M/s PCM Strescon Overseas Venture Ltd., Siliguri V. PCIT-1, , Kolkata

ITA 112/KOL/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6423 (ITAT-KOLKATA)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 11-08-2021
• Assessment Year: 2012-2013
• Appeal Filed On: 30-03-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GAURAV KANAUJA; SAN JOY PAU
• Keywords: Transfer pricing; Double taxation relief; Opportunity of being heard; Principle of natural justice; International transaction; Rule of consistency; Period of limitation; Permanent establishment; Advance ruling; Corroborative evidences; Time period of passing order; Set aside
• Section: 143(3); 92B; 142(1); 153A; 250; 201; 144C; 292BB; 143(2); 264; 13; 153; 22; 92CA; 147; 148; 54; 6; 263; 144; 90; 15

Judgement Text

1 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA [BEFORE SHRI P. M. JAGTAP, VICE PRESIDENT & SHRI A . T. VARKEY, JUDICIAL MEMBER ] I.T.A. NO. 112/KOL/2021 ASSESSMENT YEAR: 2012-13 PCM STRESSCON OVERSEAS VENTURES LTD. (PAN: AAECP2571Q)) VS . PRINCIPAL COMMISSIONER OF INCOME- TAX, - 1, KOLKATA. APPELLANT RESPONDENT & I.T.A. NO. 2652/KOL/2019 ASSESSMENT YEAR: 2012-13 INCOME-TAX OFFICER, WD-1(1), KOLKATA VS . PCM STRESSCON OVERSEAS VENTURES LTD APPELLANT RESPONDENT & C.O. NO. 15/KOL/2020 IN I.T.A. NO. 2652/KOL/2019 ASSESSMENT YEAR: 2012-13 PCM STRESSCON OVERSEAS VENTURES LTD VS . INCOME-TAX OFFICER, WD-1(1), KOLKATA CROSS OBJECTOR RESPONDENT DATE OF HEARING (VIRTUAL) 11.08.2021 DATE OF PRONOUNCEMENT 25.08.2021 FOR THE ASSESSEE SHRI AKKAL DUDHWEWALA, FCA FOR THE REVENUE SHRI GAURAV KANAUJA, CIT & SHRI SAN JOY PAUL, ADDL. CIT ORDER PER SHRI A. T. VARKEY, JM: BOTH THE APPEAL PREFERRED BY THE REVENUE (ITA NO. 2652/KOL/2019) AND THE CROSS OBJECTION PREFERRED BY THE ASSESSEE (C.O NO. 15/KOL/2020) ARE AGAINST THE ORDER OF THE LD. CIT(A)-22, KOLKATA DATED 24.07.20 19 FOR AY 2012-13; AND ITA NO. 112/KOL/2021 IS ASSESSEES APPEAL AGAINST THE ORDER OF THE LD. PR. CIT-1, KOLKATA DATED 23.03.2021 FOR AY 2012-13 PASSED U/S. 263 OF THE INCOME-TAX ACT, 1961 ( HEREINAFTER REFERRED TO AS THE ACT). APPEAL OF REVENUE IS TIME BARRED BY 69 DAY S AND CONDONATION PETITION HAS BEEN FILED. AFTER CONSIDER ING THE SAME AND UPON HEARING BOTH THE SIDES, WE CONDONE THE DELAY AND ADMIT THE APPEA L FOR HEARING. 2 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 2. AT THE OUTSET, THE LD. A.R. FOR THE ASSESSEE SHR I AKKAL DUDHWEWALA SUBMITTED THAT ITA NO. 2652/KOL/2019 IS PREFERRED BY THE REVE NUE AGAINST THE ORDER OF THE LD. CIT(A) FOR AY 2012-13 DATED 24.07.2019, WHEREIN THE REVENUE HAS CHALLENGED THE ACTION OF THE LD. CIT(A) TO HAVE DECIDED THE APPEAL IN FAVOUR OF THE ASSESSEE BY UPHOLDING THE LEGAL ISSUE RAISED BY THE ASSESSEE I. E. THAT SINCE THE AOS FINAL ASSESSMENT ORDER U/S. 143(3) R.W.S. 144C(3) OF THE ACT DATED 28.12.2018 HAS BEEN PASSED BEYOND THE LIMITATION TIME PRESCRIBED BY THE STATUTE U/S. 153 OF THE ACT, THEREFORE, IS NON-EST IN THE EYES OF LAW. AGAINST THIS ACTION OF THE LD . CIT(A) THE REVENUE HAS PREFERRED THE APPEAL NUMBERED AS ITA NO . 2652/KOL/2019 AND THE ASSESSEE HAS FILED A CROSS OBJECTION (C.O. NO. 15/K OL/2020) AGAINST THE MERIT OF THE ADDITION MADE BY THE AO VIDE ASSESSMENT ORDER DATED 28.12.2018. 3. FURTHER THE LD. AR SUBMITTED THAT ITA NO. 112/K OL/2021 HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. PR. CI T PASSED U/S. 263 OF THE ACT DATED 23.03.2021 FOR AY 2012-13 WHEREIN THE LD. PR. CIT H AS INTERDICTED THE ASSESSMENT ORDER PASSED BY THE AO U/S. 143(3) READ WITH SECTIO N 144C OF THE ACT DATED 28.12.2018. ACCORDING TO THE LD. AR, WHILE ADJUDIC ATING THESE APPEALS, FIRST OF ALL IF THE REVENUE APPEAL I.E. ITA NO. 2652/KOL/2019 IS DE CIDED AND IN CASE IF THE LEGAL ISSUE WHICH HAS BEEN ASSAILED AGAINST THE ACTION OF THE LD. CIT(A) WHO HAS HELD THAT THE AOS ORDER DATED 28.12.2018 IS BAD IN LAW SINCE HAS BEEN PASSED BEYOND LIMITATION AND SO IS NULL IN THE EYES OF LAW, CONSEQUENTLY THE N, THE LD. PR. CITS IMPUGNED ACTION U/S. 263 OF THE ACT DATED 23.03.2021 AGAINST THE NON EST ORDER OF AO DATED 28.12.2018 PASSED U/S. 143(3) R.W.S. 144C OF THE ACT WOULD BE NULL IN THE EYES OF LAW. THEREFORE, THE LD. AR REQUESTED THE BENCH TO HEAR FIRST THE LE GAL ISSUE UPHELD BY THE LD. CIT(A) IN FAVOUR OF THE ASSESSEE I.E. THE REVENUE APPEAL N UMBERED AS ITA NO. 2652/KOL/2019 TO BE FIRST ADJUDICATED. IN THE LIGH T OF THE AFORESAID SUBMISSION AND SINCE THERE IS NO OBJECTION ON BEHALF OF THE REVENU E; WE ARE INCLINED TO HEAR THE REVENUE APPEAL (ITA NO. 2652/KOL/2019) WHICH STEMS FROM THE AOS ASSESSMENT ORDER DATED 28.12.2018. 3 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 4. THE REVENUE HAS PREFERRED APPEAL AGAINST THE ACT ION OF THE LD. CIT(A) IN ALLOWING THE LEGAL ISSUE RAISED BY THE ASSESSEE AS GROUND NO. 1 BEFORE THE LD. CIT(A) WHICH IS REPRODUCED AS UNDER: 1. FOR THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE IMPUGNED ORDER PASSED UNDER SECTION 143(3) WAS PASSED BEYOND THE P ERIOD OF LIMITATION AND IN THAT VIEW OF THE MATTER THE SAME BE HELD BAD IN LAW AND ACCOR DINGLY BE QUASHED. 5. FROM A PERUSAL OF THE AFORESAID GROUND NO. 1 PRE FERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) IT IS CLEAR THAT THE ASSESSEE HAD PR EFERRED THIS LEGAL GROUND CHALLENGING THE LEGAL VALIDITY OF THE AOS ASSESSMENT ORDER DAT ED 28.12.2018 ON THE GROUND THAT IT WAS BARRED BY LIMITATION. IN OTHER WORDS THE TIME L IMIT PRESCRIBED BY SECTION 153 OF THE ACT EXPIRED IN ANY CASE ON 30.11.2018 AND THERE FORE THE AO LACKED JURISDICTION TO PASS THE ASSESSMENT ORDER AFTER THAT DATE (I.E. 30. 11.2018) AND SO THE ASSESSMENT FRAMED ON 28.12.2018 BY THE AO WAS WITHOUT JURISDIC TION AND CONSEQUENTLY THE ASSESSMENT ORDER DATED 28.12.2018 IS NULL IN THE EYES OF LAW. 6. BRIEFLY STATED, THE FACTS OF THIS CASE ARE THAT, THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND TRADING OF PSC SLEEPE RS. THE ASSESSEE HAS TWO FOREIGN BRANCHES SITUATED IN ABU DHABI AND SAUDI ARABIA. FO R THE RELEVANT AY 2012-13, THE ASSESSEE HAD FILED THE RETURN OF INCOME ON 31.10.20 13. THE ASSESSEE DID NOT FILE ANY FORM 3CEB, SINCE IT HAD CLAIMED THAT IT DID NOT HAV E ANY INTERNATIONAL TRANSACTIONS U/S 92B OF THE ACT WITH ITS FOREIGN BRANCHES. THE AO, V IDE ORDER SHEET ENTRY DATED 11.03.2015, STATED THAT THE ASSESSEE HAD ENTERED IN TO INTERNATIONAL TRANSACTIONS WITH ITS FOREIGN BRANCHES AND THEREFORE PROPOSED THAT THE CA SE MAY BE REFERRED FOR TRANSFER PRICING SCRUTINY U/S 92CA OF THE ACT. THE ASSESSEE BY LETTER DATED 24.03.2015 CONTENDED THAT THE TRANSFER PRICING PROVISIONS WERE NOT APPLICABLE AND THEREFORE NO REFERENCE OUGHT TO BE MADE TO THE TPO. IT IS HOWEVE R NOTED THAT THE AO REFERRED THE CASE TO THE TPO U/S 92CA OF THE ACT. THEREAFTER, TH E TPO BY NOTICE DATED 15.04.2015 ISSUED U/S 92CA(2) OF THE ACT CALLING UPON THE ASSE SSEE COMPANY TO FURNISH SEVERAL DETAILS/INFORMATION IN CONNECTION WITH TRANSFER PRI CING PROCEEDINGS FOR THE RELEVANT AY 2012-13. BEFORE THE TPO, THE ASSESSEE AGAIN OBJE CTED TO THE REFERENCE MADE U/S 92CA OF THE ACT ON THE SAME GROUND THAT IT DID NOT HAD CARRIED OUT ANY INTERNATIONAL 4 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 TRANSACTIONS WITH ITS FOREIGN BRANCHES WITHIN THE M EANING OF SECTION 92B OF THE ACT. THE LD. AR OF THE ASSESSEE POINTED OUT THAT, THE TP O WITHOUT DISPOSING OFF THE OBJECTIONS RAISED AGAINST THE EXERCISE OF JURISDICT ION AND WITHOUT EVEN ISSUING ANY SHOW CAUSE NOTICE UNILATERALLY PROPOSED TRANSFER PR ICING ADJUSTMENT OF RS.75,70,10,758/-TO THE TOTAL INCOME OF THE ASSESSE E IN HIS ORDER DATED 29.01.2016 PASSED U/S 92CA(3) OF THE ACT. CONSEQUENT THERETO, THE AO SERVED THE ORDER U/S 144C/143(3) OF THE ACT DATED 10.03.2016 ON THE ASSE SSEE. AGGRIEVED BY THE AFORESAID ORDER OF THE TPO AS WELL AS THE AO, THE ASSESSEE PR EFERRED A WRIT PETITION NO. 214 OF 2016 BEFORE THE HONBLE CALCUTTA HIGH COURT, WHEREI N THE ASSESSEE CHALLENGED THE NOTICE DATED 16.04.2015 ISSUED BY THE TPO EXERCISIN G JURISDICTION U/S 92CA OF THE ACT AND THE CONSEQUENT ORDERS PASSED BY AO U/S 92CA(3) DATED 29.01.2016 AND U/S 143(3)/144C DATED 10.03.2016. THE WRIT PETITION WAS DISPOSED OF BY THE HONBLE HIGH COURT BY ORDER DATED 11.08.2017 AND THE RELEVA NT EXTRACTS OF ORDER ARE AS FOLLOWS: IT APPEARS FROM THE RECORDS THAT, THE PETITIONER H AD SUFFERED A SHOW CAUSE NOTICE DATED MARCH 11, 2015 FROM THE ASSESSING OFFICER, CALLING UPON THE FIRST PETITIONER TO RESPOND IN WRITING WITH SUPPORTING EVIDENCE, AS TO THE CLAIM O F THE DEPARTMENT THAT, THERE HAS BEEN INTERNATIONAL TRANSACTION WITHIN THE MEANING OF SEC TION 92B BETWEEN THE BRANCH UNITS AND THE PERMANENT ESTABLISHMENT LOCATED IN INDIA. THE F IRST PETITIONER DID REPLY THERETO BY ITS WRITING DATED MARCH 24, 2015. THE ASSESSING OFFICER DID NOT AFFORD ANY OPPORTUNITY OF HEARING TO THE PETITIONERS THEREAFTER. IT DID NOT D ECIDE THE JURISDICTIONAL FACT AS WHETHER THERE ARE TRANSACTIONS REQUIRING THE ATTENTION OF T HE TPO. THE TPO HAD ISSUED A NOTICE DATED APRIL 16, 2015 CALLING UPON THE FIRST PETITIO NER TO PARTICIPATE IN THE PROCEEDINGS FOR THE ASSESSMENT OF TRANSFER PRICING. THE FIRST PETIT IONER HAD APPARENTLY PARTICIPATED THEREIN. THE PETITIONERS HAD APPROACHED THE WRIT COURT BY WA Y OF PRESENT WRIT PETITION. AN INTERIM ORDER DATED MARCH 29, 2016 WAS PASSED. BY SUCH ORDE R THE PETITIONERS WERE ALLOWED TO FILE THEIR OBJECTION BEFORE THE DISPUTE RESOLUTION PANEL . THE DISPUTE RESOLUTION PANEL WAS RESTRAINED FROM COMPLETING THE ASSESSMENT FOR THE R ELEVANT YEAR WITHOUT THE PREVIOUS LEAVE OF COURT. THE CIRCULAR DATED MARCH 10, 2016 H AS COME INTO BEING SUBSEQUENT TO THE DECISION OF THE ASSESSING OFFICER TO REFER THE MATT ER TO THE TPO. AS NOTED ABOVE, THE ASSESSING OFFICER HAD INVOKED T HE PROVISIONS OF SECTION 92CA OF THE INCOME TAX ACT, 1961 IN ISSUING THE SHOW CAUSE NOTI CE. SECTION 92CA (1) OF THE ACT OF 1961 IS AS FOLLOWS : . BY THE CIRCULAR DATED MARCH 10, 2016, THE DEPARTMEN T IS OF THE VIEW THAT, THE TRANSACTIONS NOTED IN CLAUSE 3.3 THEREOF IF INVOLVED, WOULD GIVE RISE TO A JURISDICTIONAL REQUIREMENT. THE ASSESSING OFFICER IS REQUIRED TO RECORD HIS SAT ISFACTION THAT, THERE IS AN INCOME OR A POTENTIAL OF AN INCOME ARISING AND/OR BEING AFFECTE D ON DETERMINATION OF THE ARMS LENGTH PRICING OF AN INTERNATIONAL TRANSACTION OR SPECIFIE D DOMESTIC TRANSACTION. THE CIRCULAR IN CLAUSE 3.4 GOES ON TO SAY THAT THE ASSESSING OFFICE R MUST PROVIDE AN OPPORTUNITY OF HEARING 5 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 TO THE ASSESSEE BEFORE RECORDING HIS SATISFACTION O R OTHERWISE. HE SHOULD ALSO PASS AN SPEAKING ORDER SO AS TO COMPLY WITH THE PRINCIPLES OF NATURAL JUSTICE. IN THE FACTS OF THE PRESENT CASE, ALTHOUGH THE CIRCULAR WAS NOT IN VOGU E AT THE MATERIAL POINT OF TIME, THE APPLICABILITY OF THE PRINCIPLES OF NATURAL JUSTICE AND THE REQUIREMENT OF THE ASSESSING OFFICER DECIDING ON A JURISDICTIONAL FACT CANNOT BE DENIED. THE SECTION AS IT STANDS REQUIRES THE ASSESSING OFFICER TO TAKE A DECISION ON A JURIS DICTIONAL FACT. THAT BY ITSELF IMPLIES THAT, THE ASSESSING OFFICER WHILE TAKING A DECISION ON SU CH JURISDICTIONAL FACT, OUGHT TO AFFORD A REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE C ONCERNED AND THEREAFTER PASS A SPEAKING ORDER. THE ASSESSING OFFICER NOT HAVING AF FORDED ANY OPPORTUNITY OF HEARING TO THE FIRST PETITIONER ON THE JURISDICTIONAL ISSUE RA ISED, IT OUGHT NOT TO HAVE TRANSFERRED THE MATTER TO THE TPO. THE ASSESSING OFFICER HAS ACTED IN BREACH OF THE PRINCIPLES OF NATURAL JUSTICE IN DOING SO. THE ASSUMPTION OF JURISDICTION BY THE TPO AND SUBSEQUENTLY THE ULTIMATE REFERENCE TO THE DISPUTE RESOLUTION PANEL ARE THEREFORE AT FAULT, IN THE FACTS OF THE PRESENT CASE IN THE FACTS OF THE PRESENT CASE, INTEREST OF JUSTI CE WOULD BE SUBSERVED BY SETTING ASIDE THE WRITING DATED APRIL 16, 2015 OF THE TPO AND THE SDI SPUTE RESOLUTION PANEL SUBSEQUENT THERETO. THE ASSUMPTION OF JURISDICTION BY THE TPO IS SET ASIDE. THE ASSESSING OFFICER IS REQUESTED TO PROCEED ON THE BASIS OF THE SHOW CAUSE NOTICE ISSUED BY HIM DATED MARCH 11, 2015 AND THE REPLY GIVEN THERETO BY THE ASSESSING C ONCERNED CONTAINED IN THE WRITING DATED MARCH 24, 2015, IN ACCORDANCE WITH LAW AND IN CONSONANCE WITH THE CIRCULAR OF THE DEPARTMENT DATED MARCH 10, 2016. 7. FROM THE ABOVE ORDER, IT IS NOTED THAT THE HONB LE HIGH COURT HAD SET ASIDE THE NOTICE DATED 16.04.2015 ISSUED BY THE TPO AND THE C ONSEQUENT JURISDICTION ASSUMED BY THE TPO U/S 92CA(2) OF THE ACT. THE HIGH COURT A CCORDINGLY DIRECTED THE AO TO PROCEED AFRESH ON THE BASIS OF THE INITIAL SHOW-CAU SE ISSUED BY HIM DATED 11.03.2015 AND ACT IN ACCORDANCE WITH LAW AND IN CONSONANCE WI TH THE BOARD CIRCULAR DATED 10.03.2016. 8. PERUSAL OF THE MATERIAL PLACED ON OUR RECORD SHO W THAT THE ASSESSEE HAD SERVED THE COPY OF THE ABOVE ORDER OF THE HONBLE HIGH COU RT BOTH UPON THE AO AS WELL AS THE TPO ON 29.08.2017. SUBSEQUENT THERETO AND ACTIN G IN ACCORDANCE WITH THE DIRECTIONS CONTAINED IN THE ORDER OF THE HONBLE HI GH COURT, THE AO ISSUED A FRESH NOTICE DATED 06.10.2017 REQUIRING THE ASSESSEE TO E XPLAIN AS TO WHY ITS CASE SHOULD NOT BE REFERRED FOR TRANSFER PRICING SCRUTINY. THE OBJE CTIONS FILED BY THE ASSESSEE WAS DISPOSED OFF BY THE AO VIDE ORDER DATED 20.11.2017 WHEREIN HE STATED THAT IT WAS HIS PREROGATIVE TO MAKE REFERENCE TO THE TPO FOR DETERM INATION OF ARMS LENGTH PRICE (ALP) U/S 92CA OF THE ACT. THE TPO ACCORDINGLY ISSU ED FRESH NOTICES U/S 92CA(2) OF 6 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 THE ACT AND THEREAFTER COMPLETED THE TRANSFER PRICI NG ASSESSMENT U/S 92CA(3) BY ORDER DATED 31.10.2018 WHEREIN HE PROPOSED AN ADJUS TMENT OF RS.4,57,20,215/-. UPON RECEIPT OF THE TRANSFER PRICING ORDER, THE AO ISSUE D NOTICE U/S 142(1) OF THE ACT DATED 26.11.2018 CALLING FOR SEVERAL INFORMATION/DETAILS AND THEREAFTER COMPLETED THE ASSESSMENT U/S 143(3)/144C BY ORDER DATED 28.12.201 8. 9. BEFORE THE LD. CIT(A), THE ASSESSEE HAD OBJECTED TO THE VALIDITY OF THE ORDER DATED 28.12.2018 PASSED BY THE AO AND ALSO THE MERI TS OF THE TRANSFER PRICING ADJUSTMENT OF RS.4,57,20,215/-MADE THEREIN. THE LD. CIT(A) FOUND MERIT IN THE PRELIMINARY GROUND OF THE ASSESSEE THAT THE ORDER I MPUGNED WAS BARRED BY LIMITATION AND THEREFORE HELD THE ORDER DATED 28.12.2018 TO BE BAD IN LAW AND THUS AB INITIO VOID. THE LD. CIT(A) ALSO FOUND MERIT IN THE ASSESSEES C ONTENTION THAT IT DID NOT HAVE ANY INTERNATIONAL TRANSACTIONS WITH ITS FOREIGN BRANCHE S AND THEREFORE THE REFERENCE MADE BY THE AO U/S 92CA(2) OF THE ACT WAS HELD TO BE BAD IN LAW AND IN GROSS VIOLATION OF THE BOARD INSTRUCTION NO. 3 OF 2016 DATED 10.03.201 6. THE LD. CIT(A) ACCORDINGLY HELD THE CONSEQUENT ORDERS DATED 31.10.2018 & 28.12 .2018 PASSED BY THE TPO AND AO RESPECTIVELY TO BE AB INITIO VOID. THE LD. CIT(A) F URTHER HELD THAT THE TPO EXCEEDED HIS JURISDICTION U/S 92CA OF THE ACT BY ASSESSING A ND VERIFYING THE PROFITS EARNED BY FOREIGN BRANCHES DESPITE THAT IT DID NOT QUALIFY AS AN INTERNATIONAL TRANSACTION U/S 92B OF THE ACT. THE LD. CIT(A) ALSO TOOK NOTE OF THE FA CT THAT THE REVENUE IN THE EARLIER AYS 2007-08 TO 2011-12 AS WELL AS SUCCEEDING AYS 20 13-14 TO 2015-16 HAD ACCEPTED THAT THE ASSESSEE DID NOT HAVE ANY INTERNATIONAL TR ANSACTIONS WITH THE FOREIGN BRANCHES AND ACCORDINGLY NO TRANSFER PRICING ADJUSTMENT WAS MADE IN THIS REGARD. HENCE, IN ABSENCE OF CHANGE IN THE FACTUAL MATRIX AND FOLLOWI NG THE PRINCIPLE OF CONSISTENCY, THE LD. CIT(A) HELD THAT THERE WAS NO REASON TO ADOPT A CONTRARY VIEW IN THE RELEVANT YEAR. THE LD CIT(A) IN RESPECT OF THE AFORESAID LEG AL ISSUE HAS NOTED THE ASSESSEES CONTENTION WHICH HAS BEEN REPRODUCED FROM PAGE 19 T O 21 OF HIS IMPUGNED ORDER, WHICH READS AS UNDER ;- IN THIS GROUND THE APPELLANT HAS OBJECTED TO THE LEGAL VALIDITY OF THE ORDER WHICH BEARS THE DATE OF 28.12.2018 ON THE GROUND OF BEING BARRED BY LIMI TATION, IN ORDER TO UNDERSTAND THE ISSUE INVOLVED IN THIS GROUND, IT WOULD FIRST BE RELEVANT TO SET OUT THE FACTS OF THE CASE IN PROPER CONTEXT. 7 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 THE APPELLANT COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURER OF PRE-STRESSED CONCRETE SLEEPERS. THE COMPANY HAD SET UP BRANCHES IN THE KINGDOM OF SAUDI ARABIA AND UNITED ARAB EMIRATES WHICH WERE ALSO ENGAGED IN THE SAME LINE OF BUSINESS. THE CONTRACTS WERE OBTAINED AND EXECUTED BY THESE FOREIGN BRANCHES IN THE RESPECTIVE COUNTRIES INDEPENDENTLY AND NO ACTIVITIES WHATSOEVER WERE EITHER CARRIED OUT IN INDIA OR BY THE INDIAN HEAD OFFICE. THE HEAD OFFICE AT INDIA OF THE APPELLANT COMPANY DID N OT HAVE TRANSACTIONS WITH THESE FOREIGN BRANCHES DURING THE RELEVANT YEAR. BOTH THE BRANCHE S PREPARED THEIR STANDALONE ACCOUNTS WHICH WERE AUDITED IN THEIR RESPECTIVE COUNTRIES. FOR ACC OUNTING PURPOSES IN INDIA THE BRANCH ACCOUNTS WERE CONSOLIDATED AT THE HEAD OFFICE LEVEL AND THE CONSOLIDATED FINANCIALS OF THE INDIAN COMPANY WERE ADOPTED AT THE ANNUAL GENERAL M EETING AND ALSO REPORTED FOR INCOME-TAX PURPOSES. FOR THE RELEVANT YEAR AY 2012-13 THE APPE LLANT FILED ITS INCOME-TAX RETURN DECLARING LOSS OF RS.1,15,215/-. THE CASE WAS SELECTED FOR SC RUTINY U/S 143(3) OF THE ACT, ALONG WITH THE RETURN OF INCOME, THE COMPANY FURNISHED TAX AUDIT R EPORT IN FORM 3CD AS WELL. SINCE THE INDIAN HQ OF THE COMPANY DID NOT HAVE INTERNATIONAL TRANSACTIONS' WITH THE FOREIGN BRANCHES WITHIN THE MEANING OF SECTION 92B OF THE ACT, THE COMPANY DID NOT FILE FORM 3CEB, IN THE COURSE OF OR IGINAL ASSESSMENT THE APPELLANT WAS SHOW CAUSED AS TO WHY IT'S CASE SHOULD NOT BE REFERRED F OR TRANSFER PRICING SCRUTINY. THE APPELLANT COMPANY VIDE LETTER DATED 24.03.2015 OBJECTED TO TH E PROPOSED REFERENCE U/S 92CA OF THE ACT. IT WAS CONTENDED THAT THE COMPANY DID NOT HAVE ANY INT ERNATIONAL TRANSACTIONS IN TERMS OF SECTION 92B OF THE ACT AND THEREFORE NO REFERENCE U/S 92CA WAS LEGALLY PERMISSIBLE. IT WAS ALSO EXPLAINED THAT MERELY BECAUSE THE COMPANY HAD FOREI GN BRANCHES DID NOT IPSO FACTO WARRANT TRANSFER PRICING SCRUTINY. THE AO HOWEVER WITHOUT D ISPOSING OFF THE OBJECTIONS RAISED BY THE APPELLANT STRAIGHTAWAY REFERRED IT'S CASE FOR TRANS FER PRICING SCRUTINY WITHOUT EVEN SPELLING OUT THE SPECIFIC 'INTERNATIONAL TRANSACTION' WHICH IN H IS OPINION WARRANTED TRANSFER PRICING SCRUTINY. BEFORE THE TPO ALSO THE APPELLANT OBJECTE D TO THE REFERENCE MADE BY THE AO U/S 92CA. THE TPO HOWEVER WITHOUT GIVING ANY SHOW CAUSE OR OP PORTUNITY OF HEARING FRAMED THE ORDER U/S 92CA(3) PROPOSING ADJUSTMENT TO THE EXTENT OF RS. 7 5,70,10,548/- OUT OF THE PROFITS OF THE FOREIGN BRANCHES WHICH WERE EXCLUDED FROM THE COMPUTATION O F TOTAL INCOME IN TERMS OF THE DTAA BETWEEN INDIA AND SAUDI ARABIA & UAE. AGGRIEVED BY SUCH ARBITRARY AND HIGH HANDEC1 ACTION OF THE REVENUE AUTHORITIES THE APPELLANT PREFERRED A WRIT PETITION BEFORE THE HON'BLE CALCUTTA HIGH COURT. ONE OF THE PLEA TAKEN BEFORE THE HON'BL E HIGH COURT WAS THAT BOTH THE AO AS WELL AS THE TPO ACTED IN VIOLATION OF PRINCIPLES OF NATU RAL JUSTICE. IT WAS CONTENDED THAT THE AO FAILED TO DISPOSE-OFF THE OBJECTIONS RAISED TO THE PROPOSED REFERENCE U/S 92CA WHICH MADE THE SAID REFERENCE TO TPO BAD IN THE EYES OF LAW. IT WA S FURTHER SUBMITTED THAT EVEN THE TPO WAS UNABLE TO SPELL OUT THE INTERNATIONAL TRANSACTION W HICH HE ALLEGEDLY BENCHMARKED IN THE PROCEEDINGS U/S 92CA(3) AND THAT HE RECOMMENDED THE ADJUSTMENT OF RS.75,70,10,548/- WITHOUT AFFORDING ANY OPPORTUNITY OF BEING HEARD. APPRECIAT ING THE SUBMISSIONS PUT FORTH BY THE APPELLANT, THE HON'BLE HIGH COURT SET ASIDE THE ORD ERS OF THE AO AS WELL AS THE TPO AND DIRECTED THE AO TO PROVIDE SUFFICIENT OPPORTUNITY O F BEING HEARD AND THEREAFTER PASS A SPEAKING ORDER IN TERMS OF CBDT INSTRUCTION NO. 5 OF 2015 IF HE WAS OF THE VIEW THAT TRANSFER PRICING SCRUTINY WAS WARRANTED IN THE GIVEN FACTS OF THE PR ESENT CASE THE RELEVANT EXTRACTS OF THE ORDER OF THE HON'BLE CALCUTTA HIGH COURT IN WP NO.214 OF 2016 DATED 11.08.2017 IS AS FOLLOWS: 'IN THE FACTS OF THE PRESENT CASE, ALTHOUGH THE CIR CULAR WAS NOT IN VOGUE AT THE MATERIAL POINT OF TIME, THE APPLICABILITY OF THE PRINCIPLES OF NATURAL JUSTICE AND THE REQUIREMENT OF THE ASSESSING OFFICER DECIDING ON A JURISDICTION AL FACT CANNOT BE DENIED. THE SECTION AS IT STANDS REQUIRES THE ASSESSING OFFICER TO TAKE A DECISION ON JURISDICTIONAL FACT. THAT BY ITSELF IMPLIES THAT, THE ASSESSING OFFICER WHILE TAKING A DECISION ON SUCH JURISDICTIONAL FACT, OUGHT TO AFFORD A REASONABLE O PPORTUNITY OF HEARING TO THE ASSESSEE CONCERNED AND THEREAFTER PASS A SPEAKING ORDER. THE ASSESSING OFFICER NOT HAVING AFFORDED ANY OPPORTUNITY OF HEARING TO THE FIRST PE TITIONER ON THE JURISDICTIONAL ISSUE RAISED, IT OUGHT NOT TO HAVE TRANSFERRED THE MATTER TO THE TPO. THE ASSESSING OFFICER HAS ACTED IN THE BREACH OF THE PRINCIPLES OF NATURAL JU STICE IN DOING SO. THE ASSUMPTION OF THE JURISDICTION BY THE TPO AND SUBSEQUENTLY THE UL TIMATE REFERENCE TO THE DISPUTE RESOLUTION PANEL ARE THEREFORE AT FAULT, IN THE FAC TS OF THE PRESENT CASE. IN THE FACTS OF THE PRESENT CASE, INTEREST OF JUSTI CE WOULD BE SUB SERVED BY SETTING ASIDE THE WRITING DATED APRIL 16, 2015 OF THE TPO AND THE DISPUTE RESOLUTION PANEL SUBSEQUENT THERETO. THE ASSUMPTION OF JURISDICTION BY THE TPO IS SET ASIDE. THE ASSESSING OFFICER IS REQUESTED TO PROCEED ON THE BA SIS OF SHOW CAUSE ISSUED BY HIM 8 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 DATED MARCH 11, 2015 AND THE REPLY GIVEN THERETO BY THE ASSESSING CONCERNED CONTAINED IN THE WRITING DATED MARCH 24, 2015,IN AC CORDANCE WITH THE LAW, AND IN CONSONANCE WITH THE CIRCULAR OF THE DEPARTMENT DATE D MARCH 10, 2016. ' THE CERTIFIED TRUE COPY OF THE ORDER OF THE HON'BLE CALCUTTA HIGH NIGH COURT WAS SERVED ON THE DEPARTMENT ON 25.08.2017, EVIDENCE THEREOF IS ENCLO SED AT PAGE 134-138 OF THE PAPER BOOK. SUBSEQUENT TO RECEIPT OF THE SAID ORDER, THE AO ISS UED FRESH SHOW CAUSE DATED 06.10.2017 REQUIRING THE ASSESSEE TO EXPLAIN AS TO WHY THE CAS E SHOULD NOT BE REFERRED FOR TRANSFER PRICING SCRUTINY. VIDE ORDER DATED 20.11.2017 THE AO REJECT ED THE OBJECTIONS PLACED BY THE APPELLANT AND REFERRED THE MATTERS TO THE TPO-II, KOLKATA. TH EREAFTER THE TPO FRAMED THE ORDER U/S 92CA(3) ON 31.10.2018 PROPOSING ADJUSTMENT TO THE E XTENT OF RS.4,57,20,215/- OUT OF THE PROFITS OF THE FOREIGN BRANCHES WHICH WERE EXCLUDED FROM TH E TOTAL INCOME CHARGEABLE TO TAX IN INDIA. THE DRAFT ASSESSMENT ORDER IN TERMS OF SECTION 144C WAS PASSED BY THE AO ON 20.12.2018 AND THEREAFTER THE FINAL ASSESSMENT ORDER WAS PASSED ON 28.12.2018. WITH REFERENCE TO THE ABOVE FACTS, ATTENTION IS NOW INVITED TO THE PROVISIONS OF SECTION 153(6) OF THE INCOME-TAX ACT, 1961 WHICH PRESCRIBES THE LIMIT ATION PERIOD FOR PASSING OF ASSESSMENT ORDER PURSUANT TO ANY ORDER PASSED BY THE HONBLE HIGH CO URT OTHER THAN BY WAY OF APPEAL OR REFERENCE UNDER THE INCOME-TAX ACT, 1961. THE RELEV ANT PROVISIONS ARE AS FOLLOWS: '(6) NOTHING CONTAINED IN SUB-SECTIONS (1) AND (2) SHALL APPLY TO THE FOLLOWING CLASSES OF ASSESSMENTS, REASSESSMENTS AND RECOMPUTATION WHI CH MAY, SUBJECT TO THE PROVISIONS OF SUB-SECTIONS (3) AND (5), BE COMPLETED- (I) WHERE THE ASSESSMENT, REASSESSMENT OR RECOMPUTA TION IS MADE ON THE APPELLANT OR ANY PERSON IN CONSEQUENCE OF OR TO GIVE EFFECT TO A NY FINDING OR DIRECTION CONTAINED IN AN ORDER UNDER SECTION 250, SECTION 254, SECTION 26 0, SECTION 262, SECTION 263 OR SECTION 264 OR IN AN ORDER OF ANY COURT IN A PROCEE DING OTHERWISE THAN BY WAY OF APPEAL OR REFERENCE UNDER THIS ACT, ON OR BEFORE TH E EXPIRY OF TWELVE MONTHS FROM THE END OF THE MONTH IN WHICH SUCH ORDER IS RECEIVED OR PASSED BY THE PRINCIPAL COMMISSIONER OR COMMISSIONER, AS THE CASE MAY BE; O R (II) . IN VIEW OF THE ABOVE PROVISION IT SHALL THEREFORE B E OBSERVED THAT THE TIME LIMIT AVAILABLE WITH THE ASSESSING OFFICER TO PASS THE FI NAL ORDER PURSUANT TO THE DIRECTIONS CONTAINED IN THE ORDER PASSED IN W.P. NO.214 OF THE HON'BLE H IGH COURT WAS TWELVE MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER WAS RECEIVED. IN TH E FACTS OF THE PRESENT CASE THE ORDER OF THE HON'BLE CALCUTTA HIGH COURT WAS SERVED ON THE DEPAR TMENT ON 25.08.2017. ACCORDINGLY THE AO WAS REQUIRED TO PASS THE IMPUGNED ORDER WITHIN A PE RIOD OF TWELVE MONTHS FROM THE END OF THE MONTH OF AUGUST 2017. HENCE THE PERIOD OF LIMITATIO N ENDED ON 31ST AUGUST, 2018. THE AO HOWEVER PASSED THE FINAL ASSESSMENT ORDER ON 28 TH DECEMBER 2018. AS A CONSEQUENCE AND IN TERMS OF THE EXTENT PROVISIONS OF SECTION 153(6), T HE IMPUGNED ORDER WAS BARRED BY LIMITATION AND HENCE BAD IN LAW. THE APPELLANT THUS SUBMITS TH AT THE IMPUGNED ORDER BEING PASSED BEYOND THE PERIOD OF LIMITATION DESERVES TO BE CANCELLED A ND BE HELD AB INITIO VOID. 10. ON THE AFORESAID SUBMISSIONS OF THE LD. AR IN R ESPECT OF THE LEGAL ISSUE RAISED BY THE ASSESSEE, THE LD. CIT(A) HAS DECIDED IN FAVO UR OF THE ASSESSEE BY HOLDING AS UNDER: I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE LD. ARS OF THE APPELLANT AND ALSO PERUSED THE FINDINGS OF THE LD. AO IN THE IMPUGNED ORDER. I HAVE ALSO GONE THROUGH THE MATERIAL PLACED IN THE PAPER BOOK AND TRUE FACTUAL BACKGROUND OF TH E CASE. THE ISSUES INVOLVED IN THESE GROUNDS BEING INTERLINKED AND INTERCONNECTED ARE DEALT TOGE THER. IN GROUND NO.1 THE APPELLANT HAS OBJECTED TO THE VALIDITY OF THE LD. AO'S ORDER DATE D 28.12.2018 ON THE GROUND OF BEING BARRED BY LIMITATION. FROM THE FACTS OF THE CASE AND THE S EQUENCE OF EVENTS AS NARRATED IN THE SUBMISSIONS OF THE LD. ARS, IT IS APPARENT THAT THE DRAFT ORDER U/S 144C WAS ORIGINALLY PASSED BY 9 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 THE DY.CIT, CC-L(3), KOLKATA ON 10.03.2016. BEING A GGRIEVED BY THE SAID ORDER, THE ASSESSEE, BESIDES FILING OBJECTIONS BEFORE THE HON'BLE DRP, A LSO FILED A WRIT PETITION BEFORE THE HON'BLE CALCUTTA HIGH COURT CHALLENGING THE REFERENCE MADE U/S 92CA(2) BY THE LD. AO WITHOUT GIVING AN OPPORTUNITY OF HEARING AS WELL AS THE MANNER IN WHICH THE LD. TPO FRAMED THE ORDER U/S 92CA(3) IN COMPLETE DISREGARD OF THE PROVISIONS OF CHAPTER X AND PRINCIPLES OF NATURAL JUSTICE. THE SAID WRIT PETITION WAS DISPOSED BY THE HON'BLE CALCUTTA HIGH COURT IN WP NO. 214 OR 2016 DATED 11 .08.2017. IN IT'S JUDGMENT THE HON'BLE HIG H COURT SET ASIDE THE ASSUMPTION OF JURISDICTION MADE BY THE LD. TPO AND THE LD. AO WAS DIRECTED TO PROCEED ON THE BASIS OF SHOW CAUSE ISSUED BY HIM DATED 1L.03.2015 AND THE ASSESS EE'S REPLY DATED 24.03.2015 AND IN ACCORDANCE WITH LAW AS WELL AS IN CONSONANCE WIT N DEPARTMENT'S CIRCULAR DATED 10 TH MARCH, 2016 WHICH MANDATED THE LD. AO TO GRANT OPPORTUNITY OF HEARING TO THE ASSESSEE BEFORE THE REFERENCE IS MADE. I, THEREFORE NOTE THAT THE HON'B LE JURISDICTIONAL CALCUTTA HIGH COURT FOUND MERIT IN THE ASSESSEE'S PRELIMINARY SUBMISSION THAT REFERENCE FOR TRANSFER PRICING SCRUTINY MADE BY THE LD. AO SUFFERED FROM AN APPARENT IRREGULARIT Y. ACCORDINGLY THE MATTER WAS RESTORED BACK TO THE POINT WHERE THE IMPUGNED IRREGULARITY HAD OC CURRED. IN THE PROCEEDINGS TO GIVE EFFECT TO THE DIRECTIONS OF THE COURT, THEREFORE THE LD. AO W AS REQUIRED TO TAKE ALL APPROPRIATE STEPS AS PERMITTED IN LAW TO REMOVE THE IRREGULARITY AND THE REAFTER PROCEED WITH THE ASSESSMENT FROM THE STAGE WHERE IRREGULARITY HAD EARLIER OCCURRED. IN O THER WORDS, THE FRESH PROCEEDINGS CULMINATING IN THE ASSESSMENT WERE REQUIRED TO BE COMPLETED BY THE LD. AO IN THE MANNER AND WITHIN THE TIME PRESCRIBED BY LAW. 2. IN THE PRESENT CASE THE LD. TPO PASSED THE ORDER U/S 92CA(3) ON 31.10.2018 AND THEREAFTER THE LD. AO PASSED THE FINAL ASSESSMENT ORDER ON 28 .12.2018. THE PRELIMINARY ISSUE TO BE DECIDED N THE PRESENT APPEAL IS WHETHER THE ORDER DATED 28.12.2018 PASSED BY THE LD. AO WAS WITHIN TIME PRESCRIBED IN SECTION 153 OF THE ACT. B EFORE I DEAL WITH THE SUBMISSIONS OF THE LD. AR, IT IS RELEVANT TO REFER TO THE RELEVANT PROVISI ONS OF SECTION 153 (5) & (6) WHICH READ AS FOLLOWS: (5) WHERE EFFECT TO AN ORDER UNDER SECTION 250 OR S ECTION 254 OR SECTION 260 OR SECTION 262 OR SECTION 263 OR SECTION 264 IS TO BE GIVEN BY THE ASSESSING OFFICER, WHOLLY OR PARTLY, OTHERWISE THAN BY MAKING A FRESH ASSESSMENT OR REASSESSMENT, SUCH EFFECT SHALL BE GIVEN WITHIN A PERIOD OF THREE MONTHS FROM THE END OF THE MONTH IN WHICH ORDER UNDER SECTION 250 OR SECTION 2 54 OR SECTION 260 OR SECTION 262 IS RECEIVED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER, AS THE CASE MAY BE, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE PRINCIP AL COMMISSIONER OR COMMISSIONER : PROVIDED THAT WHERE IT IS NOT POSSIBLE FOR THE ASSE SSING OFFICER TO GIVE EFFECT TO SUCH ORDER WITHIN THE AFORESAID PERIOD, FOR REASONS BEYOND HIS CONTROL, THE PRINCIPAL COMMISSIONER OR COMMISSIONER ON RECEIPT O F SUCH REQUEST IN WRITING FROM THE ASSESSING OFFICER, IF SATISFIED, MAY ALLOW AN ADDITIONAL PERIOD OF SIX MONTHS TO GIVE EFFECT TO THE ORDER : PROVIDED FURTHER THAT WHERE AN ORDER UNDER SECTION 250 OR SECTION 254 OR SECTION 260 OR SECTION 262 OR SECTION 263 OR SECTION 264 RE QUIRES VERIFICATION OF ANY ISSUE BY WAY OF SUBMISSION OF ANY DOCUMENT BY THE ASSESSE E OR ANY OTHER PERSON OR WHERE AN OPPORTUNITY OF BEING HEARD IS TO BE PROVID ED TO THE ASSESSEE, THE ORDER GIVING EFFECT TO THE SAID ORDER UNDER SECTION 250 O R SECTION 254 OR SECTION 260 OR SECTION 262 OR SECTION 263 OR SECTION 264 SHALL BE MADE WITHIN THE TIME SPECIFIED IN SUB-SECTION (3). (6) NOTHING CONTAINED IN SUB-SECTIONS (1) AND (2) S HALL APPLY TO THE FOLLOWING CLASSES OF ASSESSMENTS, REASSESSMENTS AND RECOMPUTA TION WHICH MAY, SUBJECT TO THE PROVISIONS OF SUB-SECTIONS (3) AND (5), BE COMP LETED (I) WHERE THE ASSESSMENT, REASSESSMENT OR RECOMPUTA TION IS MADE ON THE ASSESSEE OR ANY PERSON IN CONSEQUENCE OF OR TO GIVE EFFECT T O ANY FINDING OR DIRECTION 10 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 CONTAINED IN AN ORDER UNDER SECTION 250, SECTION 25 4, SECTION 260, SECTION 262, SECTION 263, OR SECTION 264 OR IN AN ORDER OF ANY C OURT IN A PROCEEDING OTHERWISE THAN BY WAY OF APPEAL OR REFERENCE UNDER THIS ACT, ON OR BEFORE THE EXPIRY OF TWELVE MONTHS FROM THE END OF THE MONTH IN WHICH SU CH ORDER IS RECEIVED OR PASSED BY THE PRINCIPAL COMMISSIONER OR COMMISSIONE R, AS THE CASE MAY BE; OR (II) WHERE, IN THE CASE OF A FIRM, AN ASSESSMENT IS MADE ON A PARTNER OF THE FIRM IN CONSEQUENCE OF AN ASSESSMENT MADE ON THE FIRM UNDER SECTION 147, ON OR BEFORE THE EXPIRY OF TWELVE MONTHS FROM THE END OF THE MON TH IN WHICH THE ASSESSMENT ORDER IN THE CASE OF THE FIRM IS PASSED. ON CAREFUL READING OF THE SUB-SECTION (5) OF SECTI ON 153, IT IS APPARENT THAT IT DEALS WITH ORDER PASSED BY THE LD. AO WITH A VIEW TO GIVE EFFECT TO AN ORDER U/S 250 OR 254 OR 260 OR 262 OR 263 OR 264 OF THE ACT. THE PROVISOS (1) & (2) PROVIDE F OR ADDITIONAL TIME TO BE AVAILED BY THE LD. AO IF FOR THE CIRCUMSTANCES SPECIFIED IN THESE PROV ISOS THE LD. AO IS UNABLE TO PASS ORDER GIVING EFFECT TO THE FINDINGS OF DIRECTIONS CONTAIN ED IN THE ORDERS PASSED U/S 250, 254, 260, 262, 263 OR 264 OF THE ACT. IN THE PRESENT CASE ADMITTED LY THE LD. AO WAS CALLED UPON TO PASS A FRESH ORDER OF ASSESSMENT PURSUANT TO THE DIRECTIONS CON TAINED IN THE JUDGMENT OF THE HONBLE CALCUTTA HIGH COURT PASSED ON THE WRIT PETITION FIL ED BY THE ASSESSEE. IT IS ADMITTED LEGAL POSITION THAT WRIT PROCEEDINGS ARE EXTRAORDINARY PR OCEEDINGS AND NOT STATUTORY APPELLATE PROCEEDINGS UNDER THE ACT. SUB-SECTION (5) SPECIFY ING THE PERIOD OF LIMITATION PROVIDES PERIOD OF LIMITATION FOR PASSING OF ORDERS BY THE AO TO GI VE EFFECT TO THE ORDERS OF THE SPECIFIED AUTHORITIES WHO ARE GIVEN POWERS TO ADJUDICATE APPE ALS OR REVISION APPLICATIONS PREFERRED UNDER THE PROVISIONS OF THE I.T.ACT. THE PERIOD OF LIMITA TION PRESCRIBED IN SUB-SECTION (5) OF SECTION 153 CANNOT THEREFORE BE PRESSED INTO SERVICE IN DEC IDING THE ISSUE WHERE THE LD. AO HAS PASSED THE ORDER PURSUANT TO THE DIRECTIONS CONTAINED IN T HE ORDER OF HIGH COURT PASSED ON THE WRIT PETITION OF THE ASSESSEE, IN THE CIRCUMSTANCES THER EFORE NO FAULT CAN BE FOUND WITH THE LD. AO'S ORDER WITH REGARD TO PERIOD OF LIMITATION PRESCRIBE D IN SUB-SECTION (5) OF SECTION 153 OF THE ACT. 4. COMING TO PROVISIONS OF CLAUSE (I) OF SUB-SECTIO N (6) OF SECTION 153, I OBSERVE THAT THIS DEALS WITH ASSESSMENT, REASSESSMENT, RE-COMPUTATION TO BE MADE ON THE ASSESSEE OR ANY PERSON IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTIONS CONTAINED IN AN ORDER UNDER SECTION 250, 254, 260, 262, 263, 264 OR IN ORDER OF ANY COU RT IN A PROCEEDINGS OTHERWISE THAN BY WAY OF APPEAL OR REFERENCE UNDER THIS ACT. IN SUCH CASE OR DER OF ASSESSMENT, REASSESSMENT OR RE- COMPUTATION IS REQUIRED TO BE MADE ON OR BEFORE THE EXPIRY OF TWELVE MONTHS FROM THE END OF THE MONTH IN WHICH SUCH ORDER IS RECEIVED OR PASSED BY THE COMMISSIONER, AS THE CASE MAY BE. FROM THE MATERIAL ON RECORD, IT IS EVIDENT THAT THE ORDER IMPUGNED IN THIS APPEAL WAS PASSED WITH A VIEW TO GIVE EFFECT TO THE DIRECTIONS AND THE FIN DINGS CONTAINED IN THE JUDGMENT OF THE HON'BLE CALCUTTA HIGH COURT PASSED IN WP NO.214 OF 2016 DAT ED 24,08.2017, THE LD. AR OF THE APPELLANT FILED EVIDENCE WHICH SHOWED THAT THE SAID ORDER OF THE HON'BLE CALCUTTA HIGH COURT WAS COMMUNICATED TO THE DEPARTMENT ON 29.082017. UP ON RECEIPT OF THE ORDER, PROCEEDINGS WERE INITIATED BY THE LD. AO ON 06.10.2017 FOR GIVI NG EFFECT TO THE DIRECTIONS OF THE HON'BLE CALCUTTA HIGH COURT. THESE FACTS THEREFORE PROVE BE YOND DOUBT THAT BY OCTOBER 2017, THE REVENUE WAS CERTAINLY AWARE OF THE ORDER OF THE HON 'BLE CALCUTTA HIGH COURT REQUIRING THE LD AO TO RE-COMPUTE THE INCOME IN TERMS OF THE DIRECTI ONS CONTAINED THEREIN, THE LD. AO WAS THEREFORE LEGALLY BOUND TO PASS THE ORDER WITHIN TH E TIME PRESCRIBED IN SUB-SECTION (6) OF SECTION 153 OF THE ACT. AS PER THE PROVISIONS OF SECTION 15 3(6), THE PERIOD OF TWELVE MONTHS FROM THE END OF THE MONTH IN WHICH ORDER OF THE HON'BLE HIGH COURT WAS COMMUNICATED ENDED ON 31ST AUGUST 2018, EVEN IF THE DATE OF ISSUANCE OF THE NO TICE BY THE LD. AO IS CONSIDERED TO BE THE DATE ON WHICH THE ORDER OF THE HON'BLE HIGH COURT I S DEEMED TO BE THE DATE OF INTIMATION, EVEN THEN THE PERIOD OF TWELVE MONTHS AS PRESCRIBED IN S ECTION 153(6) ENDED ON 31ST OCTOBER 2018, I HOWEVER FIND THAT THE ORDER IMPUGNED IN APPEAL WAS PASSED BY THE LD. AO ON 28TH DECEMBER 2018 WHICH WAS CLEARLY BEYOND THE PERIOD OF LIMITAT ION PRESCRIBED IN SECTION 153(6) ON THIS SCORE, THEREFORE, THE ORDER U/S 143(3)/144C DATED 2 8.12.2018 IS HELD TO BE BAD IN LAW BEING BARRED BY LIMITATION. ' 11 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 11. THE AFORESAID ACTION OF THE LD. CIT(A) UPHOLDIN G THE LEGAL ISSUE RAISED BY THE ASSESSEE THAT THE ORDER OF THE AO DATED 28.12.2018 PASSED U/S. 143(3)/144 PURSUANT TO THE HONBLE HIGH COURTS ORDER IN WP NO. 214 OF 201 6 DATED 11.08.2017 HAS BEEN HELD TO BE BAD IN LAW BEING BARRED BY LIMITATION. THIS IMPUGNED ACTION OF THE LD. CIT(A) IS BEING CHALLENGED BEFORE US BY THE REVENUE . 12. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUG H THE FACTS AND CIRCUMSTANCES OF THE CASE. IN ORDER TO APPRECIATE THE LEGAL ISSUE INVOLVED IN THIS CASE, THE DATE OF EVENTS ARE OF IMPORTANCE AND, THEREFORE, TO HAVE A BIRDS EYE VIEW TO KNOW THE EVENTS WHICH HAPPENED IN THIS CASE, LET US TAKE THE ASSIST ANCE OF A CHART WHICH IS REPRODUCED AS UNDER:- CHRONOLOGY OF EVENTS SR. NO. PARTICULARS DATE 1. RETURN OF INCOME IN ITR 6 FOR AY 2012-13 FILED O N 31.10.2013 2. NOTICE U/S. 143(2) ISSUED BY THE AO ON 02.09.2 014 3. NOTICE U/S. 142(1) ISSUED BY THE AO ON 06.08.2 015 4. TRANSFER PRICING ORDER PASSED U/S. 92CA(3) ON 29.01.2016 5. DRAFT ASSESSMENT ORDER PASSED U/S. 144C ON 10. 03.2016 6. OBJECTIONS FILED BEFORE THE DISPUTE RESOLUTION PANEL 11.04.2016 7. ORDER PASSED BY THE HONBLE CALCUTTA HC IN WP N O. 214 OF 2016 11.08.2017 8. INTIMATION GIVEN TO THE AO REGARDING THE ABOVE W P ORDER ON 29.08.2017 9. ORDER PASSED BY DRP DISPOSING OFF APPEAL 26.09. 2017 10. SHOW CAUSE NOTICE ISSUED BY THE AO ON 06.10.20 17 11. ORDER PASSED BY THE AO DISPOSING OFF OBJECTIONS ON 20.11.2017 12. TRANSFER PRICING ORDER PASSED U/S. 92CA(3) ON 30.10.2018 13. NOTICE U/S. 142(1) ISSUED BY THE AO ON 26.11. 2018 14. ORDER PASSED U/S. 14393) BY THE AO ON 28.12.2 018 13. BEFORE WE CONTROVERT TO THE LEGAL ISSUE HELD I N FAVOUR OF THE ASSESSEE BY THE LD. CIT(A), LET US LOOK INTO SECTION 153 WHICH READS AS UNDER: TIME LIMIT FOR COMPLETION OF ASSESSMENT, REASSESSME NT AND RECOMPUTATION 153. (1) NO ORDER OF ASSESSMENT SHALL BE MADE UNDER SECTION 143 OR SECTION 144 AT ANY TIME AFTER THE EXPIRY OF TWENTY-ONE MONTHS FROM THE END OF THE ASSESSMENT YEAR IN WHICH THE INCOME WAS FIRST ASSESSABLE : 85[PROVIDED THAT IN RESPECT OF AN ORDER OF ASSESSME NT RELATING TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 2018, THE PROVI SIONS OF THIS SUB-SECTION SHALL HAVE EFFECT, AS IF FOR THE WORDS TWENTY-ONE MONTHS, THE WORDS EI GHTEEN MONTHS HAD BEEN SUBSTITUTED : 12 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 PROVIDED FURTHER THAT IN RESPECT OF AN ORDER OF ASS ESSMENT RELATING TO THE ASSESSMENT YEAR COMMENCING ON OR AFTER THE 1ST DAY OF APRIL, 2019, THE PROVISIONS OF THIS SUB-SECTION SHALL HAVE EFFECT, AS IF FOR THE WORDS TWENTY-ONE MONTHS, TH E WORDS TWELVE MONTHS HAD BEEN SUBSTITUTED.] (2) NO ORDER OF ASSESSMENT, REASSESSMENT OR RECOMPU TATION SHALL BE MADE UNDER SECTION 147 AFTER THE EXPIRY OF NINE MONTHS FROM THE END OF THE FINAN CIAL YEAR IN WHICH THE NOTICE UNDER SECTION 148 WAS SERVED : 85[PROVIDED THAT WHERE THE NOTICE UNDER SECTION 148 IS SERVED ON OR AFTER THE 1ST DAY OF APRIL, 2019, THE PROVISIONS OF THIS SUB-SECTION SHALL HAVE EFFECT, AS IF FOR THE WORDS NINE MONTHS, THE WORDS TWELVE MONTHS HAD BEEN SUBSTITUTED.] (3) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTI ONS (1) AND (2), AN ORDER OF FRESH ASSESSMENT IN PURSUANCE OF AN ORDER UNDER SECTION 254 OR SECTI ON 263 OR SECTION 264, SETTING ASIDE OR CANCELLING AN ASSESSMENT, MAY BE MADE AT ANY TIME B EFORE THE EXPIRY OF NINE MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER UNDER SECTION 254 IS RECEIVED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COM MISSIONER OR COMMISSIONER OR, AS THE CASE MAY BE, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE PRINCIPAL COMMISSIONER OR COMMISSIONER : 85[PROVIDED THAT WHERE THE ORDER UNDER SECTION 254 IS RECEIVED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COM MISSIONER OR COMMISSIONER OR, AS THE CASE MAY BE, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE PRINCIPAL COMMISSIONER OR COMMISSIONER ON OR AFTER THE 1ST DAY OF APRIL, 2 019, THE PROVISIONS OF THIS SUB-SECTION SHALL HAVE EFFECT, AS IF FOR THE WORDS NINE MONTHS, THE WORDS TWELVE MONTHS HAD BEEN SUBSTITUTED.] (4) NOTWITHSTANDING ANYTHING CONTAINED IN SUB-SECTI ONS (1), (2) AND (3), WHERE A REFERENCE UNDER SUB-SECTION (1) OF SECTION 92CA IS MADE DURING THE COURSE OF THE PROCEEDING FOR THE ASSESSMENT OR REASSESSMENT, THE PERIOD AVAILABLE FOR COMPLETIO N OF ASSESSMENT OR REASSESSMENT, AS THE CASE MAY BE, UNDER THE SAID SUB-SECTIONS (1), (2) AND (3 ) SHALL BE EXTENDED BY TWELVE MONTHS. (5) WHERE EFFECT TO AN ORDER UNDER SECTION 250 OR S ECTION 254 OR SECTION 260 OR SECTION 262 OR SECTION 263 OR SECTION 264 IS TO BE GIVEN BY THE AS SESSING OFFICER, WHOLLY OR PARTLY, OTHERWISE THAN BY MAKING A FRESH ASSESSMENT OR REASSESSMENT, SUCH EFFECT SHALL BE GIVEN WITHIN A PERIOD OF THREE MONTHS FROM THE END OF THE MONTH IN WHICH ORD ER UNDER SECTION 250 OR SECTION 254 OR SECTION 260 OR SECTION 262 IS RECEIVED BY THE PRINC IPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OR COMMISSIO NER, AS THE CASE MAY BE, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE PRINCIP AL COMMISSIONER OR COMMISSIONER : PROVIDED THAT WHERE IT IS NOT POSSIBLE FOR THE ASSE SSING OFFICER TO GIVE EFFECT TO SUCH ORDER WITHIN THE AFORESAID PERIOD, FOR REASONS BEYOND HIS CONTRO L, THE PRINCIPAL COMMISSIONER OR COMMISSIONER ON RECEIPT OF SUCH REQUEST IN WRITING FROM THE ASSESSING OFFICER, IF SATISFIED, MAY ALLOW AN ADDITIONAL PERIOD OF SIX MONTHS TO GIVE EF FECT TO THE ORDER : 86[PROVIDED FURTHER THAT WHERE AN ORDER UNDER SECTI ON 250 OR SECTION 254 OR SECTION 260 OR SECTION 262 OR SECTION 263 OR SECTION 264 REQUIRES VERIFICATION OF ANY ISSUE BY WAY OF SUBMISSION OF ANY DOCUMENT BY THE ASSESSEE OR ANY OTHER PERSON OR WHERE AN OPPORTUNITY OF BEING HEARD IS TO BE PROVIDED TO THE ASSESSEE, THE ORDER GIVING EFFEC T TO THE SAID ORDER UNDER SECTION 250 OR SECTION 254 OR SECTION 260 OR SECTION 262 OR SECTION 263 OR SECTION 264 SHALL BE MADE WITHIN THE TIME SPECIFIED IN SUB-SECTION (3).] (6) NOTHING CONTAINED IN SUB-SECTIONS (1) AND (2) S HALL APPLY TO THE FOLLOWING CLASSES OF ASSESSMENTS, REASSESSMENTS AND RECOMPUTATION WHICH MAY, SUBJECT TO THE PROVISIONS OF SUB- SECTIONS (3) AND (5), BE COMPLETED (I) WHERE THE ASSESSMENT, REASSESSMENT OR RECOMPUTA TION IS MADE ON THE ASSESSEE OR ANY PERSON IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN AN ORDER UNDER SECTION 250, SECTION 254, SECTION 260, SECTION 262, SECTION 263, OR SECTION 264 OR IN AN ORDER OF ANY COURT IN A PROCEEDING OTHERWISE THAN BY WAY OF APPEAL OR REFERENCE UNDER THIS ACT, ON OR BEFORE THE EXPIRY OF TWELVE MONTHS FROM THE END OF THE MONTH I N WHICH SUCH ORDER IS RECEIVED OR PASSED BY THE PRINCIPAL COMMISSIONER OR COMMISSIONER, AS THE CASE MAY BE; OR (II) WHERE, IN THE CASE OF A FIRM, AN ASSESSMENT IS MADE ON A PARTNER OF THE FIRM IN CONSEQUENCE OF AN ASSESSMENT MADE ON THE FIRM UNDER SECTION 147, O N OR BEFORE THE EXPIRY OF TWELVE MONTHS FROM THE END OF THE MONTH IN WHICH THE ASSESSMENT O RDER IN THE CASE OF THE FIRM IS PASSED. 13 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 (7) WHERE EFFECT TO ANY ORDER, FINDING OR DIRECTION REFERRED TO IN SUB-SECTION (5) OR SUB-SECTION (6) IS TO BE GIVEN BY THE ASSESSING OFFICER, WITHIN THE TIME SPECIFIED IN THE SAID SUB-SECTIONS, AND SUCH ORDER HAS BEEN RECEIVED OR PASSED, AS THE CASE MAY BE, BY THE INCOME-TAX AUTHORITY SPECIFIED THEREIN BEFORE THE 1ST DAY OF JUNE, 2016, THE ASSES SING OFFICER SHALL GIVE EFFECT TO SUCH ORDER, FINDING OR DIRECTION, OR ASSESS, REASSESS OR RECOMP UTE THE INCOME OF THE ASSESSEE, ON OR BEFORE THE 31ST DAY OF MARCH, 2017. (8) NOTWITHSTANDING ANYTHING CONTAINED IN THE FOREG OING PROVISIONS OF THIS SECTION, SUB-SECTION (2) OF SECTION 153A OR SUB-SECTION (1) OF SECTION 1 53B, THE ORDER OF ASSESSMENT OR REASSESSMENT, RELATING TO ANY ASSESSMENT YEAR, WHICH STANDS REVIV ED UNDER SUB-SECTION (2) OF SECTION 153A, SHALL BE MADE WITHIN A PERIOD OF ONE YEAR FROM THE END OF THE MONTH OF SUCH REVIVAL OR WITHIN THE PERIOD SPECIFIED IN THIS SECTION OR SUB-SECTION (1) OF SECTION 153B, WHICHEVER IS LATER. (9) THE PROVISIONS OF THIS SECTION AS THEY STOOD IM MEDIATELY BEFORE THE COMMENCEMENT OF THE FINANCE ACT, 2016, SHALL APPLY TO AND IN RELATION T O ANY ORDER OF ASSESSMENT, REASSESSMENT OR RECOMPUTATION MADE BEFORE THE 1ST DAY OF JUNE, 2016 : 86A[PROVIDED THAT WHERE A NOTICE UNDER SUB-SECTION (1) OF SECTION 142 OR SUB-SECTION (2) OF SECTION 143 OR SECTION 148 HAS BEEN ISSUED PRIOR TO THE 1ST DAY OF JUNE, 2016 AND THE ASSESSMENT OR REASSESSMENT HAS NOT BEEN COMPLETED BY SUCH DATE DUE TO EXCLUSION OF TIME REFERRED TO IN EXPLANATION 1, SUCH ASSESSMENT OR REASSESSMENT SHAL L BE COMPLETED IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION AS IT STOOD IMMEDIATELY BEFORE ITS SUBSTITUTION BY THE FINANCE ACT, 2016 (28 OF 2016).] EXPLANATION 1.FOR THE PURPOSES OF THIS SECTION, IN COMPUTING THE PERIOD OF LIMITATION (I) THE TIME TAKEN IN REOPENING THE WHOLE OR ANY PA RT OF THE PROCEEDING OR IN GIVING AN OPPORTUNITY TO THE ASSESSEE TO BE RE-HEARD UNDER TH E PROVISO TO SECTION 129; OR (II) THE PERIOD DURING WHICH THE ASSESSMENT PROCEED ING IS STAYED BY AN ORDER OR INJUNCTION OF ANY COURT; OR (III) THE PERIOD COMMENCING FROM THE DATE ON WHICH THE ASSESSING OFFICER INTIMATES THE CENTRAL GOVERNMENT OR THE PRESCRIBED AUTHORITY, THE CONTRAV ENTION OF THE PROVISIONS OF CLAUSE (21) OR CLAUSE (22B) OR CLAUSE (23A) OR CLAUSE (23B) OR SUB -CLAUSE (IV) OR SUB-CLAUSE (V) OR SUB-CLAUSE (VI) OR SUB-CLAUSE (VIA) OF CLAUSE (23C) OF SECTION 10, UNDER CLAUSE (I) OF THE PROVISO TO SUB- SECTION (3) OF SECTION 143 AND ENDING WITH THE DATE ON WHICH THE COPY OF THE ORDER WITHDRAWING THE APPROVAL OR RESCINDING THE NOTIFICATION, AS THE CASE MAY BE, UNDER THOSE CLAUSES IS RECEIVED BY THE ASSESSING OFFICER; OR (IV) THE PERIOD COMMENCING FROM THE DATE ON WHICH T HE ASSESSING OFFICER DIRECTS THE ASSESSEE TO GET HIS ACCOUNTS AUDITED UNDER SUB-SECTION (2A) OF SECTION 142 AND (A) ENDING WITH THE LAST DATE ON WHICH THE ASSESSEE IS REQUIRED TO FURNISH A REPORT OF SUCH AUDIT UNDER THAT SUB-SECTION; OR (B) WHERE SUCH DIRECTION IS CHALLENGED BEFORE A COU RT, ENDING WITH THE DATE ON WHICH THE ORDER SETTING ASIDE SUCH DIRECTION IS RECEIVED BY THE PRI NCIPAL COMMISSIONER OR COMMISSIONER; OR (V) THE PERIOD COMMENCING FROM THE DATE ON WHICH TH E ASSESSING OFFICER MAKES A REFERENCE TO THE VALUATION OFFICER UNDER SUB-SECTION (1) OF SECT ION 142A AND ENDING WITH THE DATE ON WHICH THE REPORT OF THE VALUATION OFFICER IS RECEIVED BY THE ASSESSING OFFICER; OR (VI) THE PERIOD (NOT EXCEEDING SIXTY DAYS) COMMENCI NG FROM THE DATE ON WHICH THE ASSESSING OFFICER RECEIVED THE DECLARATION UNDER SUB-SECTION (1) OF SECTION 158A AND ENDING WITH THE DATE ON WHICH THE ORDER UNDER SUB-SECTION (3) OF THAT SE CTION IS MADE BY HIM; OR (VII) IN A CASE WHERE AN APPLICATION MADE BEFORE TH E INCOME-TAX SETTLEMENT COMMISSION IS REJECTED BY IT OR IS NOT ALLOWED TO BE PROCEEDED WI TH BY IT, THE PERIOD COMMENCING FROM THE DATE ON WHICH AN APPLICATION IS MADE BEFORE THE SETTLEME NT COMMISSION UNDER SECTION 245C AND ENDING WITH THE DATE ON WHICH THE ORDER UNDER SUB-S ECTION (1) OF SECTION 245D IS RECEIVED BY THE PRINCIPAL COMMISSIONER OR COMMISSIONER UNDER SUB-SE CTION (2) OF THAT SECTION; OR (VIII) THE PERIOD COMMENCING FROM THE DATE ON WHICH AN APPLICATION IS MADE BEFORE THE AUTHORITY FOR ADVANCE RULINGS UNDER SUB-SECTION (1) OF SECTIO N 245Q AND ENDING WITH THE DATE ON WHICH THE ORDER REJECTING THE APPLICATION IS RECEIVED BY THE PRINCIPAL COMMISSIONER OR COMMISSIONER UNDER SUB-SECTION (3) OF SECTION 245R; OR 14 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 (IX) THE PERIOD COMMENCING FROM THE DATE ON WHICH A N APPLICATION IS MADE BEFORE THE AUTHORITY FOR ADVANCE RULINGS UNDER SUB-SECTION (1) OF SECTIO N 245Q AND ENDING WITH THE DATE ON WHICH THE ADVANCE RULING PRONOUNCED BY IT IS RECEIVED BY THE PRINCIPAL COMMISSIONER OR COMMISSIONER UNDER SUB-SECTION (7) OF SECTION 245R; OR (X) THE PERIOD COMMENCING FROM THE DATE ON WHICH A REFERENCE OR FIRST OF THE REFERENCES FOR EXCHANGE OF INFORMATION IS MADE BY AN AUTHORITY COM PETENT UNDER AN AGREEMENT REFERRED TO IN SECTION 90 OR SECTION 90A AND ENDING WITH THE DATE ON WHICH THE INFORMATION REQUESTED IS LAST RECEIVED BY THE PRINCIPAL COMMISSIONER OR COMMISSIO NER OR A PERIOD OF ONE YEAR, WHICHEVER IS LESS; OR (XI) THE PERIOD COMMENCING FROM THE DATE ON WHICH A REFERENCE FOR DECLARATION OF AN ARRANGEMENT TO BE AN IMPERMISSIBLE AVOIDANCE ARRANGEMENT IS REC EIVED BY THE PRINCIPAL COMMISSIONER OR COMMISSIONER UNDER SUB-SECTION (1) OF SECTION 144BA AND ENDING ON THE DATE ON WHICH A DIRECTION UNDER SUB-SECTION (3) OR SUB-SECTION (6) OR AN ORDER UNDER SUB-SECTION (5) OF THE SAID SECTION IS RECEIVED BY THE ASSESSING OFFICER, SHALL BE EXCLUDED : PROVIDED THAT WHERE IMMEDIATELY AFTER THE EXCLUSION OF THE AFORESAID PERIOD, THE PERIOD OF LIMITATION REFERRED TO IN SUB-SECTIONS (1), (2), (3 ) AND SUB-SECTION (8) AVAILABLE TO THE ASSESSING OFFICER FOR MAKING AN ORDER OF ASSESSMENT, REASSESS MENT OR RECOMPUTATION, AS THE CASE MAY BE, IS LESS THAN SIXTY DAYS, SUCH REMAINING PERIOD SHALL B E EXTENDED TO SIXTY DAYS AND THE AFORESAID PERIOD OF LIMITATION SHALL BE DEEMED TO BE EXTENDED ACCORDINGLY : PROVIDED FURTHER THAT WHERE THE PERIOD AVAILABLE TO THE TRANSFER PRICING OFFICER IS EXTENDED TO SIXTY DAYS IN ACCORDANCE WITH THE PROVISO TO SUB-SE CTION (3A) OF SECTION 92CA AND THE PERIOD OF LIMITATION AVAILABLE TO THE ASSESSING OFFICER FOR M AKING AN ORDER OF ASSESSMENT, REASSESSMENT OR RECOMPUTATION, AS THE CASE MAY BE, IS LESS THAN SIX TY DAYS, SUCH REMAINING PERIOD SHALL BE EXTENDED TO SIXTY DAYS AND THE AFORESAID PERIOD OF LIMITATION SHALL BE DEEMED TO BE EXTENDED ACCORDINGLY : PROVIDED ALSO THAT WHERE A PROCEEDING BEFORE THE SE TTLEMENT COMMISSION ABATES UNDER SECTION 245HA, THE PERIOD OF LIMITATION AVAILABLE UNDER THI S SECTION TO THE ASSESSING OFFICER FOR MAKING AN ORDER OF ASSESSMENT, REASSESSMENT OR RECOMPUTATI ON, AS THE CASE MAY BE, SHALL, AFTER THE EXCLUSION OF THE PERIOD UNDER SUB-SECTION (4) OF SE CTION 245HA, BE NOT LESS THAN ONE YEAR; AND WHERE SUCH PERIOD OF LIMITATION IS LESS THAN ONE YE AR, IT SHALL BE DEEMED TO HAVE BEEN EXTENDED TO ONE YEAR; AND FOR THE PURPOSES OF DETERMINING THE P ERIOD OF LIMITATION UNDER SECTIONS 149, 87[***] 154, 155 AND 158BE AND FOR THE PURPOSES OF PAYMENT OF INTEREST UNDER SECTION 244A, THIS PROVISO SHALL ALSO APPLY ACCORDINGLY. EXPLANATION 2.FOR THE PURPOSES OF THIS SECTION, WH ERE, BY AN ORDER REFERRED TO IN CLAUSE (I) OF SUB-SECTION (6), (A) ANY INCOME IS EXCLUDED FROM THE TOTAL INCOME OF THE ASSESSEE FOR AN ASSESSMENT YEAR, THEN, AN ASSESSMENT OF SUCH INCOME FOR ANOTHER ASSESSMENT YE AR SHALL, FOR THE PURPOSES OF SECTION 150 AND THIS SECTION, BE DEEMED TO BE ONE MADE IN CONSEQUEN CE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN THE SAID ORDER; OR (B) ANY INCOME IS EXCLUDED FROM THE TOTAL INCOME OF ONE PERSON AND HELD TO BE THE INCOME OF ANOTHER PERSON, THEN, AN ASSESSMENT OF SUCH INCOME ON SUCH OTHER PERSON SHALL, FOR THE PURPOSES OF SECTION 150 AND THIS SECTION, BE DEEMED TO BE ON E MADE IN CONSEQUENCE OF OR TO GIVE EFFECT TO ANY FINDING OR DIRECTION CONTAINED IN THE SAID ORDE R, IF SUCH OTHER PERSON WAS GIVEN AN OPPORTUNITY OF BEING HEARD BEFORE THE SAID ORDER WA S PASSED.] 14. WE NOTE THAT SECTION 153 OF THE ACT CONTAINS TH E STATUTORY TIME LIMITS PRESCRIBED BY THE PARLIAMENT FOR THE COMPLETION OF ASSESSMENT, REASSESSMENT AND RE-COMPUTATION. IT IS NOTED THAT THE PROVISIONS OF SECTION 153 OF T HE ACT WAS AMENDED BY THE FINANCE ACT 2016. THE EARLIER TIME LIMITS FOR COMPLETION OF ASSESSMENT, REASSESSMENT OR COMPUTATION WERE SUBSTITUTED. THE TIME LIMITS PRESC RIBED THERE-UNDER ARE AS FOLLOWS: 15 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 CLAUSE (1) OF SECTION 153 PROVIDES THAT THE TIME LI MIT FOR COMPLETION OF ASSESSMENT UNDER SECTION 143(3)/144 OF THE ACT IS T WENTY-ONE MONTHS FROM THE END OF THE RELEVANT ASSESSMENT YEAR. THE WORDS TWE NTY-ONE MONTHS WAS SUBSTITUTED BY THE WORDS EIGHTEEN MONTHS FROM 01. 04.2018 AND AGAIN SUBSTITUTED FOR THE WORDS TWELVE MONTHS AND NINE MONTHS W.E.F FROM 01.04.2019 AND 01.04.2021 RESPECTIVELY. CLAUSE (2) OF SECTION 153 OF THE ACT STATES THAT TH E TIME LIMIT FOR COMPLETION OF ASSESSMENT U/S 147 OF THE ACT IS NINE MONTHS FROM T HE END OF THE FINANCIAL YEAR IN WHICH THE NOTICE U/S 148 OF THE ACT IS SERVED. T HE WORDS NINE MONTHS WAS SUBSTITUTED BY THE WORDS TWELVE MONTHS IN RELATIO N TO NOTICES U/S 148 SERVED ON OR AFTER 01.04.2019. CLAUSE (3) OF SECTION 153 PROVIDES THAT NOTWITHSTAN DING ANYTHING CONTAINED IN SUB-SECTIONS (1) & (2), ANY FRESH ASSESSMENT MADE I N PURSUANCE OF AN ORDER OF THE TRIBUNAL U/S 254 OR AN ORDER PASSED BY THE PR.C IT IN EXERCISE OF HIS REVISIONARY POWERS U/S 263 OR 264, SETTING ASIDE FO R CANCELLING AN ASSESSMENT, WILL HAVE TO BE COMPLETED WITHIN NINE MONTHS FROM T HE END OF THE FINANCIAL YEAR IN WHICH SUCH ORDER IS PASSED. THE WORDS NINE MONTHS WAS SUBSTITUTED BY THE WORDS TWELVE MONTHS IN RELATION TO ORDERS U/S 254 RECEIVED OR ORDERS U/S 263 OR 264 PASSED ON OR AFTER 01.04.2019. CLAUSE (4) OF SECTION 153 OF THE ACT EXTENDS THE TI ME LIMITS PRESCRIBED UNDER SUB-SECTIONS (1), (2) & (3) BY A PERIOD OF TWELVE M ONTHS WHERE A REFERENCE UNDER SECTION 92CA (1) HAS BEEN MADE TO THE TRANSFE R PRICING OFFICER. CLAUSE (5) OF SECTION 153 OF THE ACT PROVIDES THAT, WHERE THE AO IS REQUIRED TO GIVE EFFECT TO AN ORDER U/S 250 PASSED BY CIT(A) OR ORDER U/S 254 PASSED BY TRIBUNAL OR ORDER U/S 260 PASSED BY HIGH COURT OR O RDER U/S 262 PASSED BY SUPREME COURT OR REVISION ORDER U/S 263/264 PASSED BY PR.CIT, OTHERWISE THAN BY WAY OF MAKING FRESH ASSESSMENT, SUCH EFFECT SHALL BE GIVEN WITHIN A 16 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 PERIOD OF THREE MONTHS FROM THE END OF THE MONTH IN WHICH THE ORDER IS RECEIVED. THE PROVISO TO SUB-SECTION (5) STATES THA T WHERE THE AO IS UNABLE TO GIVE EFFECT TO THE ORDER WITHIN THE PRESCRIBED PERI OD OF THREE MONTHS FOR REASONS BEYOND ITS CONTROL, THEN UPON MAKING REQUEST IN WRI TING, THE LD. CIT MAY ALLOW ADDITIONAL PERIOD OF SIX MONTHS. CLAUSE (6) OF SECTION 153 OF THE ACT IS THE RESIDUA RY CLAUSE CONTAINING THE TIME LIMIT FOR ALL OTHER CLASSES OF ASSESSMENTS, RE-ASSE SSMENTS & RE-COMPUTATIONS. THE SAID SUB-SECTION PROVIDES THAT NOTHING CONTAINE D IN SUB-SECTION (1) & (2) SHALL APPLY TO THIS RESIDUARY CLASS OF ASSESSMENTS, RE-ASSESSMENTS & RE- COMPUTATIONS SUBJECT TO THE PROVISIONS OF SUB-SECTI ONS (3) & (5) OF THE SECTION. SUB-CLAUSE (I) OF CLAUSE (6) OF SECTION 153 OF THE ACT STATES THAT, WHERE THE ASSESSMENT, RE-ASSESSMENT OR RE-COMPUTATION IS TO B E MADE ON (A) THE ASSESSEE OR (B) ANY OTHER PERSON, IN CONSEQUENCE OF OR TO GIVE EFFE CT TO ANY FINDING OR DIRECTION CONTAINED IN, (I) ORDER U/S 250 PASSED BY CIT(A) OR (II) ORDER U/S 254 PASSED BY TRIBUNAL OR (III) ORDER U/S 260 PASSED BY HIGH COURT OR (IV) ORDER U/S 262 PASSED BY SUPREME COURT OR (V) REVISION ORDER U/S 263/264 PASSED BY PR.CIT OR (VI) IN AN ORDER OF ANY COURT IN A PROCEEDING OTHERWISE THAN BY WAY OF APPEAL OR REFERENCE UNDER THIS ACT , THEN SUCH ORDER HAS TO BE PASSED BEFORE THE EXPIRY OF TWELVE MONTHS FROM THE END OF THE MONTH I N WHICH SUCH ORDER IS RECEIVED OR PASSED BY THE CIT. SUB-CLAUSE (II) OF CLAUSE (6) OF SECTION 153 OF THE ACT STATES THAT WHERE IN CASE OF A FIRM, AN ASSESSMENT IS TO BE MADE ON ITS PARTN ER IN CONSEQUENCE OF AN ASSESSMENT MADE ON THE FIRM U/S 147 OF THE ACT THEN , SUCH ORDER HAS TO BE PASSED WITHIN A PERIOD OF TWELVE MONTHS FROM THE EN D OF THE MONTH IN WHICH THE ASSESSMENT ORDER IN CASE OF THE FIRM IS PASSED. CLAUSE (7) OF SECTION 153 OF THE ACT STATES THAT WH ERE THE EFFECT TO ANY ORDER OR FINDING OR DIRECTION UNDER CLAUSES (5) OR (6) IS TO BE GIVEN IN RESPECT OF ORDERS 17 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 RECEIVED OR PASSED BEFORE 01.06.2016, THEN SUCH ORD ER HAS TO BE PASSED ON OR BEFORE 31.03.2017. CLAUSE (8) OF SECTION 153 OF THE ACT STATES THAT NO THING CONTAINED IN THE FOREGOING CLAUSES SHALL APPLY WHERE THE ORDER OF AS SESSMENT OR RE-ASSESSMENT RELATING TO ANY YEAR STANDS REVISED UNDER SECTION 1 53A(2) OF THE ACT WHICH SHALL BE MADE WITHIN A PERIOD OF ONE YEAR FROM THE END OF THE MONTH OF SUCH REVIVAL OR WITHIN THE TIME PERIOD SPECIFIED IN SECT ION 153B(1), WHICHEVER IS LATER. CLAUSE (9) OF SECTION 153 OF THE ACT STATES THAT TH E PROVISIONS OF THIS SECTION AS IT STOOD IMMEDIATELY BEFORE THE AMENDMENT BROUGHT I N BY FINANCE ACT 2016 SHALL APPLY TO AND IN RELATION ALL ORDERS OF ASSESS MENTS, RE-ASSESSMENTS & RE- COMPUTATIONS PASSED BEFORE 01.06.2016. EXPLANATION 1 TO SECTION 153 OF THE ACT CONTAINS SP ECIFIC PERIODS IN CLAUSES (I) TO (XI) WHICH IS TO BE EXCLUDED FOR THE PURPOSES OF COMPUTING THE PERIOD OF LIMITATION UNDER THIS ACT. 15. HAVING REGARD TO THE ABOVE, THE STATUTORY TIME LIMITS FOR COMPLETION OF ASSESSMENTS, RE-ASSESSMENTS & RE-COMPUTATIONS BY TH E ASSESSING OFFICER, AS PREVAILING AT THAT MATERIAL TIME, CAN BE SUMMARIZED BELOW: SUB- SECTION NATURE OF ASSESSMENT/ RE- ASSESSMENT/ RE-COMPUTATION TIME LIMIT (1) ASSESSMENT U/S 143(3)/144 21 MONTHS FROM THE EN D OF RELEVANT AY (2) RE-ASSESSMENT U/S 147 9 MONTHS FROM THE END OF FY IN WHICH NOTICE U/S 148 IS SERVED (3) FRESH ASSESSMENT ORDER TO BE PASSED CONSEQUENT TO SETTING ASIDE OF CANCELLATION OF ASSESSMENT BY ORDER U/S 254/263/264 9 MONTHS FROM THE END OF THE FY IN WHICH ORDER OF TRIBUNAL U/S 254 IS RECEIVED BY CIT OR THE ORDER U/S 263/264 IS PASSED BY CIT (4) WHERE REFERENCE U/S 92CA(1) IS MADE TO TPO IN THE COURSE OF PROCEEDINGS UNDER THE ABOVE SUB- THE TIME LIMITS SET OUT ABOVE SUB- SECTIONS (1), (2) & (3) STANDS EXTENDED BY 12 MONTHS 18 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 SECTIONS (1), (2) & (3) (5) ORDER GIVING EFFECT TO ORDER U/S 250/254/ 260/262/263/264 [OTHER THAN FRESH ASSESSMENT OR RE- ASSESSMENT] 3 MONTHS FROM THE END OF THE MONTH IN WHICH ORDER OF TRIBUNAL U/S 254 OR ORDER OF HIGH COURT U/S 260 OR ORDER OF SUPREME COURT U/S 262 IS RECEIVED BY CIT OR THE ORDER U/S 263/264 IS PASSED BY CIT (6)(I) ANY ASSESSMENT, RE-ASSESSMENT OR RE-COMPUTATION EITHER OF THE ASSESSEE OR ANY PERSON IN PURSUANCE TO FINDING OR DIRECTION CONTAINED IN ORDER U/S 250/254/260/ 262/263/264 OR AN ORDER OF ANY COURT IN A PROCEEDING OTHER THAN APPEAL OR REFERENCE UNDER THIS ACT [SUBJECT TO PROVISIONS OF SUB-SECTION (3) & (5)] 12 MONTHS FROM THE END OF THE MONTH IN WHICH ORDER OF TRIBUNAL U/S 254 OR ORDER OF HIGH COURT U/S 260 OR ORDER OF SUPREME COURT U/S 262 OR ANY ORDER OF THE COURT IN A PROCEEDING OTHER THAN APPEAL OR REFERENCE IS RECEIVED BY CIT OR THE ORDER U/S 263/264 IS PASSED BY CIT (6)(II) ASSESSMENT OF PARTNER IN CONSEQUENCE TO AN ORDER OF ASSESSMENT MADE ON FIRM U/S 147 OF THE ACT 12 MONTHS FROM THE END OF THE MONTH IN WHICH THE ASSESSMENT ORDER IS PASSED IN THE CASE OF THE FIRM (7) ANY ORDER TO BE PASSED IN TERMS OF SUB-SECTION (5) & (6) IN RELATION TO SUCH ORDER WHICH WAS RECEIVED OR PASSED PRIOR TO 01.06.2016 APPLICABLE ONLY TO ORDERS WHICH WERE PASSED BEFORE 01.06.2016. THE ORDERS GIVING EFFECT TO SUCH ORDERS HAVE TO BE PASSED ON OR BEFORE 31.03.2017 16. IN VIEW OF THE ABOVE PROVISIONS CONTAINED IN SE CTION 153 OF THE ACT, LET US NOW EXAMINE THE FACTS OF THE PRESENT CASE. FROM THE ABO VE TABLE, IT IS UNDOUBTEDLY CLEAR THAT SUB-SECTIONS (1) TO (4) ARE NOT APPLICABLE IN THE F ACTS OF THE PRESENT CASE. SUB-SECTION (7) OF SECTION 153 OF THE ACT IS APPLICABLE IN RELA TION TO THE ORDERS PASSED ON OR BEFORE 01.06.2016 WHICH IS ALSO NOT RELEVANT IN THE PRESEN T CASE. THEREFORE THE ONLY RELEVANT SUB-SECTIONS TO BE EXAMINED ARE (5) AND (6) OF SECT ION 153 OF THE ACT. 17. SUB-SECTION (5) OF SECTION 153 OF THE ACT APPLI ES IN RELATION TO THOSE ORDERS WHICH ARE TO BE PASSED BY THE AO TO GIVE EFFECT TO ANY DIRECTION OR FINDING [OTHER THAN FRESH ASSESSMENT/RE-ASSESSMENT] CONTAINED IN THE OR DER OF THE CIT(APPEALS) PASSED U/S 250 OF THE ACT OR ORDER OF THIS TRIBUNAL PASSED U/S 254 OF THE ACT OR ORDER PASSED IN APPEAL OR REFERENCE BEFORE THE HIGH COURT U/S 260 O F THE ACT OR AN ORDER PASSED BY THE 19 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 HONBLE SUPREME COURT U/S 262 OF THE ACT OR REVISIO NARY ORDER PASSED BY THE PR.CIT U/S 263/264 OF THE ACT. THE ORDER COVERED BY SECTIO N 153(5) IS REQUIRED TO BE PASSED WITHIN THREE MONTHS FROM THE END OF THE MONTH IN WH ICH THE ORDER HAS BEEN PASSED OR RECEIVED. IN THE PRESENT CASE, WE NOTE THAT THE ORD ER IMPUGNED BEFORE US WAS PASSED IN CONSEQUENCE OF THE DIRECTION CONTAINED IN THE ORDER DATED 11.08.2017 PASSED BY THE HONBLE CALCUTTA HIGH COURT IN WRIT PROCEEDINGS, WH ICH DOES NOT CONSTITUTE AN APPEAL OR REFERENCE MADE U/S 260 OF THE ACT. WE THE REFORE FIND MERIT IN THE FINDING OF THE LD. CIT(A) THAT SUB-SECTION (5) OF SECTION 153 OF THE ACT CANNOT BE PRESSED INTO SERVICE IN THE PRESENT CASE AS THE ASSESSMENT ORDER IMPUGNED BEFORE US WAS PASSED IN PURSUANCE OF THE DIRECTIONS GIVEN BY THE HONBLE HI GH COURT IN THE WRIT PROCEEDINGS WHICH ARE EXTRA-ORDINARY PROCEEDINGS AND NOT STATUT ORY APPELLATE PROCEEDINGS U/S 260 OF THE ACT. SO, SUB-SECTION (5) OF SECTION 153 OF T HE ACT IS NOT APPLICABLE IN THE FACTS OF THIS CASE. 18. COMING TO SUB-SECTION (6) OF SECTION 153 OF THE ACT IT IS NOTED THAT IT IS THE RESIDUARY CLAUSE FOR ALL CLASSES OF ASSESSMENTS OR RE-ASSESSMENTS OR RE-COMPUTATIONS WHICH ARE OTHERWISE NOT COVERED SPECIFICALLY IN SUB -SECTION (3) OR (5) OF SECTION 153 OF THE ACT. IT IS NOTED THAT THE ORDERS PASSED U/S 250 /254/260/262/263/264 ARE FOUND MENTIONED BOTH IN SUB-SECTION (5) AND (6) OF SECTIO N 153 OF THE ACT. PLAIN READING OF SUB-SECTION (6) SHOWS THAT, IF ANY ORDER IS COVERED BY SUB-SECTION (5), THEN THE PERIOD OF LIMITATION SET OUT IN THE LATTER WOULD PREVAIL. MEANING THEREBY, ONLY IF THE FINDING OR DIRECTION CONTAINED IN THE AFORESAID ORDERS U/S 250 /254/260/262/263/264 IS NOT COVERED BY THE SCOPE OF SUB-SECTION (5) THAT THE PERIOD OF LIMITATION SET OUT IN SUB-SECTION (6) SHALL COME INTO PLAY. AS NOTED EARLIER, IN THE FACT S OF THE PRESENT CASE, THE ORDER IMPUGNED HAS NOT BEEN PASSED IN CONSEQUENCE OF ANY ORDER U/S 250/254/260/ 262/263/264 OF THE ACT. IT IS NOTED THAT APART FROM THE AFORESAID ORDERS, THERE IS ANOTHER CLASS OF ORDER COVERED BY SUB-SECTION (6) OF SECTIO N 153 VIZ., AN ORDER PASSED BY THE AO IN CONSEQUENCE OF ANY FINDING OR DIRECTION CONTA INED IN AN ORDER BY ANY COURT IN A PROCEEDING OTHER THAN APPEAL OR REFERENCE UNDER THIS ACT . IN SUCH A CASE, THE AO IS REQUIRED TO PASS THE ORDER WITHIN TWELVE MONTHS FROM THE END OF THE MONTH IN W HICH THE ORDER HAS BEEN RECEIVED BY THE CIT . AS RIGHTLY OBSERVED BY THE LD. CIT(A), THE CASE 20 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 OF THE ASSESSEE FALLS UNDER THIS SUB-CATEGORY CONTA INED IN CLAUSE (I) OF SECTION 153(6) OF THE ACT. FOR THE SAKE OF CONVENIENCE, THE RELEVA NT DATES TO ADJUDICATE THIS PRELIMINARY ISSUE AS TO WHETHER THE IMPUGNED ORDER WAS BARRED BY LIMITATION OR NOT IS SUMMARIZED BELOW: PARTICULARS DATE DATE OF ORDER PASSED BY HIGH COURT IN WP NO. 214 OF 2016 11.08.2017 INTIMATION GIVEN BY THE ASSESSEE TO THE AO 29.08.20 17 FRESH NOTICE ISSUED BY THE AO IN CONSEQUENCE OF THE ORDER OF THE HIGH COURT 06.10.2017 ORDER U/S 144C/143(3) WAS PASSED ON 28.12.2018 19. HAVING REGARD TO THE FACT THAT THE AO HAD ISSUE D FRESH SHOW CAUSE NOTICE DATED 06.10.2017 IN CONSEQUENCE OF THE DIRECTIONS CONTAIN ED IN THE ORDER PASSED BY THE HONBLE HIGH COURT DATED 11.08.2017 IN WRIT PETION NO 214 OF 2016, IT CAN BE SAFELY INFERRED THAT THE OFFICE OF THE CIT HAD RECEIVED TH E ORDER OF HIGH COURT ON OR BEFORE THE DATE OF NOTICE I.E. 06.10.2017. ACCORDINGLY, TH E PERIOD OF TWELVE MONTHS FOR COMPLETION OF ASSESSMENT BEGAN FROM THE END OF THE MONTH OF OCTOBER 2017 WHICH ENDED ON 31.10.2018. IT IS NOTED THAT THE IMPUGNED ORDER WAS PASSED ON 28.12.2018 WHICH WAS WELL BEYOND THE DATE ON WHICH THE PROCEED INGS GOT TIME BARRED. WE THEREFORE DO NOT FIND ANY INFIRMITY IN THE ORDER OF LD. CIT(A) HOLDING THAT THE AO DID NOT HAD THE JURISDICTION TO FRAME ASSESSMENT AFTER THE LIMITATION PERIOD HAS SET IN AND THEREFORE THE ASSESSMENT ORDER PASSED BY AO ON 28.1 2.2018 WAS BARRED BY LIMITATION AND THEREFORE IT IS NULL IN THE EYES OF LAW. 20. AS FAR AS THE LD. DRS CONTENTION THAT SECTION 292BB OF THE ACT, COMES TO THE RESCUE OF THE AO IN SUCH EVENTS IS CONCERNED, WE NO TE THAT THE PROVISIONS OF SECTION 292BB ONLY CURES ANY DEFECT IN THE SERVICE OF ANY NOTICE ISSUED UNDER THE PROVISION OF THIS ACT AND DOES NOT DEAL WITH ORDERS PASSED BEYOND THE PERIOD OF LIMITATION PRESCRIBED UNDER THE ACT. SECTION 292BB STATES THAT , ANY NOTICE UNDER THIS ACT WHICH IS REQUIRED TO BE SERVED UPON THE ASSESSEE SHALL BE DEEMED TO HAVE BEEN SERVED UPON HIM IN TIME AND SUCH ASSESSEE SHALL BE PRECLUDED FR OM TAKING OBJECTION THAT EITHER THE 21 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 NOTICE WAS NOT SERVED UPON HIM OR NOT SERVED IN TIM E OR SERVED IN AN IMPROPER MANNER; PROVIDED THE ASSESSEE HAD RAISED SUCH OBJEC TION BEFORE THE COMPLETION OF ASSESSMENT. IN THE PRESENT CASE HOWEVER, THE ASSESS EE HAS OBJECTED TO THE VALIDITY OF THE ORDER IMPUGNED ON THE PREMISE THAT IT WAS BAR RED BY LIMITATION IN TERMS OF SECTION 153 OF THE ACT. THE FACTS OF THE CASE ARE T HUS ALTOGETHER DIFFERENT AND THE AFORESAID PROVISION RELIED UPON BY THE LD. DR HAS N O RELEVANCE WHATSOEVER. 21. FOR THE REASONS SET OUT ABOVE, WE THUS UPHOLD T HE ORDER OF THE LD. CIT(A) ON THE LEGAL ISSUE AND CONFIRM THE ACTION OF THE LD CIT(A) HOLDING THAT THE AO DID NOT HAD THE JURISDICTION TO FRAME ASSESSMENT AFTER THE LIMI TATION PERIOD HAS SET IN AND THEREFORE THE ASSESSMENT ORDER PASSED BY AO ON 28.12.2018 WAS BARRED BY LIMITATION AND THEREFORE IT IS NULL IN THE EYES OF LAW. AND ACCORD INGLY DISMISS THE APPEAL OF THE REVENUE. 22. COMING TO THE CROSS OBJECTION OF THE ASSESSEE W HICH IS AGAINST THE MERIT OF THE ADDITION MADE BY THE AO, WE ARE NOT INCLINED TO DEC IDE THE CROSS OBJECTION SINCE IT HAS BECOME INFRUCTUOUS BEING ACADEMIC IN NATURE. 23. COMING TO THE APPEAL PREFERRED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER OF THE LD. PR. CIT PASSED U/S. 263 OF THE ACT DATED 23 .03.2021 IN AY 2012-13 (ITA NO. 112/KOL/2020), WE FIND THAT THE LD. PR. CIT HAS INT ERDICTED WITH THE ASSESSMENT ORDER PASSED BY THE AO DATED 28.12.2018 U/S. 143(3) READ WITH SECTION 144C OF THE ACT, WHICH HAS BEEN HELD TO BE NON-EST IN THE EYES OF LA W BY THE LD. CIT(A), WHICH DECISION HAS NOW BEEN UPHELD BY US (SUPRA). THEREFO RE, THE ACTION OF THE LD. PR. CIT IS UNSUSTAINABLE SINCE THE ASSESSMENT ORDER DATED 28.1 2.2018 ITSELF IS BAD IN LAW. THEREFORE, THE LD. PR. CIT HAS INTERDICTED A NON-ES T ORDER OF AO DATED 28.12.2018. THIS ISSUE IS SQUARELY COVERED BY THE LEGAL MAXIM SUBLETO FUNDAMENTO CREDIT OPUS MEANING THEREBY IN A CASE WHERE FOUNDATION IS REMOV ED THE SUPER STRUCTURE FALLS. THE HONBLE SUPREME COURT IN BADRINATH VS. GOVERNMENT O F TAMIL NADU & ORS. AIR 2000 SC 3243 HAD HELD THAT ONCE THE BASIS OF THE PROCEED ING IS GONE, ALL CONSEQUENTIAL ORDERS AND ACTION WOULD FALL ON THE GROUND AUTOMATI CALLY WHICH IS APPLICABLE TO 22 ITA NO. 112/KOL/2021, ITA NO.2652/KOL/2019 & CO NO. 15/KOL/2020 PCM STRESCON OVERSEAS VENTURES LTD., AY 2012-13 JUDICIAL AND QUASI JUDICIAL PROCEEDINGS. THEREFORE , SINCE THE FOUNDATION ( THE ORDER OF THE AO DATED 28.12.2018 ) HAS BECOME NON-EST IN THE EYES OF LAW, SO THE IMP UGNED ACTION OF THE LD. PR. CIT DATED 23.03.2021 TO INTER DICT A NON-EST ASSESSMENT ORDER IS A NULLITY. THEREFORE, THE IMPUGNED ORDER OF THE LD. P R. CIT DATED 23.03.2021 IS QUASHED. 24. IN THE RESULT, BOTH APPEAL PREFERRED BY THE RE VENUE (ITA NO. 2652/KOL/2019) AND THE CROSS OBJECTION PREFERRED BY THE ASSESSEE (C.O NO. 15/KOL/2020) AGAINST THE ORDER OF THE LD. CIT(A)-22, KOLKATA DATED 24.07.20 19 FOR AY 2012-13 STANDS DISMISSED; AND ITA NO. 112/KOL/2021 WHICH IS THE AS SESSEES APPEAL AGAINST THE ORDER OF THE LD. PR. CIT-1, KOLKATA DATED 23.03.2021 FOR AY 2012-13 PASSED U/S. 263 OF THE ACT, STANDS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 25 TH AUGUST, 2021. SD/- SD/- (P. M. JAGTAP) (A. T. VARKEY) VICE PRESIDENT JUDICIAL MEMBER DATED: 25 TH AUGUST, 2021 JD, SR. PS COPY OF THE ORDER FORWARDED TO: 1. APPELLANT- ITO, WARD-1(1), KOLKATA. 2. RESPONDENT M/S. PCM STRESCON OVERSEAS VENTURE LTD ., SWAIKA CENTRE, ROOM NO 4104A, POLLOCK STREET, KOLKATA-700 001. 3. CIT(A)-22, KOLKATA (SENT THROUGH E-MAIL) 4. CIT, KOLKATA. 5. DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) TRUE COPY BY ORDER SENIOR PRIVATE SECRETARY/DDO ITAT, KOLKATA BENCHES, KOLKATA