TaxTMI 
TaxTMI 
TaxTMI 
2021 (4) TMI 355
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....No.1068 of 2020, the petitioner seeks a Certiorarified Mandamus calling for and quashing communication dated 06.01.2020 in respect of AY 2009-10 and a direction to R2 to refund the tax paid by the petitioner along with interest in accordance with Section 244A of the Act. In WP.No.1070 of 2020, the petitioner seeks a writ of prohibition restraining the respondents from continuing with or proceeding further in relation to AY 2009-10. 2. W.P. Nos.1068 and 1070 of 2020 are taken up first. The Petitioner filed a return of income that was selected for scrutiny and referred to the Transfer Pricing Officer (TPO). A Transfer Pricing order was passed on 23.01.2020 and a draft assessment order by R2 on 30.03.2013 making various adjustments to the income returned as well as incorporating the adjustments proposed in the Transfer Pricing Order. The petitioner filed objections to the draft assessment before R1 that were confirmed by R1 in terms of Section 144C of the Act. R2 thereafter passed a final assessment order on 16.01.2014, aggrieved with which the petitioner filed an appeal before the Income Tax Appellate Tribunal (ITAT/Tribunal). The Tribunal, vide order dated 18.12.2015, remanded the ....
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....nvertible debentures as well as disallowance under Section 14A of the Income-tax Act, 1961 (in short 'the Act') read with Rule 8D is also remitted back to the file of the Assessing Officer. The Assessing officer shall re-examine the issue afresh and thereafter decide the same in accordance with law after giving a reasonable opportunity to the assessee.' 4. No further proceedings were initiated by R1 pursuant to the order of the Tribunal and on 21.08.2019, the petitioner wrote to R2 seeking refund of the tax paid for both assessment years, i.e., AYs 2009-10 and 2010-11. The aforesaid letter triggered notices dated 06.01.2020 from R1 calling upon the petitioner to appear for a hearing, that are challenged in these writ petitions as being barred by limitation. 5. The Petitioner submits that, as per the provisions of Section 153(2A) (unamended)/153(3)(post amendment), an order of fresh assessment in pursuance of an order under Section 254 setting aside or cancelling an assessment is to be made at any time before the expiry of one year/nine months respectively from the end of the financial year in which the order under Section 254 was received by the Principal Chief Commissioner/Commi....
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....mpletion of assessment in terms of Section 153(2A) expired on 31.03.2017. As far as AY 2010-11 is concerned, the order of the Tribunal had been received by the Department in Financial Year 2016-17 and the time for completion of assessment in terms of Section 153(3) expired on 31.12.2017. The impugned notices are dated 06.01.2020, barred by limitation. 8. This submission of the revenue is that Section 144C is a complete code by itself, not governed by the time lines set out in Section 153. Learned Senior Standing Counsel for the revenue would take me to the scheme of Section 144C stressing on the opening phrase which states that the Assessing Officer shall, notwithstanding anything to the contrary contained in this Act, forward a draft of the proposed order of assessment to the assessee. Thus, according to her Section 144C is a standalone provision and contemplates a unique procedure un-impacted by any of the other provisions in the Act, unless specifically stated so. 9. Moreover, she points out that Section 144C(13) requires the Assessing Officer to complete the final assessment 'notwithstanding anything to the contrary contained in Section 153 or Section 153B' and without provid....
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....e of the Assessing Officer. 13. Under the scheme of assessment in Section 144C(1), the Assessing Officer, notwithstanding anything to the contrary contained in the Act, is to forward a draft of the proposed order of assessment to the assessee in question, if he is of the view that a variation is called for in the income or loss returned by that assessee which would be prejudicial to its interests. The assessee in response, under subsection (2), has 30 days to either file its acceptance of the proposed variation or objections to the variations with the DRP and the Assessing Officer. The Assessing Officer is to thereafter, under sub-section (3), complete the assessment on the basis of the draft order if the assessee has intimated its acceptance of the order or has not filed objections to the same within the time stipulated. In terms of sub-section (4), the Assessing Authority is to pass an order of assessment within one month from the end of the month in which the acceptance of the assessee is received or the period for filing of objections expires. 14. Sub-section (5) to (12) set out the procedure for receipt, adjudication and disposal of objections by the DRP. Sub-section (5) sta....
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....me limits have been eschewed in the process. In fact, the argument to the effect that proceedings before the DRP are unfettered by limitation would run counter to the avowed object of setting up of the DRP a high powered and specialised body set up for dealing with matters of transfer pricing. Having set time limits every step of the way, it does not stand to reason that proceedings on remand to the DRP may be done at leisure sans the imposition of any time limit at all. 17. Sub-section (13) to Section 144C, in my view, imposes a restriction on the Assessing Officer and denies him the benefit of the more expansive time limit available under Section 153 to pass a final order of assessment as he has to do so within one month from the end of the month when the directions of the DRP are received by him, even without hearing the assessee concerned. 18. Barring this, I find nothing in the language of Section 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 ....