PARTNERS MEDICAL INTERNATIONAL , INC., MUMBAI V. DCIT (IT) 3(3)(2), MUMBAI

ITA 747/MUM/2015

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8068 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: L
• Next Hearing Date: 02-08-2017
• Assessment Year: 2011-2012
• Appeal Filed On: 03-02-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Double taxation relief; Permanent establishment
• Section: 143(3); 234B; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL L BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA, A M AND SHRI SANDEEP GOSAIN, JM ./ I.T.A. NO S . 747 /MUM/2015 & 3609 /MUM/2016 ( / ASSESSMENT YEAR: 2011 - 12 ) PARTNERS MEDICAL INTERNATIONAL, INC. (EARLIER KNOWN AS PARTNERS HARVARD MEDICAL INTERNATIONAL, INC.) C/O. PRICEWATERHOUSE COOPERS (P) LTD., PWC HOUSE, PLOT NO. 18/A, GURU NANAK ROAD, BANDRA (W), MUMBAI - 400 050 / VS. DY. CIT (INTL. TAXATION) - 3(3)(2), MUMBAI ./ ./ PAN/GIR NO. AABCH 2171 F ( / APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI DHANESH BAFNA & SHRI RAVI SAWANA / RESPONDENT BY : SHRI SAMUEL DARSE / DATE OF HEARING : 22.11.2017 / DATE OF PRONOUNCEMENT : 04.12 .2017 / O R D E R PER SHAMIM YAHYA , A. M.: TH ESE ARE APPEALS BY THE ASSESSEES DIRECTED AGAINST THE ORDER OF THE ASSESSING OFFICER PASSED U/S. 143(3) R .W.S. 144C(13) OF THE INCOME TAX ACT, 1961 DATED 09.12.2014 FOR THE ASSESSMENT YEAR 2011 - 12. 2 ITA NO S . 747/M/2015 & 3609/M/2016 (A.Y. 2011 - 12) PARTNERS MEDICAL INTERNATIONAL, INC. VS. DY. CIT (INTL. TAXATION) ITA NO. 3609/MUM/2016 2. THE ASSESSEE HAS APPEALED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 28.0 2 .2016. T HE ASSESSEE HAS RAISED MUL TIPLE GROUNDS BUT THE FACT OF THE CASE ARE THAT THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS HELD THAT THE ASSESSEE SHOULD HAVE FILED THE APPEAL BEFORE THE ITAT AND NOT BEFORE HIM, HENCE, HE HAS DISMISSED THE APPEAL. THE ORDER OF THE LD. COMMISSIONER O F INCOME TAX (APPEALS) IN THIS REGARD MAY BE REFERRED AS UNDER: I HAVE GONE THROUGH THE FACTS OF THIS GROUND. I FIND THAT FROM THE FACTS BROUGHT OUT THAT THE DRAFT ORDER OF THE A.O. WAS ISSUED UNDER SECTION 144C(1) AND RECEIVED BY THE APPELLANT ON FEBRUARY 24, 2014. HOWEVER, THE APPELLANT HAS NOT BEEN ABLE TO DEMONSTRATE AS TO THE CONTENTION OF THE AO THAT SUCH DRAFT ORDER WAS RECEIVED BY THE ASSESSEE ON FEBRUARY 22, 2014 AS THE RECEIPT WAS STAMPED BY THE ASSESSEES AUTHORIZED REPRESENTATIVES OFFICE SHOULD NOT BE ACCEPTED. IN THIS BACKGROUND THE DRP HAVE DECIDED THE OBJECTIONS TO BE NON - ESTE, THE HAVING BEEN FILED ON MARCH 26, 2014. THEREFORE, AS PER THE AO, A STAND SUPPORTED BY THE DRP THE APPELLANT WAS LATE IN FILING ITS OBJECTIONS BEFORE THE DRP. IT IS SE EN THAT THE A.O. FINALLY PASSED THE ORDER ON 9 DECEMBER, 2014. THE PRESENT APPEAL HAS BEEN FILED IN THIS OFFICE ON 13 JAN, 2015 WITH THE ORDER HAVING BEEN RECEIVED BY THE APPELLANT ON 17 DECEMBER, 2014. HOWEVER, THE APPELLANT HAS NOT BEEN ABLE TO DEMONSTRA TE AS TO THE CONTENTION OF THE A.O. THAT SUCH DRAFT ORDER WAS RECEIVED BY THE ASSESSEE ON FEBRUARY 22, 2014 AS THE RECEIPT WAS STAMPED BY THE ASSESSEES AUTHORIZED REPRESENTATIVES OFFICE. BY VIRTUE OF THIS THE APPEAL FILED IN THIS OFFICE IS WITHIN 30 DAYS OF THE RECEIPT OF THE FINAL ORDER AFTER THE OBJECTIONS FILED BEFORE THE DRP HAVE BEEN HELD AS NON - ESTE, THE APPELLANT NEEDED TO FILE AN APPEAL BEFORE THE HONBLE TRIBUNAL, MUMBAI BENCH. THEREFORE, IN LIGHT ON THIS FINDING THE GROUND OF APPEAL IN THIS REGAR D IS DISMISSED. CONSIDERING THEREFORE THAT THE SAID APPEAL CANNOT BE TAKEN TO BE ADMITTED, SINCE THE CORRECT FORUM WAS THE HONORABLE ITAT THE GROUNDS ARE NOT ADJUDICATED ON MERIT. 3. IN LIGHT OF HIS ABOVE ORDER, THE LD. COMMISSIONER OF INCOME TAX (APPEAL S) HAS DISMISSED THE OTHER GROUNDS RAISED BY THE ASSESSEE. 3 ITA NO S . 747/M/2015 & 3609/M/2016 (A.Y. 2011 - 12) PARTNERS MEDICAL INTERNATIONAL, INC. VS. DY. CIT (INTL. TAXATION) 4. AGAINST THE ABOVE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE HAS FILED AN APPEAL BEFORE US. 5. UPON CAREFUL CONSIDERATION, WE FIND OURSELVES IN AGREEMENT WITH THE ORD ER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) T HAT IF THE ASSESSEE IS AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER PASSED U/S. 144C(13) IN THIS CASE, THE APPEAL SHOULD HAVE BEEN FILED BEFORE THE ITAT AND NOT BEFORE THE LD. COMMISSIONER OF INCOME TA X (APPEALS). HENCE, WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND, ACCORDINGLY, WE CONFIRM THE SAME. HENCE, THIS APPEAL BY THE ASSESSEE STANDS DISMISSED. ITA NO. 747/MUM/2015 6. THE GROUNDS OF APPEAL READ AS UNDER: GROUND NO. 1 - ACTION OF THE DISPUTE RESOLUTION PANEL ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE DISPUTE RESOLUTION PANEL ('DRP') ERRED IN HOLDING THAT THE OBJECTIONS WERE FILED BY THE APPELLANT BEFORE IT BEYOND THE TIME LIMIT PRE SCRIBED IN SECTION 1440(2) OF THE INCOME - TAX ACT, 1961 ('THE ACT'), AND IN TREATING THE SAME (OBJECTIONS FILED) AS NON - EST. THE APPELLANT PRAYS THAT REQUISITE DIRECTIONS BE GIVEN SO AS TO RESTATE THE OBJECTIONS FILED BY THE APPELLANT/TREAT THE OBJECTIONS FILED AS VALID. GROUND NO. 2 - LEARNED AO'S OBSERVATION ON DATE OF SERVICE OF ORDER ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED DEPUTY COMMISSIONER OF INCOME TAX ( INTERNATIONAL ] TAXATION) - 3(3 )( 2) ('LEARNED DCIT'/' L EARNED AO') HAS ERRED IN OBSERVING THAT THE APPELLANT HAS PROVIDED WRONG INFORMATION IN FORM NO. 35A IGNORING THE FACT THAT THE DRAFT ORDER ISSUED UNDER SECTION 1440(1) OF THE ACT WAS IN EFFECT RECEIVED BY THE AUTHORISED 4 ITA NO S . 747/M/2015 & 3609/M/2016 (A.Y. 2011 - 12) PARTNERS MEDICAL INTERNATIONAL, INC. VS. DY. CIT (INTL. TAXATION) REPRESENTATIVES OF THE APPELLANT ON FEBRUARY 24, 2 014 (I.E. THE DATE MENTIONED IN FORM NO. 35A FILED BY THE APPELLANT). IT IS PRAYED THAT THE SAID OBSERVATION OF THE LEARNED DCIT OUGHT NOT TO BE CONSIDERED AS THE APPELLANT HAD NOT PROVIDED ANY WRONG INFORMATION IN FORM 35A. GROUND NO, 3 - VALIDITY OF TH E LEARNED AO'S ORDER DATED DECEMBER 09, 2014 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED DCIT ERRED IN PASSING THE ASSESSMENT ORDER, DATED DECEMBER 9, 2014, UNDER SECTION 143(3) R.W.S. 1440(13) OF THE INCOME - TAX ACT, 1961 ('THE ACT ') AS THE ORDER HAS BEEN PASSED BEYOND THE TIME LIMIT PRESCRIBED UNDER SECTION 144C(4) OF THE ACT. THE APPELLANT PRAYS THAT THE ABOVE ORDER BE QUASHED AS THE SAME IS BAD IN LAW. GROUND NO. 4 - GENERAL - TOTAL INCOME ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED DCIT ERRED IN MAKING ADDITIONS AND ASSESSING THE TOTAL INCOME OF THE APPELLANT FOR THE YEAR AT RS. 5,52,50,130 AS AGAINST THE RETURNED INCOME OF NIL. IT IS PRAYED THAT THE LEARNED DCIT BE DIRECTED TO DELETE THE ADDITIONS MADE . GROUND NO. 5 - ADDITION ON ACCOUNT OF ROYALTY ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED DCIT ERRED IN CONCLUDING THAT 90% OF THE RECEIPTS OF THE APPELLANT DURING THE YEAR AMOUNTING TO RS. 4,97,25,117 ARE IN NATURE OF 'ROYALTIES ' UNDER THE PROVISIONS OF ARTICLE 12(3) OF THE DOUBLE TAXATION AVOIDANCE AGREEMENT BETWEEN INDIA AND USA ('DTAA') AND THUS, LIABLE TO TAX IN INDIA. IT IS PRAYED THAT THE LEARNED DCIT BE DIRECTED TO HOLD THAT THE ENTIRE PAYMENT RECEIVED BY THE APPELLANT IS FOR SERVICES RENDERED, AND NO PART IS IN THE NATURE OF ROYALTIES, AND HENCE, THE PAYMENT FALLS OUTSIDE THE SCOPE OF ARTICLE 12(3) OF THE DTAA. GROUND NO. 6 - ADDITION ON ACCOUNT OF FEES FOR INCLUDED SERVICES 6.1 ON THE FACTS AND CIRCUMSTANCES OF THE C ASE, AND IN LAW, THE LEARNED DCIT ERRED IN CONCLUDING THAT 10% OF THE RECEIPTS OF THE APPELLANT DURING THE YEAR 5 ITA NO S . 747/M/2015 & 3609/M/2016 (A.Y. 2011 - 12) PARTNERS MEDICAL INTERNATIONAL, INC. VS. DY. CIT (INTL. TAXATION) AMOUNTING TO RS. 55,25,013 CONSTITUTE 'FEES FOR INCLUDED SERVICES' ('FIS') UNDER ARTICLE I2(4)(B) OF THE DTAA AND THUS LIABLE TO TAX IN INDIA. IT IS PRAYED THAT THE LEARNED DCIT BE DIRECTED TO HOLD THAT THE ENTIRE PAYMENT RECEIVED BY THE APPELLANT IS FOR SERVICES RENDERED, AND ARE NOT 'INCLUDED SERVICES' WITHIN THE MEANING OF ARTICLE I2(4)(B) OF THE DTAA READ WITH THE MEMORANDUM OF UNDERSTANDING TO THE DTAA AND HENCE, PAYMENTS RECEIVED FOR SUCH SERVICES FALL OUTSIDE THE SCOPE OF ARTICLE I2(4)(B) OF THE DTAA. 6.2 WITHOUT PREJUDICE TO THE ABOVE, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED DCIT ERRED IN DISREGARDING THE APP ELLANT'S SUBMISSIONS THAT IN TERMS OF ARTICLE I2(S)(C) OF THE DTAA, FEES RECEIVED FOR PROVIDING TEACHING/ EDUCATIONAL SERVICES ARE NOT TAXABLE AS FIS. THE APPELLANT PRAYS THAT THE LEARNED DCIT BE DIRECTED TO HOLD THAT THE APPELLANT IS NOT LIABLE TO TAX IN INDIA ON PAYMENTS ATTRIBUTABLE TO THE TEACHING SERVICES BY VIRTUE OF ARTICLE I2(S)(C) OF THE DTAA. GROUND NO. 7 - BUSINESS PROFITS NOT TAXABLE IN ABSENCE OF A PERMANENT ESTABLISHMENT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED DCI T ERRED IN NOT APPRECIATING THAT, IF AT ALL, THE PAYMENTS RECEIVED BY THE APPELLANT DURING THE YEAR ARE IN THE NATURE OF 'BUSINESS PROFITS', AND HENCE, NOT TAXABLE IN INDIA UNDER ARTICLE 7 OF THE DTAA IN THE ABSENCE OF A PERMANENT ESTABLISHMENT IN INDIA (U NDER ARTICLE 5 OF THE DTAA). THE APPELLANT PRAYS THAT THE LEARNED DCIT BE DIRECTED TO HOLD THAT THE PAYMENTS RECEIVED BY THE APPELLANT ARE NOT LIABLE TO TAX IN INDIA IN THE ABSENCE OF A PERMANENT ESTABLISHMENT IN INDIA. GROUND NO. 8 - INVOKING RULE 10 OF THE INCOME - TAX RULES, 1962 ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE DCIT ERRED IN INVOKING THE PROVISIONS OF RULE 10 OF THE INCOME - TAX RULES, 1962 FOR ATTRIBUTING 90% OF THE TOTAL RECEIPTS AS ROYALTIES AND THE BALANCE 10% AS FIS. THE APPELLANT PRAYS THAT THE LEARNED DCIT BE DIRECTED NOT TO INVOKE THE PROVISIONS OF RULE 10 OF THE INCOME - TAX RULES, 1962. GROUND NO. 9 - ADDITION ON ACCOUNT OF REIMBURSEMENT OF EXPENSES 6 ITA NO S . 747/M/2015 & 3609/M/2016 (A.Y. 2011 - 12) PARTNERS MEDICAL INTERNATIONAL, INC. VS. DY. CIT (INTL. TAXATION) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED D CIT ERRED IN INCLUDING AS PART OF THE TOTAL INCOME, A SUM OF RS. 47,24,930, BEING REIMBURSEMENTS RECEIVED FOR ACTUAL EXPENSES INCURRED BY THE APPELLANT ON THE GROUND THAT THE FACTS OF THE CURRENT YEAR ARE IDENTICAL WITH THE FACTS OF ASSESSMENT YEAR ('AY 1 ) 2000 - 01 AND SUBSEQUENT YEARS, WHERE ADDITION HAS BEEN MADE BY THE LEARNED DCIT'S PREDECESSOR ON THIS ACCOUNT. IT IS PRAYED THAT THE LEARNED DCIT BE DIRECTED TO DELETE THE ADDITION TO THE APPELLANT'S INCOME ON ACCOUNT OF REIMBURSEMENT OF EXPENSES, AS THE S AME DOES NOT CONSTITUTE TAXABLE INCOME. GROUND NO. 10 GENERAL RATE OF TAX WITHOUT PREJUDICE TO THE ABOVE, THE LEARNED AO HAS ERRED IN APPLYING A 15% RATE OF TAX INSTEAD OF A 10% RATE AS APPLICABLE UNDER SECTION 115A OF THE ACT FOR SUCH AGREEMENTS ENT ERED AFTER JUNE 1, 2005. THE APPELLANT PRAYS THAT THE LEARNED DCIT BE DIRECTED TO DELETE THE ERRONEOUS RATE OF TAX APPLIED. GROUND NO. 11 - SHORT CREDIT OF TDS ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED DCIT ERRED IN NOT GRANTING TDS CREDIT TO THE EXTENT OF RS.32,96,715. THE APPELLANT PRAYS THAT THE LEARNED DCIT BE DIRECTED TO GRANT FULL TDS CREDIT OF RS.51,33542 AS CLAIMED BY THE APPELLAN TIN THE RETURN OF INCOME. GROUND NO. 12 - LEVY OF INTEREST UNDER SECTION 234B ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED DCIT ERRED IN LEVYING INTEREST OF RS.28,97,862 UNDER SECTION 234B OF THE ACT. THE APPELLANT PRAYS THAT THE LEARNED DCIT BE DIRECTED TO DELETE THE INTEREST LEVIED UNDER SECTION 234B OF THE ACT. GROUN D NO. 13 LEVY OF INTEREST UNDER SECTION 234A AND 234D ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AND IN LAW, THE LEARNED DCIT ERRED IN LEVYING INTEREST UNDER SECTIONS 234A AND 234D OF THE ACT AMOUNTING TO RS.1,93,191 AND RS.1,62,006 RESPECTIVELY. 7 ITA NO S . 747/M/2015 & 3609/M/2016 (A.Y. 2011 - 12) PARTNERS MEDICAL INTERNATIONAL, INC. VS. DY. CIT (INTL. TAXATION) THE A PPELLANT PRAYS THAT THE LEARNED DCIT BE DIRECTED TO DELETE THE INTEREST LEVIED UNDER THE SAID SECTIONS. 7. IN THIS CASE, THE DRAFT ASSESSMENT ORDER WAS PASSED BY THE ASSESSING OFFICER ON 21.2.2014. ACCORDING TO THE ASSESSING OFFICER THE DATE OF SERVICE OF THE DRAFT ASSESSMENT ORDER WAS 22.2.2014, HOWEVER, THE ASSESSEE CLAIMED THAT THE DATE OF SERVICE OF DRAFT ASSESSMENT ORDER WAS 24.2.2014. THE ASSESSEE FILED OBJECTION AGAINST THE DRAFT ASSESSMENT ORDER BEFORE DRP - 3 ON 26.3.2014. THE DRP OB TAINED REPORT FR OM THE ASSESSING OFFICER ON 22.8.2014. IN TH IS REPORT O N 22.8.2014, THE ASSESSING OFFICER STATED TO THE DRP THAT DRAFT ASSESSMENT ORDER WAS SERVED ON 22.2.2014 AND THUS OBJECTION WERE FILED LATE BY TWO DAYS. ON 12.11.2014, THE DRP TREATED THE OBJECTION AS NON - EST, THE DRPS ORDER IN THIS REGARD READ S AS UNDER: AS PER THE PROVISIONS OF SECTION 144C(2) O F THE ACT, THE ELIGIBLE ASSESSEE SHALL WITHIN THIRTY DAYS OF RECEIPT OF THE DRAFT ORDER, FILE H IS OBJECTIONS TO TH E DISPUTE RESOLUTION PANEL AND THE ASSESSI NG OFFICER. THE CONCERNED PROVISIONS OF ACT FOR THE SAKE OF READY REFERENCE ARE REPRODUCED HEREIN UNDER : - ON RECEIPT OF THE DRAFT ORDER, THE ELIGIBLE ASSESSEE SH AL L , WITHIN THIRTY DAY S OF THE RECEIPT BY HIM OF THE DRAFT ORDER , - (A) FILE HIS ACCEPTANCE OF THE VARIATIONS TO THE ASSESSING OFFICER , OR (B) FI L E H IS OBJECTIO NS, IF ANY, TO SUCH VARIATION WI TH, (I) THE DISPUTE RESOLUTION - PANEL; AND (II) THE ASSESSING OFFICER . 5. IT CA N BE SE EN FROM THE PROVISIONS OF SECTION 144C( 2) OF THE ACT THAT ON RECEIPT OF THE DRAFT ORDER, THE ELIGIBLE ASSESSEE SHALL, WI THIN THIRTY - DAYS OF THE RECEIPT BY HIM OF THE DRAFT ORDER EI THER WOULD FILE HIS ACCEPTANCE OF THE VARIATIONS TO THE ASSESSING OFFIC ER OR FILE HIS OBJECTIONS, IF ANY, TO SUCH VARIATIONS WIT H THE DISPUTE RE SOLUTION PANEL AND THE ASSESSING OFFICER. THEREFORE, AS PER THE - AFORESAID PROVISIONS OF THE ACT, THE ELIGIBLE ASSESSEE HAS TO FILE HIS OBJECTIONS, IF ANY, TO THE VARIATIONS PROPOSED IN THE DRAFT O RDER WITHIN THIRTY DAYS OF THE RECEIPT BY HIM OF THE SAID DR AFT ORDER. I N THE PROVISIONS 8 ITA NO S . 747/M/2015 & 3609/M/2016 (A.Y. 2011 - 12) PARTNERS MEDICAL INTERNATIONAL, INC. VS. DY. CIT (INTL. TAXATION) RELATING TO FILING OF OBJECTIONS BEFORE DISPUTE RESOLUTION PANEL, THERE IS NO PROVISION WHICH ALLOWS THE DELAYED FILING OF OBJECTIONS BY THE ELIGIBLE ASSESSEE. 6. IN THE FACTS OF THE CASE, THE OBJECTIONS FILED ARE BEYOND THE PERIOD OF THIRTY DAYS AND AGAINST SUCH FACTUAL POSITION OF THE DE LAYED, FILING OF THE OBJECTIONS BEFORE THIS PANEL BY THE ASSESSEE. T HERE IS NO DISPUTE OR CONTENTION WHICH HAS BEEN PUT FORWARD BY THE ASSESSEE OR ITS LD. AUTHORISED REPRESENTATIVES. ACCORDI NGLY, IN THE FACT S AND CIRCUMSTANCES OF THE CASE, AS THE OBJECTION SO FILED IN F ORM NO. 35A ARE BEYOND THE PERIOD PRESCRIBED IN THE SECTION L44C(2),OF THE ACT, THE SAME CANNOT BE ENTERTAINED FOR ANY DECISION ON MERITS. WE, THEREFORE, TREAT SUCH OBJECTIONS/ FORM NO. 35 FILED AS NO N - EST. 8. AGAINST THIS ORDER, THE ASSESSEE HAS FILED THIS APPEAL. THE PRELIMINARY CONTENTION OF THE LD. COUNSEL OF THE ASSESSEE ARE TWOFOLD . FIRSTLY, THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THERE WAS TWO DAY DELAY IN RECEIPT OF DRAFT ASSESSMENT ORDER AGAINST THE DATE RECORDED BY THE ASSESSING OFFICER. HENCE, IT IS THE ASSESSEES CONTENTION THAT THE OBJECTIONS HAVE BEEN FILED WITHIN 30 DAYS AS MANDATED IN THE ACT. FURTHER IT HAS BEEN SUBMITTED THAT EVEN IT IS PRESUMED THAT THE OBJECTION HAVE BEEN FILED LATE AND ARE NON - EST, IN SUCH SITUATION, THE ACT MANDATED THE ASSESSING OFFICER TO PASS THE ORDER WITHIN ONE MONTH FROM THE END OF THE MONTH IN WHICH THE PERIOD OF FILING OBJECTION EXPIRES AS PER SECTION 144C(1)(B) . HOWEVER, IN TH E PRESENT CASE, THE ASSESSING OFFICER HAVE PASSED THE FINAL ASSESSMENT ORDER ON 09.12.2014 , WHICH IS BEYOND THE TIME LIMIT PRESCRIBED U/S. 14C(4) OF THE ACT. 9. WE HAVE HEARD BOTH THE COUNSELS AND PERUSED THE RECORDS O THE ABOVE ISSUE. IN OUR CONSIDERED OPINION, ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE TWO DAY DELAY IN FURNISHING THE OBJECTIONS TO THE DRP S OBJECTIONS DESERVES TO BE CONDONED. 9 ITA NO S . 747/M/2015 & 3609/M/2016 (A.Y. 2011 - 12) PARTNERS MEDICAL INTERNATIONAL, INC. VS. DY. CIT (INTL. TAXATION) ACCORDINGLY, WE CONDONE THE DELAY IN SUBMISSION OF THE OBJECTION OF THE DRP. THE LD. DRP IS DIRECTED TO PAS S THE DIRECTION ON THE OBJECTIONS. 10. THE LD. COUNSEL OF THE ASSESSEE HAS DULY AGREED TO THE ABOVE PROPOSITION , AND HE HAS NOT PRE SSED HIS OTHER PLEA THAT THE FINAL ASSESSMENT ORDER IS PASSED BEYOND THE SPECIFIED TIME AND, HENCE, THE SAME IS BAD IN LAW. ACCORDINGLY, THIS APPEAL BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 11. IN THE RESULT, THE APPEAL BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 04.12.2017 SD/ - SD/ - ( SANDEEP GOSAIN ) (S HAMIM YAHYA ) / J UDICIAL MEMBER / A CCOUNTANT MEMBER MUMBAI ; DATED : 4.12.2017 . . ./ ROSHANI , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPOND ENT 3. ( ) / THE CIT(A) 4. / CIT - CONCERNED 5. , , / DR, ITAT, MUMBAI 6. / GUARD F ILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI