M/s. Rubamin Limited, Baroda V. The DCIT.,Circle-2, Baroda

ITSSA 17/AHD/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 2513 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 5 month(s) 1 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 11-06-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2008-2009
• Appeal Filed On: 09-01-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: MAHESH SHAH
• Assessee Lawyers: BHAVIN MARFATIA A RS
• Keywords: Transfer pricing; Period of limitation; Validity of assessment; Time period of passing order
• Section: 143(3); 153A; 144C; 274; 153; 92CA; 132

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD [ CONDUCTED THROUGH VIRTUAL COURT ] BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER IT(SS)A NOS.17, 18 & 19/AHD/2018 ( /ASSESSMENT YEARS : 2008-09,2009-10 & 2010-11 ) M/S.RUBAMIN LTD. 4 TH FLOOR, BUILDING ARK SHREE KRISHNA INDUSTRIAL ESTATE OPP.BID, GORWA BARODA 390 016 / VS. THE DY.CIT CENTRAL CIRCLE-2 BARODA-390 007 ./ ./PAN/GIR NO. : AAACR 8758 H ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI MILIN MEHTA & SHRI BHAVIN MARFATIA, ARS / RESPONDENT BY: SHRI MAHESH SHAH, CIT-DR / DATE OF HEARING 19/03/2021 / DATE OF PRONOUNCEMENT 11/06/2021 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEALS HAVE BEEN FILED AT THE INSTAN CE OF THE ASSESSEE AGAINST THE SEPARATE ORDERS OF THE DISPUTE RESOLUTI ON PANEL-2, MUMBAI (DRP IN SHORT) DATED 29/09/2017, 29/11/2017 AND 29/09/20 17 RELEVANT TO ASSESSMENT YEARS (AYS) 2008-09, 2009-10 & 2010-11 R ESPECTIVELY. 2. THE ASSESSEE HAS RAISED AS MANY AS 34 COMMON GRO UNDS OF APPEAL(S). BUT THE ASSESSEE HAS CHALLENGED THE VALIDITY OF ASS ESSMENT ORDER FRAMED UNDER SECTION 153A R.W.S. 143(3) & 144C(13) OF THE ACT IN GROUND NO. 1 BEING BARRED BY TIME WHICH IS REPRODUCED AS UNDER: IT (SS) A NO S . 17, 18 & 19/AHD/2018 M/S. RUBAMIN LTD. VS. DY.CIT ASST.YEARS- 2009-09, 2009-10 & 2010-11 - 2 - 1. THE ASSESSMENT ORDER PASSED BY THE LEARNED DEPUTY C OMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-2, VADODARA (THE ASSESS ING OFFICER) IS INVALID AND VOID-AB-INITIO AS IT IS BARRED BY TIME. 2.1. THE ASSESSEE IN GROUND NO. 1 HAS CHALLENGED THE VALIDITY OF ASSESSMENT ORDER FRAMED UNDER SECTION 153A R.W.S. 143(3) & 144 C(13) OF THE INCOME ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) BE ING BARRED BY TIME AND THUS THE ASSESSMENT ORDER OUGHT TO BE QUASHED. 3. THE LD. ARS S/SHRI MILIN MEHTA & BHAVIN MARFATIA APPEARING ON BEHALF OF THE ASSESSEE BEFORE US HAD CHALLENGED THE VALIDITY OF THE ASSESSMENT ORDER FRAMED UNDER SECTION 153A R.W.S. 143(3) & 144C(13) OF THE ACT ON THE REASONING THAT IT IS BARRED BY LIMITATION. THE LD. AR BEFORE US REPRESENTED THE SEQUENCE OF EVENTS AS UNDER: I. THE TRANSFER PRICING OFFICER (TPO) PASSED THE ORDER UNDER SECTION 92CA(3) OF THE ACT ON 31/10/2016. II. THE ASSESSING OFFICER DELIVERED DRAFT ASSESSMENT OR DER ON 23/12/2016. III. THEREAFTER THE ASSESSEE RAISED THE OBJECTION TO THE DRP VIDE LETTER DATED 23-01-2017 AS PROVIDED UNDER SECTION 1 44C(2) OF THE ACT WHICH WERE DISPOSED OFF BY THE LD. DRP VIDE DIRECTION DATED 29-9-2017. IV. THE AO FINALLY FRAMED THE FINAL ASSESSMENT ORDER UN DER SECTION 153A R.W.S. 143(3) & 144C(13) OF THE ACT DATED 29-1 1-2017. 3.1. AS PER THE LD. AR THE PROVISIONS OF SECTION 144C WERE NOT APPLICABLE FOR THE YEAR UNDER CONSIDERATION. THUS THE NECESSITIES FOR FRAMING THE ASSESSMENT AS PROVIDED UNDER THE PROVISIONS OF SECT ION 144C OF THE ACT, IT (SS) A NO S . 17, 18 & 19/AHD/2018 M/S. RUBAMIN LTD. VS. DY.CIT ASST.YEARS- 2009-09, 2009-10 & 2010-11 - 3 - REQUIRING TO FRAME THE DRAFT ASSESSMENT ORDER IN OR DER TO PROVIDE THE OPPORTUNITY TO THE ASSESSEE FOR RAISING THE OBJECTI ONS AND SUBSEQUENT DISPOSAL THEREOF BY THE LD. DRP, WILL NOT BE APPLIE D IN THE YEAR UNDER CONSIDERATION. THE LD. AR IN SUPPORT OF HIS CONTENT IONS, RELIED ON THE JUDGMENT OF HONBLE MADRAS HIGH COURT IN THE CASE O F M/S. VEDANTA LIMITED VS. ACIT IN WRIT PETITION NO.1729 OF 2011 REPORTED IN 422 ITR 262 DECIDED ON 22/10/2019. THE LD. AR ALSO PLACED HIS RELIANCE ON THE ORDER OF MUMBAI TRIBUNAL IN THE CASE OF TRUETZSSHLER INDIA LTD. IN ITA NO. 1949/MUM/2005. 3.2. IT WAS ALSO POINTED OUT THAT THE AO WAS REQ UIRED TO PASS THE FINAL ASSESSMENT ORDER WITHIN THE LIMITATION PERIOD PROVI DED UNDER THE 4 TH PROVISO TO SECTION 153B OF THE ACT I.E. BY 31/12/2016. BUT THE AO FRAMED THE ASSESSMENT VIDE ORDER DATED 29/11/2017 I.E. AFTER T HE EXPIRY OF LIMITATION PERIOD. 4. ON THE OTHER HAND, THE LD. DR CONTENDED THA T THERE WAS NO SPECIFIC GROUND RAISED BY THE ASSESSEE IN THE MEMO OF APPEAL CHALLENGING THE ASSESSMENT ORDER BEING BARRED BY TIME IN THE CIRCUM STANCES AS NARRATED BY THE LD. AR FOR THE ASSESSEE. THE LD. DR SUPPORTED T HE ORDER OF THE AUTHORITIES BELOW. 5. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH T HE SIDES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE SECTION 144C WAS INSERTED IN THE STATUTE BY THE FINANCE (NO.2) ACT 2009 WITH RETROSPECTIVE EFFE CT FROM 01/04/2009. THE PROVISIONS OF SECTION 144C OF THE ACT MAKES AVAILAB LE FOR A SPECIAL AND FASTER ASSESSMENT PROCESS FOR A CLASS OF ASSESSEES TERMED AS 'ELIGIBLE ASSESSEE'. THE PROVISIONS OF SECTION 144C OF THE ACT MANDATES THE ASSESSING OFFI CER TO FORWARD THE DRAFT ASSESSMENT ORDER TO THE ELIGIBLE ASSESSEE. THE ELIGIBLE ASSESSEE IS A PERSON IN WHOSE CASE VARIATIONS ARISE S AS A CONSEQUENCE OF AN IT (SS) A NO S . 17, 18 & 19/AHD/2018 M/S. RUBAMIN LTD. VS. DY.CIT ASST.YEARS- 2009-09, 2009-10 & 2010-11 - 4 - ORDER OF TPO PASSED UNDER SECTION 92CA(3) OF THE AC T. IF THE ASSESSEE IS AGGRIEVED BY THE VARIATION SUGGESTED BY THE TPO AND INCORPORATED BY THE AO IN THE DRAFT ASSESSMENT ORDER, HE MAY, BEING THE EL IGIBLE ASSESSEE, FILE HIS OBJECTION TO THE DRP ONLY WITH RESPECT TO SUCH VARI ATION. THE INTRODUCTION OF SECTION 144C OF THE ACT WAS NOT MERELY PROCEDURAL C HANGE BUT A SUBSTANTIVE CHANGE PROVIDING AN OPTION TO THE ASSESSEE TO TAKE THE ADVANTAGE OF FAST TRACK DISPOSAL OF ITS GRIEVANCE BY APPROACHING TO T HE DISPUTE RESOLUTION PANEL (DRP). 5.1. THE HON'BLE MADRAS HIGH COURT IN THE CASE O F M/S. VEDANTA LTD.(SUPRA) HAS HELD THAT THE PROVISIONS OF SECTION 144C INSERT ED BY FINANCE (NO.2) ACT 2009 ARE APPLICABLE FROM ASSESSMENT YEAR 2011-12 ON WARDS ONLY AND THEY WOULD NOT APPLY TO ASSESSMENT YEAR 2010-11 OR TO EA RLIER ASSESSMENT YEARS. THE RELEVANT JUDGMENT IS EXTRACTED BELOW: 19. COMING TO THE ASPECT OF ASSUMPTION OF JURISDIC TION UNDER SECTION 144C, THE PROVISIONS OF SECTION 144C INSERTED BY FINANCE (NO.2) ACT, 2009 SET OUT A NEW AND DISTINCT SCHEME OF ASSESSMENT SEPARATE FROM REGULAR ASSESSMENT. THE OBJECT OF INSERTION OF SECTION 144C HAS BEEN EXPLAI NED IN THE EXPLANATORY NOTES TO FINANCE (NO.2) ACT, 2009 AS FOLLOWS: '45. PROVISION FOR CONSTITUTION OF ALTERNATE DISPUTE RESOLUTION MECHANISM 45.1 THE DISPUTE RESOLUTION MECHANISM PRESENTLY IN PLACE IS TIME CONSUMING AND FINALITY IN HIGH DEMAND CASES IS ATTAINED AFTER LONG DRAWN LITIGATION TILL SUPREME COURT. IN ORDER TO ADDRESS THE CONCERN OF THE MULTI- NATIONAL COMPANIE S AND TO PROVIDE MECHANISM FOR SPEEDY DISPOSAL OF THEIR CASES SO AS TO ATTAIN FINALITY, A NEW SECTION 144C IS INSERTED IN THE INCOME- TAX ACT TO FACILITATE EXPEDITIOUS RESOLUTION OF DISPUTES. 45.2 THE SALIENT FEATURES O F THE ALTERNATE DISPUTE RESOLUTION MECHANISM ARE AS UNDER:- ..... 45.5 APPL ICABILITY - THESE AMENDMENTS HAVE BEEN MADE APPLICABLE WITH EFFECT FR OM 1ST OCTOBER, 2009, AND WILL ACCORDINGLY APPLY IN RELATION TO ASSESSMEN T YEAR 2010-11 AND SUBSEQUENT ASSESSMENT YEARS. THE DISPUTE RESOLUTION PANEL RULES HAVE BEEN NOTIFIED BY S.O. NO. 2958(E) DATED 20TH NOVEMBER, 2 009.' 20. THE DISPUTE RESOLUTION PANEL (DRP) WAS CONSTITUTED AS AN ALTERN ATE DISPUTE RESOLUTION MECHANISM, TO PROVIDE A SPECIALIZED FORUM FOR EXPED ITIOUS DISPOSAL OF DISPUTES. AN ASSESSMENT INVOLVING TRANSFER PRICING DISPUTES, IS THUS TAKEN OUT OF REGULAR TRACK AND A FAST TRACK DISPUTE MECHANISM EVOLVED BEFORE A PANEL OF THREE SENIOR COMMISSIONERS. THE EXPLANATORY CIRCULA R MAKES IT CLEAR THAT THE SCHEME OF ASSESSMENT UNDER SECTION 144C WILL APPLY IN RELATION TO A.Y.2010- 11 AND SUBSEQUENT ASSESSMENT YEARS ONLY. NO DOUBT, THIS COURT IS NOT BOUND IT (SS) A NO S . 17, 18 & 19/AHD/2018 M/S. RUBAMIN LTD. VS. DY.CIT ASST.YEARS- 2009-09, 2009-10 & 2010-11 - 5 - BY THE EXPLANATORY CIRCULAR, THOUGH NECESSARY WEIGH TAGE WILL HAVE TO BE ACCORDED TO THE EXPLANATION SET FORTH BY PRINTED FR OM ITATORDERS.IN 7 ITA NO.1949/MUM/2015 (A.Y.2009-10) THE BOARD, IMMEDIATE AND PROXIMATE TO THE INSERTION OF THE PROVISION ITSELF, IN ORDER TO UNDERSTAND THE APPLICABILITY, SCOPE AND WIDTH OF THE NEWLY INSERTED PROVISION. 21 . EVEN OTHERWISE, THE SETTLED POSITION OF LAW AS SET OUT IN THE CASE OF K ARIMTHARUVI (SUPRA) IS TO THE EFFECT THAT INCOME TAX ACT, AS IT STANDS AMENDED ON THE FIRST DAY OF APRIL OF ANY FINANCIAL YEAR, MUST APPLY TO THE ASSESSMENTS O F THAT YEAR. ANY AMENDMENT IN THE ACT WHICH COMES INTO FORCE AFTER T HE FIRST DAY OF APRIL OF A FINANCIAL YEAR WOULD NOT APPLY TO AN ASSESSMENT FOR THAT YEAR, EVEN IF THE ASSESSMENT WERE TO BE FINALIZED SUBSEQUENT TO THE C OMING INTO FORCE OF THE AMENDMENT. (SEE PARAGRAH 6 OF KARIMTHARUVI (SUPRA)) . 22. SECTION 144 C IS EXTRACTED BELOW TO THE EXTENT TO WHICH IT IS RELEVA NT. REFERENCE TO DISPUTE RESOLUTION PANEL. 144C (1) THE ASSESSING OFFICER SH ALL, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS ACT, IN THE FIRST INSTANCE, FORWARD A DRAFT OF THE PROPOSED ORDER OF ASSESSMENT (HEREAFTE R IN THIS SECTION REFERRED TO AS THE DRAFT ORDER) TO THE ELIGIBLE ASSESSEE IF HE PROPOSES TO MAKE, ON OR AFTER THE 1ST DAY OF OCTOBER, 2009, ANY VARIATION IN THE INCOME OR LOSS RETURNED WHICH IS PREJUDICIAL TO THE INTEREST OF SUCH ASSESS EE.' 23. SUB-SECTION (2) STATES THAT ON RECEIPT OF THE DRAFT ORDER, THE ASSESSEE SH ALL, WITHIN 30 DAYS EITHER FILE ACCEPTANCE OF THE VARIATIONS OR OBJECTIONS TO THE S AME BEFORE DRP. SUB- SECTION (3) STATES THAT THE ASSESSING OFFICER SHALL COMPLETE THE ASSESSMENT ON THE BASIS OF THE DRAFT ORDER, IF THE ASSESSEE INTIM ATES ACCEPTANCE OF THE VARIATIONS TO HIM OR IF NO OBJECTIONS ARE RECEIVED WITHIN 30 DAYS. SUB-SECTION (4) STATES THAT, IN ANY EVENT, THE ASSESSING OFFICE R SHALL COMPLETE THE ASSESSMENT BY WAY OF FINAL ORDER OF ASSESSMENT TO B E PASSED WITHIN ONE MONTH FROM THE END OF THE MONTH IN WHICH EITHER ACCEPTANC E FROM THE ASSESSEE IS RECEIVED, OR THE PERIOD OF FILING OF OBJECTIONS EXP IRES. SUB-SECTION (5) ONWARDS DEAL WITH THE HEARING OF THE OBJECTIONS BEFORE THE DRP AND SUB-SECTION (10), STATES THAT EVERY DIRECTION ISSUED BY THE DRP SHALL BE BINDING ON THE ASSESSING OFFICER. SUB-SECTION (13) THEREAFTER STAT ES THAT UPON RECEIPT OF THE DIRECTIONS OF THE DRP, THE ASSESSING AUTHORITY SHAL L PASS AN ORDER OF ASSESSMENT IN CONFORMITY WITH THE DIRECTIONS ISSUED . THUS BY VIRTUE OF INSERTION OF SECTION 144C, THE LEGISLATURE HAS PUT IN PLACE A DISTINCT, NEW SCHEME OF ASSESSMENT IN REGARD TO A SPECIFIED CLASS OF ASSESSEES. 24. THE QUESTION AS TO WHETHER THE AMENDMENT OR CHANGE BROU GHT ABOUT BY SECTION 144C IS MERELY PROCEDURAL OR SUBSTANTIVE WOULD STAN D ANSWERED BY THE NARRATION OF THE SCHEME OF ASSESSMENT, AS I HAVE NO TICED ABOVE. NO DOUBT, SECTION 144C PRESCRIBES A NEW PROCEDURE FOR ASSESSM ENT. BUT CAN IT BE CALLED A MERE SHIFT IN PROCEDURE? I BELIEVE NOT AS THAT WO ULD BE AN OVERSIMPLIFICATION OF THE MATTER. THE PROCEDURE INSERTED IS SUBSTANTIV E, IN THAT IT OFFERS A NEW SCHEME OF ASSESSMENT TO A DISTINCT CLASS OF ASSESSE ES, THAT IS, THOSE ASSESSEE WHOSE ASSESSMENTS INVOLVE THE ISSUES OF TRANSFER PR ICING AND DETERMINATION OF ARMS LENGTH PRICE. THE PROVISIONS OF SECTION 144C D O NOT, THUS MERELY PRESCRIBE PROCEDURE BUT A SUBSTANTIVE EXERCISE IN A SSESSMENT. PRINTED FROM ITATORDERS.IN 8 ITA NO.1949/MUM/2015 (A.Y.2009-10) 25. THE SUPREME IT (SS) A NO S . 17, 18 & 19/AHD/2018 M/S. RUBAMIN LTD. VS. DY.CIT ASST.YEARS- 2009-09, 2009-10 & 2010-11 - 6 - COURT IN THE CASE OF R. SHARADAMMA (SUPRA) AFTER CO NSIDERING AN EARLIER JUDGMENT OF THE SUPREME COURT IN THE CASE OF COMMIS SIONER OF INCOME TAX V. DHADI SAHU (199 ITR 610), STATES AS FOLLOWS: '5. TH E ASSESSEE FILED APPEALS BEFORE THE TRIBUNAL CONTENDING THAT BY VIRTUE OF TH E AMENDMENT EFFECT BY TAXATION LAWS (AMENDMENT) ACT, 1970, THE INSPECTING ASSISTANT COMMISSIONER LOST JURISDICTION TO PROCEED WITH THE SAID PENALTY PROCEEDINGS WITH EFFECT FROM APRIL 1, 1971 INASMUCH AS IN THE S AID CASES, THE AMOUNT OF INCOME IN RESPECT OF WHICH THE PARTICULARS HAVE BEE N CONCEALED, WAS LESS THAN RUPEES TWENTY FIVE THOUSAND, WITHIN THE MEANING OF SUB-SECTION (2) OF SECTION 274 AS AMENDED IN 1970 WITH EFFECT FROM APRIL 1, 19 71. THE CONTENTION WAS THAT PENALTY PROCEEDINGS CANNOT CONTINUE BEFORE THE INSPECTING ASSISTANT COMMISSIONER BECAUSE THE ESSENTIAL REQUIREMENT OF A MENDED SUB-SECTION (2) WAS NOT SATISFIED. THE TRIBUNAL ACCEPTED THE SAID P LEA AND ALLOWED THE APPEAL. AT THE INSTANCE OF THE REVENUE, THE TRIBUNAL STATED THE FOLLOWING QUESTION FOR THE OPINION OF THE ORISSA HIGH COURT UNDER SECTION 256(1) OF THE ACT : WHETHER, ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND ON A TRUE INTERPRETATION OF SECTION 274, AS AMENDED BY THE TA XATION LAWS (AMENDMENT) ACT, 1970 THE INSPECTING ASSISTANT COMMISSIONER TO WHOM THE CASE WAS REFERRED PRIOR TO APRIL 1, 1971, HAD JURISDICTION T O IMPOSE PENALTY. 6. THE HIGH COURT ANSWERED THE QUESTION IN FAVOUR OF THE A SSESSEE WHEREUPON THE MATTER WAS BROUGHT TO THIS COURT. THIS COURT AT THE OUTSET STATED THE GENERAL PRINCIPLE APPLICABLE IN THIS BEHALF IN THE FOLLOWIN G WORDS: IT MAY BE STATED AT THE OUTSET THE GENERAL PRINCIPLE IS THAT A LAW WHIC H BRINGS ABOUT A CHANGE IN THE FORUM DOES NOT AFFECT PENDING ACTIONS UNLESS AN INTENTION TO THE CONTRARY IS CLEARLY SHOWN. ONE OF THE MODES BY WHICH SUCH AN INTENTION IS SHOWN IS BY MAKING A PROVISION FOR CHANGE OVER OF PROCEEDINGS F ROM THE COURT OR THE TRIBUNAL WHERE THEY ARE PENDING TO THE COURT OR THE TRIBUNAL WHICH, UNDER THE NEW LAW, GETS JURISDICTION TO TRY THEM. 7. THE COUR T THEN OBSERVED THAT ONCE A REFERENCE WAS VALIDLY MADE TO THE INSPECTING ASSIST ANT COMMISSIONER HE DID NOT LOSE THE JURISDICTION TO DEAL WITH THE MATTER O N ACCOUNT OF THE AFORESAID AMENDMENT ACT. IT POINTED OUT THAT THE AMENDING ACT DOES NOT DOES NOT CONTAIN ANY PROVISION THAT THE REFERENCES VALIDLY P ENDING BEFORE THE INSPECTING ASSISTANT COMMISSIONER SHOULD BE RETURNE D WITHOUT PASSING ANY FINAL ORDER IF THE AMOUNT OF INCOME IN RESPECT OF W HICH THE PARTICULARS HAVE BEEN CONCEALED DID NOT EXCEED RUPEES TWENTY FIVE TH OUSAND. THE SAID CIRCUMSTANCE, IT HELD, SUPPORTED THE INFERENCE DRAW N BY THE COURT THAT THE INSPECTING ASSISTANT COMMISSIONER CONTINUED TO HAVE JURISDICTION TO IMPOSE PENALTY. THE COURT OBSERVED : IT IS ALSO TRUE THAT NO LITIGANT HAS ANY VESTED RIGHT IN THE MATTER OF PROCEDURAL LAW BUT, WHERE TH E QUESTION IS OF CHANGE OF FORUM, IT CEASES TO BE A QUESTION OF PROCEDURE ONLY . THE FORUM OF APPEAL OR PROCEEDINGS IS A VESTED RIGHT AS OPPOSED TO PURE PR OCEDURE TO BE FOLLOWED BEFORE A PARTICULAR FORUM. THE RIGHT BECOMES VESTED WHEN THE PROCEEDINGS ARE INITIATED IN THE TRIBUNAL OR THE COURT OF FIRST INS TANCE AND, UNLESS THE LEGISLATURE HAS, BY EXPRESS WORDS OR BY NECESSARY I MPLICATION, CLEARLY SO INDICATED, THAT VESTED RIGHT WILL PRINTED FROM ITAT ORDERS.IN 9 ITA NO.1949/MUM/2015 (A.Y.2009-10) CONTINUE INSPITE OF THE CHANGE OF IT (SS) A NO S . 17, 18 & 19/AHD/2018 M/S. RUBAMIN LTD. VS. DY.CIT ASST.YEARS- 2009-09, 2009-10 & 2010-11 - 7 - JURISDICTION OF THE DIFFERENT TRIBUNALS OR FORUMS.' 26. THUS, WHERE THERE IS A CHANGE IN THE FORM OF ASSESSMENT ITSELF, SUCH CHANG E IS NOT A MERE DEVIATION IN PROCEDURE BUT A SUBSTANTIVE SHIFT IN THE MANNER OF FRAMING AN ASSESSMENT. A SUBSTANTIVE RIGHT HAS ENURED TO THE PARTIES BY VIRT UE OF THE INTRODUCTION OF SECTION 144C, THAT, BEARING IN MIND THE SETTLED POS ITION THAT THE LAW APPLICABLE ON THE FIRST DAY OF ASSESSMENT YEAR BE R ECKONED AS THE APPLICABLE LAW FOR ASSESSMENT FOR THAT YEAR, LEADS ONE TO THE INESCAPABLE CONCLUSION THAT THE PROVISIONS OF SECTION 144C CAN BE HELD TO BE AP PLICABLE ONLY PROSPECTIVELY, FROM AY 2011-12 ONLY. 5.2. LIKEWISE, THE MUMBAI TRIBUNAL IN THE CASE O F TRUETZSSHLER INDIA LTD. IN ITA NO. 1949/MUM/2005 HAS TAKEN THE SIMILAR VIEW AF TER MAKING THE RELIANCE ON THE JUDGMENT OF HONBLE MADRAS HIGH COURT (SUPRA). THE RELEVANT ORDER IS REPRODUCED BELOW: 6. THE PROVISIONS OF SECTION 144C OF THE ACT VIDE WHICH THE ASSESSEE WAS GIVEN AN OPTION TO TAKE THE BENEFIT OF SPECIALISED DISPUTE RESOLUTION PANEL AS AN ALTERNATE MECHANISM FOR EXPEDITIOUS DISPOSAL OF DISPUTE WAS INSERTED BY THE FINANCE (NO.2) ACT, 2009 W.R.E.F. 01/4/2009. TH E HON'BLE MADRAS HIGH COURT IN THE CASE OF M/S. VEDANTA LTD. VS. ACIT (SU PRA) HAS CONSIDERED THE ISSUE OF APPLICABILITY OF NEWLY INSERTED PROVISIONS OF SECTION 144C AND HAS HELD THAT THE AMENDMENT BEING SUBSTANTIVE IN NATURE WOULD APPLY PROSPECTIVELY FROM ASSESSMENT YEAR 2011-12 ONWARDS. 5.3. IN VIEW OF THE ABOVE, THE ASSESSMENT FOR TH E YEAR UNDER CONSIDERATION BEING AY 2008-09 CANNOT BE SUBJECT TO THE PROVISION S OF SECTION 144C OF THE ACT. ACCORDINGLY, THE TIME LIMIT FOR PASSING THE OR DER AS PROVIDED UNDER SECTION 153B OF THE ACT SHALL BE APPLIED WHICH READ S AS UNDER: TIME LIMIT FOR COMPLETION OF ASSESSMENT UNDER SECTI ON 153A . 76 153B. (1) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 153 , THE ASSESSING OFFICER SHALL MAKE AN ORDER OF ASSESSMENT OR REASSE SSMENT, (A) IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN S IX ASSESSMENT YEARS 76A [ AND FOR THE RELEVANT ASSESSMENT YEAR OR YEARS ] REFERRED TO IN CLAUSE (B) OF SUB- SECTION (1) OF SECTION 153A , WITHIN A PERIOD OF TWENTY- ONE MONTHS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE LAST OF THE AUTHORISATIONS FOR S EARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED; XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX PROVIDED ALSO THAT IN CASE WHERE THE LAST OF THE AUTHORISATIONS FOR SEARCH UNDER SECTION 132 OR FOR REQUISITION UNDER SECTION 132A WAS EXECUTED AND DURING THE COURSE OF THE PROCEEDINGS FOR THE ASSESS MENT OR REASSESSMENT OF TOTAL INCOME, A REFERENCE UNDER SUB-SECTION (1) OF SECTION 92CA IS MADE, THE IT (SS) A NO S . 17, 18 & 19/AHD/2018 M/S. RUBAMIN LTD. VS. DY.CIT ASST.YEARS- 2009-09, 2009-10 & 2010-11 - 8 - PERIOD AVAILABLE FOR MAKING AN ORDER OF ASSESSMENT OR REASSESSMENT SHALL BE EXTENDED BY TWELVE MONTHS: 5.4. IN THE LIGHT OF ABOVE DISCUSSION, WE NOTE THAT ADMITTEDLY IN THE PRESENT CASE, THE AO HAS FRAMED THE ASSESSMENT FINA L ORDER ON 29.11.2017 WHICH IS TIME BARRED IN THE LIGHT OF THE PROVISIONS OF SECTION 153B OF THE ACT AS DISCUSSED ABOVE. AS SUCH THE ASSESSMENT ORDER SH OULD HAVE BEEN PASSED ON OR BEFORE 31-12-2016 AND WITHOUT REFERRING TO TH E PROVISIONS OF SECTION 144C OF THE ACT. THUS THE IMPUGNED ASSESSMENT ORDER IS UNSUSTAINABLE AND VOID-AB-INITIO. 5.5. AS WE HAVE HELD THE ORDER OF THE ASSESSMENT AS INVALID AND UN- SUSTAINABLE IN LAW, WE DO NOT FIND ANY REASON TO AD JUDICATE THE ISSUE RAISED BY THE ASSESSEE ON MERIT. MOREOVER, THE LD. AR AT T HE TIME OF HEARING HAS ALSO NOT ADVANCED ANY ARGUMENT ON MERIT, ACCORDINGL Y WE DISMISS SUCH ISSUES RAISED ON MERITS. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTL Y ALLOWED. 7. NOW, COMING TO IT(SS)A NOS. 18 AND 19/AHD/2018 FOR AYS 2009-10 & 2010-11 RESPECTIVELY. 7.1. BOTH THE SIDES CONSENTED THAT IDENTICAL ISSU E IS INVOLVED IN THESE TWO APPEALS TOO. THUS, FOR PARITY OF REASONS NOTED ABOV E, OUR VIEW IN IT(SS)A NO.17/AHD/2018 FOR AY 2008-09 ABOVE SHALL APPLY MUTATIS MUTANDIS TO BOTH THE APPEALS CAPTIONED ABOVE. AS A RESULT, BOTH THE APPEALS OF THE ASSESSEE IN IT(SS)A NOS.18 & 19/AHD/2018 FOR AYS 2009-10 & 2 010-11 ARE PARTLY ALLOWED . IT (SS) A NO S . 17, 18 & 19/AHD/2018 M/S. RUBAMIN LTD. VS. DY.CIT ASST.YEARS- 2009-09, 2009-10 & 2010-11 - 9 - 8. IN THE COMBINED RESULT, ASSESSEES APPEALS ARE P ARTLY ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 11/06/2021 SD/- SD/- (MAHAVIR PRASAD) (WASEEM AHMED ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD; DATED 11/06/2021 # . . , . $ . . / T.C. NAIR, SR. PS ! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. %&' ( / CONCERNED CIT 4. ( ( ) / THE CIT(A)/DRP-2, MUMBAI 5. )*+ $$&' , &' , % / DR, ITAT, AHMEDABAD 6. +./ / GUARD FILE. / BY ORDER, ) $ //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD 1. DATE OF DICTATION 11.6.2021 ( WORD PROCESSED BY HONBLE AM IN HIS COMPUTER BY DRA GON ) 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 11.6.2021 3. OTHER MEMBER 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S.14.6.2021 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 14.6.2021 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER