TaxTMI 
TaxTMI 
TaxTMI 
2024 (2) TMI 155
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.... u/s. 263 of the Act are contrary to the facts on record. The ld.Counsel for the assessee referring to chronology of events tabulated at page 8 and 9 of the Paper Book, pointed that on 01/03/2021 the Assessing Officer wrote to CIT requesting for approval for referring the case to TPO in accordance with CBDT Instructions No.3 of 2016. On 09/03/2021 approval was received from the office of CIT for referring the case to TPO via ITBA Portal. On 20/09/2021 reference was made by the Assessing Officer to the TPO via ITBA Portal. On 24/09/2021 the TPO returned the reference stating that reference received is not valid considering CBDT's Internal Office Memorandum(F No.370142/24/2021-TPL), which provided that the last date to pass transfer pricing order was 31/07/2021 and the said date has elapsed, hence reference cannot be acted upon at this stage. Thereafter, the Assessing Officer on 12/10/2021 made proposal to CIT for initiation of proceedings u/s. 263 of the Act stating that (i) on ITBA Portal the time barring for Assessment Year 2018-19 is still showing as 30/09/2022, and (ii) the final assessment order is prejudicial to the interest of Revenue. 3. In the backdrop of aforesaid facts, ....
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....l examine the record and form an opinion whether the assessment order is erroneous and prejudicial to the interest of Revenue. The ld. Departmental Representative referring to the impugned order pointed that in para - 2 of the order, the CIT has mentioned, " It was observed on examination of the records........". Thus, it is evident that the CIT has examined the records. Similar expression has been used in show cause notice u/s. 263 of the Act dated 17/12/2021. He further referred to para 2.2 of the impugned order wherein the CIT has used the expression, ".......it was prima-facie seen that the order passed on 16/11/2021 was erroneous and prejudicial.......". These expressions used in the impugned order clearly show that the CIT has not exercised revisional powers under section 263 of the Act in a mechanical manner but after examining the records has taken a conscious decision. 4.1 The ld. Departmental Representative further submitted that the reference made by the Assessing Officer to TPO was invalid. Therefore, the CIT used the expression "no reference was made". The ld. Departmental Representative submitted that the case laws on which assessee has placed reliance are distinguis....
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....rovisions of section 263 of the Act provides no such leeway to the CIT, hence, reference by the Assessing Officer to the CIT to initiate proceedings u/s. 263 of the Act is contrary to the provisions of the Act. He further pointed that in the entire impugned order the CIT has not mentioned that records were examined by him. Mere mentioning of the fact that the records were examined does not show that the records were in fact examined by the CIT. The ld. Counsel for the assessee finally submitted that the ITBA Portal shows time barring date for assessment as 30/09/2022. There is contradiction in the stand of the Department. The ld. Counsel for the assessee raised a question as to how reference is not a valid, if, system reflects 30/09/2022 as the last date for passing assessment order. He submitted that the cases/laws on which reliance has been placed by the ld. Departmental Representative are distinguishable. In the said cases no reference at all was made by the Assessing Officer to the TPO, whereas, in the present case the reference was made by the Assessing Officer to the TPO. The Revenue has created unwarranted dispute with regard to validity of reference. The ld. Counsel for the....
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....ons does not support the case of assessee. We find no force in the submissions of the Ld.Counsel for the assessee that the CIT has adorned revisional powers merely on proposal forwarded by the Assessing Officer. Hence, the first argument of the assessee assailing the impugned order is rejected. 8. The second plank of argument challenging validity of impugned order is that the Assessing Officer had made a reference to the TPO, but the reference was returned by the TPO stating it to be time barred. The CIT in the impugned order has observed that there was no reference by the Assessing Officer. Hence, jurisdiction u/s. 263 of the Act has been exercised on wrong appreciation of facts. Before we proceed further it would be relevant to refer to some of the dates: Date Events 01/03/2021 Letter from A.O to CIT(IT),Mumbai-3 requesting for approval for referring the case to the TPO. 09/03/2021 Approval received from the CIT for referring the case to TPO. 20/09/2021 A.O makes reference to the TPO via ITBA Portal. 24/09/2021 TPO returned the reference to A.O stating it to be invalid/time barred, hence, cannot be acted upon. Indeed, reference was made by the Assessing Officer to TPO....
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....21. Since 31st July 2021 does not fall under the window of section 3 of TOLA, no extension Is granted by TOLA in such cases. The lime limit of final assessment order in cases is defined by the provisions, of the section 153 of the Act only and is, therefore, 30th September, 2021. (3) With regard to difficulties faced by the TP Officers in completing TP proceedings and passing TP orders by 31st July 2021. It is pertinent to reiterate that TOLA does not give the authority to extend the TP time barring date of 31.07,2021 for AY, 2018-19. The said time barring date can be extended only by means of an ordinance or a legislative amendment which is beyond the purview of the Board." [Emphasized by us] A perusal of the aforesaid Office Memo makes it clear that there is no extension of time for passing the TP order u/s. 92CA(3) of the Act by TOLA. 10. A close examination of sequence of events tabulated above would show that the Assessing Officer had received the approval from the office of CIT on 09/03/2021 i.e. well before the last date for passing of the TP order i.e. 31/07/2021. The Assessing Officer went in slumber and held on to himself the approval from CIT for more than six month....