ITAT CHENNAI BENCH ‘A’
Intimate Fashions (India) (P.) Ltd.
Assistant Commissioner of Income-tax, Company Circle II(3), Chennai
IT APPEAL NO. 1513 (MDS.) OF 2012
[ASSESSMENT YEAR 2008-09]
JANUARY 29, 2013
N.S. Saini, Accountant Member – This is an appeal filed by the assessee against the order of the Dispute Resolution Panel (DRP), Chennai, dated 4.6.2012.
2. The appeal was heard on the following grounds of appeal raised by the assessee on the limitation aspect of the order passed by the Assessing Officer:
“11. The Appellant submits that the order passed by AO, being beyond the time limit prescribed u/s 144C of the Act, is not valid in law.
12. The Appellant, therefore, submits that the Assessment order may be annulled and that, the additions made may be deleted.”
3. The A.R of the assessee has filed written arguments which reads as under:
“1. Contention of the Appellant
The appellant submits that the assessment order dated 15 June 2012 passed by the learned Assessing Officer (‘AO’) is time barred as the same is passed beyond the time limit prescribed in section 144C(4) of the Act.
2. Our submissions
2.1 Relevant provisions of section 144C of the Act reproduced below for ready reference.
2.1.1 Section 144C(2) of the Act
On receipt of the draft order, the eligible assessee shall, within thirty days of the receipt by him of the draft order –
(a) File his acceptance of the variations to the Assessing Officer; orOnline GST Certification Course by TaxGuru & MSME- Click here to Join
(b) File his objections, if any, to such variation with –
(i) The Dispute Resolution Panel; and
(ii) The Assessing Officer
2.1.2 Section 144C(4) of the Act
The Assessing Officer shall, notwithstanding anything contained in section 153[or 153B] pass the assessment order under sub-section (3) within one month from the end of the month in which –
(a) The acceptance is received; or
(b) The period of filing of objections under sub-section (2) expires
2.2 As per the provisions of the section 144C(4) of the Act, in case the AO does not receive the objections from the assessee within the time limit prescribed under section 144C(2) for filing of objections by the assessee, the Assessing Officer is mandatorily required to pass the assessment order under section 144C(3) within one month from the end of the month in which the period of filing of objections under sub-section (2) expires.
2.3 To illustrate, suppose the draft order is received by the eligible assessee on 4.1.2010. In this case, if the assessee neither files acceptance nor objections within the time limit specified under section 144C(2) of the Act, the AO will have to pass assessment order on or before 31.3.2010 being one month from the end of month in which the period of filing objections by the assessee (3.2.2010) expires.
2.4 For ease of reference, we have captured the facts of case before your honours alongwith timelines as prescribed under section 144C(2) of the Act and 144C(4) of the Act in the table below:
Time limit as prescribed in section 14C of the Act
|Draft order passed by the AO||Not Applicable||Not Applicable|
|Draft order received by the appellant||2 January 2012||Not Applicable||Not Applicable|
|Filing of objections by the Appellant with the DRP||13 February 2012||Within 30 days of the receipt of draft order (i.e. 1 February 2012)||Accordingly, there is a delay of 13 days in filing objection by the Appellant. In other words, the A.O had neither received acceptance of the draft order from the Appellant nor objection against the draft order within 30 days of the receipt of draft order (i.e. 1 February 2012) as prescribed under section 144C(2) of the Act.|
|Passing of assessment order referred to in section 144C(4)||15 June 2012||Within one month from the end of the month in which the period of filing of objections under section 144C(2) expires (i.e. 31 March 2012)||As mentioned in Statutory Reserve. No.3 above, the time limit for filing of objection under section 144C(2) expires on 1 February 2012. Since, the A.O had not received objection from the Appellant against the draft order within 30 days of the receipt of draft order (i.e. 1 February 2012), he should have passed the assessment order by 31 March 2012 (within one month from 28 February 2012) as required under section 144C(4) of the Act|
4. Our Prayer
In view of the facts as highlighted above, the appellant prays before your honours that the assessment order dated 15 June 2012 passed by the learned A.O be held as barred by limitation prescribed under section 14C(3) and 144C(4) of the Act and hence should be quashed.”
4. The CIT/DR, on the other hand, argued that the draft order was received by the assessee on 2.1.2012 and the assessee could have filed the objections thereagainst before the DRP within 30 days of the receipt of the said order i.e. 1.2.2012. The assessee filed the objections before the DRP on 13.2.2012. The DRP passed order on 4.6.2012 dismissing the objections of the assessee on the ground that the assessee had filed its objections against the draft order with delay of 13 days and that there was no liberty with the DRP to condone such delay. After receipt of this order by the Assessing Officer, the Assessing Officer passed the assessment order on 15.6.2012 and hence, the order passed by the Assessing Officer was within the prescribed time u/s 144C(13) which provides that upon receipt of 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 153B of the Act within one month from the end of the month in which such direction is received. Hence, it was the submission of the CIT/DR that the grounds of appeal raised by the assessee are not tenable in law and liable to be dismissed. He also submitted that after the expiry of the time limit prescribed u/s 144C for filing of objections before the DRP the assessee had the option to file appeal against the assessment order before the CIT(A). Thus, there will be no grievance to the assessee and therefore, the assessment order passed by the Assessing Officer cannot be annulled on this ground.
5. In reply to the submissions of the CIT/DR, the A.R submitted that when the statute mandates a particular thing to be done in a particular manner, then it is incumbent upon the Assessing Officer to carry out the mandate of the legislation in its true letter and spirit. Section 144C(3)(b) provides that the Assessing Officer shall complete the assessment on the basis of the draft order if no objections are received within the period specified in sub-section (2) which is 30 days from the date of receipt of draft order by the assessee. Therefore, the assessment order passed by the Assessing Officer on 15.6.2012 is barred by limitation and hence, should be cancelled. He submitted that there was a grievance to the assessee by this order of the Assessing Officer because if he would have passed the assessment order within the time prescribed u/s 144C(3) of the Act then the assessee could have filed appeal before the CIT(A) against the said order. He also submitted that he is alive to the fact that on dismissal of the objections by the DRP which were filed before the DRP by a delay of 13 days the assessee can still file its appeal belatedly before the CIT(A) on the ground that it was pursuing with the appeal before a wrong forum and there are orders of the Tribunal and Courts that such delay was condoned and the appeal was admitted for hearing.
6. We have heard the rival submissions and perused the orders of the lower authorities and materials available on record. In the instant case, the undisputed facts are that the draft assessment order was served upon the assessee on 2.1.2012. The assessee neither filed acceptance of the draft order nor filed any objection thereagainst within 30 days of the receipt of the draft order before the DRP and with the Assessing Officer. However, the assessee filed an objection against the draft order before the DRP on 13.2.2012. The DRP, vide its order dated 4.6.2012, declined to issue any direction in pursuance to the objection of the assessee on the ground that section 144C(2) does not grant liberty to the Panel to condone the delay. After that, on 15.6.2012, the Assessing Officer passed the order which is under present appeal.
7. The contention of the assessee before us is that as no direction was given by the DRP and consequently provisions of section 144C(13) are not applicable in the instant case and therefore, as per the provisions of section 144C(3), the assessment order should have been passed on or before 31.3.2012 and in view of this, the impugned order dated 15.6.2012 is barred by limitation.
8. We find that the orders against which appeal can be preferred before the Tribunal are provided in section 253 of the Act. Section 253(1)(d) reads as under:
“an order passed by an Assessing Officer under sub-section (3), of section 143 or section 147[or section 153A or section 153C] in pursuance of the directions of the Dispute Resolution Panel or an order passed under section 154 in respect of such order.”
9. A bare perusal of the provision shows that the order passed u/s 143(3) by the Assessing Officer when such order is passed in pursuance of the directions of the DRP only shall be appealable before the Tribunal and in case of an order passed u/s 143(3) by the Assessing Officer which is not in pursuance to the directions of the DRP, appeal shall not lie against such order directly before the Tribunal.
10. In the instant case, the contention of the A.R of the assessee is that the impugned order passed u/s 143(3) by the Assessing Officer is not an order which is passed in pursuance of the directions of the DRP. However, if the above contention of the assessee is taken as correct then it implies that the assessee is not entitled to file directly appeal before the Tribunal in pursuance to such an order of the Assessing Officer passed u/s 143(3) of the Act. We find that the DRP has categorically stated that it has no jurisdiction to pass any direction in pursuance to the belated objections filed by the assessee against the draft order of the Assessing Officer and in fact, the Panel gave no direction in respect of objections of the assessee. It is also observed that the DRP has also not given any direction to pass the order as per the draft assessment order. In the above circumstances, in our considered view, the instant appeal is not covered by the provisions of section 253(1)(d) of the Act and the instant appeal is not maintainable. We, therefore, decline to admit the instant appeal and dismiss the same in limine.
11. In the result, the appeal of the assessee is dismissed in limine.