TaxTMI 
TaxTMI 
2021 (6) TMI 1114
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....he assessment folder and made written submission on this issue vide letter dated 25/08/2010. Briefly, the A.O-s submission is that the A.O during the course of assessment proceedings found that the value of International transactions in this case for the relevant assessment year exceeded Rs.15 crore, he therefore, vide a letter dated 11/11/2008 addressed to the CIT u/s. 92 CA requested the CIT for approval as required before making a reference to the TPO. The CIT after considering the subject mater accorded his approval vide letter dated 18/11/2008 to the A.O., therefore, the process for Transfer Pricing Audit u/s. 92CA had commenced. The A.O therefore, submitted that the communication dated 17/02/2009 by the A.O to the TPO is merely a formality and is not a fatal defect in the procedure, hence, the assessment is not barred by limitation of time. 2.4 We have carefully considered the facts of the case, written submissions of both the parties and we have also examined the case records, more particularly the A.O-s letter dated 11/11/2008 addressed to the CIT for seeking the previosu approval as required u/s. 92CA and the CIT-s letter dated 18/11/2008 addressed to the A.O conv....
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....annot be violated and therefore assessment proceedings cannot be made beyond the period of limitation. It is submitted that merely because a belated reference is made, ipso facto will not extend the period of limitation prescribed under Section 153 of the Income Tax Act, 1961. 6. The learned counsel for the petitioner placed heavy reliance on the decision of the Hon-ble Supreme Court in State of Punjab and others Vs Shreyans Industries Limited and others, (2016) 4 SCC 769. The learned counsel for the petitioner drew the comparision between Section 153 of the Income Tax Act, 1961 and Section 11 of the Punjab General Sales Tax Act, 1948 and submitted that in absence of a provision giving powers to extend the period of limitation under Section 153 of the Income Tax Act, 1961, as in Section 11(10) of the Punjab General Sales Tax Act, 1948, the impugned order passed by the 1st respondent/Dispute Resolution Panel was liable to be interfered with. 7. The learned counsel for the petitioner further submitted that, in taxing matters, the provisions have to be read in the manner in which they appear. Therefore it was not open for the respondents to proceed with the assessment beyond the....
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.... Income-tax Officer, [1981] 7 Taxman 13 (SC) (xxix) UCO Bank Vs Commissioner of Income-tax, [1999] 104 Taxman 547 (SC) (xxx) UTI Mutual Fund Vs Income-tax Officer, [2013] 31 taxmann.com 222 (Bombay) (xxxi) UOI & Ors. Vs Kaumudini Dayal & Anr, (2001) 10 SCC 231 (xxxii) The Commissioner of Income Tax Vs Tata Autocomp Systems Ltd., ITA No.1320 of 2012 (xxxiii) The Commissioner of Income Tax-I, Mumbai Vs Alstom Projects India Limited, ITA No.362 of 2014 (xxxiv) CIT Vs JK Charitable Trust, (2009) 1 SCC 196 (xxxv) Nokia India Private Limited Vs Additional Commissioner of Income Tax and Ors., (2018) 301 CTR (Del) 665 (xxxvi) Javer Jivan Mehta Vs Assistant Commissioner of Sales Tax (Appeals), VIII Circle and Ors, [1998]111 STC 199 (Guj) (xxxvii) Savitri Rani Malik Vs Commissioner of Income Tax, (1991) 93 CTR (Gau) 163 (xxxviii) T.N.Dadha Pharmaceuticals Vs Collector of Central Excise, Madras, AIR 2003 SC 1556 (xxxix) MIOT Hospitals Ltd., Vs The State of Tamil Nadu and Ors., [2020] 78 GSTR 299 (Mad) (xxxx) Peeru Lal, Mohan Lal Vs Commissioner of Income-tax, [2002] 124 Taxman 316 (Rajasthan) (xxxxi) ACIT Vs Hotel Blue Moon, [2010] 188 Taxman 113 (SC) ....
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....ing counsel for the respondents/Income Tax Department. I have also perused the impugned order and the case laws cited by the learned counsel for the petitioner. I have also examined the provisions of the Income Tax Act, 1961. 16. It is the case of the respondents/Income Tax Department that the decision to refer to the 2nd respondent/Transfer Pricing Officer was made on 11.11.2008 and therefore internally a communication was sent to the Commissioner of Income Tax for getting appropriate approval to make a reference to the 2nd respondent/Transfer Pricing Officer. 17. It is further submitted that the approval was also granted by the Commissioner of Income Tax on 18.11.2008 and it is pursuant to the aforesaid approval, a reference was made to the 2nd respondent/Transfer Pricing Officer on 17.02.2009. 18. Before proceeding further with, it will be useful to refer to Section 153(1) of the Income Tax Act, 1961. Same is reproduced below:- “153. Time limit for completion of assessments & reassessments. (1) No order of assessment shall be made under Section 143 or Section 144 at any time after the expiry of- (a) two years from the end of the assessmen....
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....2CA of the Income Tax Act, 1961 to a Transfer Pricing Officer by an Assessing Officer, the time for completing the assessment is 33 months instead of 21 months. 23. Thus, where a reference is made under Section 92CA(1) of the Income Tax Act, 1961 to a Transfer Pricing Officer (TPO) during the course of the assessment proceeding, the time to complete the assessment got extended. 24. The 2nd proviso to Section 153(1) which has been extracted above does not contemplate that a reference to a Transfer Pricing Officer should also has to be made before the expiry of 21 month. It merely extends the time limit for completing the assessment by another 12 months, if during the course of assessment, an assessing officer desires a reference has to be made to a Transfer Pricing Officer. Thus, under those circumstances, assessment has to be completed within 33 months from the end of the assessment year in which the income became assessable. 25. There are no restriction under the provisions of the Income Tax Act, 1961 on an Assessing Officer to make reference within a period of 21 months from the end of the assessment year in which the income became assessable where there are transaction ....
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....he Income Tax Act, 1961 are attracted. The reference to the decision of the Hon-ble Supreme Court in the case of State of Punjab and others vs Shreyans Industries Limited and others, (2016) 4 SCC 769 is therefore distinguishable on facts and not appliable to the facts of the present case. Although several cases were cited, reference was invited to the above decision and another of the Tribunal in Dongfang Electric Corporation Vs Deputy Commissioner of Income Tax vide order dated 25.10.2017 in I.T.A.No.572/Kol/2014 in I.T.A.No.487/Kol/2015. 31. In State of Punjab and others vsShreyans Industries Limited and others, (2016) 4 SCC 769, the last dates for completing the assessment had expired on 30.04.2004, 30.04.2005, 30.04.2006 and 30.04.2007 and provisions for extending the time for reopening the assessment under Section 11(10) of the Punjab General Sales Tax Act, 1948 , long after the expiry of three years. 32. There, the Court noted that for Assessment Year 2000-2001, order of extension was passed more than three years after the last date and for Assessment Year 2001-2002. It was more than two years after the last date and therefore upheld order of the High Court. 33. The ....
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.... reference under Section 92CA(1) of the Income Tax Act, 1961 though the actual reference was made only on 17.02.2009. Since the case of the petitioner falls under Chapter X of the Income Tax Act, 1961, special period of limitation under the 2ndproviso to Section 153(1) of the Income Tax Act, 1961 was attracted for completing the assessment. 38. On perusing the records, it is noticed that the petitioner has wholeheartedly participated in the proceedings before the 2nd respondent/Transfer Pricing Officer pursuant to the reference made on 17.02.2009 by the 3rd respondent/Additional Commissioner of Income Tax. Before the 2nd respondent/Transfer Pricing Officer also no objection was raised by the petitioner regarding limitation. 39. After, the 2nd respondent/Transfer Pricing Officer passed a Transfer Pricing Order dated 30.10.2009 under Section 92CA (2) of the Income Tax Act, 1961, the petitioner was also issued with a Show Cause Notice dated 23.11.2009 by the 3rd respondent/Additional Commissioner of Income Tax. 40. Even before the 3rd respondent, before the Draft Assessment Order was passed on 31.12.2009, the petitioner did not raise any objection regarding limitation. 41.....