TDK Electronics ag (Formerly known as EPCOS AG) v. ACIT (2020) 188 DTR 328 / 204 TTJ 273 (Pune) (Trib)

S. 144C : Reference to dispute resolution panel – Time barred objections –DRP rejected the application as time barred – Assessing Officer is required to complete the assessment with one month from end of month in which period of filing of objections under sub-section (2) expires— Assessment order is barred by limitation [ S.92CA, 144C (2) , 144C(3) 144C (13) ]

Assessee filed the return   showing  certain international transactions. Pursuant to order passed by TPO, AO passed a draft order determining total income by making an addition on account of ‘Income from fees for technical services.  The assessee filed the objection belatedly before  DRP. DRP  dismissed assessee’s objection in limine as time barred. AO passed final assessment order same amount as was determined in draft order. On appeal  the Tribunal held that  if an assessee accepts variation as per draft order, then there is no need to sail through DRP or appellate route .  AO, in terms of section 144C(4)(a), will be required to complete assessment on basis of draft order within a period of one month from end of month in which acceptance is received. Clause (b) of section 144C(3) deals with a situation of completing assessment on basis of draft order in a case in which no objections are received within period specified in sub-section (2). In latter situation, clause (b) of section 144C(4) provides that AO will pass assessment order within one month from end of month in which period of filing objections under sub-section (2), expires. It means that if an assessee does not file objections against draft order before DRP within a period of thirty days as per sub-section (2), AO, without waiting for anything else, will have to complete assessment within one month from end of month in which period of filing of objections under sub-section (2) expires. DRP dismissed objections of assessee in limine by opining that assessee could not have filed objections outside time limit provided under sub-section (2) of section 144C. Net effect of order of DRP is that objections filed by assessee were time barred and hence no cognizance could have been taken of them. Once objections filed by assessee are time barred, natural corollary is that no valid objections were filed by assessee. One cannot contemplate a situation that objections are invalid for DRP so as not to issue any direction u/s 144C(5) and valid for AO so as to pass order u/s 144C(13). If objections are invalid as time barred having not been filed within time prescribed under sub-section (2) of section 144C, AO will have to act in terms of Section 144C(3)(b) and complete assessment within time prescribed u/s 144C(4)(b) namely, within one month from end of month in which period of filing of objections under sub-section (2) expires. Period of 30 days for filing objections within sub-section (2) of section 144C expired on 23.01.201. Going by mandate of subsection (3) of section 144C(3)/144C(4), AO was supposed to complete assessment on basis of draft order by February, 2019—As against this, AO actually completed assessment u/s. 144C(13) on 24.10.2019. Such a completion of assessment not only under wrong provision but also beyond limitation period is ultra vires and hence cannot stand—Assessment order is time barred and ex consequent null and void, with effect that returned income will automatically get accepted as finally assessed income. Assessee’s appeal allowed. (AY.  2015-16)