DCIT, New Delhi V. M/s GE Money Financial Services Ltd, New Delhi

ITA 3510/DEL/2016

• Counselvise Citation: [2019] 114 COUNSELVISE.COM (IT) 6194 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2010-2011
• Appeal Filed On: 13-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AARUSH NAGPAL
• Assessee Lawyers: NIDHI SHARMA SR DR ITA NOS; DEL ASSESS
• Keywords: Transfer pricing; International transaction; Revised return
• Section: 143(3); 143(2)

Judgement Text

PAGE | 1 , -2, IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH I-2, NEW DELHI ! !! ! ! !! ! $ $ $ $ % % % % BEFORE MS. SUSHMA CHOWLA, JUDICIAL MEMBER & SHRI R.K.PANDA, ACCOUNTANT MEMBER ! !! ! / ITA NOS.3379/DEL/2016 && && && && / ASSESSMENT YEAR: 2010-11 GE MONEY FINANCIAL SERVICES PVT.LTD., (EARLIER KNOWN AS GE COUNTRYWIDE CONSUMER FINANCIAL SERVICES LTD.), 401, 402, 4 TH FLOOR, AGGARWAL MILLENNIUM TOWER, E-1,2,3, NETAJI SUBHASH PALACE, PITAMPURA, NEW DELHI-110034. PAN-AAACC0642F .......... '( /APPELLANT VS THE DCIT, CIRCLE-12(1), 4 TH FLOOR, C.R.BUILDING, NEW DELHI . )*'( / RESPONDENT ! !! ! / ITA NOS.3510/DEL/2016 && && && && / ASSESSMENT YEAR: 2010-11 THE DCIT, CIRCLE-12(1), 4 TH FLOOR, C.R.BUILDING, NEW DELHI .... ...... '( /APPELLANT VS GE MONEY FINANCIAL SERVICES PVT.LTD., 401, 402, 4 TH FLOOR, AGGARWAL MILLENNIUM TOWER, E-1,2,3, NETAJI SUBHASH PALACE, PITAMPURA, NEW DELHI-110034. PAN-AAACC0642F . )*'( / RESPONDENT '(+, / APPELLANT BY : SH.AARUSH NAGPAL, ADV. )*'(+, / RESPONDENT BY : MS. NIDHI SHARMA, SR.DR ITA NOS.3379 & 3510/DEL/2016 ASSESSMENT YEAR-2010-11 PAGE | 2 +-.$ / DATE OF HEARING: 07.11.2019 /0+-.$ / DATE OF PRONOUNCEMENT: 18.11.2019 / ORDER PER SUSHMA CHOWLA, JM: BOTH APPEALS FILED BY THE ASSESSEE AND THE RE VENUE ARE AGAINST ORDER OF CIT(A)-44, NEW DELHI, DATED 19 .01.2016 RELATING TO ASSESSMENT YEAR 2010-11 PASSED UNDER SECTION 143(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT ACT). 2. BOTH APPEALS FILED BY THE ASSESSEE AND THE REVEN UE WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLI DATED ORDER FOR THE SAKE OF CONVENIENCE. 3. THE ASSESSEE HAS FILED ADDITIONAL GROUND OF APPE AL AND HAS POINTED OUT THAT THE SAID ADDITIONAL GROUND OF APPEAL IS PU RELY LEGAL IN NATURE AND THE SAME DO NOT REQUIRE ANY ADJUDICATION ON MERITS. HENCE, THE SAME MAY BE ADMITTED FOR ADJUDICATION. THE ADDITIONAL GROUN D OF APPEAL RAISED BY THE ASSESSEE READS AS UNDER:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ASSESSMENT ORDER DATED 27.02.2014 HAVING BEEN PASSE D BY THE ASSESSING OFFICER (AO) AFTER TWO YEARS FROM THE E ND OF THE RELEVANT ASSESSMENT YEAR, I.E. ASSESSMENT YEAR 2010-11, IS B ARRED BY LIMITATION PRESCRIBED UNDER SECTION 153 OF THE ACT AND, THEREFORE, A NULLITY AND VOID AB INITIO. ITA NOS.3379 & 3510/DEL/2016 ASSESSMENT YEAR-2010-11 PAGE | 3 4. THE ADDITIONAL GROUND OF APPEAL RAISED BY THE AS SESSEE IS AGAINST THE TIME PERIOD WITHIN WHICH THE ASSESSMENT ORDER HAD T O BE PASSED AND DOES NOT REQUIRE ANY ADJUDICATION ON FACTS; HENCE, THE S AME IS ADMITTED FOR ADJUDICATION. 5. BRIEFLY IN THE FACTS OF THE CASE THE ASSESSEE HA D FILED RETURN OF INCOME ON 30.09.2010. THEREAFTER, REVISED RETURN OF INCOM E WAS FILED ON 30.03.2012. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2) OF THE ACT WAS ISSUED ON 09.04.2012. IN RESPONSE THERETO, THE LD.AR FOR THE ASSESSEE ATTENDED THE ASSESSMENT PROC EEDINGS AND THE ASSESSMENT ORDER WAS PASSED ON 27.02.2014, UNDER WH ICH THE ADDITION WAS MADE ON ACCOUNT OF TRANSFER PRICING ISSUES. TH OUGH, THE ASSESSEE HAD RAISED SEVERAL GROUNDS OF APPEAL AGAINST THE TRANSF ER PRICING ADJUSTMENT MADE, BUT HAS ALSO RAISED THE PRELIMINARY ISSUES TO THE EFFECT THAT THE ASSESSMENT ORDER PASSED ON 27.02.2014 IS BARRED BY LIMITATION U/S 153 OF THE ACT. HENCE, THE SAID ORDER IS BOTH NULLITY AND VOID AB INITIO . 6. THE LD.AR FOR THE ASSESSEE IN THIS REGARD POINT ED OUT THAT WHERE THE ADDITION HAS BEEN MADE IN THE HANDS OF THE ASSESSEE ON ACCOUNT OF TRANSFER PRICING ISSUES, WHEREIN NO REFERENCE WAS MADE TO TH E TRANSFER PRICING OFFICER (IN SHORT TPO), BUT THE ADDITION WAS MADE BY THE ASSESSING OFFICER HIMSELF, THEN AS PER SECTION 153 OF THE ACT, SUCH O RDER HAS TO BE PASSED WITHIN TWO YEARS FROM THE END OF THE ASSESSMENT YEA R I.E. 31.03.2013. IT WAS FURTHER POINTED OUT BY THE LD.AR THAT THE ASSES SMENT ORDER IN THE PRESENT CASE HAS BEEN PASSED ON 27.02.2014, WHICH I S TIME BARRED. SUCH A ITA NOS.3379 & 3510/DEL/2016 ASSESSMENT YEAR-2010-11 PAGE | 4 PROPOSITION HAS BEEN RAISED ON THE GROUND THAT NO R EFERENCE WAS MADE TO THE TPO OR ANY ORDER OF THE TPO WAS PASSED IN THE C ASE OF THE ASSESSEE AND HENCE, THE PROVISION OF 3 RD PROVISO TO SECTION 153 OF THE ACT WERE NOT ATTRACTED. 7. THE LD. DR FOR THE REVENUE ON VERIFICATION, ADMI TTED THAT NEITHER REFERENCE WAS MADE TO THE TPO NOR ANY ORDER WAS PAS SED BY THE TPO IN THE PRESENT CASE. 8. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORD. THE ISSUE WHICH IS RAISED BY WAY OF ADDITIONAL GROUND OF APPE AL IS AGAINST THE ASSESSMENT ORDER PASSED IN THE CASE BY THE ASSESSIN G OFFICER, WHEREIN THOUGH ADDITIONS WERE MADE UNDER THE TRANSFER PRIC ING PROVISIONS BUT WITHOUT ANY REFERENCE TO THE TPO; THEN THE QUESTION WHICH ARISES IS WHETHER THE PRESENT ASSESSMENT ORDER IS BARRED BY L IMITATION. THE YEAR UNDER APPEAL IS ASSESSMENT YEAR 2010-11 AND AS PER SECTION 153 OF THE ACT, THE ASSESSMENT IN THE CASE HAD TO BE COMPLETED BY 31.03.2013. HOWEVER, IN CASE THE ASSESSING OFFICER MAKES REFER ENCE TO THE TPO, WHO IN TURN MAKES UPWARD ADJUSTMENT ON ACCOUNT OF THE ARMS LENGTH PRICE OF THE INTERNATIONAL TRANSACTION, IF ANY, THEN AS PER THE 3 RD PROVISO TO SECTION 153 OF THE ACT, THE ASSESSING OFFICER GETS FURTHER TIM E OF ONE YEAR TO PASS THE ASSESSMENT ORDER, AFTER RECEIPT OF THE REFERENCE OR DER FROM THE TPO. SUCH IS THE PROPOSITION AS PER THE 3 RD PROVISO TO SECTION 153 OF THE ACT, PRIOR TO ITS AMENDMENT. IN THE PRESENT SET OF FACTS, THE AS SESSING OFFICER SUO MOTTO MADE THE AFORESAID TRANSFER PRICING ADJUSTMENT AND HAD NEITHER MADE ANY ITA NOS.3379 & 3510/DEL/2016 ASSESSMENT YEAR-2010-11 PAGE | 5 REFERENCE TO THE TPO NOR RECEIVED ANY ORDER FROM TH E TPO, THEN IT WAS INCUMBENT UPON THE ASSESSING OFFICER TO PASS AN ASS ESSMENT ORDER WITHIN THE PERIOD OF TWO YEARS FROM THE END OF THE ASSESSM ENT YEAR I.E. BY 31.03.2013. IT IS NOT DISPUTED THAT NEITHER REFERE NCE WAS MADE TO THE TPO NOR ANY REPORT WAS RECEIVED FROM THE TPO. ACCORDIN GLY, WE HOLD THAT THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER ON 27.02.2014 IS BARRED BY LIMITATION PRESCRIBED U/S 153 OF THE ACT. HENCE , THE ORDER PASSED BY THE ASSESSING OFFICER IS BOTH NULLITY AND VOID AB INITIO . WE THUS, ALLOW ADDITIONAL GROUND OF APPEAL RAISED BY THE ASSESSEE. SINCE THE ASSESSMENT ORDER HAS BEEN HELD TO BE NULLITY, WE DO NOT GO INT O THE MERITS OF THE ADDITION MADE AND ALSO THE APPEAL OF THE REVENUE D O NOT SURVIVE AS THE ASSESSMENT ORDER IS HELD TO BE NULLITY AND VOID AB INITIO . THUS, THE ADDITIONAL GROUND OF APPEAL RAISED BY THE ASSESSEE IS ALLOWED AND CROSS APPEAL FILED BY THE REVENUE IS DISMISSED. 9. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED AND APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH DAY OF NOVEMBER, 2019. SD/- SD/- (R.K.PANDA) (SUSHMA CHOWLA) $ $ $ $ /ACCOUNTANT MEMBER /JUDICIAL MEMBER / DATED : 18 TH NOVEMBER, 2019 . * AMIT KUMAR * ITA NOS.3379 & 3510/DEL/2016 ASSESSMENT YEAR-2010-11 PAGE | 6 +)-232-4 COPY OF THE ORDER IS FORWARDED TO : 1. '( / THE APPELLANT 2. )*'( / THE RESPONDENT 3. 5 6 7 / THE CIT(A) 4. 8 5 / THE PR. CIT 5. 6. 29:)- / DR, ITAT, DELHI :&;4 GUARD FILE. / BY ORDER , *2-)- // TRUE COPY // =>? , ASSISTANT REGISTRAR, ITAT, DELHI