TaxTMI 
TaxTMI 
2013 (2) TMI 948
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.... the provisions of the Companies Act, 1956 engaged in the business of manufacture and sale of cement. It filed its return for the assessment year 2008-09 declaring a total income of Rs. 249,05,26,980/- on 27.09.2008. In the audit report filed by the petitioner along with its return of income, as certain international transactions were reported, the Joint Commissioner of Income Tax, Range-II, Tirupathi, referred the case u/s. 92CA of the Act on 30.06.2010 to the Additional Commissioner of Income Tax (Transfer Pricing) (Transfer Pricing Officer- TPO) to determine the 'arms length price' after taking approval of the Commissioner of Income Tax, Tirupathi. The Transfer Pricing Officer (TPO) passed order under sub-section (3) of S. 92CA on 20.09.2011 recommending an adjustment of Rs. 52.14 crores as Transfer Pricing Adjustment u/s. 92CA of the Act. This was forwarded to the petitioner. The respondent, after receiving the said order of the TPO and after examining the information furnished by the petitioner from time to time, passed the impugned assessment order dt. 23.12.2011 u/s. 143(3) of the Act raising a demand of Rs. 27,40,71,913/- and issued a demand for the said am....
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....e variations after the cut off date of 01.10.2009; S. 144C was introduced by Finance (No.2) Act, 2009 and sub-section (2) of S. 1 of the said enactment states 'save as otherwise provided in this Act, Secs. 2 to 84 shall be deemed to have come into force on 01.04.2009'; so if something contrary is not provided, then only the aforesaid sections would apply for the assessment year 2009-10 onwards; but in sub-section (1) of S. 144C, there is a clear provision to the contrary i.e., a particular cut off date 01.10.2009 is specified; even the memorandum explaining the Finance Bill and Notes on clauses accompanying the said bill clarified clearly that the amendments relating to S. 144C will take effect from 01.10.2009; therefore the circular No.5/2010 insofar as it provides that S. 144C of the Act would apply only to the assessment year 2010-11 and for subsequent years is contrary to the provisions of the Finance (No.2) Act, 2009 and is invalid. It is also contended that the Dispute Resolution Panel was constituted u/s. 144C by the Central Government vide notification No.84/2009 (F.No.142/22/2009-TPL)/SO2958(E) dt.20.11.2009 and it started functioning immediately; that it was he....
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....by him of the draft order, - (a) file his acceptance of the variation to the Assessing Officer; or (b) file his objections, if any, to such variation with, - (i) the Dispute Resolution Panel; and (ii) the Assessing Officer. (3) The Assessing Officer shall complete the assessment on the basis of the draft order, if -- (a) the assessee intimates to the Assessing Officer the acceptance of the variation; or (b) no objections are received within the period specified in sub- section (2). (4) The Assessing Officer shall, notwithstanding anything contained in section 153, pass the assessment order under sub-section (3) within one month from the end of the month in which, - (a) the acceptance is received; or (b) the period of filing of objections under sub-section (2) expires. (5) The Dispute Resolution Panel shall, in a case where any objection is received under sub-section (2), issue such directions, as it thinks fit, for the guidance of the Assessing Officer to enable him to complete the assessment. (6) The Dispute Resolution Panel shall issue the directions referred to in sub-sect....
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....een done and the respondent has passed a final assessment order dt.23.12.2011 straight away. Therefore, the impugned order of assessment is clearly contrary to S. 144C of the Act and is without jurisdiction, null and void. The contention of the Revenue that the circular No.5/2010 of the CBDT has clarified that the provisions of S. 144C shall not apply for the assessment year 2008-09 and would apply only from the assessment year 2010-11 and later years is not tenable in as much as the language of sub-section (1) of S. 144C referring to the cut off date of 01.10.2009 indicates an intention of the legislature to make it applicable, if there is a proposal by the Assessing Officer to make a variation in the income or loss returned by the assessee which is prejudicial to the assessee, after 1.10.2009. Therefore, this particular provision introduced by Finance (No.2) Act, 2009 would apply if the above condition is satisfied and other provisions, in which similar contrary intention is not indicated, which were introduced by the said enactment, would apply from 01.04.2009 i.e., from the assessment year 2010-11. It is not disputed that the memorandum explaining the Finance Bill and the....