2024 (2) TMI 52

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....ck proceedings are barred by limitation. b. pending the hearing and final disposal of this petition, the Respondents be directed to compute the refund along with interest under section 244A of the Act for the year under consideration. c. pass any other order(s) as this Hon'ble Court may deem to be fit and more appropriate in order to grant interim relief to the petitioner;" WP(C) 4550/2023 "a) A Writ of Certiorari, or a writ in the nature of Certiorari or any other appropriate writ, order or direction under Article 226 and 227 of the Constitution of India quashing the Impugned Order dated 13.02.2023 (Annexure P-24) as bad in law, null and void inasmuch as it is barred by limitation and without following the procedure prescribed under section 144C of the Act. b) A Writ of Mandamus, or a writ in the nature of Mandamus or any other appropriate writ, order or direction under Article 226 and 227 of the Constitution of India directing Respondents to issue the balance consequential refunds arising as a result of quashing the Impugned Order dated 13.02.2023 amounting to Rs. 1.94 crores along with statutory interest under section 244A of the Act ....

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....d by the ITAT hereinbelow: "7. We have heard both the parties and perused the material available on record. The components of the assessee's Advertising and Sales promotion and postal expenses are different from what is ordinarily understood as an advertisement, marketing and promotion (AMP) expenses. The components of these expenses are that of billing material, personalization, promotion freight, list rentals and other promotions, premiums, sweeptakes judging, paper and printing of brouchers and also postage. Therefore, the same cannot in any circumstances lead to creation of AMP expenses for the A.E. Thus, these expenses cannot in any circumstances be categorized for creation of making intangible for the AE. These expenses were incurred by the assessee wholly and exclusively on account of its own business and any benefit to the AE was only incidental. From the records, it can be seen that the assessee is incurring its own selling and distribution expenses. There was no advertisement in media nor the products are available in the shop. It is made available only through order placed. There exist a distinction between product promotion and brand promotion. The mechanism us....

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.... to the directions framed by the ITAT, the TPO passed an order under Section 92CA of the Act on 30 January 2021. Despite the said order having been duly made and pronounced, it is the case of the writ petitioner that Final Orders of Assessment were not framed by the respondents within the time frame as prescribed under Section 153(3) of the Act. The order of assessment ultimately came to be passed on 13 February 2023. It is this order which is impugned in WP(C) 4550/2023. 8. Taking the Court through the provisions made in Section 153(3) of the Act, Mr. Pardiwalla, learned senior counsel submitted that since the order dated 20 December 2018 passed by the ITAT was received by the respondents on 31 January 2019, the nine month window which stands created in terms of Section 153(3) accorded the respondents the right to frame an order of assessment by 31 October 2019. It was submitted additionally that the aforesaid period would stand further extended by virtue of Section 153(4) of the Act, since undisputedly in the facts of the present case a reference had been made to the TPO under Section 92CA. It is in the aforesaid backdrop that Mr. Pardiwalla submitted that by virtue of Section....

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....closes in the rejoinder that a copy of the order of the TPO had been duly shared with the respondent vide an email dated 22 February 2021. The fact of the TPO having passed an order in terms of Section 92CA was again disclosed in a communication dated 08 March 2021. The petitioner more significantly contends that notwithstanding the above, all notices, orders and communications are duly uploaded on the Income Tax Department's own portal. According to them, the portal itself reflects that the order of the TPO had been duly uploaded. It is in the aforesaid backdrop that Mr. Pardiwalla contends that the stand of the respondents that they did not have knowledge of the order passed by the TPO is misleading. 13. Before us, Mr. Rai, learned counsel representing the respondents, did not dispute or question the averments taken in the rejoinder affidavit. We thus find ourselves unable to either sustain or countenance the claim of the respondents that the order dated 30 January 2021 of the TPO was either not communicated to them or was not in their knowledge. That stand clearly appears to be wholly incorrect and factually untenable. 14. The period prescribed under Section 153(3) of the ....