2024 (1) TMI 150

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....143(3) read with section 144C(13) read with section 144B of the Income-tax Act, 1961 ('the Act') is barred by limitation in terms of the timeline prescribed under the provisions of section 153(1) of the Act, and hence, the said assessment order is void-ab-initio, bad in law and liable to be quashed. Ground No. 18 On the facts and in the circumstances of the case and in law, the order dated 30 January 2021 passed by the Joint Commissioner of Income-tax (Transfer Pricing) - 4(1) ('the learned TPO') under section 92CA(3) of the Act is beyond the time limit prescribed under section 92CA (3A) r.w.s. 153 of the Act, thus making the transfer pricing order illegal, bad in law, null and void and liable to be quashed. Ground No. 19 On the facts and in the circumstances of the case and in law, the transfer pricing order being illegal and void on account of being barred by limitation in terms of section 92CA(3A) r.w.s. 153 of the Act, the action of the Assessing Officer in passing the draft assessment order dated 30 March 2021 by invoking section 144C of the Act is without jurisdiction and hence, all the proceedings consequent to the draft assessment order are also ....

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....ding 31-03-2021) February = 28 days January = 2 days] 30-01-2021 8 Transfer Pricing Order u/s 92CA(3) of the Act should have been passed on /or before 29-01-2031 9 Transfer Pricing Order u/s 92CA(3) actually passed on 30/01/2021 10 Draft Assessment order passed on 31/12/2021 11 DRP directions passed on 31-12-2021 12 Final assessment order passed on 29-01-2022 6. In view of the chronology of the above events, the Ld.AR submitted that section 92CA(3) provides that the TPO order should be passed before 60 days prior to the date prescribed under section 153 of the Act, which in the given case is 30th January, 2021 and consequently, in terms of section 92CA of sub section 3(a) read with section 153(1), 60 days prior to 30th January, 2021 expires on 29/01/2021. The TPO in the given case has passed the order dated 30/01/2021 and, therefore, the order is passed beyond the time limit and hence, not valid. The Ld.AR in this regard relied on the decision of Pfizer Healthcare India Pvt Ltd vs JCIT (2021) 124 taxmann.com 536 and also the decision of the co-ordinate bench in the case of DSV Air & Sea Pvt Lt d vs ADIT (2023) 149 taxmann.com 153. 7. The Ld.DR in this regard mad....

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....y provides for counting the last day i.e. 31.03.2021 and therefore for counting the 60 days the last day has to be taken into account and thus the order passed by the TPO dated 30.01.2021 is well within the time. 9. When the word "to" is specifically incorporated in Sec.92CA(3A), any other interpretation excluding the last day would be against the plain language of the statute and the intent of the legislature. 10. The period of limitation computed by the assessee in the additional ground is not as per the letter and spirit contained in the Act. The Section 92CA(3A) states that "an order u/s. 92CA(3) may be made at any time before 60 days prior to the date on which the period of limitation referred to in Section 153 expires. The Section refers that an order may be made at any time before 60 days and these 60 days have to be prior to the date on which 'Sec. 153 limitation expires. It needs to be noted that the word used regarding limitation in Section 153 is expires that implies that the date on that particular time-ceases to exist, that is not alive and it has expired. The last day expires on 00.00 am. It is only after the expiry of this date that an order may not be pass....

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.... 14. In the instant case undisputedly assessment order in this case was passed on 26-2-2022 an the Ld. TPO was required to pass the order within 60 days prior to the date on which period of limitation as prescribed under section 153 of the Act expires. 15. Now, the question arises as to how the period of 60 days prior to the date of TP order i.e. 3 3-2013 is to be computed. 16. Hon'ble Madras High Court in case of Pfizer Healthcare India (P.) Ltd. (supra) while dealing with the issue held that for computing the period of 60 days, the last date as per section 153 should be excluded. Operative part of the judgment is extracted for ready perusal as under :- "30. Now, coming to the question of how the 60 day period is to be computed, the critics question would be whether the period of 60 days would be computed including the 31st c December or excluding it. Section 153 states that no order of assessment shall be made a any time after the expiry of 21 months from the end of the assessment year in which this income was first assessable. The submission of the revenue is to the effect that limitation expires only on 12 a m of 1-1-2020. However, this would mean that an order of....