Before the Dispute Resolution Panel, the assessee  raised an objection with regard to limitation. However, the Dispute Resolution Panel dismissed the objections by an order dated September 24, 2010. Challenging both the orders of the Additional Commissioner and the Dispute Resolution Panel the assessee filed a writ petition under article 226 of the Constitution of India. The writ petition was dismissed holding that the Dispute Resolution Panel had rightly overruled the objections raised for the first time before it by the assessee regarding the limitation to proceed with the assessment, that therefore, the assessee could not challenge the jurisdiction of the Additional Commissioner’s reference to the Transfer Pricing Officer after December 31, 2008. On appeal   allowing the appeal, the Court held that the writ petitions were maintainable and alternative remedy would not operate as a bar. The question of limitation was a legal plea which went to the root of authority or jurisdiction. There was no dispute on the facts about the date on which the reference was made or when the order was passed. The interpretation of the provision to be adjudicated is a pure question of law.  The question of limitation is a legal plea, which goes to the root of the jurisdiction of the authorities, and can be raised at any stage of the proceedings. There cannot be any waiver of a statutory right. There is no acquiescence, waiver or estoppel in taxing laws. The law on this point is well settled. The levy and collection of tax must be within the four corners of law in compliance with the substantial and procedural mandates of connected legislations. Relied on  National Textile Corporation Ltd. v. Nareshkumar Badrikumar Jagad [2011] 12 SCC 695,Band Box (P.) Ltd. v. Estate Officer, Punjab and Sind Bank [2014] 16 SCC 321,K. Lubna v. Beevi [2020] 2 SCC 524, Superintendent of Taxes v. Onkarmal Nathmal Trust [1976] 1 SCC 766 and CIT v. Jolly Fantasy World Ltd. [2015] 373 ITR 530 (SC)

Court also held that   the extension had to be made before the expiry of the time limit prescribed for original assessment was applicable because the second proviso uses the words “and during the course of the proceeding for assessment”. The first two provisos to section 153(1) lay down that the time limit to pass the original assessment order is 21 months and when a reference to the Transfer Pricing Officer is made during the course of such proceedings, the time limit would be 33 months and that if no reference is made within the period provided for assessment, no reference can be made subsequently since the Assessing Officer becomes functus officio. The words used in section 153 are very clear as they lay down that “no order of assessment shall be made”. The order in the writ petition was to be set aside. That concurrence was obtained from the Commissioner before December 31, 2008 would not be of any assistance to the Department as indisputably the reference to the Transfer Pricing Officer was made only on February 17, 2009.  That according to the timeline, when the time given to the Dispute Resolution Panel itself was 9 months from the date of the draft assessment order to complete the assessment and then a further time of one month to the Assessing Officer to complete the assessment from the end of the month in which the direction was received, it could not be said that the total additional time was 9 months and the provisos to section 153(1) had no connection. If the time limits provided to the Transfer Pricing Officer to pass an order and for the assessee to submit its objections in terms of section 144C(2) were also considered with the time period for the Dispute Resolution Panel and the Assessing Officer, the extended period was 12 months and not 9 months. When one proviso provides a time limit and when another proviso extends such time under certain circumstances, it cannot be held that the provisos are independent. Therefore, when the extended time provided for the Department was 12 months it could not be contended that it was only 9 months since the reference was not made in time. Since the reference to the Transfer Pricing Officer had been made after the permissible period, the timeline had been missed by the Department at every stage. Therefore, as a sequitur, all further proceedings, in furtherance thereof were also bad.(WP No. 1903 of 2021 dt. 9-6-2022) (AY. 2006-07)