TaxTMI 
TaxTMI 
2024 (9) TMI 954
X X X X Extracts X X X X
X X X X Extracts X X X X
....12,43,95,142 7. Allowance of brought forward unabsorbed depreciation of AY 2011-12 11,08,38,823 8. Allowance of brought forward unabsorbed depreciation of AY 2012-13 8,94,67,868 9. Allowance of brought forward unabsorbed depreciation of AY 2013-14 5,66,34,149 10. Allowance of brought forward unabsorbed depreciation of AY 2014-15 76,90,736 11. Transfer pricing (TP) TP adjustment in respect of import of analyzers (Assembling segment) 1,68,03,223 12. Excess amount paid for acquisition of Alfa Aesar Division 17,23,21,782 13. Allowance of brought forward business loss of Rs 2,44,31,931 84,55,403 14. Failure to grant partial credit of Tax Deducted at Source (TDS) 5,87,938 15. Initiation of penalty proceedings Nil Total Tax Effect 91,92,96,590 Additional Grounds 16. Challenging the period of limitation for passing the transfer pricing order by the Transfer Pricing Officer (TP('(TPO') Nil 17. Entire proceedings initiated by the Assessing Officer (AO) under section 144C of the Act is bad in law in the absence of a valid TP order. Nil 18. In absence ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing additional ground of appeal: "1. Challenging the period of limitation for passing the transfer pricing order by the Transfer Pricing Officer (TPO). 2. Entire proceedings initiated by the Assessing Officer (AO) under section 144C of the Act is bad in law in the absence of a valid TP order. 3. In absence of valid TPO's order the AO is required to complete the assessment within the due date as prescribed under section 153 of the Act since the order is not passed within the time limit as prescribed the assessment order is barred by limitation." 4. During the course of appellate proceedings, at the outset, the ld. Counsel contested the additional ground of appeal filed by the assessee that Transfer Pricing Officer order passed u/s 92CA(3A) of the Act on 01.11.2019 was time barred. In this regard, the ld. Counsel has placed reliance in the case of Pfizer Healthcare India Private Limited vs JCIT 433 ITR 028 (Madras) and various decisions of ITAT, Mumbai on the similar issue as under: "i. Atos India Pvt. Ltd. vs DCIT (Mum Trib) (ITA No. 1795/Mum/2017)-AY 2012-13 ii. M/s. Mondelez India Food Private Limited vs ACIT (ITA No. 1492/Mum/2015) ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....imitation expires (stated in Sr. No. C) 30.12.2019 30.12.2019 F Sixty-day period expires 01.11.2019 01.11.2019 G TPO order to be passed any time on/before this date 31.10.2019 31.10.2019 H Date on which TPO order is passed 01.11.2019 01.11.2019 I Date of draft assessment order u/s 143(3) r.w.s. 144C(1) of the Act 23.12.2019 J Date of DRP Directions u/s 144C(5) of the Act 26.02.2021 K Date of final assessment order u/s 143(3) r,w,s, 144C(13) of the Act 30.03.2021 Note 1: Calculation of break-up of sixty days December: 30 days (excluding 31.12.2019) November: 30 December 30 days (excluding 31.12.2019) November: 30 7. The relevant provisions of Sec. 92CA(3A) is reproduced as under: Section 92CA (3A) "(3A) Where a reference was made under sub-section (1) 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 (1) 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 pr....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing "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 taxmann.com 1803, wherein, it was held as follows : "10. No words or expressions used in any statute can be said to be redundant or superfluous. In matters of interpretation one should not concentrate too much on one word and pay too little attention to other words. No provision in the statute and no word in any section can be construed in isolation. Every provision and every word must be looked at generally and in the context in which it is used. It is said that every statute is an edict of the legislature. The elementary principle of interpreting any word while considering a statute is to gather the mens or sententia legis of the legislature. Where the words are clear and there is no obscurity, and there is no ambiguity and the inte....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e 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 60th day would fall on 1-11-2019 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 fallacy and has no legs to stand. Mandatory or Directory 31. The next contention that has been raised by the learned senior standing counsel for the appellants is that the usage of the word "may" in section 92CA (3A) indicates that the time fixed is only directory, a guideline, not mandatory and is for the sake of internal proceedings. 32. Let us now examine the relevant procedures relating to Transfer Pricing. After an international transaction is noticed subject to satisfaction of section 92B, a reference is made to the TPO under sub-section (1) of section 92CA of the Act. The TPO after considering the documents submi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fit 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 mandatory or directory. 37. At this juncture, it is noteworthy to mention the commentary of Justice G.P.Singh on the interpretation of statutes, Principles of Statutory Interpretation (1st Edn., Lexis Nexis 2015), which is quoted below for ready reference: ' The intention of the legislature thus assimilates two aspects: In one aspect it carries the concept of "meaning" i.e. what the words mean and in another aspect, it conveys the concept of "purpose and object" or the "reason and spirit" pervading through the statute. The process of construction, therefore, combines both literal and purposive approach....
X X X X Extracts X X X X
X X X X Extracts X X X X
....deration the material placed on record it is undisputed fact that transfer pricing officer has passed order u/s 92CA(3) on 01.11.2019 whereas the limitation for passing the said order u/s 92CA(3) expires on 31.10.2019 Therefore, taking into consideration the provision of the Act and decision of Hon'ble Madras High Court in the cases referred supra the order u/s 92CA(3) of the Act is time barred by 1 day. Further the ld. Counsel has mentioned the provisions of Sec. 144C(15) of the Act pertaining to the eligible assessee the same is reproduced as under: "(b) "eligible assessee" means - (i) Any person in whose case the variation referred to in subsection( 1) arises as a consequence of the order of the Transfer Pricing Officer passed under sub-section (3) of section 92CA; and (ii) (ii) any non-resident not being a company, or any foreign company." After referring the aforesaid provisions the ld. Counsel contended that since the order of the TPO was barred by limitation, therefore, there was no eligible assessee in the case of the assessee in terms of provisions of subsection (15) to Sec. 144C of the Act. 9. In this regard, we find that coordinate bench ....