Tribunal observed that the Transfer Pricing Officer can pass an order u/s. 92CA of the Act at any time before sixty days prior to the date on which the period of limitation u/s. 153 expires. Sixty days are to be counted prior to the last date of the period of limitation u/s. 153.In a case where a reference is made to the Transfer Pricing Officer u/s. 92CA(1),the time limit for completion of the assessment is three years. In the case at hand, in terms of section 153,the time limit for completing the assessment for the A Y. 2012-13 was March 31, 2016. The time limit for passing the order u/s. 92CA of the Act was on or before January 30, 2016, because, if one day prior to the date of limitation u/s. 153 was considered, then sixty days were to be counted from March 30, 2016. The time limit for passing the order u/s. 92CA expired on the midnight of January 30, 2016. The order was passed on January 31, 2016 and was clearly barred by limitation by one day and was to be quashed. It was to be reckoned as if there was no order of the Transfer Pricing Officer and consequently, the entire transfer pricing adjustment proposed by the Transfer Pricing Officer on the international transaction became non est and liable to be quashed.

Tribunal also observed that the assessee was an Indian company and, thus, resident in India u/s. 6 of the Act. Thus, the second condition u/s. 144C(15)(b)(ii) of the Act for qualifying as an eligible assessee, that the assessee be a non-resident not being a company or a foreign company, was not met. The first condition u/s. 144C(15)(b)(i) of the Act applies where there is a transfer pricing variation arising from an order of the Transfer Pricing Officer u/s. 92CA(3) of the Act. In the case at hand, there was no transfer pricing variation arising as a consequence of an order of the Transfer Pricing Officer as the order was time-barred, non est and void ab initio. There, thus remained no transfer pricing variation arising as a consequence of such an order. The consequence was thus that the assessee could not be said to be an eligible assessee u/s. 144C(15)(b)(ii) of the Act. Accordingly, the very foundation to pass the draft assessment order did not survive.

Consequently, Tribunal held that the draft assessment order passed became legally invalid. All consequential proceedings on the basis of that order failed. Any lapse in treating an assessee as an eligible assessee where it is otherwise not one and vice versa is a jurisdictional defect. The final assessment order passed on January 31, 2017 was beyond the prescribed period of limitation u/s. 153 of the Act which expired on March 31, 2016 and was to be quashed. (AY.2012-13)