Vishay Precision Transducers India Private Limited, Kancheepuram V. ACIT, CHENNAI

ITA 1363/CHNY/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4090 (ITAT-CHENNAI)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 29-05-2017
• Court: TRIBUNAL

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: CHENNAI , ! . , ! ' BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO.1363/CHNY/2017 /ASSESSMENT YEAR: 2013-14 M/S.VISHAY PRECISION TRANSDUCERS- INDIA PVT. LTD., OZ-22, SIPCOT HI TECH INDUSTRIAL GROWTH CENTER, SEZ ORAGADAM, SRIPERUMBUDUR TALUK, KANCHEEPURAM-602 105. [PAN: AADCV 1786 G] VS. THE ASST. COMMISSIONER- OF INCOME TAX, CORPORATE CIRCLE-3(2), CHENNAI-600 034. ( ) /APPELLANT) ( *+) /RESPONDENT) ) , / APPELLANT BY : MR. R.VIJAYARAGHAVAN, ADV. *+) , /RESPONDENT BY : MR. SRINIVASA RAO, CIT , /DATE OF HEARING : 08.05.2019 , /DATE OF PRONOUNCEMENT : 08.05.2019 / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ASSESSMENT ORDER PASSED BY THE AO DATED 25.04.2017 U/S.143(3) R.W.S. 144C(5) OF THE INCOME TAX ACT, 1961. 2. SHRI SRINIVASA RAO, CIT, REPRESENTED ON BEHALF O F THE REVENUE AND SHRI R.VIJAYARAGHAVAN, ADV., REPRESENTED ON BEHALF OF THE ASSESSEE. ITA NO.1363/CHNY/2017 :- 2 -: 3. IT WAS SUBMITTED BY THE LD.AR THAT THE DRAFT ASS ESSMENT ORDER IN THE PRESENT CASE WAS SERVED ON THE ASSESSEE ON 21.1 2.2016. THE ASSESSEE HAD TO FILE THE OBJECTION BEFORE THE LD.DR P ON OR BEFORE 20.01.2017. HOWEVER, THE SAME WAS FILED ON 21.03.2 017. THE LD.DRP VIDE ORDER DATED 16.03.2017 HAD HELD THAT THEY DID NOT HAVE THE POWER TO CONDONE THE DELAY AND CONSEQUENTLY, DISMISSED THE O BJECTIONS FILED BY THE ASSESSEE WITHOUT GOING INTO THE MERITS. IT WAS A S UBMISSION THAT CONSEQUENTLY, THE AO PASSED THE ASSESSMENT ORDER ON 25.04.2017. IT WAS A SUBMISSION THAT THE ORDER PASSED BY THE LD.DR P ON 16.03.2017, WAS NOT AN ORDER U/S.144C(5) IN VIEW OF THE DECISIO N OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S.INNO E STATES PVT. LTD. V. DISPUTE RESOLUTION & ANR. REPORTED IN 406 ITR 0553, WHEREIN, IN PARA NOS.21-29, IT HAS BEEN HELD AS FOLLOWS: 21. AN APPEAL FROM AN ASSESSMENT ORDER UNDER SECTION 143(2) OF THE 1961 ACT LIES BEFORE APPELLATE COMMISSIONER OF INCOME TAX, WHEREAS AN AP PEAL FROM AN ORDER PASSED BY AN ASSESSING OFFICER UNDER SECTION 143(3) OR SECTION 147 OR SECTION 153A OR SECTION 153C IN PURSUANCE OF THE DIRECTIONS OF THE DISPUTE RESOLUTI ON PANEL LIES BEFORE THE INCOME TAX APPELLATE TRIBUNAL. 22. THE QUESTION BEFORE US IS WHETHER THE ORDER OF ASSESSMENT IMPUGNED IS AN ORDER IN PURSUANCE OF DIRECTIONS OF THE DISPUTE RESOLUTION P ANEL. 23. IN A CASE WHERE OBJECTION IS RECEIVED, THE DISP UTE RESOLUTION PANEL MIGHT ISSUE SUCH DIRECTIONS AS IT MIGHT THINK FOR THE GUIDANCE OF TH E ASSESSING OFFICER TO ENABLE HIM TO COMPLETE THE ASSESSMENT [ SECTION 144C(5) ]. THE DIRECTIONS REFERRED TO IN SECTION 144C(5) OF THE 1961 ACT ARE TO BE ISSUED AFTER CONSIDERING (I) THE DRAFT ORDER; (II) OBJECTIONS FILED BY THE ASSESSEE; (III) EVIDENCE FUR NISHED BY THE ASSESSEE; (IV) REPORT OF THE TRANSFER PRICING OFFICER OR ANY OTHER AUTHORITY; (V) RECORDS RELATING TO THE DRAFT ORDER; (VI) EVIDENCE COLLECTED BY OR CAUSED TO BE COLLECTED BY THE DISPUTE RESOLUTION PANEL; (VII) RESULT OF ANY ENQUIRY MADE BY OR CAUSED TO BE MADE BY THE DISPUTE RESOLUTION PANEL. 24. THE DISPUTE RESOLUTION PANEL MAY ALSO MAKE SUCH FURTHER ENQUIRY AS IT THINKS FIT OR CAUSE ANY FURTHER ENQUIRY TO BE MADE BY ANY INCOME TAX AUTHORITY AND REPORT THE RESULT OF IT TO THE DISPUTE RESOLUTION PANEL BEFORE ISSUING A NY DIRECTIONS, REFERRED TO IN SECTION 144C(5) OF THE 1961 ACT. 25. AFTER CONSIDERING THE AFORESAID MATERIALS, THE DISPUTE RESOLUTION PANEL MIGHT CONFIRM, REDUCE OR ENHANCE THE VARIATIONS PROPOSED IN THE DR AFT ORDER. ITA NO.1363/CHNY/2017 :- 3 -: 26. SECTION 144C(10) OF THE 1961 ACT MANDATES THAT EVERY DIRECTION ISSU ED BY THE DISPUTE RESOLUTION PANEL SHALL BE BINDING ON THE ASSESSING OFFICER. THE DIRECTION IS OBVIOUSLY A DIRECTION UNDER SECTION 144C(5) WHICH IS GIVEN AFTER TAKING INTO CONSIDERATION OF THE MATERIALS STIPULATED IN SECTION 144C(6) AND GOING THROUGH THE EXERCISE CONTEMPLATED, INTER ALIA, UNDER SECTION 144C(7) OF THE 1961 ACT. 27. AS FOUND BY THE DISPUTE RESOLUTION PANEL, AN OB JECTION IS TO BE FILED BY AN AGGRIEVED ASSESSEE WITHIN THIRTY DAYS FROM THE DATE OF RECEIP T OF THE DRAFT ASSESSMENT ORDER. DISPUTE RESOLUTION PANEL HAS NO POWER AND/OR AUTHORITY AND/OR JURISDICTION TO CONDONE THE DELAY IN FILING THE OBJECTION. 28. WHEN AN OBJECTION IS FILED BEFORE THE DISPUTE R ESOLUTION PANEL BEYOND THE STIPULATED TIME OF THIRTY DAYS FROM THE DATE OF RECEIPT OF THE ORDER, THERE IS NO OBJECTION BEFORE THE DISPUTE RESOLUTION PANEL IN THE EYE OF LAW. 29. AN ORDER OF REJECTION OF AN OBJECTION ON THE GR OUND OF THE SAME BEING BARRED BY LIMITATION IS NOT A DIRECTION UNDER SUB- SECTION 5 READ WITH SUB- SECTION 6 TO SECTION 144C OF THE 1961 ACT. THOUGH THE IMPUGNED ORDER DATED 10.11 .2016 REJECTING THE OBJECTION ON THE GROUND OF THE BAR OF LIMITATION IS CAPTIONED AS A D IRECTION UNDER SECTION 144C(5) OF THE 1961 ACT, IT IS NOT IN FACT A DIRECTION UNDER SECTION 144C(5) . THE QUOTING OF A WRONG PROVISION IN AN ORDER IS A MISTAKE APPARENT ON THE FACE OF THE RECORD AND, THEREFORE, INCONSEQUENTIAL. THE IMPUGNED ASSESSMENT ORDER THOU GH STATED AS AN ORDER UNDER SECTION 143(3) READ WITH SECTION 144C(13) OF THE 1961 ACT, IS NOT AN ORDER IN PURSUANCE OF T HE DIRECTIONS OF THE DISPUTE RESOLUTION PANEL, BUT AN ORDER OF ASSESSMENT SIMPLICITOR UNDER SECTION 143(3) OF THE 1961 ACT FROM WHICH AN APPEAL WOULD LIE TO T HE COMMISSIONER (APPEALS). THE LEARNED SINGLE JUDGE RIGHTLY DISMISSE D THE WRIT PETITION AND REMITTED THE APPELLANT TO HIS REMEDY OF APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. IT WAS A SUBMISSION THAT CONSEQUENTLY, THE ASSESSM ENT ORDER PASSED BY THE AO ON 25.04.2017, WAS BARRED BY LIMIT ATION. 4. IN REPLY, THE LD.DR SUBMITTED THAT THE DRAFT ASS ESSMENT ORDER WAS ADMITTEDLY RECEIVED BY THE ASSESSEE ON 21.12.2016. THE ASSESSEE HAD FILED THE OBJECTIONS ONLY ON 23.01.2017. HOWEVER, THE ASSESSEE HAD FILED A LETTER DATED 19.01.2017 BEFORE THE AO ON 20.01.20 17, WHEREIN, IT HAS INTIMATED THAT THE ASSESSEE WAS FILING THE OBJECTIO NS. COPY OF THE OBJECTIONS WAS ALSO GIVEN TO THE AO. IT WAS A SUBM ISSION THAT CONSEQUENTLY, THE AO WAS UNDER OBLIGATION TO AWAIT THE ORDER OF THE LD.DRP. THE AO WAS NOT INTIMATED THAT THE OBJECTIO NS HAVE BEEN FILED BY THE ASSESSEE WITH THE DELAY OF THREE DAYS. IT WAS A SUBMISSION THAT ITA NO.1363/CHNY/2017 :- 4 -: CONSEQUENTLY, THE MANDATE OF SEC.144C(5) BEING TO F ACILITATE THE LD.DRP TO GIVE DIRECTIONS TO THE AO ONLY, IN ORDER TO FACI LITATE HIM/HER TO COMPLETE THE ASSESSMENT, WAS VIOLATED. THE ASSESSEE FILED O BJECTIONS TO THE LD.DRP BELATEDLY AND HAD INTIMATED THE AO THAT THE OBJECTI ONS HAVE BEEN FILED AND WAS ALSO SERVED THE COPY. THEREFORE, THE AO HA S TO AWAIT THE DIRECTIONS OF THE LD.DRP. IT WAS A SUBMISSION THAT THE ASSESSEE HAD NOT INFORMED THE AO THAT THE OBJECTIONS HAVE BEEN FILED WITH THE DELAY AND WAS AWAITING FOR CONDONATION. IT WAS A SUBMISSION THAT THE AO HAD TO AWAIT FOR THE DIRECTIONS OF THE LD.DRP. IT WAS A S UBMISSION THAT THE ORDER OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CAS E OF M/S.INNO ESTATES PVT. LTD. V. DISPUTE RESOLUTION & ANR., REFERRED TO SUPR A, IN PARA NO.29 HAS TO BE READ IN ITS ENTIRETY AND THE ASSESSMENT ORDER PA SSED U/S.143(3) R.W.S.144C(5) WOULD HAVE TO BE TREATED AS ASSESSMEN T ORDER U/S.143(3) SIMPLICITER. IT WAS A SUBMISSION THAT THE LEGAL VE RDICT SHOULD OVERRIDE THE LOGICAL CONCLUSIONS. IT WAS A SUBMISSION THAT THE ASSESSMENT ORDER WAS NOT LIABLE TO BE TREATED AS TIME BARRED. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. 6. A PERUSAL OF THE DECISION OF THE HONBLE JURISDI CTIONAL HIGH COURT IN THE CASE OF M/S.INNO ESTATES PVT. LTD. V. DISPUTE R ESOLUTION & ANR., CLEARLY SHOWS THAT THE ORDER OF REJECTION OF OBJECTION ON T HE GROUND THAT THE SAME WAS BARRED BY LIMITATION IS NOT THE DIRECTIONS UNDE R SUB-SECTION 5 READ WITH SUBSECTION (6) TO SEC.144C OF IT ACT, 1961. C LEARLY, THE ORDER PASSED ITA NO.1363/CHNY/2017 :- 5 -: BY THE LD.DRP BEING NOT U/S.144C(5) OF THE ACT, THE CONSEQUENTIAL EFFECT WOULD BE THE ASSESSMENT ORDER PASSED BY THE AO AFTE R RECEIPT OF THE SAME AND CONSIDERING THE SAME WOULD BECOME BARRED B Y LIMITATION. CONSEQUENTLY, THE ASSESSMENT ORDER HAS BEEN PASSED BEYOND THE STATUTORY TIME LIMIT ALLOWED UNDER THE ACT. THE AS SESSMENT IS LIABLE TO BE SET-ASIDE. UNDER THESE CIRCUMSTANCES, RESPECTFULLY FOLLOWING THE PRINCIPLES LAID DOWN BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF M/S.INNO ESTATES PVT. LTD. V. DISPUTE RESOLUTION & ANR., IT IS HELD THAT THE ASSESSMENT ORDER PASSED BY THE AO ON 25.04.2017 FOR THE AY 2013-14 IN THE ASSESSEES CASE IS BEYOND THE PERIOD OF LIMITAT ION PROVIDED UNDER THE STATUTE AND CONSEQUENTLY, ANNULLED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 8 TH DAY OF MAY, 2019, IN CHENNAI. SD/- SD/- ( . ) ( S. JAYARAMAN ) ! /ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) ! /JUDICIAL MEMBER /CHENNAI, 3 /DATED: 8 TH MAY, 2019. TLN , *45 65 /COPY TO: 1. ) /APPELLANT 4. 7 /CIT 2. *+) /RESPONDENT 5. 5 * /DR 3. 7 ( ) /CIT(A) 6. /GF