2023 (8) TMI 1010

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....ng order dated 30 01 2014 passed by the Ld TPO under provisions of section 92CA (3) of the Income Tax Act. 1961(ITA) is barred by law of limitation in light of provisions of section 92CA(3A) rws 153 of the ITA and is, therefore, bad in law and illegal 3. Before us ld. Counsel has given the following chronology of events, date of orders passed by the lower authorities as well as the statutory dates for passing the order u/s. 92CA(3A) r.w.s. 153. Sr. No. Particulars of orders/documents Date of orders/documents 1 Date of filing of Return of Income by the  appellant for the AY 2010-11 14-10-2010 2 Date of reference u/s 92CA(1) of the Income Tax Act, 1961('TTA") made by the Ld. Assessing Officer ('Ld. AO') to the Ld. Transfer pricing officer (Ld. TPO') 08-11-2012 3 Date of order u/s 92CA(3) of the ITA  passed by Ld. TPO 30-01-2014 4 Date of draft assessment order passed by Ld. AO u/s 143(3) r.w.s. 144C(1)  of  the ITA 05-03-2014 5 Date of direction u/s 144C(5) of the ITA, issued by Ld. Dispute Reso....

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..... vs. Joint' Commissioner of Income Tax. Chennai [2021]124 taxmann.com 536 (Madras) 2 M/s. Mondelez India Foods Private Limited vs. Addl. Commissioner of Income Tax ITA NO.1492 /MUM/ 2015 3 Deputy Commissioner of Income-tax v. Saint Gobain  India (P.) Ltd [2022] 137 taxmann.com 215 (Madras) 4 M/s Tubacex Prakash India Private Limited vs. The Additional /Joint /Deputy /Assistant/ Income Tax Officer-National e Assessment Centre, Delhi And Deputy Commissioner of Income Tax ITA No.979/Mum/2021 5. Atos India Pvt. Ltd., vs. DCIT-14(1)(1) ITA No.1795/Mum/2017 6. M/s. Teleperformance Services Private Limited (Formerly known as  "Inellenet Global Services Pvt. Ltd) vs. The Additional /Joint/Deputy /Assistant / Income Tax  Officer -National e-Assessment  Centre, Delhi And Deputy Commissioner of Income Tax-circle 5(3)(1), Mumbai ITA No.1180/Mum/2021 7. From the perusal of the material placed on record and various dates of orders passing, it is seen that order u/s. 92CA(3) has been passed by the ld. TPO on 30/01/2014 which in view of Section 92CA(3), the time limit to pass the order was 29/01/2014 w....

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...."(3A) Where a reference was made under sub-section (l) before the 1st day of June, 2007 but the order under sub- section (3) has not been made by the Transfer Pricing Officer before the said date, or a reference under sub-section (l) is made on or after the 1st day of June, 2007, an order under sub-section (3) may be made at any time before sixty days prior to the date on which the period of limitation referred to in section 153, or as the case may be, in section 153B for making the order of assessment or reassessment or recomputation or fresh assessment, as the case may be, expires:" 18. Ergo, the TPO can pass an order u/s 92CA of the Act at any time before 60 days prior to the date on which period of limitation referred to u/s 153 expires. Thus 60 days have to be counted prior to the date of last date of limitation u/s 153. 19. Section 153 of the Act as applicable for the AY 2012-13 reads as under:- '153. (i) 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 assessment year in which the income was first assessable; or (b) one year from the end of the financi....

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....om the preceding word or words used, like "prior to" or "upto". Keeping the same in mind, if we look at the wording of Section 92CA (3A), we cannot accept the contention of the Revenue that the time to be reckoned is from 31.12.2019 and not 30.12.2019 as has been rightly done by the learned Judge. 28. The word "date" in section 92CA(3A) would indicate 31.12.2019. But the preceding words "prior to" would indicate that for the purpose of calculating the 60 days, 31.12.2019 must be excluded. The usage of the word "prior" is not without significance. It is not open to this court to just consider the word "to" by ignoring "prior". The word "prior" in the present context, not only denotes the flow of direction, but also actual date from which the period of 60 days is to be calculated. It is settled law that while interpreting a statute, it is not for the courts to treat any word(s) as redundant or superfluous and ignore the same. In this connection, it is pertinent to note the judgment of the Apex Court in Grasim Industries Ltd. v. Collector of Customs, [(2002) 4 SCC 297 : 2002 SCC OnLine SC 413], wherein, it was held as follows: "10. No words or expressions used in any....

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....ords "prior to" and the TPO has to pass order before the 60th day. In the present case, the word "before" used before "60 days" would indicate that an order has to be passed before 1/11/2019 i.e on or before 31.10.2019 as rightly held by the Learned Judge. 30. Even considering for the purpose of alternate interpretation, the scope of Section 9 of the General Clauses Act, it is to be noted that an inverted calculation of the period of limitation takes place here. If the last date is taken to be the first date from which the period of 60 days is to be calculated, reading down the provision with the use of the word "from", which denotes the starting point or period of direction in general parlance, would mean that 60 days "from the last date". Even going by Section 9 of the General Clauses Act, when the word "from" is used, then, that date is to be excluded, implying here that 31.12.2019 must be excluded. After excluding 31.12.2019, if the period of 60 days is calculated, the 60^th day would fall on 01.11.2019 and the TPO must have passed the order on or before 31.10.2019 as orders are to be passed before the 60th day. Therefore, either way the contention of the Revenue is a ....

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....the remaining period shall be extended to 60 days. This implies that not only is the time frame mandatory, but also that the TPO has to pass an order within 60 days. 34. Further, the extension in the proviso referred above, also automatically extends the period of assessment to 60 days as per the second proviso to Section 153. 35. Also, but for the reference to the TPO, the time limit for completing the assessment would only be 21 months from the end of the assessment year. It is only if a reference is pending, the department gets another 12 months. Once reference is made and after availing the benefit of the extended period to pass orders, the department cannot claim that the time limits are not mandatory. Hence, the contention raised in this regard is rejected. 36. As rightly pointed out by Mr. Ajay Vohra, learned senior counsel for the respondents in WA. Nos. 1148 and 1149/2021, the word "may" has to be sometimes read as "shall" and vice versa depending upon the context in which it is used, the consequences of the performance or failure on the overall scheme and object of the provisions would have to be considered while determining whether it is mandat....