Bechtel India Pvt. Ltd., New Delhi V. Addl.CIT,Special Range-2, New Delhi

ITA 6131/DEL/2017

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 3238 (ITAT-DELHI)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2008-2009
• Appeal Filed On: 29-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VRINDA TU LSHAN
• Keywords: Transfer pricing; Opportunity of being heard; Principle of natural justice; International transaction; Period of limitation; Time period of passing order; Revised return
• Section: 143(3); 234B; 147; 148; 263; 144

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : I - 2 , NEW DELHI BEFORE SH. H.S. SIDHU , JUDICIAL M EMBER AND SH. O.P. KANT , ACCOUNTANT MEMBER ITA NO. 6131 /DE L/ 2017 ASSESSMENT YEAR: 2008 - 09 M/S. BECHTEL INDIA PVT. LTD., 418, NAURANG HOUSE, 21 K.G. MARG, NEW DELHI VS. ADDL. CIT, SPECIAL RANGE - 2, NEW DELHI PAN : AAACB0298A ( APPELLANT ) (RESPONDENT) APPELLANT BY SH. HIMANSH U SINHA, ADV. & MS. VRINDA TULS HAN, ADV. RESPONDENT BY SH. H.K. CHOUDHARY, CIT(DR) DATE OF HEARING 26.10.2017 DATE OF PRONOUNCEMENT 23.11.2017 ORDER PER O.P. KANT , A. M. : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER DATED 27/07/2017 PASSED BY THE ADDITIONAL COMMISSIONER OF INCOME TAX, SPECIAL RANGE - 2, NEW DELHI ( I.E. THE ASSESSING OFFICER WHO FINALLY PASSED THE ORDER) IN TERMS OF SECTION 143(3) READ WITH SECTION 14 4C(13) OF THE INCOME - TAX ACT, 1961 (IN SHORT THE ACT ) , RAISING FOLLOWING GROUNDS: 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO HAS ERRED IN ASSESSING THE TOTAL INCOME OF THE APPELLANT FOR THE RELEVANT AY AT RS.39,65,69,131/ - AS AGAINST THE REVISED RETURNED INCOME OF RS.29,31,34,169/ - . 2 . THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE HON BLE DISPUTE RESOLUTION PANEL ( DRP')/AO/TRANSFER PRICING 2 ITA NO.6131/DEL/2017 OFFICER ( TPO ) ERRED IN ASSUMING JURISDICTION BY ENHANCING THE INCOME OF THE APPELLANT BY RS.10,34,34,962 ON ACCOUNT OF TRANSFER PRICING ADJUSTMENT MADE IN RESPECT OF THE INTERNATIONAL TRANSACTION RELATING TO PROVISION OF ENGINEERING DESIGN. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ORDERS OF THE AO/TPO PASSED SUBSEQUENTLY AFTER THE ASSESSMENT WAS COMPLETED BY THE AO VIDE FINAL ASSESSMENT ORDER DATED 09.12.2013 ARE EX FACIE ILLEGAL, NON - EST, NULL AND VOID. A. THAT THE AO GROSSLY ERRED IN ASSUMING JURISDICTION AND REFERRING THE CASE TO THE TP O IN A MATTER WHEREIN THE AO HIMSELF HAD PASSED AN ASSESSMENT ORDER DATED 09.12.2013 UNDER SECTION 254 READ WITH SECTION 154, 143(3) AND 144C OF THE ACT AND FINALIZED THE SAME ASSESSMENT PREVIOUSLY. B. THAT THE ORDER OF THE TPO UNDER SECTION 92CA(3) OF THE ACT IS VOID, SINCE THE ASSESSMENT HAD ALREADY ATTAINED FINALITY. C. WITHOUT PREJUDICE TO THE ABOVE , THE ORDER PASSED BY THE AO IS TIME BARRED BY LIMITATION AND IS BAD IN LAW, AS IT HAS BEEN PASSED B EYOND THE TIME FRAME PRESCRIBED UNDER SECTION 153(3) AND 153(2A) OF THE ACT. D. WITHOUT PREJUDICE TO THE A BOVE, THE CORRIGENDUM ISSUED BY AO MODIFYING THE FINAL ASSESSMENT ORDER (UNDER SECTION 254 READ WITH SECTION 143(3) AND 1440(13) OF THE ACT) TO BE READ AS DRAFT ASSESSMENT ORDER (UNDER SECTION 144C READ WITH SECTION 254, 143(3) AND 1440(13) OF THE ACT) IS PASSED IN VIOLATION OF THE PROVISIONS OF THE ACT AND IS THUS, WITHOUT JURISDICTION, NULL, VOID AND UNENFORCEABLE. 4. WITHOUT PREJUDICE TO THE ABOVE, THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LA W, THE DRP / AO / TPO WHILE REJECTING APPELLANT S DETERMINATION OF ARM S LENGTH PRICE FOR RENDERING ENGINEERING DESIGN AND RELATED SERVICES HAVE (A) ERRED IN INCLUDING / EXCLUDING COMPARABLE COMPANIES ON UNREASONABLE COMPARABILITY CRITERION AND (B) VIOLATE D PRINCIPLES OF NATURAL JUSTICE AND JUDICIAL DISCIPLINE. 5. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO HAS ERRED IN CHARGING INTEREST UNDER SECTIONS 234B OF THE ACT. 6. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE AO ERRED IN INITIATING PENALTY PROCEEDINGS UNDER SECTION 271(1 )(C) OF THE ACT FOR FURNISHING OF INACCURATE PARTICULARS AND CONCEALMENT OF INCOME. 3 ITA NO.6131/DEL/2017 EACH OF THE ABOVE GROUNDS ARE INDEPENDENT AND WITHOUT PREJUDICE TO THE OTHER GROUNDS OF APPEAL PREFERRED BY THE APPELLANT. 2. T HE BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE IS BEFORE THE TRIBUNAL IN SECOND ROUND OF PROCEEDINGS. DURING THE RELEVANT PERIOD THE ASSESSEE COMPANY, WAS ENGAGED IN THE BUSINESS OF EXPORT OF CUSTOMIZED ELECTRONIC DATA IN THE FORM OF DESIGN, DR AWING, CALCULATIONS AND PROVIDING TECHNICAL CONSULT ANCY RELATING TO ENGINEERING SERVICES. THE ASSESSEE ENTERED INTO INTERNATIONAL TRANSACTIONS WITH ITS ASSOCIATED ENTERPRISES (AES). IN FIRST R OUND OF ASSESSMENT PROCEEDINGS , THE L D. TRANSFER PRICING OFFICER (TPO ) PROPOSED AN ADJUSTMENT OF RS. 20,86,13,660/ - T O THE INTERNATIONAL TRANSACTION . THE ASSESSEE FILED OBJECTIONS AGAINST THE DRAFT ASSESSMENT ORDER BEFORE THE LD. DRP , WHO DIRECTED TO INCLUDE ONE COMPARABLE AND EXCLUDE ONE COMPARABLE IN THE FINAL LIST O F COMPARABLE S AND RE - COMPUT THE ARM S LENGTH P RICE (ALP) O F THE INTERNATIONAL TRANSACTION . CONSEQUENT TO THE DIRECTION OF THE LD . DRP , THE ASSESSING OFFICER ISSUED A FINAL ASS ESSMENT ORDER UNDER SECTION 143 (3)/144C(13) OF THE ACT AFTER INCORPORATING RE - RECOMPUTED ADJUSTMENT TO THE INTERNATIONAL TRANSACTION AT RS.11,12,31, 0 42/ - . ON FURTHER APPEAL BY THE ASSESSEE AGAINST THE ORDER OF THE ASSESSING OFFICER, THE TRIBUNAL RESTORED THE MATTER BACK TO THE FILE OF THE LD. AO/TPO TO ADDRESS THE ASSESSEE S ISSU ES AND PASS A SPEAKING ORDER. 2.1 IN SECOND ROUND OF PROCEEDINGS , THE ASSESSING OFFICER FIRST GAVE EFFECT OF THE ORDER OF THE TRIBUN AL ON 09/12/2013 . SUBSEQUENTLY, THE LD. TPO PASSED AN ORDER UNDER SECTION 92CA(3) OF THE ACT ON 29/01/2016 IN COMPLIANCE TO THE ORDER OF THE TRIBUNAL. THE ASSESSING OFFICER THEN PASSED A DRAFT ASSESSMENT ORDER ON 07/09/2016 INCORPORATING THE ADJUSTM ENT OF RS. 11,12,31,042/ - PROPOSED BY THE LD. TPO. AGGRIEVED, THE ASSESSEE FILED OBJECTIONS BEFORE THE LD. DRP, WHO ISSUED DIRECTIO NS 4 ITA NO.6131/DEL/2017 V IDE ORDER DATED 26/05/2017. AFTER RECEIPT OF THE ORDER OF THE LD. DRP, THE ASSESSING OFFICER SENT A LETTER TO THE LEARNED TPO FOR THE COMPUTATION OF THE ALP . AFTER RECEIPT OF RECOMPUTED ARM S LENGTH PRICE FROM THE LD. TPO, THE ASSESSING OFFICER ISSUED A FINAL ASSESSMENT ORDER ON 27/07/2017 , INCORPORATING ADJUSTMENT OF RS. 10,34,34,962/ - TO THE INTERNATIONAL TRANSACTION. AGGRIEVED WITH THE SAID ORDER OF THE ASSESSING OFFICER IN SECOND ROUND OF PROCEEDINGS, THE ASSESSEE IS IN APPEAL CHALLENGING THE IMPUGNE D ORDER ON THE LEGALITY AS WELL AS ON MERIT. 3. THE LD. COUNSEL SUBMITTED A PAPER BOOK CONTAINING PAGES 1 TO 543 AND SUPPORTING THE GROUND NO. 3 OF THE APPEAL SUBMITTED THAT THE IMPUGNED ORDER IS BARRED BY LIMITATION ON TWO COUNTS. 3.1 FIRSTLY , HE SUBMITTED THAT IN TERMS OF SECTION 153(2A) OF THE ACT, A FRESH ASSESSMENT IN PURSUANCE OF ITAT ORDER IS REQUIRED TO BE COMPLETED WITHIN TWO YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER OF THE IT A T WAS R ECEIVED BY THE COMMISSIONER OF INCOME T AX. IN THIS CASE , THE ITA T PASS ED THE ORDER ON 08/03/2013 AND , THUS , THE FRESH ASSESSMENT ORDER SHOULD HAVE BEEN PASSED BY 31/03/2006. WHEREAS THE IMPUGNED ORDER HAS BEEN PASSED AFTER ONE YEAR AND THREE MONTHS FROM THE LAST DATE OF LIMITATION. THE LD. DRP HAS HELD THAT SECTION 153(2A) OF THE ACT IS NOT APPLICABLE AND INDEFINITE PERIOD OF LIMITATION IS AVAILABLE UNDER SECTION 153(3)(II) OF THE ACT BY ERRONEOUSLY DISREGARDING THAT SECTION 153(3) IS SUBJECT TO THE PROVISIONS OF SECTION 153(2A) OF THE ACT. 3. 2 IN SUPPORT , THE LEARNED COUNSEL PLACED RELIANCE ON THE DECISIONS OF THE HON BLE DELHI HIGH COURT IN THE CASE OF NOKIA INDIA (P) LTD VS. DCIT (2017) 85 TAXMANN.COM 291 (DELHI) AND COMMISSIONER OF INCOME T AX VS. BHAN T EXTILE (P) LTD (2008) 300 ITR 176 (DELHI). 3.3 SECONDLY, HE SUBMITTED THAT IMPUGNED ASSESSMENT ORDER HAS BEEN PASSED ON 27/07/2017 IN PURSUANCE OF THE LD. DRP DIRECTION DATED 5 ITA NO.6131/DEL/2017 26/05/2017. THE IMPUGNED ORDER HAS BEEN PASSED AFTER 27 DAYS OF THE EXPIRY OF THE PERIOD OF LIMITATION LAID DOWN IN SECTION 144C(13) OF THE ACT WHEREIN IT HAS BEEN PROVIDED THAT AO SHALL COMPLETE THE ASSESSMENT WITHIN ONE MONTH FROM THE END OF THE MONTH IN WHICH THE DIRECTION OF THE LD. DRP ARE RECEIVED. IT IS EVIDENT THAT THE LD. DRP S DIRECTIONS WERE RECEIVED IN THE MONTH OF MAY , 2017 SINCE THE LD. TPO PASSED THE ORDER GIVING EFFECT VIDE LETTER DATED 31/05/2017 AND ACCORDINGLY THE TIME LIMIT FOR PASSING FINAL ASSESSMENT ORDER U/S 144C(13) OF THE ACT EXPIRED ON 30/06/2017. 3.4 THE LD. COUNSEL ALSO TAKEN ANOTHER ARGUMENT THAT THE ASSESSING OFFICER HAS PASSED MULTIPLE ASSESSMENT ORDERS. HE REFERRED TO PAGE 105 TO 107 OF THE PAPER BOOK AND SUBMI TTED THAT AFTER RECEIPT OF THE ORDER OF THE TRIBUNAL, THE ASSESSING OFFICER PASSED AN ASSESSMENT ORDER ON 09/12/2013 UNDER SECTION 143(3) OF THE ACT TO GIVE EFFECT TO THE ORDER OF THE ITAT. HE FURTHER REFERRED TO PAGE 12 TO 27 OF THE PAPER BOOK AND SUBMITT ED THAT, THE ASSESSING OFFICER PASSED ANOTHER ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT ON 11/08/2016 FOR GIVING EFFECT TO THE ORDER OF THE LEARNED TPO IN PURS UANT TO THE DECISION OF THE ITA T. 3.5 HE FURTHER SUBMITTED THAT NO DRAFT ASSESSMENT ORDER UNDER SECTION 144C WAS PASSED. THE LEARNED COUNSEL FURTHER DRAWN OUR ATTENTION TO PAGES 1 TO 11 OF THE PAPER BOOK AND SUBMITTED THAT THE LD. AO PASSED THE FINAL ASSESSMENT ORDER ON 11.08.2016 AND SUBSEQUENTLY ON 07/09/2016, THE LD. AO PASSED THE CORRIGEND UM ORDER STATING THAT SAID ORDER DT. 11.08.2016 WAS WRONG & THE MISTAKE IS BEING RECTIFIED . ON THE SAME DATE , THE LD. AO ISSUED A DRAFT ASSESSMENT ORDER AND CANCELLED THE FINAL ASSESSMENT ORDER DATED 11/08/2016. THE LD. COUNSEL RELIED ON THE JUDGMENT OF THE HON BLE DELHI HIGH COURT IN THE CASE OF PR. CIT VS. C ITY F INANCIAL , ITA 275/2015 WHEREIN IT IS HELD THAT THE ASSESSMENT ORDER UNDER SECTION 143(3) OF THE ACT PASSED BY THE ASSESSING OFFICER 6 ITA NO.6131/DEL/2017 CAN ONLY BE RECTIFIED/CANCELLED/MODIFIED UNDER SECTION 148 /263/154 AND WITHOUT RESORTING TO ANY OF THE PROVISIONS, SUBSEQUENT ORDERS ARE INVALID AND NON - EST. 3.5 HE FURTHER SUBMITTED THAT NON - ISSUANCE OF DRAFT ASSESSMENT ORDER AND WRONG ASSUMPTION OF JURISDICTION IS NOT CURABLE DEFECTS UNDER SECTION 292B OF THE A CT. IN SUPPORT OF THE CONTENTION , HE RELIED ON THE FOLLOWING DECISIONS: A ) DELHI HIGH COU RT DECISION IN JCB INDIA LTD, WPC NO. 3399/2016 ; B ) TURNER I NTERNATIONAL INDIA (P) LTD VS. DCIT (2017) 82 TAXMANN.COM 125 (DELHI) ; C ) C ONTROL RISK INDIA PRIVATE L IMITED VS. DCIT WP(C ) NO. 5722 OF 2017 ; AND D ) VIJAY TELEVISION (P) L IMITED VS. D ISPUTE R ESOLUTION P ANEL, CHANDNI (2014) 369 ITR 113 (MADRAS) 4. T HE LD. CIT ( DR ), ON THE OTHER HAND , SUBMITTED THAT IMPUGNED ORDER WAS NOT BARRED BY LIMITATION. 4.1 IN RESPECT OF THE ISSU E THAT IMPUGNED ORDER WAS PASSED BEYOND THE PERIOD OF TWO YEARS FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE IT A T WAS RECEIVED, THE LD. CIT( DR ) SUBMITTED THAT THE TRIBUNAL RESTORED THE MATTER TO THE AO/TPO WITH LIMITED DIRECTION AND THEREFORE, IN TERMS OF SECTION 153(3) OF THE ACT , NO LIMITATION PERIOD WAS APPLICABLE FOR PASSING ASSESSMENT IN COMPLIANCE OF SAID DIRECTIONS OF THE TRIBUNAL. HE REFERRED TO THE DIRECTION OF THE TRIBUNAL IN ORDER DATED 08/03/2013. 4.2 IN RESPECT OF THE ISSUE THAT I MPUGNED ORDER HAS BEEN PASSED BEYOND THE PERIOD OF ONE MONTH FROM THE RECEIPT OF THE ORDER OF THE LD. DRP, THE LD. CIT ( DR ) REFERRED TO THE NOTING ON THE C OPY OF THE ORDER OF THE LD. DRP , AVAILABLE ON PAGE 45 OF THE APPEAL SET AND SUBMITTED THAT 7 ITA NO.6131/DEL/2017 ORDER OF TH E LD. DRP WAS RECEIVED BY THE OFFICE SUPERINTENDENT OF THE ASSE SSING OFFICER ON 05/06/2017 AND, THEREFORE , LIMITATION PERIOD STARTS FROM 05/06/2017. ACCORDING TO THE LD. CIT (DR), THE IMPUGNED ASSESSMENT ORDER WAS PASSED WITHIN LIMITATION PERIOD OF ONE MONT H FROM THE END OF THE MONTH IN WHICH THE ORDER OF THE LD. DRP WAS RECEIVED. 4.3 ON THE ISSUE OF MULTIPLE ASSESSMENT ORDER PASSED, THE LD. CIT (DR) SUBMITTED THAT IT WAS FACTUALLY INCORRECT PROPOSITION. HE SUBMITTED THAT THE APPEAL EFFECT ORDER DATED 09/12/ 2013 PASSED BY THE ASSESSING OFFICER WAS MERELY TO REDUCE THE OUTSTANDING DEMAND IN THE CASE OF THE ASSESSEE AND WHEREIN IT WAS CLEARLY MENTIONED THAT ADJUSTMENT TO THE INTERNATIONAL TRANSACTION WAS RESTORED TO THE LD. TPO. ACCORDING TO THE LD. CIT (DR) , TH E APPEAL EFFECT ORDER WAS NOT A FINAL ASSESSMENT ORDER, AND , THEREFORE , THE CONTENTION OF LD. COUNSEL OF MULTIPLE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER IS BASELESS. 4.4 THE LD. CIT (DR) FURTHER DISTINGUISHED THE DECISION OF THE HON BLE DELHI HIGH COURT IN THE CASE OF PR. CIT VS. C ITY F INANCIAL (SUPRA) AND SUBMITTED THAT IN THE CASE OF THE ASSESSEE ISSUE OF PASSING A FINAL ASSESSMENT ORDER WITHOUT DRAFT ASSESSMENT ORDER, IS INVOLVED, WHEREAS IN THE CASE OF CITY FINANCIAL (SUPRA) ORDER U NDER SECTION 143(3) OF THE ACT WAS CANCELLED. 4.5 T HE LD. CIT (DR) SUBMITTED THAT, ASSESSMENT ORDER DATED 11/08/2016 WAS CANCELLED BY THE ASSESSING OFFICER AND ULTIMATELY THE ASSESSEE CHALLENGED THE DRAFT ASSESSMENT ORDER DATED 07/09/2016 BEFORE THE LD. D RP AND LD. DRP PROVIDED OPPORTUNITY TO THE ASSESSEE , THEREFORE IT IS NOT THE CASE THAT ASSESSEE HAS B EEN DEPRIVED OF THE OPPORTUNITY . ACCORDING TO HIM, NON - ISSUANCE OF DRAFT ASSESSMENT ORDER WAS A CURABLE DEFECT UNDER SECTION 292B OF THE ACT. 8 ITA NO.6131/DEL/2017 4.6 IN VIEW OF THE SUBMISSIONS , THE LD. CIT (DR) SUBMITTED THAT THE IMPUGNED ASSESSMENT ORDER WAS PASSED WITHIN LIMITATION PERIOD AND THERE IS NO ILLEGALITY IN ASSESSMENT COMPLETED BY THE ASSESSING OFFICER. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERI AL ON RECORD, PARTICULARLY THE ORDERS PASSED IN SECOND ROUND OF PROCEEDINGS AND THE PAPER BOOK OF THE ASS ESSEE CONTAINING PAGES 1 TO 543 . 5.1 THE ASSESSEE HAS RAISED LEGAL ISSUES RELATED TO EXPIRY OF LIMITATION PERIOD IN PASSING THE ORDERS BY THE ASSESSING OFFICER . W E FEEL IT APPROPRIATE TO SUMMARIES ALL THE ACTION TAKEN IN SECOND ROUND OF ASSESSMENT PROCEEDINGS , DATE WISE IN CHRONOLOGICAL ORDER AS UNDER: S.NO. DATE ACTION TAKEN 1. 08/03/2013 THE ITAT REFERED THE MATTER BACK TO THE FILE OF THE TPO/AO 2. 09/12/2013 THE AO PASSED APPEAL GIVING EFFECT OF THE ORDER OF THE ITA T 3. 29/01/2016 THE TPO PASSED ORDER UNDER SECTION 92CA(3) IN PURSUANT TO THE DIRECTION OF THE TRIBUNAL 4. 11/08/2016 THE LD. AO PASSED ORDER UNDER SECTION 143(3) /254 OF THE ACT INCORPORATING THE ADJUSTMENT PROPOSED BY THE TPO IN ORDER DATED 29/01/2016. 5. 07/09/2016 THE AO CANCELLED THE ORDER DATED 11/08/2016 AND A DRAFT ASSESSMENT ORDER UNDER SECTION 144C/254/143(3)/144C(13) WAS PASSED MAKING ADDITION OF RS. 11, 12, 31, 042/ - AS PROPOSED BY THE LEARNED TPO 6. 13/10/2016 ASSESSEE FILED OBJECTIONS BEFORE THE DRP 7. 26/05/2017 THE DRP ISSUED DIRECTIONS TO THE ASSESSING OFFICER/TPO FOR RECOMPUTE THE LENGTH PRICE OF THE INTERNATIONAL TRANSACTION 8. 31/05/2017 THE LEARNED TPO RECOMPUTED THE ARM S LENGTH PRICE OF THE INTERNATIONAL TRANSACTION AT RS. 10, 34, 34, 962/ - 9. 27/07/2017 THE LD. ASSESSING OFFICER PASSED THE FINAL ASSESSMENT ORDER AFTER I NCORPORATING THE RECOMPUTED ARM S LENGTH PRICE. 5.2 FIRST , WE TAKE UP THE OBJECTION OF THE ASSESSEE RELATED TO LIMITATION PERIOD OF PASSING THE ASSESSMENT ORDER. THE TRIBUNAL IN ITA NO. 5895/DEL/2012 RESTORED THE ISSUE OF THE TP A DJUSTMENT TO THE FILE OF THE LEARNED TPO WITH FOLLOWING FINDING : 7.2 IN OUR CONSIDERED VIEW THAT THERE IS MERIT IN THE ARGUMENT OF LD. COUNSEL FOR THE ASSESSMENT THAT PROPER AND LEGIBLE SEMAC S DETAILS 9 ITA NO.6131/DEL/2017 OUGHT TO HAVE BEEN PROVIDED BY THE TRANSFER PRICING OFFICER FOR CONSIDERATION OF ASSESSEE, IN ORDER TO INCLUDE IT AS A VALID COMPARABLE. SIMILARLY, THE COMPARABLE OF KITCO SUBMITTED BY THE ASSESSEE SHOULD NOT HAVE BEEN EXCLUDED AS OTHER COMPARABLES ARE INC LUDED BY TPO ON SAME PARAMETERS. SINCE WE DO NOT FIND ELABORATE REASONS COMING FROM THE ORDERS OF LOWER AUTHORITIES ON BOTH THESE COUNTS AND ARE OF THE VIEW THAT THE ASSESSEE S RIGHT OF NATURAL JUSTICE I.E. JUSTICE, EQUITY AND FAIR PLAY HAVE NOT BEEN COMPL IED WITH, IT WILL BE IN THE FITNESS OF THINGS TO SET ASIDE THE ISSUE OF TP ADJUSTMENTS BACK TO THE FILE OF TRANSFER PRICING OFFICER TO ADDRESS THESE ISSUES AND PASS A SPEAKING ORDER IN ACCORDANCE WITH LAW AFTER HEARING THE ASSESSEE. THESE GROUNDS ARE ALLOW ED FOR STATISTICAL PURPOSES. 5.2.1 THE APPEAL WAS FINALLY ALLOWED PARTLY FOR STATISTICAL PURPOSES BY THE TRIBUNAL. 5.3 BEFORE US , THE LD. COUNSEL HAS CONTENDED THAT FOR COMPLYING THE DIRECTION OF THE TRIBUNAL BY THE ASSESSING OFFICER , THE ASSESSMENT WAS TO BE COMPLETED WITHIN TWO YEARS FROM THE END OF THE FINANCIAL YEAR, IN WHICH THE ORDER OF THE TRIBUNAL WAS R ECEIVED BY THE COMMISSIONER OF INCOME T AX IN TERMS OF SECTION 153(2A) OF THE ACT. WHEREAS ACCORDING TO THE LD. CIT (DR) , THE TRIBUNAL ONLY ISS UED LIMITED DIRECTION AND THE ASSESSMENT WAS NOT SET ASIDE FOR MAKING FRESH ASSESSMENT DE NOVO, AND , THEREFORE , SECTION 153(3) OF THE ACT WAS APPLICABLE AND ACCORDING TO WHICH THERE IS NO LIMITATION PERIOD FOR MAKING ASSESSMENT BY THE ASSESSING OFFICER IN COMPLYING THE DIRECTION OF THE TRIBUNAL. THE LD. DRP ADJUDICATED THE ISSUE - IN - DISPUTE AS UNDER: 3.2.1 DECISION OF THE PANEL THE PANEL HAS CAREFULLY EXAMINED THE ISSUE AND THE PROVISIONS OF SECTION LS3.THE RELIANCE ON SECTION 153J2A) BY THE ASSESSEE IS TOTALLY MISCONCEIVED AS SECTION 153(2A) WILL NOT APPLY IN THIS CASE. THE SAID SECTION WILL APPLY TO THE CASE WHERE THE ASSESSMENT IS SET - A - SIDE AS A WHOLE FOR FRESH DE - NOVO ASSESSMENT WITHOUT DIRECTIONS. A PLAIN READING OF SUB - SECTION (2A) OF SECTION 153 W OULD SHOW THAT ORDER OF FRESH ASSESSMENT IN PURSUANCE OF ORDER PASSED BY APPELLATE/REVISIONAL AUTHORITY SETTING ASIDE OR CANCELLING AN ASSESSMENT, 10 ITA NO.6131/DEL/2017 MAY BE MADE AT ANY TIME BEFORE THE EXPIRY OF THE PRESCRIBED TIME LIMIT UNDER SECTION 153(2A). SECTION 153(3)( II) AUTHORIZES THE COMPLETION OF ASSESSMENT AT ANY TIME IF THE PURPOSE IS TO GIVE AN EFFECT TO THE DIRECTION OR FINDING CONTAINED IN THE ITAT ORDER. THE QUESTION THAT ARISES FOR CONSIDERATION IS WHETHER FRESH ASSESSMENT WHICH WAS REQUIRED TO BE MADE IN PU RSUANCE TO THE ORDER OF I.T.A.T. AS AFORESAID OUGHT TO HAVE BEEN MADE WITHIN THE PERIOD PRESCRIBED UNDER SECTION 1S3(2A) OR UNDER SECTION 153(3)(II). THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF C.I.T. V. MRS. RATANBAI N.K. DUBHASH REPORTED IN (198) 230 IT R 495 (BOMBAY) HAS EXPLAINED THE SCOPE OF 'SETTING ASIDE THE ASSESSMENT', 'CANCELLATION OF ASSESSMENT AND ANNULMENT OF ASSESSMENT' AND THE TIME LIMIT FOR MAKING FRESH ASSESSMENT IN PURSUANCE TO THE ORDER SETTING ASIDE THE ASSESSMENT. THE COURT HAS HELD T HUS: - 'IN AN APPEAL AGAINST ON ORDER OF ASSESSMENT, THE FIRST APPELLATE AUTHORITY UNDER SECTION 251 OF THE ACT HAS THE POWER TO 'AFFIRM, REDUCE, ENHANCE OR ANNUAL THE ASSESSMENT' OR TO SET ASIDE THE ASSESSMENT AND REFER THE CASE BOCK TO THE ASSESSING OFFI CER FOR MAKING A FRESH ASSESSMENT ACCORDING TO THE DIRECTIONS GIVEN BY HIM. IN THE CASE OF AN APPEAL AGAINST AN ORDER OF PENALTY, THE POWER IS TO AFFIRM OR CANCEL SUCH ORDER OR VARY IT SO AS EITHER TO ENHANCE OR REDUCE THE PENALTY. THE LEGISLATURE HAS TH US USED DIFFERENT EXPRESSIONS, SUCH AS, ANNULLING THE ASSESSMENT', 'SETTING ASIDE THE ASSESSMENT' OR 'CANCELING THE ORDER OF PENALTY . THE EXPRESSION 'CANCELLATION OF ASSESSMENT' HAS BEEN USED IN SECTION 146 OF THE INCOME TAX ACT, 1961, WHICH DEALS WITH T HE POWER OF THE ASSESSING OFFICER TO REOPEN A BEST JUDGMENT ASSESSMENT UNDER SECTION 144 OF THE ACT. IT IS, THUS, CLEAR THAT THE LEGISLATURE HAS CONSCIOUSLY AND DELIBERATELY USED THE EXPRESSION ANNULMENT OF ASSESSMENTS IN SECTION 251 OF THE ACT. THERE IS A MATERIAL DISTINCTION BETWEEN SETTING ASIDE AN ASSESSMENT AND ANNULMENT OF AN ASSESSMENT. IN A CASE WHERE THE ORDER OF ASSESSMENT IS SET ASIDE, IT IS OPEN TO THE ASSESSING OFFICER TO MAKE A FRESH ASSESSMENT IN ACCORDANCE WITH TOW. IN THE CASE OF ANNULMEN T, THE ORDER BECOMES NON - EST. ON A CONJOINT READING OF SECTIONS 143,144B, 251 AND 153 OF THE ACT, IT BECOMES ABUNDANTLY CLEAR THAT IF AN ASSESSMENT IS SET ASIDE BY THE APPELLATE AUTHORITY, THE EXTENDED TIME - LIMIT IS AVAILABLE FOR MAKING A FRESH ASSESSMENT IN PURSUANCE OF THE DIRECTION OF THE APPELLATE AUTHORITY, BUT IN THE CASE OF ANNULMENT, NO SUCH EXTENDED TIME IS AVAILABLE.' IT MAY BE MENTIONED THAT WHEN THE ASSESSMENT IS SET ASIDE BY THE APPELLATE AUTHORITY WITHOUT ORDERING FRESH ASSESSMENT, SUCH ORDE R WOULD AMOUNT TO ANNULMENT OF ASSESSMENT. IN SUCH CASE, THE LIMITATION PROVIDED UNDER SECTION (2A) OF SECTION 153 WOULD NOT BE AVAILABLE TO MAKE FRESH ASSESSMENT HOWEVER, IF THE ORIGINAL TIME LIMIT IS AVAILABLE, THE A.O. MAY PROCEED FROM THE STAGE AT WHIC H THE ILLEGALITY WHICH RESULTED IN ANNULMENT OF ASSESSMENT SUPERVENED AND TO MAKE THE ASSESSMENT AFRESH, IT MAY FURTHER BE MENTIONED THAT WHEN THE APPELLATE AUTHORITY SET ASIDE THE ASSESSMENT AND DIRECT THE ASSESSING OFFICER TO MAKE FRESH ASSESSMENT WITHOU T IMPOSING ANY RESTRICTION OR LIMITATION AS TO HOW THE FRESH PROCEEDINGS ARE TO BE CONDUCTED BY THE ASSESSING OFFICER, THE ASSESSING OFFICER HAS THE SAME POWER IN MAKING SUCH FRESH ASSESSMENT AS HE 11 ITA NO.6131/DEL/2017 HAD ORIGINALLY WHEN MAKING THE ASSESSMENT UNDER SECTION 14 3 OF THE ACT. THE APPELLATE AUTHORITY MAY LIMIT THE SCOPE OF ENQUIRY BY THE ASSESSING OFFICER TO ANY SPECIFIED ASPECT OR ISSUE. THUS, THE DISTINCTION IS FINE IN THE APPLICATION OF SECTION 153(2A) AND SECTION 153(3)(II). IF THERE IS A CASE OF MERE SETTING A SIDE THE ASSESSMENT ORDER AND ALLOWING THE ASSESSING OFFICER TO MAKE FRESH ASSESSMENT THEN LIMITATION PRESCRIBED UNDER SECTION 153(2A) WOULD APPLY AND WHERE THE ASSESSMENT OR REASSESSMENT RE - COMPUTATION IS TO BE MADE IN PURSUANCE OF FINDING OR DIRECTION MA DE IN THE APPELLATE/REVISIONAL ORDER THEN PROVISIONS OF SECTION 153(3)(II) WOULD APPLY AND SUCH ASSESSMENT, REASSESSMENT OR RE - COMPUTATION COULD BE MADE AT ANY TIME. THE PERUSAL OF THE ORDER DATED 08.03.2013 PASSED BY THE ITAT DELHI BENCH AS EXTRACTED ABOV E WOULD SHOW THAT THERE WAS SPECIFIC DIRECTION TO THE A.O. THAT HE SHOULD FOLLOW CERTAIN SPECIFIC DIRECTIONS OF ASSESSMENT AND FRAME THE ORDER IN A SPECIFIC MANNER. THE DIRECTIONS GIVEN BY THE I.T.A.T. AS AFORESAID CLEARLY FAIL WITH N THE PURVIEW OF SECTIO N 153{3)(II) OF THE ACT AND THUS THE ASSESSMENT/ REASSESSMENT COULD BE COMPLETED AT ANY TIME. IT MAY BE REITERATED THAT PROVISIONS OF SECTION (2A) OF SECTION 153 ENVISAGES A SITUATION WHERE A FRESH ASSESSMENT IS TO BE MADE AFTER EARLIER ASSESSMENT AS A WH OLE IS SET ASIDE OR CANCELLED AND NOT TO A SITUATION WHERE SPECIFIC DIRECTIONS HAVE BEEN GIVEN BY THE APPELLATE AUTHORITY AS IN THE INSTANT CASE THUS, THE OBJECTION OF THE ASSESSEE THAT THE ORDER IS BARRED BY LIMITATION IS REJECTED AND THE ORDER OF THE TPO /AO IS HELD TO BE VALID. 5.4 THE UNDISPUTED FACTS IN THE CASE A RE THAT THE TRIBUNAL IN ITA NO. 5895/DEL/2012 PASSED THE ORDER ON 08/03/2013 AND THEREAFTER , THE AO PASSED THE DRAFT ASSESSMENT ORDER ON 11/08/2016 AND THE IMPUGNED ASSESSMENT ORDER IN PURSUANT TO THE DIRECTION OF THE LD. DRP HAS BEEN PASSED ON 27/07/2017. THE PARTIES HAVE NOWHERE BROUGHT ON RECORD, WHEN THE ORDER OF THE TRIBUNAL WAS R ECEIVED BY THE COMMISSIONER OF I NCOME T AX. EVEN IF THE ORDER OF THE TRIBUNAL WAS RECEIVED IN FINANCIAL YEAR 2013 - 14 I.E. PERIOD BETWEEN 01/04/2013 TO 31/03/2014, THE LIMITATION FOR COMPLETION OF THE ASSESSMENT IN TERMS OF SECTION 153 (2A) OF THE ACT WOULD EXPIRE ON 3 1/03/2016. THUS, BOTH THE DRAFT ASSESSMENT ORDER DATED 11/08/2016 AND IMPUGNED ASSESSMENT ORDER DT. 27.07.2017 HAVE BEEN PASSED BEYOND THIS DATE OF 31/03/2016 . 5.5 LD. CIT( DR ) HAS NOT DISPUTED THIS DATE OF LIMITATION IN TERMS OF SECTION 153 (2A) OF THE AC T .THUS , THE ONLY ISSUE IN DISPUTE BEFORE US IS WHETHER THE ASSESSING OFFICER WAS REQUIRED TO PASS ORDER WITHIN THE 12 ITA NO.6131/DEL/2017 LIMITATION PERIOD AS PROVIDED IN SECTION 153(2A) OF THE ACT OR IN ACCORDANCE WITH SECTION 153(3) OF THE ACT. WE FEEL IT NECESSARY TO REPRODU CE THE RELEVANT PART OF SECTION 153(2A) AND SECTION 153(3) IN EXISTENCE DURING THE PERIOD UNDER CONSIDERATION AS UNDER: TIME LIMIT FOR COMPLETION OF ASSESSMENTS AND REASSESSMENTS. 153. [(1) ....................................... ...................................................................... [(2A) NOTWITHSTANDING ANYTHING CONTAINED IN SUB - SECTIONS (1) [, (1A), (1B)] AND (2), IN RELATION TO THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 1971, AND ANY SUBSEQUENT ASSE SSMENT YEAR, AN ORDER OF FRESH ASSESSMENT IN PURSUANCE OF AN ORDER UNDER SECTION 250 OR SECTION 254 OR SECTION 263 OR SECTION 264 , SETTING ASIDE OR CANCELLING AN ASSESSMENT, MAY BE MADE AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER UNDER SECTION 250 OR SECTION 254 IS RECEIVED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OF COMMISSIONER OR, AS THE CASE MAY BE, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISS IONER OR PRINCIPAL COMMISSIONER OR COMMISSIONER: PROVIDED THAT WHERE THE ORDER UNDER SECTION 250 OR SECTION 254 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 PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OF COMMISSIONER ON OR AFTER THE 1ST DAY OF APRIL, 1999 BUT BEFORE THE 1ST DAY OF APRIL, 2000, SUCH AN ORDER OF FRESH ASSESSMENT MAY BE MADE AT ANY TIME UP TO THE 31ST DAY OF MARCH, 2002 :] [ PROVIDED FURTHER THAT WHERE THE ORDER UNDER SECTION 254 IS RECEIVED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OF COMMISSIONER OR , AS THE CASE MAY BE, THE ORDER UNDER SECTION 263 OR SECTION 264 IS PASSED BY THE COMMISSIONER ON OR AFTER THE 1ST DAY OF APRIL, 2005, THE PROVISIONS OF THIS SU B - SECTION SHALL HAVE EFFECT AS IF FOR THE WORDS 'ONE YEAR', THE WORDS 'NINE MONTHS' HAD BEEN SUBSTITUTED:] [ PROVIDED ALSO THAT WHERE THE ORDER UNDER SECTION 254 IS RECEIVED BY THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER OF 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, 200 6 BUT BEFORE THE 1 ST DAY OF APRIL, 2010 , AND DURING THE COURSE OF THE PROCEEDINGS FOR THE FRESH ASSESSMENT OF TOTAL INCOME, A REFERENCE UNDER SUB - SECTION (1) OF SECTION 92CA (I ) WAS MADE BEFORE THE 1ST DAY OF JUNE, 2007 BUT AN ORDER UNDER SUB - SECTION (3) OF SECTION 92CA HAS NOT BEEN MADE BEFORE SUCH DATE; OR (II ) IS MADE ON OR AFTER THE 1ST DAY OF JUNE, 2007, THE PROV ISIONS OF THIS SUB - SECTION SHALL, NOTWITHSTANDING ANYTHING CONTAINED IN THE SECOND PROVISO, HAVE EFFECT AS IF FOR THE WORDS 'ONE YEAR', THE WORDS 'TWENTY - ONE MONTHS' HAD BEEN SUBSTITUTED.] 13 ITA NO.6131/DEL/2017 PROVIDED ALSO THAT WHERE THE ORDER UNDER SECTION 254 IS RECEIVED B Y THE PRINCIPAL CHIEF COMMISSIONER OR CHIEF COMMISSIONER OR PRINCIPAL COMMISSIONER 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 1 ST DAY OF APRIL, 2010, AND DURING THE COURSE OF THE PROCEEDING FOR THE FRESH ASSESSMENT OF TOTAL INCOME, A REFERENCE UNDER SUB - SECTION(1) OF SECTION 92CA IS MADE, THE PROVISIONS OF THIS SUB - SECTION SHALL, NOTWITHSTANDING ANYTHING CONTAINED IN THE SECOND PROVISO, HAVE EFFEC T AS IF FOR THE WORDS ONE YEAR , THE WORDS TWO YEARS HAD BEEN SUBSTITUTED. (3) THE PROVISIONS OF SUB - SECTIONS (1), (1A), (1B) AND (2) SHALL NOT APPLY TO THE FOLLOWING CLASSES OF ASSESSMENTS, REASSESSMENTS AND RE - COMPUTATIONS WHICH MAY, SUBJECT TO THE PROVISIONS OF SUB - SECT ION (2A), BE COMPLETED AT ANY TIME (I ) [***] (II ) WHERE THE ASSESSMENT, REASSESSMENT OR RE - COMPUTATION 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 , 254 , 260 , 262 , 263 , OR 264 OR IN AN ORDER OF ANY COURT IN A PROCEEDING OTHERWISE THAN BY WAY OF APP EAL OR REFERENCE UNDER THIS ACT ; (III ) WHERE, I N 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 . 5.6 W E FIND THAT IN THE INSTANT CASE , THE ORDER OF THE TRIBUNAL HAS BEEN PASSED AFTER 01/04/2010, THE LAST PROVISO TO SECTION 153(2A) IS RELEVANT T O THE FACTS OF THE CASE IN HAND . IN VIEW OF THE MAIN SECTION 153(2A) READ WITH THIS PROVISO, THE R EVENUE IS CONTENDING THAT IF ENTIR E ASSESSMENT ORDER IS SET ASIDE FOR MAKING THE FRESH ASSESSMENT ORDER, THEN IT WOULD BE HIT BY SECTION 153 (2 A) OF THE ACT AND IF AN ISSUE, OUT OF MULTIPLE ISSUE S IN THE APPEALS IS SET ASIDE THEN IT WOUL D BE COVERED BY THE SECTION 153 (3) OF THE ACT. 5.7 TH IS CONTROVERSY OF APPLICATION OF LIM ITATION PROVIDED IN SECTION 153(2A) VERSUS SECTION 153 (3) HAS BEEN DECIDED BY THE HON BLE DELHI HIGH COURT IN THE CASE OF NOKI A INDIA PRIVATE L IMITED (SUPRA) . THE HON BLE C OURT HAS HELD THAT SECTION 153 (2A) WOULD A PPLY EVEN WHEN ONE OF THE ISSUES, OUT OF MULTIPLE ISSUES , HAS BEEN REMANDED TO THE AO FOR AFRESH DETERMINATION . T HE RELEVANT FINDING OF THE DECISION OF THE HON BLE HIGH COURT IS REPRODUCED AS UNDER: 14 ITA NO.6131/DEL/2017 23 . THE COURT IS ALSO UNABLE TO AGREE WITH THE CONTENTION THAT UNLESS THE ENTIRE ASSESSMENT ORDER IS WHOLLY SET ASIDE, THE TIME LIMIT FOR PASSING THE FRESH ORDER UNDER SECTION 153 (2A) WOULD NOT BE ATTRACTED. THERE IS NO WARRANT FOR SUCH AN INTERPRETATION. T HE OBJECT BEHIND INTRODUCTION OF SUB - SECTION (2A) WAS TO PRESCRIBE A TIME LIMIT FOR COMPLETING THE ASSESSMENT PROCEEDINGS UPON THE ORIGINAL ASSESSMENT BEING SET ASIDE OR BEING CANCELLED IN APPEAL. CLEARLY, THE INTENTION WAS NOT TO RESTRICT THE APPLICABILIT Y OF SUB - SECTION (2A) ONLY TO SUCH CASES WHERE THE 'ENTIRE' ORIGINAL ASSESSMENT ORDER IS SET ASIDE. IT WAS NOTED THAT, 'UNDER THE EXISTING PROVISIONS OF SECTION 153 (3), SUCH FRESH ASSESSMENTS ARE NO( SUBJECT TO ANY TIME LIMIT.' INDEED, SECTION 153, AS IT STOOD AT THAT TIME, DID NOT PRESCRIBE ANY TIME LIMITS. SECTION 153 (3) (II), IN PARTICULAR, DID NOT REQUIRE THE ORDER PASSED THEREUNDER TO BE ISSUED WITHIN ANY PARTICULAR TIME LIMIT. FURTHER THERE IS A DISTINCTION BETWEEN AN 'ASSESSMENT' THAT IS SET ASIDE AND AN 'ASSESSMENT ORDER' BEING SET ASIDE. WHEN THE ASSESSMENT ON AN ISSUE IS SET ASIDE AND THE MATTER REMANDED, WITH A DIRECTION THAT THE ISSUE HAS TO BE DETERMINED AFRESH, SECTION 153 (2A) OF THE ACT WOULD GET ATTRACTED. 24. WHAT IS IMPORTANT TO NOTE IS THAT, ALONG WITH THE INSERTION OF SUB - SECTION (2A), SUB - SECTION (3) UNDERWENT A SIMULTANEOUS CHANGE. IT WAS EXPRESSLY MADE 'SUBJECT TO THE PROVISIONS OF SUB - SECTION (2A).' THIS MEANT THAT SECTION 153 (3) WOULD THEREAFTER APPLY ONLY TO SUCH CASES WHERE SEC TION 153 (2A) DID NOT APPLY. IN OTHER WORDS, IN ALL INSTANCES OF AN AO HAVING TO PASS A FRESH ASSESSMENT ORDER UPON REMAND WHERE SECTION 153 C2A) WOULD APPLY, THE AO WOULD BE BOUND TO FOLLOW THE TIME - LIMIT IMPOSED BY SUB - SECTION (2A). WHERE THE AO WAS ONLY GIVING EFFECT TO AN APPELLATE ORDER, THEN SECTION 153 (3) (II) OF THE ACT WOULD APPLY. 25. IN THE PRESENT CASE, OF THE SEVEN ISSUES, THE ASSESSMENT IN RESPECT OF FIVE WAS SET ASIDE AND THE ISSUES REMANDED FOR A FRESH DETERMINATION. WHETHER THE REMAND WAS TO THE TPO OR THE DRP WOULD NOT MAKE A DIFFERENCE AS LONG AS W HAT RESULTS FROM THE REMAND IS A FRESH ASSESSMENT OF THE ISSUE. CLEARLY, THEREFORE, THE TIME LIMIT FOR COMPLETING THAT EXERCISE W AS GOVERNED BY SECTION 153 (2A) OF THE ACT. 5.7.1 AFTER CONSIDERING VARIOUS DECISIONS AVAILABLE ON THE ISSUE IN DISPUTE, THE HON BLE HIGH COURT FINALLY CONCLUDED AS UNDER: 32. IN THE CONSIDERED VIEW OF THE COURT, THE AFORESAID DECISION OF THE GUJARAT HIGH COURT FULLY SUPPORTS THE CASE OF THE ASSESSEE HE RE. THE DECISIONS OF THE MADHYA PRADESH HIGH COURT IN GULABCHAND MOTILAL V. CIT [19881 174 ITR 117/IT 9871 34 TAXMAN 456 (MP), THE HIGH COURT OF PUNJAB AND HARYANA IN BHARTI ENGG. CORPN. V. UNION OF INDIA [20081 298 ITR 400/[20061 154 TAXMAN 487 FPUNI & HA R.) AND DEEP CHAND JAIN V. ITO [19841 145 ITR 676/[ 19831 15 TAXMAN 522 (PUNJ. & HAR.), AND THE KARNATAKA HIGH COURT IN CIT V. PAUL NOEL RODRIGUES [20151 231 TAXMAN 811/57 TAXMANN.COM 12 (KAR.), ALL HOLD LIKEWISE. THE KERALA HIGH COURT IN R.P. PATEL V. ACI T [2015] 5 KHC 370 (KER.) HELD THAT 15 ITA NO.6131/DEL/2017 SECTION 15L (2A) OF THE ACT WOULD APPLY EVEN WHERE MORE THAN ONE ISSUE IS INVOLVED I.E. EVEN WHERE ONE OF THE ISSUES HAS BEEN REMANDED TO THE AO FOR A FRESH DETERMINATION. CONCLUSION 34. FOR ALL THE AFOREMENTIONED REASO NS, THE COURT HOLDS THAT, IN THE PRESENT CASE, THE ASSESSMENT PROCEEDINGS HAD TO NECESSARILY BE COMPLETED BY THE AO WITHIN THE TIME LIMIT SPECIFIED IN SECTION 153 (2A) OF THE ACT. INASMUCH AS THE AO FAILED TO DO SO. THE IMPUGNED NOTICE DATED 14TH SEPTEMBER 2015 ISSUED BY THE AO AND ALL PROCEEDINGS CONSEQUENTIAL THERETO INCLUDING THE ORDER DATED 2ND DECEMBER 2015 PASSED BY THE AO ARE HEREBY SET ASIDE. 5.8 ON EXAMINATION OF THE FACTS OF THE INSTANT CASE, WE FIND THAT OUT OF THE MULTIPLE ISSUES, ONE ISSUE O F TRANSFER PRICING ADJUSTMENT WAS SET ASIDE BY THE TRIBUNAL FOR PASSING A SPEAKING ORDER BY LD. TPO. 5.9 IN VIEW OF THE FACTS, THE ISSUE IN DISPUTE IS COVERED BY THE DECISION OF HON BLE DELHI HIGH CO URT IN THE CASE OF NOKIA INDIA PRIVATE L IMITED (SUPRA). THUS , RESPECTFULLY FOLLOWING THE ABOVE DECISION OF THE HON BLE DELHI HIGH COURT, WE HOLD THAT, THE ASSESSING OFFICER WAS REQUIRED TO PASS THE ASSESSMENT ORDER WITHIN THE PERIOD OF LIMITATION AVAILABLE UNDER SECTION 153(2A) OF THE ACT. SINCE THE IMPUGNED OR DER HAS BEEN PASSED BEYOND THE LIMITATION PERIOD PROVIDED IN TERMS OF SECTION 153(2A) OF THE ACT . ACCORDINGLY, THE IMPUGNED ORDER IS LIABLE TO BE SET - ASIDE ON THIS GROUND. 6. IN RESPECT OF THE ANOTHER ISSUE OF THE LIMITATION OF PASSING THE FINAL ASSESSMENT ORDER I.E. IMPUGNED ORDER WITHIN ONE MONTH FROM THE END OF MONTH OF RECEIPT OF THE DIRECTION OF THE LD. DRP IS CONCERNED, THE UNDISPUTED FACTS OF THE CASE ARE THAT LD. DRP IS SUED DIRECTION ON 26/05/2017 AND THE FINAL ASSESSMENT ORDER HAS BEEN PASSED ON 27/07/2017. THE RELEVANT PROVI SION OF SECTION 144C OF THE ACT , SPECIFYING THE TIME LIMIT READS AS UNDER: REFERENCE TO DISPUTE RESOLUTION PANEL. 144C. (1) 16 ITA NO.6131/DEL/2017 (2) . (3) . (4 .. (5) .. (6) .. (7) .............. (8) (9) (10) . (11) .. (12) .. (13) UPON RECEIPT OF THE DIRECTIONS ISSUED UNDER SUB - SECTION (5), THE ASSESSING OFFICER SHALL, IN CONFORMITY WITH THE DIRECTIONS, COMPLETE, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN SECTION 153 OR SECTION 153B , THE ASSESSMENT WITHOUT PROVIDING ANY FURTHER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE, WITHIN ONE MONTH FROM THE END OF THE MONTH IN WHICH SUCH DIRECTIO N IS RECEIVED. 6.1 THERE IS NO DISPUTE BETWEEN THE PARTIES THAT FINAL ASSESSMENT ORDER SHOULD BE PASSED WITHIN ONE MONTH FROM THE END OF THE MONTH IN WHICH SUCH DIRECTION OF LD. DRP IS RE CEIVED BY THE ASSESSING OFFICER . THE ONLY DISPUTE BETWEEN THE PART IES IS REGARDING THE DATE OF RECEIPT OF THE ORDER OF LD. DRP BY THE ASSESSING OFFICER. THE LD. COUNSEL HAS REFERRED TO THE IMPUGNED ORDER, WHICH ITSELF READ THAT THE LD. TPO PASSED ORDER ON 31/05/2017 IN PURSUANT TO THE DIRECTION OF THE LD. DRP. THE RELEVA NT PARAGRAPH OF THE IMPUGNED ORDER IS REPRODUCED AS UNDER: 11.1 PURSUANT TO THE DIRECTIONS OF THE HON BLE DRP GIVEN VIDE ITS ORDER DATED 26.05.2017, A LETTER WAS SENT TO TRANSFER PRICING OFFICER FOR RE - COMPUTATION OF THE ARM'S LENGTH PRICE IN THIS CASE. THE RESPONSE FROM DC1T, TPO DATED 31.05.2017VIDE F. NO. DC1T/TPO - 1(1)(2)/2017 - 18 /58 WITH THE FOLLOWING OBS ERVATIONS: - . 6.2 T HUS , ACCORDING TO THE LD. COUNSEL , THE ORDER OF LD. DRP MUST HAVE BEEN RECEIVED BY THE ASSESSING OFFICER PRIOR TO 31/05/2017 AND IF THE PERIOD OF ONE MONTH IS COUNTED FROM 31/05/2017, THE FINAL 17 ITA NO.6131/DEL/2017 ASSESSMENT ORDER SHOULD HAVE BEEN PASSED BEFORE 30/06/2017, WHE REAS IT HAS BEEN PASSED ON 27/ 7/2017, THUS, IT WAS BARRED BY LIMITATION. 6.3 ON THE OTHER HAND, LD. CIT (DR) CONTEND ED THAT ACCORDING TO THE NOTING ON THE ORDER OF LD. DRP FILED BY THE ASSESSEE IN APPEAL SET, THIS ORDER WAS RECEIVED BY THE OFFICE OF THE ASSESSING OFFICER ON 05/06/2017 AND THEREFORE , IT WAS WELL WITHIN THE LIMITATION PERIOD. 6.4 WE HAVE HEARD THE RIVAL SUBMISSION OF THE PARTIES AND PERUSED THE RELEVANT MATERIAL ON RECORD. FIRST OF ALL, ACCORDING TO US, SOME NOTING ON THE COPY OF ORDER OF THE LD. DRP, APPENDED BY THE ASSESSEE IN APPEAL SET, IS NOT AN EVIDENCE WHICH COULD ESTABLISH THE DATE OF RECEIPT OF THE ORDER BY THE ASSESSING OFFICER. THIS NOTING IS CONTRARY TO THE FACT MENTIONED BY THE ASSESSING OFFICE R HIMSELF IN THE ASSESSMENT ORDER THAT THE LEARNED TPO PASSED THE ORDER ON 31/05/2017 PURSUANT TO THE DIRECTION OF THE LD. DRP. IT IS THE ASSESSING OFFICER, WHO WAS REQUIRED TO SEND ORDER OF THE LD. DRP TO THE LD. TPO FOR RE - COMPUTING THE ARM S LENGTH PRIC E OF THE INTERNATIONAL TRANSACTION. 6.5 FURTHER , THE R EVENUE HAS NOT BROUGHT ON RECORD ANY OTHER EVIDENCE LIKE DARK REGISTER OR COPY OF THE ORDER OF THE LD. DRP BEARING DATE AND STAMP OF THE OFFICE OF THE LD. ASSESSING OFFICER, WHICH COULD SUBSTANTIATE TH E CLAIM OF THE LD. CIT ( DR ) THAT THE ORDER OF THE LD. DRP WAS RECEIVED BY THE ASSESSING OFFICER ON 05/06/2017. IN ABSENCE OF ANY SUCH EVIDENCES, WE ARE INCLINED TO ACCEPT THAT THE ASSESSING OFFICER RECEIVED THE ORDER OF THE LD. DRP BEFORE 31/05/2017 AND THE REFORE, HE WAS REQUIRED TO PASS THE ORDER BEFORE 30/06/2017. THE IMPUGNED ORDER PASSED BY THE ASSESSING OFFICER BEING BEYOND THE PERIOD PROVIDED IN SECTION 144C(13) OF THE ACT, AND THUS BARR ED BY LIMITATION. ACCORDINGLY, IT IS LIABLE TO BE SET - ASIDE. 18 ITA NO.6131/DEL/2017 6.6 S INCE IN VIEW OF THE TWO POINTS DISCUSSED ABOVE, WE HAVE ALREADY HELD THE IMPUGNED ORDER OF ASSESSING OFFICER AS LIABLE TO BE SET - ASIDE, ACCORDINGLY, WE SET ASIDE THE ORDER OF THE ASSESSING OFFICER. 7. IN VIEW OF OUR FINDING ABOVE, WE ARE NOT REQUIRED TO A DJUDICATE ON THE OTHER ISSUES RAISED BY THE PARTIES, AS THE SAME ARE RENDERED ACADEMIC ONLY. WE ARE ALSO NOT REQUIRED TO ADJUDICATE THE ISSUE ON MERIT IN VIEW OF THE LEGAL GROUNDS ADJUDICATED IN FAVOUR OF THE ASSESSEE. THE OTHER GROUNDS OF THE APPEAL ARE A CCORDINGLY RENDERED INFRUCTUOUS. 8. IN THE RESULT , APPEAL OF THE ASSESSEE IS ALLOWED. THE DECISION IS PRONOUN CED IN THE OPEN COURT ON 23 RD NOV . , 201 7 . SD/ - SD/ - ( H.S. SIDHU ) ( O.P. KANT ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 23 RD NOVEMBER , 201 7 . RK / - (D.T.D) COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR ASST. REGISTRAR, ITAT, NEW DELHI