APM TERMINALS INDIA PVT. LTD, MUMBAI V. DCIT CIRCLE-6(1) (1) , MUMBAI

ITA 829/MUM/2022

AI Insights

The case involves APM Terminals India Private Limited appealing against an assessment order passed by the Deputy Commissioner of Income Tax, Mumbai. The primary contention was the validity of the final assessment order on the grounds of limitation. The assessee argued that the order was passed beyond the statutory time limit prescribed under Section 144C(13) of the Income Tax Act, 1961, which mandates the completion of the assessment within one month from the end of the month in which the DRP directions are received. The Tribunal examined the timelines of the various orders and directions issued during the assessment process for the year 2017-18 and found that the final assessment order was indeed passed beyond the permissible period.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 132756 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: K
• Next Hearing Date: 15-12-2022
• Assessment Year: 2017-2018
• Appeal Filed On: 28-04-2022
• Other Referred Cases: Renaissance Services BV vs. DCIT (IT), Adobe Systems India Pvt. Ltd. vs. DCIT, Dentsply India (P) Ltd. vs. ITO, Fresenius Kabi Oncology Ltd. vs. DCIT, Envestnet Asset Management (India) (P) Ltd. vs. ACIT, IHG IT Services (India) Pvt. Ltd. vs. DCIT
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Period of limitation; Validity of assessment
• Section: 143(3); 144C

Judgement Text

आयकर य कर म ु ंबई ठ “ के ”, म ु ंबई ठ क , य यक य ए ं गगन गोय , ेख क र य के म$ IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH “K ”, MUMBAI BEFORE SHRI VIKAS AWASTHY, JUDICIAL MEMBER & SHRI GAGAN GOYAL, ACCOUNTANT MEMBER आ ं. 829/म ु ं/ 2022 ( न. .2017-18) ITA NO. 829/MUM/2022(A.Y. 2017-18) APM Terminals India Private Limited, Unit No.401 & 402, Godrej Two, Pirojshanagar, Eastern Exprssion Highway, Vikhroli (E), Mumbai 400 013. PAN: AAACM-8741-P ...... * /Appellant बन म Vs. The Deputy Commissioner of Income Tax, Circle – 6(1)(1), Mumbai. Room No.563B, 5 th Floor, Aaykar Bhavan, M.K.Road, Mumbai – 400 020 ..... + , /Respondent * - र / Appellant by : Shri Poras Kaka, Sr.Advocate + , - र /Respondent by : Ms.Samruddhi Dhananjay Hande ु न ई क/ , / Date of hearing : 16/12/2023 0ो1 क/ , / Date of pronouncement : 08/03/2023 आदेश/ ORDER PER VIKAS AWASTHY, JM: This appeal by the assessee is directed against the assessment order dated 28/02/2022 passed u/s. 143(3) r.w.s. 144C(13) r.w.s. 144B of the Income Tax Act, 1961 [in short ‘the Act’] for the assessment year 2017-18. 2 ITA NO. 829/MUM/2022(A.Y. 2017-18) 2. Shri Poras Kaka appearing on behalf of the assessee submits that the only ground on which he would be making submissions is ground No.1 challenging validity of the final assessment order, on the ground of limitation. The ld.Counsel for the assessee submits that in case ground No.1 of the appeal is allowed, the other grounds of appeal would become academic. 3. The ld.Counsel for the assessee submits that the impugned assessment order is barred by limitation and hence, is null and void. Giving the sequence of events and relevant timelines, the ld.Counsel for the assessee furnishes a chart, the same is reproduced herein below: Sr. No. Particulars Relevant Timelines * Actual Dates A Transfer Pricing Order u/s.92CA(3) of the Act 31 January 2021* 20 th January 2021 B Draft Assessment Order U/s.143(3) r.w.s. 144C of the Act 30 September 2021** 30 March 2021 (Received on same day) C Filing of Dispute Resolution Panel (‘DRP’) Objections u/s. 144C(1) of the Act against Draft Assessment Order 31 August 2021*** 27 April 2021 D Issuance of DRP Directions u/s 144C(5) of the Act [ Sub-section (12) of Section 144C mandates that no directions under sub-section (5) shall be issued after none months from the end of the month in which the draft assessment order is forwarded to the eligible assessee ] 31 December 2021 23 December 2021 (Updated in the ITBA system on the same date) E Final Assessment Order u/s. 143(3) r.w.s. 144C and 144C(13) r.w.s. 144B of the Act [Sub-section (13) of Section 144C mandates the Assessing Officer to pass assessment order within one month from month from the end of the month in which such direction from the DRP was received} 31 st January 2022 Dated 28 February 2022 (Digitally signed by National Faceless Assessment Centre and received by the Appellant on 2 March 2022] *The original due date of 31 October 2020 was extended to 31 January 202J by Notification No, 93/2020. dated 31 December 2020. ** The original due date of 31 December 2020 was extended to 31 March 2021 by Taxation Act read with Notification No. 93/2020. dated 31 December 2020. The due date 3 ITA NO. 829/MUM/2022(A.Y. 2017-18) was further extended to 30 April 2021 by CBDT Notification No. 10/2021. dated 27 February 2021. Further extension was made by CBDT Notification No. 38/2021, dated 27 April 2021 and the due date was extended to 30 June 2021. Now the due date has been extended by CBDT Notification No. 74/2021 and press release dated 25 June 2021. *** CBDT Circular No. 12/2021. dated 25 June 2021 provided that Objections to DRP and Assessing Officer under Section 144C of the Act. for which the last date of filing under that Section is 1st June. 2021 or thereafter, may be filed within the lime provided in that Section or by 31st Angus!. 2021, whichever is later” . 3.1 The ld.Counsel for the assessee submits that as per the scheme of section 114C, the Assessing Officer had time to pass the assessment order u/s. 144C(13), within one month from the end of the month in which directions are received. The directions from the Dispute Resolution Panel (DRP) were received on the same date on which they were passed i.e. 23/12/2021 The ld.Counsel for the assessee referred to the information sought by the assessee from the Secretariat of DRP. The ld.Counsel for the assessee pointed that as per the information received from the office of DRP, the DRP directions u/s. 144C(5) of the Act in the case of assessee for Assessment Year 2017-18 were uploaded on ITBA System on 23/12/2021 itself i.e. on the date of issuance of direction. Thereafter, the Assessing Officer had time to pass the assessment order upto 31/01/2022 whereas the final assessment order was passed on 28/02/2022. This clearly show that the assessment order is time barred. The ld.Counsel for the assessee in support of his submissions placed reliance on following decisions: (i) Renaissance Services BV vs. DCIT (IT), 139 taxmann.com 450; (ii) Adobe Systems India Pvt. Ltd. vs. DCIT, ITA No.928/Del/2022 decided on 16/06/2022; (iii) Dentsply India (P) Ltd. vs. ITO, ITA No.4387/Del/2010 decided on 24/05/2019; 4 ITA NO. 829/MUM/2022(A.Y. 2017-18) (iv) Fresenius Kabi Oncology Ltd. vs. DCIT,ITA No.5326/Del/2013 decided on 30/05/2016; (v) Envestnet Asset Management (India) (P) Ltd. vs. ACIT, 53 taxamann.com 430 (Cochin-Trib); and (vi) IHG IT Services (India) Pvt. Ltd. vs. DCIT, ITA No.1019/DEL/2015 decided on 30/11/2015. 4. Per contra, Ms.Samruddhi Dhananjay Hande representing the Department stated that the assessment order has been passed within the period of limitation. 5. We have heard the submissions made by rival sides. The sequence of events and timeline for passing orders furnished by the ld.Counsel for the assessee reflecting dates of orders passed by various authorities for the Assessment Year 2017-18 in the case of assessee has not been disputed by the Revenue. The DRP directions are dated 23/12/2021. As per communication dated 12/09/2022 (e-mail from Mumbai : mumbai.ito.hq.drp1) from the DRP, directions u/s. 144C(5) of the Act in the case of assessee for Assessment Year 2017-18 were passed and uploaded in ITBA System on 23/12/2021. Thus, DRP directions were communicated to the Assessing Officer in December, 2021 itself. No material has been placed on record by the Revenue to contend that DRP directions were received by the Assessing Officer after 31/12/2022. Section 144C(13) of the Act mandates that on receipt of the directions issued under sub-section (5), the Assessing Officer shall pass assessment order within one month from the end of the month in which such directions are received. Thus, the Assessing Officer was under obligation to pass final assessment order on or before 31/01/2022. The Assessing Officer passed the impugned 5 ITA NO. 829/MUM/2022(A.Y. 2017-18) assessment order on 28/02/2022. This is clearly in violation of the mandate of sub-section (13) of section 144C of the Act. 6. The various Tribunal decisions on which the assessee has placed reliance and the decision of Hon'ble Jurisdictional High Court in the case of Renaissance Services BV vs. DCIT (IT) (supra), it has been held that where the final assessment order is passed beyond prescribed time limit the same is liable to be quashed. Thus, in view of undisputed facts of the case, we hold that impugned assessment order is passed beyond the period of limitations hence, the same is liable to be quashed, we hold and order accordingly. The assessee succeeds on ground No.1 of appeal. 7. Since, we have decided the legal issue challenging validity of assessment order in favour of assessee, the ground No.2 to 4 raised in appeal have become academic therefore, are not deliberated upon, at this stage. 8.. In the result, appeal by the assessee is allowed. Order pronounced in the open court on Wednesday the 08 th day of March , 2023. Sd/- Sd/- (GAGAN GOYAL) (VIKAS AWASTHY) ेख क र य/ACCOUNTANT MEMBER य यक य/JUDICIAL MEMBER म ु ंबई/ Mumbai, 2 न ंक/Dated 08/03/2023 Vm, Sr. PS(O/S) 6 ITA NO. 829/MUM/2022(A.Y. 2017-18) े Copy of the Order forwarded to : 1. */The Appellant , 2. + , / The Respondent. 3. The PCIT 4. आयकर आय ु 3, CIT 5. 4 ग य + , न , आय. . ., म ु बंई/DR, ITAT, Mumbai 6. ग 56 7 8 /Guard file. BY ORDER, //True Copy// (Dy./Asstt. Registrar), ITAT, Mumbai