Eaton Power Quality Private Limited, Pondicherry V. DCIT, Pondicherry

MA 134/CHNY/2023

• Counselvise Citation: [2023] 101 COUNSELVISE.COM (IT) 9822 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 28-11-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: D
• Next Hearing Date: 09-11-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 04-09-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: SHRIVISHAL KALRA
• Keywords: Set aside
• Section: 143(3); 254(2)

Judgement Text

आयकर अपीलीय अिधकरण, ’डी’ यायपीठ, चे ई। IN THE INCOME TAX APPELLATE TRIBUNAL ‘D’ BENCH: CHENNAI ी महावीर िसंह, माननीय उपा एवं ी मंजूनाथा.जी, माननीय लेखा सद के सम BEFORE SHRI MAHAVIR SINGH, HON’BLE VICE PRESIDENT AND SHRI MANJUNATHA.G, HON’BLE ACCOUNTANT MEMBER Miscellaneous Application No.134/Chny/2023 (in ITA No.1010/Chny/2017) िनधा रण वष /Assessment Year: 2012-13 M/s.Eation Power Quality Ltd., No.2, EVR Street Sedarapet, Puducherry-605 111. Puducherry (UT). [PAN: AAACC 6943 R] v. The Dy. Commissioner- of Income Tax, Puducherry Circle, Puducherry. (अपीलाथ /Appellant) ( यथ /Respondent) अपीलाथ क ओर से/ Appellant by : ShriVishal Kalra, Advocate यथ क ओर से /Respondent by : Shri AR.V.Sreenivasan, Addl.CIT सुनवाई क तारीख/Date of Hearing : 10.11.2023 घोषणा क तारीख /Date of Pronouncement : 29.11.2023 आदेश / O R D E R PER MANJUNATHA. G, AM: The assessee has filed present Miscellaneous Application u/s.254(2) of the Income Tax Act, 1961, against the order of the Tribunal in ITA No.1010/Chny/2017 dated 03.05.2023, and relevant assessment year 2012-13. 2. The assessee has narrated the facts of its case and mistakes stated to be apparent on record from the order of the Tribunal dated 03.05.2023 MA No.134/Chny/2023 (in ITA No.1010/Chny/2017) :: 2 :: and relevant contents of Miscellaneous Application filed by the assessee for the AY 2012-13 in ITA No.1010/Chny/2017, are reproduced as under: 1. The captioned appeal, filed by the Applicant, stood disposed by an order dated May 03, 2023. A copy of the order passed by the Hon'ble Bench of the Tribunal is annexed herewith and marked as Annexure-1. 2. The Applicant respectfully submits that while disposing the aforesaid appeal, apparent mistakes have crept in. The Applicant, thus, prays by the instant application that the mistakes as detailed below, may kindly be rectified and the order made under section 254(1) of the Act, may kindly be suitably amended and / or rectified. 3. It is submitted that the Applicant, for the subject assessment year, had filed an application for admission of additional ground of appeal challenging the final assessment order passed by the Respondent under section 143(3) r.w.s. 144C(13) and 144B of the Act, in light of limitation prescribed under section 153(1) r.w.s. 153(4) of the Act. The said ground was duly admitted by the Hon'ble Tribunal. 4. The Hon'ble Bench of the Tribunal adjudicated the said additional ground of appeal by holding as under: • Considering the relevant provisions of section 153(1)(a) and proviso thereto and in light of the decision of Hon'ble Madras High Court in the case of CIT vs Roca Bathroom Products (P) Ltd: [2022] 445 ITR 537 (Mad), we find that the Hon'ble Madras High Court has dealt the issue of limitation prescribed under section 153(1) of the Act and held that the limitation prescribed under the statute is for the Assessing Officer and therefore, it is the duty of the AO to pass order in time irrespective of whether the DRP directions are received or not. • The Hon'ble Tribunal observed that if you go by the dates and events in the present case, prima facie, it appears that the order passed by the Assessing Officer under section 143(3) r.w.s. 144C(13) is beyond time limit prescribed under section 153(1)(a) and proviso provided thereto. • The Hon'ble Tribunal further observed that in the instant case the subject matter of assessment year is 2012-13 and as per section 153(1) of the Act, the final assessment order should have been passed on or before expiry of 36 months from the end of the relevant assessment year which is 31.03.2016. However, the AO has passed final assessment order on 17.02.2017, therefore, it appears that the final assessment order passed by the AO is beyond the time limit prescribed under the statute. • The Hon'ble Tribunal also observed that the Applicant has raised the legal ground for the first time before the Tribunal and the DRP did not had an occasion to examine the case of the assessee in light of decision of Hon'ble Madras High Court in the case of Roca Bathroom Products (P) Ltd (supra). The issue, therefore, needs to be set aside to the file of the AO to decide the preliminary objections of the assessee on the issue of limitation in light of decision of Hon'ble High Court of Madras in the case of Roca Bathroom Products (P) Ltd (supra). The AO was directed to obtain necessary directions from the DRP on the issue, if necessary and adjudicate the ' additional grounds taken by the Applicant. (refer para 15 pages 16 to 18, of the order passed by the Hon'ble Bench of the Tribunal) 5. In this regard, it is to be appreciated that the Applicant could have raised the above legal ground for the first time only before the Tribunal. This is because the said ground challenges the limitation of the final assessment order and could not have been raised before the lower authorities. MA No.134/Chny/2023 (in ITA No.1010/Chny/2017) :: 3 :: 6. In this regard, the AR of the Applicant also relied on the decision in the case of Super Brands Ltd. vs ADIT: [2023] 147 taxmann.com 323 (Delhi) wherein also the additional ground challenging the final assessment order being barred by limitation was raised for the first time before the Tribunal and the Hon'ble coordinate Bench of the Tribunal quashed the final assessment order relying on the Hon'ble Madras High Court in the case of Roca Bathrooms Products Pvt. Ltd (supra). In view of the same, the Hon'ble Tribunal may have called for a report as against the remanding the issue back to the Assessing Officer, who may not be competent to adjudicate the legality of its own order, it would be looking for a remedy from Cesar to Cesar, which is not as per principles of judicial propriety. 7. Be that as it may; it is also respectfully submitted that the Applicant has raised grounds on merits in the appeal memo (ie, Gr. Nos. 1 to 8). It is submitted that the Hon'ble Tribunal should have also granted liberty to come back before the Hon'ble Tribunal on merits, in case, the Assessing Officer decides the legal issue against the Applicant. Otherwise, the Applicant will be left remedies on merits. It may thus be appreciated that the Hon'ble Tribunal Should have either called for a report on the legal issue and decided itself or granted liberty in respect of grounds on merits, if so required. 8. The Applicant, therefore, in terms of the instant application under section 254(2) of the Act seeks rectification / amendment / modification of the order dated May 3, 2023, in light of the afore-stated factual/ legal position. The Applicant trusts that its prayer will merit sympathetic consideration. 3. We have heard both the parties in light of Miscellaneous Application filed by the assessee u/s.254(2) of the Act, and as per the pleading of the assessee in Para No.7 of their petition, the order of the Tribunal dated 03.05.2023 in ITA No.1010/Chny/2017 for AY 2012-13 is modified as under: 15. We have heard both the parties, perused materials available on record and gone through orders of the authorities below. We have also carefully considered relevant provisions of section 153(1)(a) and proviso provided thereto in light of decision of Hon’ble Madras High Court in the case of CIT vs Roca Bathroom Products (P) Ltd (Supra) and we find that the Hon’ble Madras High Court has dealt the issue of limitation prescribed u/s. 153(1) of the Act and held that the limitation prescribed under the statute is for the Assessing Officer and therefore, it is the duty of the AO to pass order in time irrespective of whether the directions are received from DRP or not. We, further noted that if you go by the dates and events in the present case, prima facie, it appears that the order passed by the Assessing Officer u/s. 143(3) r.w.s. 144C(13) is beyond time limit prescribed u/s. 153(1)(a) and proviso provided thereto. However, in the instance case the subject matter of assessment year is 2012-13 and as per section 153(1) of the Act, the final assessment order should have been passed on or before expiry of 36 months from the end of the relevant assessment year which is 13.03.2016. However, the AO has passed final assessment order on 17.02.2017, therefore, it appears that the final assessment order passed by the AO is beyond the time limit prescribed under the statute. But, fact remains that the assessee has taken its legal ground for the first time before the Tribunal and the DRP did not had an occasion to examine the case of the assessee in light of decision of Hon’ble Madras High Court in the case of CIT vs Roca Bathroom Products (P) Ltd (Supra) and also keeping in view the various limitation prescribed under the statute for the Assessing Officer and the DRP. Therefore, we are of the considered view that the issue needs to be set aside to the file of the AO to decide the preliminary objections of the assessee on the issue of limitations in light of decision of MA No.134/Chny/2023 (in ITA No.1010/Chny/2017) :: 4 :: Hon’ble High Court of Madras in the case of CIT vs Roca Bathroom Products (P) Ltd (Supra). The AO is directed to obtain necessary directions from the DRP on the issue, if necessary and adjudicate the additional grounds taken by the assessee. 4. In so far as various grounds taken by the assessee challenging additions made by the AO, we find that since preliminary issue raised by the assessee on limitation, has been set aside to the file of the AO, other grounds taken by the assessee on merits does not require any adjudication at this stage and we kept open all the issues on merits for adjudication at appropriate time. We make it clear that, the assessee has been granted liberty to come back before the Tribunal on merits, in case, the AO has not considered the issue of limitation raised by the assessee. Accordingly, order of the Tribunal dated 03.05.2023 is modified with the above observations. 5. In the result, the Miscellaneous Application filed by the assessee is partly allowed in terms of our observations hereinabove. Order pronounced on the 29 th day of November, 2023, in Chennai. Sd/- (महावीर िसंह) (MAHAVIR SINGH) उपा / VICE PRESIDENT Sd/- (मंजूनाथा.जी) ( MANJUNATHA.G) लेखा सद य/ACCOUNTANT MEMBER चे ई/Chennai, दनांक/Dated: 29 th November, 2023. TLN आदेश क ितिलिप अ ेिषत/Copy to: 1. अपीलाथ /Appellant 3. आयकर आयु /CIT 5. गाड फाईल/GF 2. यथ /Respondent 4. िवभागीय ितिनिध/DR