part of the assessee to comply with the terms of the agreement, which could lead to cancellation of agreement. Respondents have not controverted the contention of the petitioner that any adverse report has been received from the TPO or any appropriate authority. It is, therefore, clear that the respondent No.1 or the Jurisdictional Assessing Officer does not have the jurisdiction to examine and to make reassessment on its own. He is not vested with the jurisdiction to interpret the APA as to whether the petitioner has satisfied the terms and conditions of the APA. It is only the TPO who has the jurisdiction over the assessee to carry out the compliance audit of the agreement for each of the year covered in the agreement. In case the compliance audit report submitted within the prescribed period of six months from the end of the month in which the ACR referred to Rule 10-O of the Rules, is furnished by the TPO with the finding of failure on the part of the assessee to comply with the terms of the agreement, the DGIT (International Transaction) is obligated to forward to the Board for cancellation of the agreement, if required in terms of Rule 10R of the Rules. The conception of the respondent No.1 that the petitioner/assessee also was required to add other income in its modified return, is also incorrect since under Section 92CD(1), notwithstanding anything contained in Section 139, the person entering into APA is required to furnish a modified return in accordance with and limited to the agreement i.e., ALP covered under the international transaction within a period of three months from the end of the month in which the said agreement was entering into. Even in a case where the APA has not been entered into, the Assessing Officer if he considers it for determining the ALP in an international transaction or specified domestic transaction, as per Section 92CA(1), the Assessing Officer if he considers it necessary or expedient to do so, may, refer the computation of ALP in relation to such international transaction or specified domestic transaction to the TPO. The CBDT has issued instruction No.3 of 2016, dated 10.03.2016 to reconcile the provisions of Section 92C(3) and 92CA(1) for proper administration of the Act which inter alia contain detailed guidelines for implementation of the transfer pricing provisions. It requires the Assessing Officer to mandatorily refer to the TPO the issue of determination of ALP of an international transaction or specified domestic transaction. Therefore, the respondent No.1 committed jurisdictional error in not accepting the modified return under Section 92CD of the Act. The respondent No.1 could not have made any addition to the income of the petitioner based on the terms of the APA. In the absence of any adverse report from the TPO/CBDT, the respondent No.1 was obligated to accept that the petitioner had complied with the terms of the APA and no addition can be made to the modified return of income. Sanction/approval obtained for reopening of the assessment was not in accordance with section 151 of the Act and as a result the Assessment Order dated 16th January 2024 was void, bad-in-law and of no legal effect - HELD THAT:- In the present case, the order under Section 148A(d) and notice under Section 148 have been issued on 07.04.2022 relatable to the relevant Assessment Year 2018-19 i.e., after more than three years from the end of the relevant assessment year. The approval before passing the order under Section 148A(d) of the Act and before issuing of notice under Section 148 of the Act has been taken from the Principal Commissioner of Income Tax by the respondent No.1, which is permissible only if three years or less than three years have lapsed from the end of the relevant assessment year. In the present case, the relevant three years lapsed on 31.03.2022. Therefore, the prior approval of the Principal Chief Commissioner or Principal Director General or the Chief Commissioner or the Director General was required to be obtained before passing of the order under Section 148A(d) or before issuance of the notice under Section 148 of the Act. Assessing Officer could not have assumed exclusion of such a period while passing the order under Section 148A(d) of the Act or issuing notice under Section 148 of the Act on 07.04.2022 that such a proviso excluding the period consumed in furnishing the reply is going to be brought into the statute book by amendment by the Finance Act, 2023 with effect from 01.04.2023. In taxing statutes, intendment cannot be assumed unless specifically expressed in the provision enacted by the legislature. Therefore, the reopening of assessment without sanction/approval of the specified authority in accordance with Section 151 of the Act was bad in law. Consequently, reassessment order dated 16.01.2024 also is bad in law. Therefore, it is held that the reopening of the assessment and the consequent reassessment order suffer from jurisdictional error. Lack of jurisdiction for issue of Notice under Section 148A(b) of the Act and Notice under Section 148 of the Act by the Jurisdictional Assessing Officer - HELD THAT:- The revenue went in Appeal against the judgment [2024 (8) TMI 1598 - TELANGANA HIGH COURT]. The apex Court [2025 (7) TMI 1441 - SC ORDER] its decision has dismissed the Special Leave Petition holding that after going through the material on record, it does not find any good reason to interfere with the order passed by the this Court. Though learned counsel for the respondent has taken a plea that the matter is still sub judice before the apex Court, it is also not disputed that there is no stay on the decision rendered on the subject by this Court. Therefore, it is held that the notice dated 07.04.2022 issued under Section 148 of the Act by the JAO is without jurisdiction. ISSUES PRESENTED AND CONSIDERED 1. Whether, upon filing a modified return under Section 92CD pursuant to an Advance Pricing Agreement (APA) and filing the Annual Compliance Report (ACR) in Form 3CEF, the Assessing Officer (AO)/Assessment Unit had jurisdiction to make additions or vary the Arm's Length Price (ALP) in the absence of any adverse compliance-audit report from the Transfer Pricing Officer (TPO)/DGIT/CBDT. 2. Whether the prior sanction/approval for issuance of notice under Section 148 and for passing the order under Section 148A(d) was obtained from the correct 'specified authority' under Section 151 (as amended), and whether failure to obtain sanction from the statutory authority vitiates the reopening and consequent reassessment order. 3. Whether the Jurisdictional Assessing Officer (JAO) had jurisdiction to initiate/issue the notice under Section 148 (and related proceedings) after introduction of the e-Assessment (Faceless) Scheme (Notification No.18 of 2022) and Section 151A - i.e., whether proceedings had to be undertaken by a Faceless Assessing Officer (FAO). 4. Whether, after reopening the assessment for specific reasons recorded under Section 148A(b), the AO was entitled to proceed to assess/add income on other independent issues not specified in the reasons (including where the original issues were thereafter dropped or reached finality). 5. Whether, alternatively and without prejudice, the AO erred in computation/interpretation of ALP and APA terms while making transfer-pricing adjustments. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Jurisdiction to examine ALP/modify income where APA and ACR filed but no adverse TPO/CBDT report Legal framework: Sections 92CC (APA), 92CD (effect of APA), Rule 10-O (ACR filing), Rule 10P (TPO compliance audit) and Rule 10R (cancellation of APA) together regulate APA operation, filing of ACR, compliance audit by TPO, and referral to DGIT/CBDT for cancellation. Precedent treatment: CBDT Instruction No.3/2016 and the statutory Rules envisage mandatory role of TPO for compliance audit and, where there is non-compliance, onward reference to DGIT/CBDT. The AO may refer ALP issues to TPO under Section 92CA(1); where APA exists, Rule 10P limits AO's role. Interpretation and reasoning: Where APA exists and ACR is filed within the statutory timeline, the TPO alone is empowered to carry out the compliance audit and to report findings to DGIT (and CBDT if cancellation is warranted). Absent any adverse compliance-audit report from the TPO/DGIT/CBDT, the AO/Assessment Unit had no jurisdiction to reject or reinterpret the APA, to refuse to accept the modified return under Section 92CD, or to make ALP adjustments covered by the APA. The statutory scheme makes the APA binding unless validly cancelled following the Rule 10P/10R process. Ratio vs. Obiter: Ratio - AO could not independently re-determine ALP in respect of transactions covered by a valid APA when no adverse TPO/DGIT/CBDT compliance report exists; such power rests with TPO/DGIT/CBDT under Rules 10P/10R and Section 92CD. Obiter - references to CBDT instructions and administrative practice clarify process but do not alter statutory scheme. Conclusion: The AO/Assessment Unit exceeded jurisdiction by adding an ALP adjustment (Rs.106,47,00,730) in respect of transactions covered by the APA; the modified return under Section 92CD ought to have been accepted in absence of any adverse compliance report. Issue 2 - Validity of sanction under Section 151 for reopening (specified authority) Legal framework: Sections 148A and 148 require prior approval of the 'specified authority' as defined in Section 151; Section 151 identifies the competent sanctioning authority depending on whether three years from end of the relevant assessment year have elapsed; proviso (Finance Act, 2023) affects computation but has limited temporal operation. Precedent treatment: High-court authorities interpreted the timing/sanction requirement strictly where notices/orders dated beyond three years required higher authority sanction; recent statutory amendment (proviso) is not to be given retrospective operation to validate earlier approval taken from an incorrect authority. Interpretation and reasoning: The notice/order in question were dated beyond three years from the end of the relevant assessment year; therefore the sanctioning authority had to be the Principal Chief Commissioner/Principal DG or equivalent higher authority under Section 151(ii). Approval obtained from a Principal Commissioner (appropriate where =3 years) was therefore invalid. The proviso to Section 151 (inserted later) cannot be retrospectively applied to validate prior defective sanction; taxing statutes require express retrospective language to alter limitation/sanction consequences. Ratio vs. Obiter: Ratio - Reopening founded on sanction by an incorrect specified authority is jurisdictionally vitiated and renders the reopening/notice invalid. Obiter - discussions on the non-retrospective effect of the Finance Act, 2023 proviso and on policy considerations. Conclusion: The sanction/approval for issuance of the Section 148 notice and for the Section 148A(d) order was invalidly obtained from an incorrect authority; reopening and reassessment are void for lack of valid sanction. Issue 3 - Jurisdictional competence of JAO versus FAO under Faceless Scheme/Section 151A Legal framework: Notification (e-Assessment of Income Escaping Assessment Scheme) and Section 151A envisage faceless reassessment proceedings; administrative scheme displaces territorial JAO proceedings for certain types of re-assessment. Precedent treatment: High Court decisions held notices issued by JAO instead of FAO under the faceless scheme to be without jurisdiction; where such decisions stand unvacated and no stay exists, they govern similar fact situations. Interpretation and reasoning: The facts showed the notice under Section 148 was issued by the JAO (non-faceless) notwithstanding the e-Assessment Scheme; in light of binding High Court precedent and absence of a stay, issuance by JAO was beyond jurisdiction. The Department's contention of pendency before the Supreme Court did not negate the operative High Court ruling in the particular facts. Ratio vs. Obiter: Ratio - Post-faceless notifications, reassessment notices issued by JAO in breach of the scheme are invalid. Obiter - observations on appellate remedies and pending litigation do not alter the jurisdictional defect. Conclusion: The Section 148 notice issued by the JAO (non-faceless) was without jurisdiction in the circumstances; this vitiates the reassessment process. Issue 4 - Power to assess other issues where original reasons dropped or reached finality Legal framework: Section 147 (as amended) permits assessment/reassessment in respect of income which escaped assessment and any other income which comes to AO's notice subsequently in the course of proceedings; prior jurisprudence (pre-amendment) constrained AO from assessing other income where the original escapement was held not to have escaped assessment unless fresh notice issued. Precedent treatment: Pre-amendment authorities (e.g., Jet Airways) held that after initial reason is negated the AO cannot independently assess other income without fresh notice; statutory amendment modifies wording but does not squarely dispose of all questions. Interpretation and reasoning: The Court observed that one of the original reopening reasons had been finally concluded and accepted by the assessee; the AO nonetheless proceeded to add other items (ALP adjustment). Given answers to Issues 1-3 (jurisdictional defects), the Court declined to decide the full ambit of Section 147's amended text on the matter and left detailed resolution to an appropriate case. Ratio vs. Obiter: Obiter - treatment of interplay between amended Section 147 and earlier precedents was not finally decided given earlier holdings on jurisdictional defects. Conclusion: The Court did not make a definitive ruling on this issue; it remained open for adjudication in a proper factual matrix, but the reassessment was quashed on other jurisdictional grounds. Issue 5 - Merits: alleged erroneous computation of ALP under APA Legal framework: ALP computation under APA terms and transfer-pricing methodology; AO's power subject to Section 92CC/92CD and Rules 10-O/10P. Precedent treatment: Where APA governs, challenges to ALP computation ordinarily lie in post-compliance audit/TPO process or on merits before appellate fora; AO cannot, in first instance, substitute own computation for APA terms absent Rule 10P finding. Interpretation and reasoning: The Court declined to examine merits of ALP computation because it concluded AO lacked jurisdiction to determine ALP where APA and ACR existed and no adverse TPO/DGIT/CBDT report was on record. The question of computational error was therefore left open. Ratio vs. Obiter: Obiter - substantive assessment on computation was not determined due to prior findings on jurisdiction. Conclusion: Merits of ALP computation were not adjudicated; the reassessment was quashed on jurisdictional grounds rendering further factual-technical examination unnecessary in this petition. Final Disposition (legal consequence) The reassessment order under Section 147 read with Section 144B was held to suffer from jurisdictional defects (invalid sanction under Section 151; invalid initiation by JAO in face of faceless scheme; and lack of AO jurisdiction to re-determine ALP covered by APA absent adverse TPO/DGIT/CBDT compliance report). The impugned reassessment order was quashed. The Court left open questions regarding Section 147's amended scope and the substantive ALP computation for adjudication in appropriate proceedings.