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2026 (2) TMI 754
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....d down by the Hon'ble High Court of Madras in the case of Commissioner of Income-tax Vs. Roca Bathroom Products (P.) Ltd. [2022] 445 537 (Madras) and also plethora of orders passed by the Co-ordinate Bench of the Tribunal, Hyderabad Bench sought for allowing the Additional Ground No. 1 of the Assessee. 3. Per contra, the Ld. Department's Representative submitted that the issue of limitation arising from the interplay between Section 144C and Section 153 of the Act is presently unsettled and pending adjudication before the Hon'ble Supreme Court in the case of ACIT Vs. Shelf Drilling Ron Tappmeyer Ltd. in Special Leave to Appeal (C) Nos. 20569-20572/2023 therefore, deciding the very same issue by this Tribunal at this stage would be premature, thus submitted that the Tribunal cannot decide the issue of limitation in terms of the ratio laid down by the Hon'ble High Court of Madras in the case of Roca Bathroom Products (P) Ltd. (supra). Accordingly, the Ld. Department's Representative sought for deferral of adjudication of the present Appeal and also the issue of limitation. The Ld. Department's Representative has also filed detail written submission. 4. T....
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....l only result in multiplication of proceedings and sought for deferring the hearing of the Appeal pending before the Tribunal. However, the provision of Section 158AB of the Income Tax Act provides for the procedure to be adopted by the Department in case where an identical question of law is pending before the Hon'ble High Court or Hon'ble Supreme Court. For the sake of ready reference, Section 158AB is reproduced as under:- "Procedure where an identical question of law is pending before High Courts or Supreme Court. 158AB. (1) Notwithstanding anything contained in this Act, where the collegium is of the opinion that- (a) any question of law arising in the case of an assessee for any assessment year (such case being herein referred to as the relevant case) is identical with a question of law arising,- (i) in his case for any other assessment year; or (ii) in the case of any other assessee for any assessment year; and (b) such question is pending before the jurisdictional High Court under section 260A or the Supreme Court in an appeal under section 261 or in a special leave petition under article 136 of the Constitution,....
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....sioner may direct the Assessing Officer to appeal to the Appellate Tribunal or the jurisdictional High Court, as the case may be, against such order and save as otherwise provided in this section all other provisions of Part B and Part CC of Chapter XX shall apply accordingly. (5) Every appeal under sub-section (4) shall be filed within a period of sixty days to the Appellate Tribunal or one hundred and twenty days to the High Court, as the case may be, from the date on which the order of the jurisdictional High Court or the Supreme Court in the other case is communicated to the Principal Commissioner or the Commissioner (having jurisdiction over the relevant case), in accordance with the procedure specified by the Board in this behalf. Explanation.-For the purposes of this section, "collegium" means a collegium comprising of two or more Chief Commissioners or Principal Commissioners or Commissioners, as may be specified by the Board in this behalf." Thus, in our opinion, it is for the Revenue to adopt the procedure contemplated u/s 158AB of the Act where an identical question of law is pending before the Hon'ble High Court or the Supreme Court. ....
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....ist in law so long as it exists, it cannot be said that the appeal which has been disposed of by the said order has not been disposed of and is still pending. We are, therefore, of the opinion that the passing of the interim order dated February 21, 1991 by the Delhi High Court staying the operation of the order of the Appellate Authority dated January 7, 1991 does not have the effect of reviving the appeal which had been dismissed by the Appellate Authority by its order dated January 7, 1991 and it cannot be said that after February 21, 1991, the said appeal stood revived and was pending before the Appellate Authority. In that view of the matter, it cannot be said that any proceedings under the Act were pending before the Board or the Appellate Authority on the date of the passing of the order dated August 14, 1991 by the learned Single Judge of the Karnataka High Court for winding up of the company or on November 6, 1991 when the Division Bench passed the order dismissing O.S.A. No. 16 of 1991 filed by the appellant-company against the order of the learned Single Judge dated August 14, 1991. Section 22(1) of the Act could not, therefore, be invoked and there was no impediment in ....
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.... as laid down by Hon'ble Bombay High Court in the matter of CIT v. Godavari Devi Saraf [1978] 113 ITR 589 (Bom.). Therefore, we do not consider it permissible to rely upon the earlier decisions of this Tribunal". 12. Viewed thus, the views expressed by the coordinate benches, which have met approval of Hon'ble Courts above, are required to be followed, in preference over views expressed by any other benches, whether in assessee's own case or in any other case and irrespective of the views being that of a division bench or even larger bench. We humbly how to the wisdom of Hon'ble Courts above..........' 14. As observed earlier, there is neither any stay nor any order refraining the Assessee from citing the Judgment of Hon'ble High Court of Madras in the case of Roca Bathroom Products (P) Ltd. (supra). It is also matter of fact that there is no Judgment of any other Hon'ble High Court contrary to the ratio laid down in the case of Roca Bathroom Products (P) Ltd. (supra). Therefore, the ratio laid down by the Hon'ble High Court of Madras in the case of Roca Bathroom Products (P) Ltd. (supra) is having effect of binding precedent on the Tribuna....
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..... ACIT, International Taxation (supra), which was later followed by the Coordinate Bench of the Tribunal in the case of Aveva Solutions India LLP, Hyderabad Vs. ITO (supra), is) that the upper time limit provided under Section 153(1) and Section 153(4) of the Act is applicable for the final assessment order passed by the A.O. under Section 143(3) r.w.s. 144C(13) r.w.s. 144B of the Act. In case the final assessment order passed by the A.O. under Section 143(3) r.w.s. 144C(13) r.w.s. 144B is beyond the upper time limit provided under Section 153(1) and Section 153(4) of the Act, then the said order is beyond the limitation prescribed and liable to be quashed. In the present case, there is no dispute with regard to the fact that the normal time limit available for passing the assessment order, as per the provisions of Section 153(1) of the Act, is 18 months from the end of the relevant assessment year, which would expire on 30.09.2020 for A.Y. 2018- 19. Further, as per the provisions of Section 153(4) of the Act, where a reference under Section 92CA of the Act was made to the Transfer Pricing Officer (TPO), the time) limit available stands extended by another 12 months, and in the pre....
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....f the appeal for adjudication of the remaining issues, if the decision of the Hon'ble Supreme Court on the above question necessitates modification of this order. Accordingly, we dispose of this appeal on this legal issue and keep open the other issues raised by the assessee on merits, in case the Hon'ble Supreme Court decides the issue otherwise." 18. In view of the above discussion and also following the ratio laid down by the Co-ordinate Bench of the Tribunal of Hyderabad Bench (supra), we reject the preliminary objection raised by the Revenue and the request for deferring the hearing made by the Department." 5. In view of the above, by following the ratio laid down by the Coordinate Bench of the Tribunal of Hyderabad Bench (supra) and also the order of the Co-ordinate Bench of the Tribunal in the case of Teva Pharmaceutical &Chemical Industries India Private Limited (supra), we reject the preliminary objection raised by the Revenue and the request of the Department for deferring the hearing. 6. The Ld. Assessee's Representative filed date chart and contended that the outer statutory time limit for completion of assessment u/s 153(1) r.w.s 153(4) of th....
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....re to deal with this situation, the proceedings must be concluded within a reasonable time and hence the impugned proceedings are liable to be struck down and rightly done so by the learned Judge. 19. Admittedly, the facts including the dates are not under dispute. As regards the appeal in W.A.No.1854 of 2021, even though the remand was on 24.01.2013 and the assessee had received the order on 08.02.2013, the first notice by the DRP was issued on 19.02.2014 and the first hearing in the Chennai office was on 10.03.2014. Therefore, it is lucid that the DRP had the knowledge of the order before 19.02.2014. The matter was heard on various dates in Chennai office and written submissions were also filed. Thereafter, the files have been transferred to Bengaluru by the CBDT notification dated 31.12.2014. The Learned Judge relying upon the findings in the batch of cases which was decided first and rendered additional findings, which have been extracted in paragraphs 10 and 11 above, has allowed the writ petitions holding that the time limit under Section 153(2A) was not adhered to and in any case, the proceedings have not been concluded within a reasonable time. 20. As righ....
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....t is incumbent on him to do so, irrespective of the fact that DRP has completed the hearing and issued the directions or not. As rightly held by the learned judge, we are of the view that the DRP ought to have concluded the proceedings within 9 months from the date of receipt of the Tribunal's order, when it had issued a notice on 19.02.2014 and conducted the hearing as early as on 10.03.2014 and on several dates. The DRP at Chennai, in fact ought to have passed orders before 19.11.2014, even if the date of receipt of the notice is taken as 19.02.2014. In that event, the assessing officer ought to have passed the order before 31.12.2014 or at the latest before 31.03.2015 considering that the order was received during the financial year 2013-14. The transfer of the files to Bengaluru, after the lapse of the time, will not indefinitely extend the time and can have no impact on the time lines. It is an interdepartment arrangement and it cannot defeat the rights of the assessee. 22. Insofar as the non-obstante clause in Section 144C(13) is concerned, we concur with the view of the Learned Judge. The exclusion of applicability of Section 153 or Section 153B is for a limited pur....
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.... reject that construction which will defeat the plain intention of the legislature even though there may be some inexactitude in the language used. (See Salmon v. Duncombe [(1886) 11 AC 627 : 55 LJPC 69 : 55 LT 446 (PC)] AC at p. 634, Curtis v. Stovin [(1889) 22 QBD 513 : 58 LJQB 174 : 60 LT 772 (CA)] referred to in S. Teja Singh case [AIR 1959 SC 352 : (1959) 35 ITR 408]). 18. The statute must be read as a whole and one provision of the Act should be construed with reference to other provisions in the same Act so as to make a consistent enactment of the whole statute. 19. The court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with other parts of the law and the setting in which the clause to be 23 interpreted occurs. (See R.S. Raghunath v. State of Karnataka [(1992) 1 SCC 335 : 1992 SCC (L&S) 286 : (1992) 19 ATC 507 : AIR 1992 SC 81].) Such a construction has the merit of avoiding any inconsistency or repugnancy either within a section or between two different sections or provisions of the same statute. It is the duty of the court to avoid....
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....ection 153(2A) is available, within which period no orders have been passed in the present cases. The reference made by the learned senior counsels on the judgments in Nokia India Private Ltd (supra) and Vedanta Ltd (Supra) is well founded. The timeline given under the Act is to be strictly followed. 24. In so far the show cause notice issued is concerned, though generally, the Court wit will be circumspect at the stage of show cause notice, the law on the point is well belled with exception carved in the following cases: a. when the nonce is without authority, b. when notion is without authority c. when notice is issued without following the procedures under the applicable Act of the rules framed there under and d. when the notice is issued with a prejudiced mind. The challenge must be available ex-facie leaving no room for the court to peruse or discuss intricate facts in the present case, the challenge is on the ground of limitation and hence, we hold that the proceedings under Article 226 of the constitution are maintainable. 25. As regards the relief sought in other appeals viz., W.A.No. 1517/2021 etc. batch, the f....
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....enes between the transactions and the consideration of the matter by the assessing authority Long delay thus is not in the interest of either the assessee or the State. In view of the fact that a period of limitation has been prescribed for bringing the escaped turnover into the net of taxation, such an eventuality cannot be grappled with appropriately unless timely assessment is completed. In several taxing statutes, even in a situation like this, where assessment under Section 11(3) or 28(3) of the respective Acts is contemplated, a period of limitation is provided. Until by statute, such a limitation is provided, it is proper for the State Governments to require, by statutory rules or appropriate instructions, to ensure completion of assessments with expedition and reasonable haste but subject to rules of natural justice" (ii) Govt. of India v. Citedal Fine Pharmaceuticals, [(1989) 3 SCC 483 1989 SCC (Tax) 464 at page 487] 6. Learned counsel appearing for the respondents urged that Rule 12 is unreasonable and violative of Article of for the recovery of duty. He urged that in the absence of any prescribed period for recovery of the duty as contemplated by Rule 1....
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...., speaking for the Bench, opined (SCC p. 188, para 15) 15. Apropos the fourth and the last submission of the appellant, suffice it to say that even assuming that the revisional power cannot be exercised suomotu after an unduly long delay, on the facts of this case it is plain that it was not so done. Within a few months of the passing of the appellate order by the Assistant Commissioner, the Commissioner proceeded to revise and revised the said order. There was no undue or unreasonable delay made by the Commissioner. It may be stated here that an appeal has to be filed by an assessee within the prescribed time and so also a time-limit has been prescribed for the assessee to move in revision. The appellate or the revisional powers in an appeal or revision filed by an assessee can be exercised in due course. No time-limit has been prescribed for it. It may well be that for an exercise of the suomotu power of revision also the revisional authority has to initiate the proceeding within a reasonable time. Any unreasonable delay in exercise may affect its validity. What is a reasonable time, however, will depend upon the facts of each case" 23. The question at would be ....
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....re proceedings would have to be concluded within the time limits prescribed. (f) The non-obstante clause would not exclude the operation of Section 153 as a whole. It on implies that irrespective of availability of larger time to conclude the proceedings, final orders are to be passed within one month in line with the scheme of the Act. (g) When no period of limitation is prescribed, orders are to be passed within a reasonable time, which in any case cannot be beyond 3 years. However, when the statute prescribes a particular period within which orders are to be passed, then such period, irrespective of whether it is short or long, shall be applicable." 9. The above ratio laid down by the Hon'ble High Court of Madras in the case of Roca Bathroom Products Pvt. Ltd (supra) and also the Interim Order passed in the case of Shelf Drilling Ron Tappmeyer Ltd. by the Hon'ble Supreme Court and considering the overall circumstances, the Co-ordinate Bench of the Tribunal of Hyderabad in plethora of orders decided the issue of limitation in favour of the Assessee by safeguarding the interest of the parties by granting liberty. 10. In view of the ratio laid down b....