Micro Inks Pvt. Ltd., ( Formerly known as Micro Inks Ltd.), Vapi V. The Addl.CIT, Vapi Range, Vapi

ITA 1072/AHD/2015

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2386 (ITAT-SURAT)
• Duration Of Justice: 6 year(s) 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-03-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 27-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 154; 143(3); 144C; 153; 92CA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM ITA Nos.1325/AHD/2014, 3241/AHD/2011, 2885/AHD/2012, 895/AHD/2014, 675/AHD/2014 & 1072/AHD/2015 (Assessment Years: (2007-08 to 2010-11) (Virtual Court Hearing) Micro Inks Ltd., Bilakhia House, Muktanand Marg, Chala, Vapi, Gujarat. Vs. The Joint/Addl. CIT, Vapi Range, Vapi. Addl. CIT, Vapi Range, Vapi Vs. Micro Inks Ltd., Bilakhia House, Muktanand Marg, Chala, Vapi, Gujarat. èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AAACH7063F (Appellant) (Respondent) Assessee by Shri A. Gopalkrishnan Aiyer, CA Respondent by Shri Ritesh Mishra, CIT(DR) Date of Hearing 03/03/2022 Date of Pronouncement 25/03/2022 आदेश / O R D E R PER BENCH: Captioned five appeals filed by the Assessee and one appeal filed by the Revenue, pertaining to assessment years 2007-08 to 2010-11, are directed against the final assessment orders passed by the Assessing Officers [in short “the AO”] under section 143(3) r.w.s. 92CA(3)/144C(13) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”). 2. Since, the issues involved in all the appeals are common and identical; therefore, these appeals have been heard together and are being disposed of by this consolidated order. 3. At the outset, Learned Counsel for the assessee submitted that assessee, in different assessment years, has raised a legal ground, challenging the validity of assessment order, being barred by limitation. The Ld. Counsel contends that orders passed by the Assessing Officers in these appeals for assessment years 2007-08 to assessment year 2010-11, are time barred, as the orders were not passed by the Assessing Officer, within the time limit prescribed in third proviso Page | 2 ITA.675, 895, 1325/A/2014,3241/A/2011,2885/A/20121075/A/2015 Assessment Year: 2007-08 to 2010-11 Bilag Industries P Ltd. to section 153 of the Act. The ld Counsel pleads that this is a legal issue, for which assessee has raised these additional grounds of appeals, in different assessment years, hence these additional grounds of appeals for different assessment years may be admitted. 4. Learned Counsel for the assessee submits that assessee’s appeal in ITA No. 895/AHD/2014 for AY. 2009-10 and Revenue’s appeal in ITA No. 675/AHD/2014, for AY.2009-10, are cross-appeals for the assessment year 2009- 10. The Learned Counsel further submits that in these two appeals, there is technical issue involved, which is, that order passed by the Assessing Officer is time barred, hence assessment order itself may be quashed. The Assessing Officer ought to have passed the order on 31.03.2013, however the Assessing Officer has passed the final assessment order on 30.01.2014, therefore Learned Counsel contended that order passed by the Assessing Officer is behind the time limit prescribed under section 153 of the Act, therefore order passed by the Assessing Officer is ab initio void in the eye of law. 5. The Learned Counsel for the assessee narrated the chronological events stating the date on which return of income was filed by assessee, the date on which order under section 92CA of the Act was passed by Transfer Pricing Officer (TPO), the draft assessment order passed by the Assessing Officer, the objection against the draft assessment order before Ld. DRP filed by the assessee, the date on which order under section 144C (5) of the Act was passed by the Ld. DRP and the date on which the final assessment order passed by the Assessing Officer etc. were furnished by the assessee, which is reproduced below: HUBERGROUP INDIA PRIVATE LIMTIED (Formerly known as Micro Inks Limited) A.Y. 2009-10 CHRONOLOGY OF EVENTS Sr. No. Particulars Date 1 Return of Income filed 26/09/2009 2 Order u/s 92CA of Ld. TPO for determining the ALP 29/01/2013 3 Draft Assessment Order by the Ld. AO 30/03/2013 4 Filed objection against the draft Assessment order before the Ld. DRP 26/04/2013 5 Order u/s 144C(5) of the Ld. DRP disposing the Objection 26/12/2013 6 Final Assessment Order by the Ld. AO 30/01/2014 Page | 3 ITA.675, 895, 1325/A/2014,3241/A/2011,2885/A/20121075/A/2015 Assessment Year: 2007-08 to 2010-11 Bilag Industries P Ltd. 6. Therefore, Ld. Counsel submits that assessee’s appeal in ITA No. 895/AHD/2014 should be allowed on this technical issue and the Revenue’s appeal in ITA No.675/AHD/2015 should be dismissed. 7. On the other hand, Learned Departmental Representative (ld. DR) for the Revenue has strongly opposed the stand taken by the assessee and stated that assessee was sleeping over its rights and did not bring this fact before the Hon'ble DRP and Assessing Officer, therefore on this stage the assessee’s request should not be entertained and the technical issue raised by the assessee should be dismissed. 8. We have heard both the parties and perused the material available on record. We note that issue under consideration is covered by the judgment of the Co-ordinate Bench in the case of M/s. Bilag Industries Pvt. Ltd., in ITA No. 3094/AHD/2011 and 2886/AHD/2012 for AY.2008-09, order dated 11.02.2022, wherein the Coordinate Bench held as follows: “5. We have heard both the parties and perused the material available on record. We note that aforesaid additional ground of appeal raised by the assessee is a purely legal issue, it does not require any fresh investigation of facts, the facts are already on record and such additional ground goes to the root of the matter, hence by relying on the judgment of the Hon`ble Supreme Court in the case of National Thermal Power Co. Ltd, v. CIT reported in [19981 229 ITR 383 (SC), we admit the additional ground of appeal no. 1 raised by the assessee for adjudication. 6. We note that for assessment year 2007-08, the draft order was made by the assessing officer on 28.12.2010. The Hon`ble DRP passed the order on dated 27.09.2011. The Final assessment order was passed by the assessing officer on dated 25.10.2011. The final assessment order ought to be passed by the assessing officer on 31.03.2011, ( as per third proviso to section 153), however, it was actually passed on 25.10.2011. Hence order passed by the assessing officer is time barred and therefore should be quashed. 7. We note that for assessment year 2008-09, the TPO passed the order on dated 25.10.2011. The Hon`ble DRP passed the order on dated 25.09.2012. The Final assessment order was passed by the assessing officer under section 143(3) r.w.s.144C of the Act, on dated 30.10.2012. The final assessment order ought to be passed by the assessing officer on 31.03.2012, (as per third proviso to section 153), however, it was actually passed on 30.10.2012. Hence order passed by the assessing officer is time barred and therefore should be quashed. Page | 4 ITA.675, 895, 1325/A/2014,3241/A/2011,2885/A/20121075/A/2015 Assessment Year: 2007-08 to 2010-11 Bilag Industries P Ltd. 8. We note that as per 3rd proviso to section 153(1) of the Act, the Assessing Officer ought to have passed the assessment order within 36 months from the end of the relevant assessment year. Accordingly, the Assessing Officer ought to have passed the final assessment order by 31.03.2011, in case for assessment year 2007-08. The Ld. AO has passed final order, on 25.10.2011 which stood time barred on 31.03.2011 in the light of section 153(1) of the Act. The time limit for passing assessment order in the impugned assessment year does not get extended by application of Section 144C of the Act mandating reference to Dispute Resolution Panel, the provisions of said section do not apply to the impugned assessment year. To support our proposition, we rely on the decision of Hon'ble Madras High Court in the case of M/s Vedanta Limited reported in [2020] 114 taxmann.com 636 (Madras), wherein it has been held that section 144C inserted by Finance Act, 2009 is applicable for assessment year A.Y 2010-11 and onwards only and not applicable for assessment A.Y 2009- 10 or any earlier year. 9. Time limit is laid down for dealing with the return of income filed by an Assessee. This is to ensure finality to all matters. Purpose behind time limit laid down in section 153 of the Act is that assessment should be completed in time. It is abundantly clear from the above noted facts that for assessment year 2007-08 and for assessment year 2008-09, the assessment orders were passed after a period of 36 Months, prescribed in 3 rd proviso to section 153 (1) of the Act, therefore we quash both the assessment orders. 10. As the assessment orders itself are quashed, all other issues on merits of the additions, in the impugned assessment orders/proceedings, are rendered academic and infructuous.” 9. Therefore, we note that issue under consideration is covered by the judgment of the Coordinate Bench in the case of M/s. Bilag Industries Pvt. Ltd. (supra), therefore, we allow the assessee’s appeal in ITA No.895/AHD/2014, and we dismiss the revenue’s appeal in ITA No.675/AHD/2014. 10. Now we shall take assessee’s appeal in ITA No.3241/AHD/2011, for AY.2007-08 and assessee’s appeal in ITA No.1325/AHD/2014, for AY.2007-08, filed by the assessee for the same assessment year, under section 154 of the Income Tax Act. 11. We have heard both the parties. We note that Ld. Counsel submits that final assessment order passed by the Assessing Officer in the case of assessee’s appeal in ITA No.3241/AHD/2011 for AY.2007-08 is time barred, therefore, assessment order passed by the Assessing Officer should be quashed and the appeal of the assessee may be allowed. We note that the assessee’s appeal Page | 5 ITA.675, 895, 1325/A/2014,3241/A/2011,2885/A/20121075/A/2015 Assessment Year: 2007-08 to 2010-11 Bilag Industries P Ltd. pertains to AY.2007-08 wherein Assessing Officer ought to have passed the assessment order within thirty three months from the end of the relevant assessment year. We note that as per third proviso to section 153(1) of the Act, the Assessing Officer ought to have passed the assessment order within the thirty three months from the end of the relevant assessment year. Accordingly, the Assessing Officer ought to have passed the final assessment order on or before 31.03.2011. However, in assessee’s case under consideration, the final assessment order was passed by the Assessing Officer on 25.10.2011. Therefore, final assessment order passed by the Assessing Officer is time barred, hence we quash the final assessment order. The assessee submitted before us the chronology of events, which are reproduced below: HUBERGROUP INDIA PRIVATE LIMTIED A.Y. 2007-08 CHRONOLOGY OF EVENTS Sr. No. Particulars Date 1 Return of Income filed 31/10/2007 2 Order u/s 92CA of Ld. TPO for determining the ALP 18/10/2010 3 Draft Assessment Order by the Ld. AO 30/12/2010 4 Filed objection against the draft Assessment order before the Ld. DRP 28/01/2011 5 Order u/s 144C(5) of the Ld. DRP disposing the Objection 27/09/2011 6 Final Assessment Order by the Ld. AO 25/10/2011 12. Since, we have quashed the original assessment order for AY.2007-08, in ITA No.3241/AHD/2011, therefore, appeal filed by the assessee in ITA No.1325/AHD/2014 for AY.2007-08, under section 154 of the Act, becomes infructuous and therefore we dismiss the said assessee’s appeal. 13. In the result, assessee’s appeal in ITA No.3241/AHD/2011 for AY.2007- 08 is allowed whereas assessee’s appeal in ITA No.1325/AHD/2014 for AY.2007-08 is dismissed. 14. In respect of ITA No.2885/Ahd/2012, for assessment year 2008-09, the Ld. Counsel for the assessee contended that final assessment order passed by the Assessing Officer is time barred and therefore the final assessment order may be Page | 6 ITA.675, 895, 1325/A/2014,3241/A/2011,2885/A/20121075/A/2015 Assessment Year: 2007-08 to 2010-11 Bilag Industries P Ltd. quashed. For that Ld. Counsel submitted before us the chronology of events, which is reproduced below: HUBERGROUP INDIA PRIVATE LIMTIED A.Y. 2008-09 CHRONOLOGY OF EVENTS Sr. No. Particulars Date 1 Return of Income filed 26/09/2008 2 Order u/s 92CA of Ld. TPO for determining the ALP 18/10/2011 3 Draft Assessment Order by the Ld. AO 29/12/2011 4 Filed objection against the draft Assessment order before the Ld. DRP 30/01/2012 5 Order u/s 144C(5) of the Ld. DRP disposing the Objection 25/09/2012 6 Final Assessment Order by the Ld. AO 31/10/2012 15. We note that in assessee’s case, the final assessment order ought to have been passed on or before 31.03.2012, however the final assessment order was passed by the Assessing Officer on 31.10.2012, therefore, it is barred by limitation, hence we quash the assessment order for assessment year 2008-09. 16. In the result, appeal filed by the assessee in ITA No.2885/AHD/2012, for AY.2008-09 is allowed. 17. For, ITA No.1072/AHD/2015 for AY.2010-11, the Ld. Counsel pleads that final assessment order passed by the Assessing Officer is time barred, therefore the same should be quashed. The Ld. Counsel submitted before us chronological of events for AY.2010-11, which is reproduced below: HUBERGROUP INDIA PRIVATE LIMTIED A.Y. 2010-11 CHRONOLOGY OF EVENTS Sr. No. Particulars Date 1 Return of Income filed 13/10/2010 2 Order u/s 92CA of Ld. TPO for determining the ALP 28/01/2014 3 Draft Assessment Order by the Ld. AO 26/03/2014 4 Filed objection against the draft Assessment order before the Ld. DRP 24/04/2014 5 Order u/s 144C(5) of the Ld. DRP disposing the Objection 10/12/2014 6 Final Assessment Order by the Ld. AO 27/02/2015 18. We note that for AY.2010-11, in assessee`s appeal in ITA No. 1072/Ahd/2015, the Assessing Officer ought to have passed the Assessment order, on or before 31.03.2014, however the Assessing Officer has passed the Page | 7 ITA.675, 895, 1325/A/2014,3241/A/2011,2885/A/20121075/A/2015 Assessment Year: 2007-08 to 2010-11 Bilag Industries P Ltd. final assessment order on 27.02.2015, which is barred by limitation, therefore we quash the final assessment order passed by the Assessing Officer for assessment year 2010-11. 19. In the result, appeal filed by the assessee in ITA No.1072/AHD/2015 is allowed. A copy of the instant common order be placed in the respective case file(s). Order is pronounced in the open court on 25/03/2022 by placing the result on the Notice Board as per Rule 34(5) of the Income Tax (Appellate Tribunal) Rule 1963. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 25/03/2022 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat