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Can ITAT hold the final assessment order dated 30.09.2016 as barred by limitation?


Court :
ITAT Bangalore

Brief :
This appeal at the instance of the assessee is directed against the final assessment order dated 30.09.2016 passed u/s 143(3) r.w.s. 144C(1) of the I.T.Act. The relevant assessment year is 2012-2013.

Citation :
IT(TP)A No.2131/Bang/2016: Asst.Year 2012-2013

Before Shri Chandra Poojari, AM & Shri George George K, JM
IT(TP)A No.2131/Bang/2016: Asst.Year 2012-2013

M/s.Lam Research (India) Pvt.Ltd.
Maruthi Infotech Centre, 2nd Floor
A Block, 11/1 and 12/1
Amarjyothi Layout,
Inner Ring Road
Bangalore – 560 071.


The Asst.Commissioner of
Income-tax, Circle 4(1)(1)

Appellant by : Sri.Ajit Tolani, CA & Sri.Darpan Kirpalani, Advocate
Respondent by : Ms.Neera Malhotra, CIT-DR
Date of Hearing : 02.09.2021
Date of
Pronouncement : 20.09.2021

The assessee has raised several grounds and subgrounds. All the grounds relate to adjustment of Arm’s Length Price (ALP). The assessee has also filed additional grounds vide its letter dated 16.02.2021. The assessee in its petition for admission of additional ground submits that the issues raised in the additional grounds is purely legal issue and would not require any investigation of fresh facts. In this context, the learned AR has relied on various case laws. The learned Departmental Representative was duly heard.

2. The assessee is a private limited company, wholly owned subsidiary of Novellus Systems International Inc., USA. It is engaged in providing computer development services and IT enabled services for its Associate Enterprises (AEs) on a cost plus mark up basis. During the course of assessment proceedings, the matter was referred by the Assessing Officer (AO) to the Transfer Pricing Officer (TPO) to determine the ALP of the international transactions undertaken by the assessee with its AEs. The TPO passed order dated 20.01.2016 u/s 92CA of the I.T.Act. The TPO made a transfer pricing adjustment of Rs.1,06,63,109. Pursuant to the TPO’s order, the A.O. passed a draft assessment order on 23.02.2016. The assessee filed objections dated 30.03.2016 before the DRP.

3. Aggrieved, the assessee preferred an appeal to the ITAT. The learned AR has filed paper book-I enclosing therein the objections filed before the DRP, copy of the written submissions filed before the TPO, etc. (all these pertain to the issue on merits with regard to the transfer pricing adjustment). As regards the additional grounds (legal issue), the assessee submitted that there was a delay in filing objections before the DRP by 3 days. However, it was contended that the DRP ought to have condoned the delay of 3 days in filing the objections before the Panel. Further, it was contended that the assessment order is not passed within 30 days from the date of draft assessment order. Therefore, it is barred by limitation.

4.  In the light of the aforesaid reasoning and the judgment of the Hon’ble Madras High Court (supra), the plea of the assessee that the assessment order is barred by limitation, is not entertained on account of the reason that ITAT does not have jurisdiction for the same. The Bangalore Bench of the Tribunal in the case of Yokogawa India Ltd. v. ACIT (supra) relied by the assessee will not have application, since the ITAT has not considered the judgment of Hon’ble Madras High Court, cited supra. As regards the DR’s reliance on the ITAT order in the case of Himalaya Drug Co. v. DCIT (supra), we are not taking note of the same, since we have no jurisdiction to consider the plea of limitation on facts of this case. It is ordered accordingly.

In the result, the appeal filed by the assessee is dismissed.
Order pronounced on this 20th day of September, 2021.

Please find attached the enclosed file for the full judgement


Poojitha Raam
on 02 October 2021
Published in Income Tax
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