TaxTMI 
TaxTMI 
2023 (3) TMI 654
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....der for the respective assessment years are barred by limitation in terms of section 92CA(3A) of the I.T.Act. Since the above said additional grounds are purely legal and jurisdictional issue, which does not require examination of new facts, we admit the above additional grounds. The additional grounds, namely, grounds 25 and 30 for assessment years 2010-2011 and 2011-2012 are identical and they read as follows:- "25. The order of the learned TPO is bad and void being not as per time limit set out in section 92CA(3A) of the Act." 3. The brief facts in relation to the above grounds are as follows: For the assessment years 2010-2011 and 2011-2012, the assessee had entered into international transactions with its Associate Enterprises (AEs) and the matter was referred to the TPO for determination of Arm's Length Price (ALP) of the said transactions. The TPO passed orders u/s 92CA of the I.T.Act on 30.01.2014 and 30.01.2015 for assessment years 2010-2011 and 2011-2012, respectively. According to the learned AR, the TPO ought to have passed orders on or before 29.01.2014 and 29.01.2015 for assessment years 2010-2011 and 2011-2012, respectively. Therefore, it was submitted that the ....
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....elow:- Assessee's Case Assessment Year 2010-2011 Description Date Date on which intimation to pass assessment order expires 31.03.2014 "Prior to the date" i.e., date before 31.03.2014 30.03.2014 Sixtieth day (reckoned from 30.03.2014 backwards) Month Date March, 2014 30 February 2014 28 January 2014 (balance) 2 30.01.2014 Any time before sixty days (i.e., before 30.01.2014) By29.01.2014 Assessment Year 2011-2012 Description Date Date on which intimation to pass assessment order expires 31.03.2015 "Prior to the date" i.e., date before 31.03.2015 30.03.2015 Sixtieth day (reckoned from 30.03.2015 backwards) Month Date March, 2014 30 February 2014 28 January 2014 (balance) 2 30.01.2015 Any time before sixty days (i.e., before 30.01.2015) By 29.01.2015 7. Accordingly, the due date for the TPO to pass the transfer pricing orders for assessment years 2010-2011 and 2011-2012 should be at any time before 30.01.2014 and 30.01.2015, i.e., on or before 29.01.2014 and 29.01.2015. In the present case, the TPO has passed the transfer pricing order on 30.01.2014 and 30.01.2015, i.e., beyond the time limit pres....
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...." the intention could be either midnight the beginning of the day or midnight at the end of the day. To avoid ambiguity, specification of an event as occurring on a particular day at 11:59 p.m. or 12:01 a.m. is a good idea, especially legal documents such as contracts and insurance policies. Another option would be to use 24-hour clock, using the designation of 0000 to refer to 'midnight at the beginning of a given day (or date) and 2400 to designate the end of a given day (or date). " 16. As per the International Standards Organization, ISO 8601- :2019 midnight may only be referred to as "00:00", corresponding to the beginning of a calendar day. The earlier use of reference to 24.00 hours to mark the end of the day, was dropped. 17. In India, the midnight or 00.00 hours has been always used to denote the beginning of the next date. A reference could be made to our Independence day, wherein the stroke of midnight at 00.00 hours on 15.08.1947 is considered as the moment of Independence as per the Indian Independence Act, 1947. 18. Also, it is not out of place to mention here that the new year eve of every year, through out the world is celebrated at 00.00 hours and i....
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....fore the arbitrator on the date of commencement of / the said Act and to provide for their automatic transfer to the Arbitration Tribunal. The General Clauses Act, 1897 provides that unless the contrary is expressed. (In Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement. There being no contrary indication in the Act, it must be held that the said Act come into force on the midnight on the expiration of the day preceding its commencement. i.e., the midnight between 25-3-1983 and 26-3-1983. There can be no doubt that if the second expression "in which 110 award has been made by the said date" was not also present in sub-section (7), then the undoubted result of the first expression would be that an arbitration proceeding in which no award had been made up to the midnight between 25-3-1983 and 26-3-1983 would be a pending arbitration proceeding which automatically stood transferred to the Arbitration Tribunal. The question, therefore, is whether the further words used in the second expression in sub-section (7) must lead to a different conclusion. The construction of the first expression being unambiguous, the second ex....
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....e commencement of the date 26-3-1983 or at the time of expiry of the preceding day i.e. 25-3-1983. The other expression must, therefore. be construed in this context and since the word 'by' means 'before' also, in this context it must be held to mean 'before' and not 'on' the date of commencement of the Act. So construed, the second expression would read as "in which no award has been made before the said date" i.e. in. which no award has been made before the date of commencement of the Act, namely, 26-3-1983. This would be the harmonious construction of the two expressions in the provision. 10. Obviously, an award made on 26-3-1983 cannot be said to be an award made before 26-3-1983 and, therefore, the award in the present case having been made on 26-3-1983 and not before 26-3-1983, the date of commencement of the Act, the arbitrator had no jurisdiction to make the award as it was a pending arbitration proceeding which automatically stood transferred to the Arbitration Tribunal." 22. From Section 153, the regular time for passing the assessment order ends on 31.12.2018 and with extension on the matter being referred to TPO, the time limit to p....
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....5. The above Article commences with the words, "unless the context otherwise requires". Therefore, the interpretation sought to be projected by the department cannot be accepted as the General Clauses Act cannot override any interpretation propounded by the parliament/Legislature in the clear, distinct and express language with an intention to convey a certainty as to how time is to be calculated. The ratio laid down by the Constitutional Bench of the Apex Court is squarely applicable to this case. 26. Further, the general interpretation by resorting to the meaning conveyed under the General Clauses Act cannot be adopted while interpreting 92CA (3A), because, the context and the language employed therein are completely different and it is pertinent to note that the words "from" and "to" have not been used. Even the employment of the General Clauses Act will not aid the Revenue, the reason of which will be disclosed a little later in this judgment. But, right now, it is relevant to consider the scope of the word "to". 27. The word "to" is used as a preposition or as an adverb. In popular sense, it is used to express the direction in which a person, thing, or time travels. The ....
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....tated by the Privy Council in Crawford v. Spooner [(1846) 6 Moore PC I : -I MIA I79J "we cannot aid the legislature's defective phrasing of an Act, we cannot add or mend and, by construction make up deficiencies which are left there". In case of an ordinary word there should be no attempt to substitute or paraphrase of general application. Attention should be confined to what is necessary for deciding the particular case. This principle is too well settled and reference to a few decisions of this Court 'would suffice. (See : Gwalior Rayons Silk Mfg. (Wvg.) Co. Ltd. v. Custodian of Vested Forests [1990 Supp SCC 785 : AIR 1990 SC 1747J, Union ofIndia v. Deoki Nandan Aggarwal [1992 Supp (1) SCC 323 : 1992 SCC (L&S) 2-18 : (1992) 19 ATC 219: AIR 1992 SC 96J, Institute of Chartered Accountants of India v. Price Waterhouse[(1997) 6 SCC 312] and Harbhajan Singh v. Press Council of India [(2002) 3 SCC 722 : .IT (2002) 3 SC 21].) " 29. The language employed is simple. 31.12.2019 is the last date for the assessing officer to pass his order under Section 153. The TPO has to pass order before 60 days prior to the last date. The 60 days is to be calculated excluding the last date bec....
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....tion to any such variation with the Dispute Resolution Panel and also the Assessing Officer. Sub-Section (5) of Section 144C of the Act provides that if any objections are raised by the assessee before the Dispute Resolution Panel, the Panel is empowered to issue such direction as it thinks fit for the guidance of the Assessing Officer after considering various details provided in Clauses (A) to (G) thereof. Sub- Section (l3) of Section 144C of the Act provides that upon receipt of directions issued under sub-section (5) of Section 144C of the Act, the Assessing Officer shall in conformity with the directions complete the assessment proceedings. It goes without saying that if no objections are filed by the Assessee either before the DRP or the assessing officer to the determination by the TPO, section 92CA(4) would come into operation. Therefore, it is very clear that once a reference is made, it would have an impact on the assessment unless a decision on merits is taken by DRP rejecting or varying the determination by the TPO. 33. It would only be apropos to note that as per proviso to Section 92CA (3A), if the time limit for the TPO to pass an order is less than 60 days, then ....
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....uch determination. In the present case, as rightly held by the learned Judge in paragraphs 22 to 29 of the order dated 07.09.2020, the order of the TPO or the failure to pass an order before 60 days will have an impact in the order to be passed by the Assessing Officer, for which an outer time limit has been prescribed under Sections 144C and 153 and is hence mandatory. What is also not to be forgotten, considering the scheme of the Act, the inter-relatability and interdependency of the provisions to conclude the assessment, is the consequence or the effect that follows, if an order is not passed in time. When an order is passed in time, the procedures under 144C and 92CA(4) are to be followed. When the determination is not in time, it cannot be relied upon by the assessing officer while concluding the assessment proceedings. 39. Upon consideration of the judgments and the scheme of the Act, we are of the opinion that the word "may" used therein has to be construed as "shall" and the time period fixed therein has to be scrupulously followed. The word "may" is used there to imply that an order can be passed any day before 60 days and it is not that the order -must be made on the ....
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...., the learned AO has erred in disallowing the amount of Stock write-off on account of physical difference and errors in receipt of stock. 22.2 The learned AO ought to have allowed the amounts written off by the Appellant towards shortage in the inventory, arising due to cycle count, wrong receipting difference over shipping of certain items, which has been determined during the physical inventory verification. 22.3 The learned AO ought to have appreciated the fact that the expenditure was incurred wholly and exclusively in the normal course of business of the appellant." 12. The learned AR submitted that on identical issue, the Tribunal in assessee's own case, had restored the matter to the A.O. for verification in accordance with law. 13. The learned Departmental Representative also agreed that for the earlier year, namely, assessment year 2009-2010 in IT(TP)A No.203/Bang/2014, the Tribunal in assessee's own case has restored the matter to the A.O. for due verification and it was submitted by the learned DR that similar view may be taken in this case also. 14. We have heard rival submissions and perused the material on record. An identical issue was considered by the Tri....