The Assistant Commissioner Of Income Tax, Corporate Circle – 4(1), Room v. Https://Hcservices.ecourts.gov.in/Hcservices

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 31.03.2022 CORAM : THE HONOURABLE MR. JUSTICE R. MAHADEVANandTHE HONOURABLE MR. JUSTICE J.SATHYA NARAYANA PRASAD Writ Appeal Nos. 1120, 1115, 1139, 1148, 1149, 2035, 2036, 2039, 2043 and 2066 of 2021and CMP.Nos.7069, 7014, 7170, 7199, 7212, 12990, 12999, 13006, 13017 and 13070 of 2021 1. The Deputy Commissioner of Income Tax Transfer Pricing Officer Circle – 3(1) Tower – 1, BSNL Building, No.16, Greams Road, Chennai – 600 006. 2. The Deputy Commissioner of Income Tax Large Tax Payer Unit – 2 121, Nungambakkam, High Road, Chennai – 600 034. .. Appellants in W.A.No.1120 of 2021/Respondents 1. The Joint Commissioner of Income Tax Transfer Pricing Officer - 2 (I/c) Room No. 511, 5th Floor Tower 1, BSNL Building No.16, Greams Road, Chennai - 600 006. 2. The Deputy Commissioner of Income Tax Corporate Circle 1 (2) 6th Floor, Wanaparty Block Aayakar Bhawan Nungambakkam, Chennai - 600 034 .. Appellants in W.A.No.1115 of 2021/Respondents Corporate Circle 1 (2) 6th Floor, Wanaparty Block Aayakar Bhawan Nungambakkam, Chennai - 600 034 .. Appellants in W.A.No.1115 of 2021/Respondents 1. The Additional Commissioner of Income Tax, Transfer Pricing Officer Circle – 3 Tower – 1, BSNL Building, No.16, Greams Road, Chennai – 600 006. 2. The Assistant Commissioner of Income Tax, Corportate Circle 4(2), 121, Nungambakkam High Road, Chennai – 600 034... Appellants in W.A.No.1139 of 2021//Respondents 1. Joint Commissioner of Income Tax, Addl./JCIT, Transfer Princing Officer – 2, Room No.505, 5[th] Floor, Tower – 1, BSNL Building, 16, Greams Road, Chennai – 600 006. 2. Deputy Commissioner of Income Tax, Corporate Circle – 5(2), 4[th] Floor, Wanaparthy Block, 121, Mahatma Gandhi Road, Nungambakkam, Chennai – 600 034. .. Appellants in W.A.No.1148 of 2021/Respondents 1. Deputy Commissioner of Income Tax, Transfer Pricing Officer – 2(2) Room No.505, 5[th] floor, Tower -1, Income Tax Office, BSNL Building, No.16, Greams Road, Chennai – 600 006.2. Deputy Commissioner of Income Tax, Corporate Circle – 5(2) 4[th] Floor, Wanaparthy Block, 121, Mahatma Gandhi Road, Chennai – 600 034. .. Appellants in W.A.No.1149 of 2021//Respondents1. The Joint commissioner of Income Tax, Transfer Pricing Officer No.-2, Room No.511, 5[th] Floor, BSNL Building, Tower – 1, No.16, Greams Road, Chennai – 600 006. 2.The Deputy Commissioner of Income tax, Corporate Circle – 5(2), Room No.415, Main Building -4[th] floor, Chennai Main Building, No.121, Mahatma Gandhi Road, Nungambakkam, Chennai – 600 034, Tamilnadu. .. Appellants in W.A.No.2035 of 2021/Respondents 1. The Additional Commissioner of Income Tax, ADDL/JCIT, TPO3, Room No.502, 5[th] floor, Tower -1, Income Tax Office, BSNL tower, No.16, Greams Road, Chennai – 600 006. 2.The Deputy Commissioner of Income tax, Corporate Circle – 5(2), Room No.415, Main Building -4[th] floor, Chennai Main Building, No.121, Mahatma Gandhi Road, Nungambakkam, Chennai – 600 034, Tamilnadu. .. Appellants in W.A.No.2035 of 2021/Respondents 1. The Additional Commissioner of Income Tax, ADDL/JCIT, TPO3, Room No.502, 5[th] floor, Tower -1, Income Tax Office, BSNL tower, No.16, Greams Road, Chennai – 600 006. 2. The Assistant Commissioner of Income Tax, Corporate Circle – 4(1), Room No.430, Main Building, No.121, Mahatma Gandhi Road, Nungambakkam, Chennai – 600 034... Appellants in W.A.No.2036 of 2021/Respondents1. The Additional Commissioner of Income Tax, Transfer Pricing Officer – 1, Tower – 1, BSNL Building, No.16, Greams Road, Chennai – 600 006.2. The Deputy Commissioner of Income Tax, Corporate Circle – 1 (1), No.121, Mahatma Gandhi Road, Nungambakkam, Chennai – 600 034. .. Appellants in W.A.No.2039 of 2021/Respondents1. The Additional Commissioner of Income Tax, Additional / JCIT – Transfer Pricing Officer – 3, Income Tax Office – BSNL Tower, No.16, Greams road, Chennai – 600 006.2. The Deputy Commissioner of Income Tax, Corporate Circle – 2(1), 121, Mahatma Gandhi Road, Nungambakkam, Chennai – 600 034... Appellants in W.A.No.2043 of 2021/Respondents1. The Additional / Joint Commissioner of Income Tax, Transfer Pricing Officer – 1 (TPO-1), Room No.502, 5[th] floor, Tower – 1, Income Tax Office, BSNL Tower, No.16, Greams Road, Chennai – 600 006.2. The Assistant Commissioner of Income Tax, Corporate Circle – 2(1), Room No.511, Wanaparthy Block – V Floor, No.121, Mahatma Gandhi Road, Nungambakkam, Chennai – 600 034. .. Appellants in W.A.No.2066 of 2021/Respondents Versus Saint Gobain India Private Limited Level – 7 and Sugapi Achi Building Rukmini Lakshmipathi Road, Egmore, Chennai – 600 008. Represented by its company secretary Mr.L.Venkateswaran.. Respondent in W.A.No.1120 of 2021/PetitionerM/s. BNY Mellon Technology Private Limited(formerly known as iNautix TechnologiesIndia Private Limited)Represented by its Managing DirectorMr. Nitin ChandelNo.4, 10th Floor, Tidel ParkTaramani, Chennai - 600 113. .. Respondent in W.A.No.1115 of 2021Kubota Agricultural Machinery India Private Limited, Block No.94, Tower – 1, 8[th] floor, TVH Beliciaa Towers, MRC Nagar, Chennai – 600 0028. Represented by its Managing Director, Mr.Akira Kato. .. Respondent in W.A.No.1139 of 2021 M/s.Pfizer healthcare India Private Limited (formerly known as Hospira Healthcare India Private Limited) Represented by the authorized signatory Bodhisatwa Ray, Sri Nivas, New No.86, Old No.89, GN Chetty Road, T.Nagar, Chennai – 600 017. .. Respondent in W.A.Nos.1148 & 1149 of 2021/PetitionerPerkins India Private Limited, 7[th] Floor, International Tech Park, Chennai, Taramani Road, Taramani, Chennai – 600 113. PAN : AAGCP3353ARepresented by its Authorised Signatory, Mr.Krishna Kumar K. .. Respondent in W.A.No.2035 of 2021/PetitionerM/s Mando Automotive India Private Limited, S1A and S5, Pillaipakkam Post, Vengadu village, Kancheepuram District – 602 105, Tamilnadu. Represented by its Director – Finance, Sundararajan J.. Respondent in W.A.No.2036 of 2021/Petitioner Allison Transmission India Private Limited (ATIPL), A-21, SIPCOT Industrial Park, Oragadam, Sriperumbudur Taluk, Kanchipuram – 602 105. Tamilnadu. Represented by its Managing Director Mr.Rajsingh Moses. .. Respondent in W.A.No.2039 of 2021 M/s Siemens Gamesa Renewable Power Private Limited (Formerly known as M/s Gamesa Renewable Power Pvt. Ltd.,) Represented by the Fiscal Head – S.Ramachandran, 334, the Futura, Block – B, 8[th] Floor, Rajiv Gandhi Salai, Sholinganallur, Chennai – 600 119. .. Respondent in W.A.No.2043 of 2021/Petitioner Allison Transmission India Private Limited (ATIPL), A-21, SIPCOT Industrial Park, Oragadam, Sriperumbudur Taluk, Kanchipuram – 602 105. Tamilnadu. Represented by its Managing Director Mr.Rajsingh Moses. .. Respondent in W.A.No.2039 of 2021 M/s Siemens Gamesa Renewable Power Private Limited (Formerly known as M/s Gamesa Renewable Power Pvt. Ltd.,) Represented by the Fiscal Head – S.Ramachandran, 334, the Futura, Block – B, 8[th] Floor, Rajiv Gandhi Salai, Sholinganallur, Chennai – 600 119. .. Respondent in W.A.No.2043 of 2021/Petitioner M/s Flextronics Technologies (India ) Private Limited, Plot No.3, Phase II, SIPCOT Industrial Park, Sandavellure village, Sriperumbudur Taluk, Kanchipuram District, Tamilnadu – 602 106. Represented by its authorised Signatory, Mr.Ashok Sridharan. .. Respondent in W.A.No.2066 of 2021/Petitioner Common Prayer:- Appeals filed under Clause 15 of Letters Patentto set aside the common order dated 07.09.2020 passed inWP.Nos.33751, 34389, 34568, 32699, 32703, 35300, 34817, 35520,34174 and 34743 of 2019. Prayer in W.P.No.34743 of 2019 : Petition to issue a Writ ofCertiorari Call for the records of the 1st respondent and quashthe impugned order under section 92 CA of the Act bearing No.ITBA / TPO /F/92 CA3 /2019 -20/1019692288 (1) dated 01/11/2019for the Assessment year 2016 -17 issued by the 1st respondent. Prayer in W.P.No.34817 of 2019 : Petition to issue a Writ ofCertiorari Call for the records of the 1st Respondent and quashthe impugned order under section 92CA of the Act bearing No.ITBA / TPO / F / 92CA3 / 2019-20 / 1019691497(1) dated01.11.2019 for the Assessment year 2016-17. Prayer in W.P.No.35300 of 2019 : Petition to issue a Writ ofCertiorari Direction or order setting aside/ quashing theImpugned Order dated 01.11.2019 passed by Respondent No. 1bearing No. ITBA/ TPO/ F/ 92CA3/ 2019-20/ 1019688886(1) of the1st respondent and all implications consequent thereto. Prayer in W.P.No.32699 of 2019 : Petition filed under Article226 of the Constitution of India praying for the issuance ofWrit of Certiorari, calling for the records on the file of 1strespondent in passing the impugned order No.ITBA /TPO /F/92 CA 3/2019 20 /1019692338 (1) for the Assessment Year 2016 -17 undersection 92 CA (3) of the Income Tax Act 1961 dated 01/11/2019quash the same as illegal arbitrary and devoid of merit. Prayer in W.P.No.33751 of 2019 : Petition filed under Article226 of the Constitution of India praying for the issuance ofWrit of Certiorari, call for the records of the 1st Respondentand quash the impugned order passed under section 92CA of theAct dated 01.11.2019 in PAN AABC4338M for the Assessment year2016-17 in order No. ITBA / TPO / F / 92CA / 2019-20 /1019692179 (1) or pass such further or othe orders as may deemfit and proper in the circumstances of this case. Prayer in W.P.No.34174 of 2019 : Petition to issue a Writ ofcertiorari, calling for the records on the file of FirstRespondent in passing the impugned Order No. ITBA/ TransferPricing Officer /F /92CA3/ 2019-20/ 1019692325 (1) for theAssessment year 2016-17 under Section 92CA(3) of the Income-taxAct 1961 dated 01.11.2019 quash the same as illegal arbitraryand devoid of merit. Prayer in W.P.No.34389 of 2019 : Petition to issue a Writ ofCertiorari calling for the records on the file of 1st Respondentin the impugned order dated 01.11.2019 in PAN bearingOrder No. ITBA/ TPO/ F/ 92CA3/ 2019-20/ 2019692257(1) for theAssessment Year 2016-17 under section 92CA(3) of the Income TaxAct 1961 quash the same as illegal arbitrary and devoid ofmerit. Prayer in W.P.No.34568 of 2019 : Petition to issue a Writ ofCertiorari to call for the records of the 1st Respondent andquash the impugned order passed under Section 92CA of the Actdated 01.11.2019 in PAN. for the Assessment Year2016-17 in order No. ITBA/ TPO/ F/ 92CA3/ 2019-20/ 1019691995(1) Prayer in W.P.No.34389 of 2019 : Petition to issue a Writ ofCertiorari calling for the records on the file of 1st Respondentin the impugned order dated 01.11.2019 in PAN bearingOrder No. ITBA/ TPO/ F/ 92CA3/ 2019-20/ 2019692257(1) for theAssessment Year 2016-17 under section 92CA(3) of the Income TaxAct 1961 quash the same as illegal arbitrary and devoid ofmerit. Prayer in W.P.No.34568 of 2019 : Petition to issue a Writ ofCertiorari to call for the records of the 1st Respondent andquash the impugned order passed under Section 92CA of the Actdated 01.11.2019 in PAN. for the Assessment Year2016-17 in order No. ITBA/ TPO/ F/ 92CA3/ 2019-20/ 1019691995(1) Prayer in W.P.No.35520 of 2019 : Petition to issue a Writ ofCertiorari to call for the records of the 1st Respondent andquash the impugned order passed under Section 92CA of the Actdated 01.11.2019 in PAN for the Assessment year 2016-17 in order No. ITBA/ TPO/F/92CA3/2019-20/ 1019678061(1) anddraft assessment order No. ITBA/ AST/F/ 144C/2019-20/1022174670(1) dated 12.12.2019 passed under Section 143(3) r.w.s 144C. Prayer in W.P.No.32703 of 2019 : Petition to issue a Writ ofCertiorari calling for the records on the file of 1st respondentin passing the impugned order No.ITBA /TPO /F/92 CA 3 /2019 - 20/1019692173 (1) for the Assessment Year 2011 -12 under section92 CA (3) of the Income Tax Act 1961 dated 01/11/2019 quashthe same as illegal arbitrary and devoid of merit. COMMON JUDGMENT R. MAHADEVAN, J. I.Introduction. These intra-court appeals arise from a common order dated07.09.2020 passed by the learned Judge in W.P.No.32699 of 2019etc. batch.2.The respondents in these writ appeals filed theaforesaid WP No.32699 of 2019 etc. batch, questioning thevalidity of the orders dated 01.11.2019 passed by the firstappellant herein under Section 92CA (3) of The Income Tax Act,1961 (hereinafter referred to as The Act) on the ground oflimitation as contemplated under Section 153 of the Act. The https://hcservices.ecourts.gov.in/hcservices/ learned Judge allowed the writ petitions, which has given riseto the filing of the present intra-court appeals by theappellants herein. II.Facts. 3.At the outset, in order to understand the issueinvolved herein, the pleadings projected by the parties in oneof the writ petitions, viz., WP.No.32699 of 2019, which wastaken as a test case by the learned Judge, have been statedhereunder: Averments made by the writ petitioner / respondent herein: 4.1. The writ petitioner is a private limited company,engaged in the business of manufacturing generic drugs,exporting the same to group entities and contract research anddevelopment services for pharmaceutical products. For theassessment year 2016-2017, they filed their return of income on30.11.2016. On receipt of the same, a notice dated 18.07.2017was issued to the writ petitioner under Section 143 (2) of theAct. Subsequently, a reference was made by the second appellantto the first appellant for determining the arm's length price ofthe international transactions reported in Form No.3CEB. On10.12.2018, a notice under Section 92CA(2) of the Act was issuedby the first appellant calling upon the writ petitioner tofurnish certain particulars. The first appellant, thereafter,passed the order under Section 92CA (3) of the Act on01.11.2019, which according to the writ petitioner, was passed,after the time limit prescribed for passing such order until31.10.2019. Therefore, the order dated 01.11.2019 passedby the first appellant is beyond the period of limitation asstipulated under Section 92CA(3A) of the Act. 4.2. It was the contention on the side of the writpetitioner before the learned Judge that in case, where there isno reference made to a Transfer Pricing Officer, the time limitfor completion of the assessment is 21 months from the end ofthe assessment year, as contemplated under Section 153 (1) ofthe Act and in that event, the last date for passing an order ofassessment in this case will be 31.12.2018. On the other hand,in case reference is made to the Transfer Pricing Officer forcompletion of assessment, as per Section 153(1) read withSection 153 (4), the time limit is 33 months from the end of theassessment year and in such event, the time limit available forpassing an assessment order is till 31.12.2019. But in case ofan order to be passed under Section 92CA of the Act, the timelimit is 60 days prior to the due date for completion ofassessment under Section 92CA (3A) of the Act and such an orderought to have been passed in this case by the first appellant onor before 31.10.2019. However, such an order was passed only on01.11.2019 and therefore, the order dated 01.11.2019 passed bythe first appellant is beyond the time limit stipulated under Section 92CA(3A) read with Section 153 (1) of the Act.4.3. Elaborating further, it was contended that the timelimit for passing a Transfer Pricing Order is governed by sub-section 3A of Section 92CA. As per Section 92CA (3A), a TransferPricing Order has to be passed 60 days prior to the date onwhich the time limit provided under Section 153 of the Actexpires. The word "prior to" mentioned in the Section indicatesthat it is referable to the date preceding 31.12.2019 i.e.,30.12.2019. 4.4. It was also submitted that after the reference was madeby the second appellant on 13.03.2018, the office of the firstappellant initiated the Transfer Pricing proceedings on10.12.2018 and took nearly 19 months time for completion of theassessment under Section 92CA of the Act. The show cause noticedated 19.10.2019 was issued with only two weeks to complete theproceedings and the second show cause notice dated 26.10.2019was issued, when five days were left for passing the order ofassessment. In fact, the issuance of show cause notices itselfwas to comply with an empty formality, when the writ petitionerhas already responded to the questionnaires issued by the firstappellant. The entire proceedings, relating to the transferpricing proceedings were hastily concluded within ten workingdays without giving any meaningful opportunity to the writpetitioner. Thus, the order dated 01.11.2019 impugned in thewrit petition was violative of principles of natural justice. Asagainst the said order passed by the first appellant underSection 92CA(3) of the Act, there is no effective andalternative remedy available except to file the writ petitionunder Article 226 of The Constitution of India. Accordingly, the writ petitioner filed WP No. 32699 of 2019seeking to issue a Writ of Certiorari to quash the order dated01.11.2019 of the first appellant. Averments made by the respondents / appellants herein 5.1. The first appellant herein filed a detailed counteraffidavit in the writ petition, in which it was, at first,stated that as against the order passed under Section 92CA (3)of the Act, there is an alternative remedy available to the writpetitioner. It was further stated that the order, which wasimpugned in the writ petition, is only a proposal for transferpricing adjustment and based on the same, the Assessing Officerhas to pass a further order under Section 144C(1). Thus, therewill not be any demand on account of the draft assessment order.Based on the assessment order, objections will be called for andit is always open to the writ petitioner to file their objectionbefore the Dispute Resolution Panel (DRP) comprising of threeCommissioners of Income Tax. The DRP will examine the objections and after hearing the writ petitioner / assessee, directionswill be issued to the Assessing Officer, who will then pass afinal order of assessment in accordance with the directions ofDRP. If the assessment order goes against the financial interestof the writ petitioner / assessee, then it is open to them tofile an appeal before the appellate authority. Therefore, it isnot as if there is no alternative remedy available to the writpetitioner except to file the writ petition. In any event, soonafter passing the order, which was impugned in the writpetition, there was no demand made by the appellants for paymentof tax against the writ petitioner and therefore, there is nocause of action arisen at all to file the writ petition. Theentire process of passing a draft proposal till the passing offinal order by the Assessing Officer will take one year time andonly in the event of the writ petitioner being aggrieved by thefinal order passed by the Assessing Officer, they can approachthe legal forum to ventilate their grievance. Thus, according tothe appellants, the writ petition itself is not maintainable inlaw. 5.2. As regards the plea of limitation raised by the writpetitioner, it was submitted that the interpretation to Section92CA (3) is depended on the interpretation to Section 153 of theAct. The order passed under Section 92CA(3) is a processinitiated before passing the final order of assessment and aslong as the order of assessment is passed in accordance with theperiod stipulated under Section 153 of the Act, an order underSection 92CA(3) will not be construed as a final order. As such,the assertion of the writ petitioner that the first appellanthas to pass the order before 31.10.2019 as per Section 92CA(3)of the Act is untenable. 5.3. By referring to Section 153 (1) and (4) of the Act, theappellants pointed out before the learned Judge that when areference is made under Section 92CA (1), the assessing officeris not empowered to pass an order of assessment after the expiryof thirty three months from the end of calendar year 2016-2017.The assessment year 2016-17 ends with 31.03.2017 and 33 monthsfrom March 2017 would expire during 31.12.2019. As per Section153 of the Act, the Assessing Officer cannot pass order afterthe expiry of December 2019, meaning thereby, an order ofassessment cannot be passed on 01.01.2020. The Assessing Officerhas time upto 23:59:59 hours of 31.12.2019 to pass theassessment order and the time limit for passing the assessmentorder expires on 00.00 hours of 01.01.2020. The words "after theexpiry of 21 months" used in Section 153 of the Act is only usedin this Central Enactment under Section 153 of the Act and inall other taxing statutes, the parliament thought it fit to usethe word "within". For example, under Section 11A of the CentralExcise Act, it is incumbent upon the Central Excise Officer toserve notice within a period of two years. Further, Section 73 of the Finance Act, 1994 stipulates that the Central ExciseOfficer may, within thirty months from the relevant date ofservice of notice, proceed to recover the service tax. UnderSection 73 (10) of the Central General Sales Tax Act (CGST)2017, an order shall be passed within three years from the dateof furnishing of annual return for the financial year to whichthe tax not paid or short paid or input tax credit wronglyavailed or utilised relates to within three years from the dateof erroneous refund. Therefore, the assertion of the writpetitioner that the time limit fixed under Section 153 (1) ofthe Act expired on 31.12.2019 and the order dated 01.11.2019 isbeyond the time limit stipulated under Section 92CA (3A) of theAct, is legally not sustainable. of the Finance Act, 1994 stipulates that the Central ExciseOfficer may, within thirty months from the relevant date ofservice of notice, proceed to recover the service tax. UnderSection 73 (10) of the Central General Sales Tax Act (CGST)2017, an order shall be passed within three years from the dateof furnishing of annual return for the financial year to whichthe tax not paid or short paid or input tax credit wronglyavailed or utilised relates to within three years from the dateof erroneous refund. Therefore, the assertion of the writpetitioner that the time limit fixed under Section 153 (1) ofthe Act expired on 31.12.2019 and the order dated 01.11.2019 isbeyond the time limit stipulated under Section 92CA (3A) of theAct, is legally not sustainable. 5.4. Pointing out Section 92CA(3A) of the Act, it issubmitted that the words used in the said section are "60 days"prior to the date on which the period of limitation expires. Thedate on which the period of limitation expires in this case is00.00.00 am of 01.01.2020 and 60 days prior to 01.01.2020 is02.11.2019 (31 days of December and 29 days of November).Therefore, the date before 60 days would be a date before02.11.2019. Thus, the order, which was impugned in the writpetition, passed on 01.11.2019 is well within the timestipulated under Section 92CA(3A) of the Act and not barred bylimitation. Further, the word "may" is used in Section 92CA(3)of the Act and therefore, even if the order was passed after theperiod of 60 days, as contemplated under Section 153, still, itwould be treated as having been passed within the time limit. 5.5. The counter affidavit also proceeds to state that theappellants can continue with the proceedings in respect of otherissues involved in the assessment during the pendency of theproceedings relating to Arm's length Price determination. Theincorporation of the order to be passed by the TPO is a mereformality and the assessee and the Assessing Officer had ampletime to continue with the assessment order on other issues.After the receipt of the order passed by the TPO, the income ofthe assessee will be computed and it has nothing to do with theother issues. 5.6. It was further stated that sub-section 3A to Section92CA3 was introduced by the Finance Act, 2007 from 01.06.2007making it mandatory on the part of the Assessing Officer tocomply with the Arm's length computation made by the TPO. Priorto this amendment, it was not mandatory for the AssessingOfficer to wait for or accept the arm's length computation.Thus, the words "with regard to" were replaced by the amendmentwith the words "in conformity with" Section 92CA(4) of the Act.Therefore, after the amendment, the Assessing Officer need notapply his mind with respect to Arm's length computed by the TPOand the sixty days prescribed in Section 92CA(3) is only forinternal convenience and it was not compulsory with the words "No order shall be made" as in sub-section 1 to Section 153 ofthe Act. With these averments, the appellants prayed fordismissal of the writ petition filed by the writ petitioner /respondent herein. Findings of the learned Judge 6.The learned Judge, by the order dated 07.09.2020 inWP.No.32699 of 2019 etc., cases which is impugned in theseappeals, has concluded that the order dated 01.11.2019 passed bythe first appellant herein, is barred by the period oflimitation as the proceedings for assessment ought to have beencompleted before 11;59;59 of 31.12.2019. It was therefore heldthat the transfer pricing order ought to have been passed on31.10.2019 or any date prior thereto. Paragraph 30 of the saidorder can usefully be quoted hereunder:- "No order shall be made" as in sub-section 1 to Section 153 ofthe Act. With these averments, the appellants prayed fordismissal of the writ petition filed by the writ petitioner /respondent herein. Findings of the learned Judge 6.The learned Judge, by the order dated 07.09.2020 inWP.No.32699 of 2019 etc., cases which is impugned in theseappeals, has concluded that the order dated 01.11.2019 passed bythe first appellant herein, is barred by the period oflimitation as the proceedings for assessment ought to have beencompleted before 11;59;59 of 31.12.2019. It was therefore heldthat the transfer pricing order ought to have been passed on31.10.2019 or any date prior thereto. Paragraph 30 of the saidorder can usefully be quoted hereunder:- "30. Now, coming to the question of how the 60 dayperiod is to be computed, the critical questionwould be whether the period of 60 days would becomputed including the 31st of December or excludingit. Section 153 states that no order of assessmentshall be made at any time after the expiry of 21months from the end of the assessment year in whichthe income was first assessable. The submission ofthe revenue is to the effect that limitation expiresonly on 12 a m of 01.01.2020. However, this wouldmean that an order of assessment can be passed at 12a m on 01.01.2020, whereas, in my view, such anorder would be held to be barred by limitation asproceedings for assessment should be completedbefore 11.59.59 of 31.12.2019. The period of 21months therefore, expires on 31.12.2019 that muststand excluded since Section 92CA(3A) states 'before60 days prior to the date on which the period oflimitation referred to Section 153 expires'.Excluding 31.12.2019, the period of 60 days wouldexpire on 01.11.2019 and the transfer pricing ordersthus ought to have been passed on 31.10.2019 or anydate prior thereto. Incidentally, the Board, in theCentral Action Plan also indicates the date by whichthe Transfer Pricing orders are to be passed as31.10.2019. The impugned orders are thus, held to bebarred by limitation.” 7.Aggrieved by the aforesaid common order passed by thelearned Judge in the batch of writ petitions, the appellants /Revenue are before this court with these intra-court appeals. III. Contentions. https://hcservices.ecourts.gov.in/hcservices/ 8.1.1.Mrs. Hema Muralikrishnan, learned Senior StandingCounsel appearing for the appellants in WA.Nos.1115, 1120, 1139,1148 and 1149 of 2021 would contend that the learned Judge oughtnot to have entertained the writ petitions filed by therespective respondent herein especially when there is analternative remedy of appeal available as against the ordersdated 01.11.2019 passed by the first appellant. When an in-builtstatutory remedy is available, the learned Judge ought to haverelegated the respondents herein to approach the appellateauthority. To buttress this submission, the learned counselplaced reliance on the decision of this Court in the case ofIntimate Fashions (India) Pvt Ltd. [(2010) 321 ITR 265 (Madras)]as well as the decision of the Delhi High Court in the case ofMesse Dusseldorf India (P) Ltd. [(2010) 320 ITR 565 (Delhi)]. Inthose cases, it was held that there is an alternative remedy ofappeal available under the Act and therefore, the writ petitionswere dismissed and the assessees were directed to work out theirremedy before the appellate authority. 8.1.2.Referring to Section 92CA(3A) of the Act, it isfurther submitted that the word employed therein is "to" and ifit is considered in the light of Section 9 of the GeneralClauses Act, for the purpose of computation of the time limit,the day referred to as "from" has to be excluded and the dayreferred to as "to" has to be included. In the case on hand, theorder dated 01.11.2019 was taken as starting point fordetermination of limitation and the 60 days computed from01.11.2019. As per Section 9 of the General Clauses Act, thelast day namely 31.12.2019 must be included and if so, the orderdated 01.11.2019 is well within the period of limitation.According to the learned counsel, for computing the 60 daysperiod, the last day of December has to be counted for computingthe limitation. If the same is counted, then working reverse,the period of limitation for passing the order expires only on01.11.2019 and in such event, the order dated 01.11.2019 is wellwithin limitation. However, the learned Judge has given adifferent interpretation to the effect that the word "may" usedin Section 92CA(3A) should be read as "shall" to determine the60 days period backwards, by excluding the date "31.12.2019"even though the limitation prescribed under Section 92CA(3A) byuse of terminology "to" and held that the 60 days period expireson 01.11.2019. When the word "to" is specifically incorporatedin Section 92CA(3A), the other interpretation to exclude thelast day would be against the plain language of the statute andwould run contrary to the intend of the legislature. On theother hand, the learned Judge excluded both the date of order aswell as the last day, which is not the intent with which Section92CA(3A) was enacted. Section 92CA(3A) expressly provides forcounting the last day i.e., 31.12.2019 and therefore forcounting 60 days, the last day has to be taken into account and if it is reckoned, the order passed on 01.11.2019 by the firstappellant is well within the time. However, the learned Judgeerred in allowing the writ petitions on the ground oflimitation. Hence, the learned counsel sought to allow thesewrit appeals by setting aside the order passed by the learnedJudge. 8.2. Mr.A.P.Srinivas, learned senior standing counselappearing for the appellants in other writ appeals submittedthat Section 144C of the Act comes to play only after thetransfer pricing officer's order is received by the AssessingOfficer and upon receipt of the order only, the assessingofficer is bound to pass a draft assessment order. It is furthersubmitted that the assessment order comprises of bothinternational transaction comprising of computation of Armslength price and non-international transaction and therefore,there cannot be an interpretation that merely because thealleged delay of one day beyond the time line with regard to theTPO issue, the right of assessment is lost; on the other hand,the interpretation ought to have been taken to advance the causeof justice in order to protect the right of assessment; andhence, the outer limitation as provided in section 153 alone isthe criteria and the in between time limits with regard to TPOis not limitation in stricto sensu as stated in section 153.Thus, according to the learned counsel, pursuant to the orderdated 01.11.2019, which was impugned in the writ petitions,there is no demand for tax made by the Assessing Officer as theorder dated 01.11.2019 is only a draft proposal and it will notgive rise to a cause of action for the respondents to file thewrit petitions. 9.1.1.Mr.Ajay Vohra, learned senior counsel appearingfor the respondents in WA.Nos.1148 and 1149 of 2021 would mainlycontend that the order dated 01.11.2019 passed by the firstappellant is beyond the statutorily prescribed limitation inSection 92CA(3A) and therefore, it is bad in law, void ab initioand legally not sustainable. Adding further, he submitted thatthe Act prescribes an embargo for the first appellant to pass anorder beyond the time limit prescribed under Section 92CA(3A) ofthe Act, which was rightly taken note of by the learned Judgefor allowing the writ petitions. According to the learnedcounsel, Section 92CA(3A) of the Act uses the phrase "an orderunder sub-section (3) may be made at any time before sixty daysprior to the date on which the period of limitation referred toin section 153 expires." Thus, it is apparent that the firstappellant has no other option except to pass an order within thetime limit prescribed under the statute. It is in this context,the word "may" in the sub-section has been read as "shall" bythe learned Judge. To buttress his submissions, the learnedsenior counsel placed reliance on the following decisions of theHonourable Supreme Court: (a)State of Uttar Pradesh v. Jogendra Singh wherein in para no.8, it was held as under:-"(8) Rule 4 (2) deals with the class of gazettedgovernment servants and gives them the right to makea request to the governor that their cases should bereferred to the Tribunal in respect of mattersspecified in cls.(a) to (d) of sub-r.(1). Thequestion for our decision is whether like the word"may" in R.4(1) which confers the discretion on theGovernor, the word "may" in sub-r(2) confers thediscretion on him, or does the word "may" in sub-rule(2) really mean "shall" or "must". There is no doubtthat the word "may" generally does not mean "must" or"shall". But it is well-settled that the word “may”is capable of meaning “must” or “shall” in the lightof the context. It is also clear that where adiscretion is conferred upon a public authoritycoupled with an obligation, the word "may" whichdenotes discretion should be construed to mean acommand. Sometimes, the Legislature uses the word"may" out of deference to the high status of theauthority on whom the power and the obligation areintended to be conferred and imposed. In the presentcase, it is in the context which is decisive. Thewhole purpose of R.4 (2) would be frustrated if theword "may" in the said rule receives the sameconstruction as in sub-r.(1). It is because in regardto gazetted government servants, the discretion hadalready been given to the Governor to refer theircases to the Tribunal that the rule-making authoritywanted to make a special provision in respect of themas distinguished from other government servantsfalling under R.4(1) and R.4(2) has been prescribed,otherwise R.4(2) would be wholly redundant. In otherwords, the plain and unambiguous object of enactingR. 4(2) is to provide an option to the gazettedgovernment servants to request the Governor thattheir cases should be tried by a Tribunal and nototherwise. The rule-making authority presumablythought that having regard to the status of thegazetted government servants, it would be legitimateto give such an option to them. Therefore, we feel nodifficulty in accepting the view taken by the HighCourt that R.4(2) imposes an obligation on theGovernor to grant a request made by the gazettedgovernment servant that his case should be referredto the Tribunal under the Rules. Such a request wasadmittedly made by the respondent and has not beengranted. Therefore, we are satisfied that the High Court was right in quashing the proceedings proposedto be taken by the appellant against the respondent,otherwise than by referring his case to the Tribunalunder the Rules." Court was right in quashing the proceedings proposedto be taken by the appellant against the respondent,otherwise than by referring his case to the Tribunalunder the Rules." (b)In Superintendent & Remembrancer of Legal Affairs toGovernment of West Bengal v. Abani Maity [(1979) 4 Supreme CourtCases 85] in para Nos. 16 to 18, the following observations weremade: "16. Accordingly, the word "liable" occurring inmany statutes, has been held as not conveying thesense of an absolute obligation or penalty butmerely importing a possibility of attracting suchobligation, or penalty, even where this word is usedalong with the words "shall be". Thus, where anAmerican Revenue Statute declared that for thecommission of a certain act, a vessel "shall beliable to forfeiture", it was held that these wordsdo not effect a present absolute forfeiture but onlygive a right to have the vessel forfeited under dueprocess of law". Similarly, it has been held that inSection 302, Indian Penal Code, the phrase "shallalso be liable to fine" does not convey a mandatebut leaves it to the discretion of the Courtconvicting an accused of the offence of murder, toimpose or not to impose fine in addition to thesentence of death or imprisonment for life. 17.But a statute is not to be interpreted merelyfrom the lexicographer's angle. The court must giveeffect to the will and inbuilt policy of thelegislature as discernible from the object andscheme of the enactment and the language employedtherein. 18.Exposition ex visceribus actus is a longrecognised rule of construction. Words in a statuteoften take their meaning from the context of thestatute as a whole. They are therefore, not to beconstrued in isolation. For instance, the use of theword "may" would normally indicate that theprovision was not mandatory. But in the context of aparticular statute, this word may connote alegislative imperative, particularly when itsconstruction in a permissive sense would relegate itto the unenviable position, as it were, "of anineffectual angel beating its wings in a luminousvoid in vain"....” (c)In Mohan Singh and others v. International AirportAuthority of India and others [(1997) 9 Supreme Court Cases132], it was held as follows: 18.Exposition ex visceribus actus is a longrecognised rule of construction. Words in a statuteoften take their meaning from the context of thestatute as a whole. They are therefore, not to beconstrued in isolation. For instance, the use of theword "may" would normally indicate that theprovision was not mandatory. But in the context of aparticular statute, this word may connote alegislative imperative, particularly when itsconstruction in a permissive sense would relegate itto the unenviable position, as it were, "of anineffectual angel beating its wings in a luminousvoid in vain"....” (c)In Mohan Singh and others v. International AirportAuthority of India and others [(1997) 9 Supreme Court Cases132], it was held as follows: "17. The distinction of mandatory compliance ordirectory effect of the language depends upon thelanguage couched in the statute under considerationand its object, purpose and effect. The distinctionreflected in the use of the word "shall" or "may"depends on conferment of power. In the presentcontext, "may" does not always mean may. May is amust for enabling compliance of provision but thereare cases in which, for various reasons, as soon as aperson who is within the statute is entrusted withpower, it becomes duty to exercise. Where thelanguage of statute creates a duty, the specialremedy is prescribed for non-performance of the duty.In "Craies on Statute Law" (7th Edn.), it is statedthat the Court will, as a general rule, presume thatthe appropriate remedy by common law or mandamus foraction was intended to apply. General rule of law isthat where a general obligation is created by statuteand statutory remedy is provided for violation,statutory remedy is mandatory. The scope and languageof the statute and consideration of policy at timesmay, however, create exception showing thatlegislature did not intend a remedy (generality) tobe exclusive. Words are the skin of the language. Thelanguage is the medium of expressing the intentionand the object that particular provision or the Actseeks to achieve. Therefore, it is necessary toascertain the intention. The word "shall" is notalways decisive. Regard must be had to the context,subject matter and object of the statutory provisionin question in determining whether the same ismandatory or directory. No universal principle of lawcould be laid in that behalf as to whether aparticular provision or enactment shall be consideredmandatory or directory. It is the duty of the Courtto try to get at the real intention of thelegislature by carefully analysing the whole scope ofthe statute or section or a phrase underConsideration. As stated earlier, the question as towhether the statute is mandatory or directory dependsupon the intent of the legislature and not alwaysupon the language in which the intent is couched. Themeaning and intention of the legislature would governdesign and purpose the Act seeks to achieve. In"Sutherland Statutory Construction" (3rd Edn.) Volume1 at page 81 in paragraph 316, it is stated that although the problem of mandatory and directorylegislation is a hazard to all governmental activity,it is peculiarly hazardous to administrative agenciesbecause the validity of their action depends uponexercise of authority in accordance with theircharter of existence - the statute. If the directionsof the statute are mandatory, then strict compliancewith the statutory terms is essential to the validityof administrative action. But if the language of thestatute is directory only, then variation from itsdirection does not invalidate the administrativeaction. Conversely, if the statutory direction isdiscretionary only, it may not provide an adequatestandardforlegislativeactionandthedelegation....” (d)In Sara Goel and others v. Kishan Chand [(2009) 7 SupremeCourt Cases 658], it was observed as under: (d)In Sara Goel and others v. Kishan Chand [(2009) 7 SupremeCourt Cases 658], it was observed as under: "28. From a conjoint reading of this provisionreferred to hereinabove and particularly Section 27of the Act, in our view, it cannot be doubted thatthe procedure having been made by the Legislaturehow the rent can be deposited if it was refused tohave been received or to grant receipt for the same.If that be the position, if such protection has beengiven to the tenant, the said procedure has to bestrictly followed in the matter of taking steps inthe event of refusal of the landlord to receive therent or to grant receipt to the tenant. It is wellsettled that whether the word "may" shall be used as"shall", would depend upon the intention of theLegislature. It is not to be taken that once theword "may" is used by the Legislature in Section 27of the Act, would not (sic) mean that the intentionof the Legislature was only to show that theprovisions under Section 27 of the Act was directorybut not mandatory. 29.In other words, taking into consideration theobject of the Act and the intention of theLegislature and in view of the discussions madeherein earlier, we are of the view that the word"may" occurring in Section 27 of the Act must beconstrued as a mandatory provision and not adirectory provision as the word "may", in our view,was used by the Legislature to mean that theprocedure given in those provisions must be strictlyfollowed as the special protection has been given tothe tenant from eviction. Such a cannon of construction is certainly warranted becauseotherwise intention of the Legislature would bedefeated and the class of landlords, for whom also,the beneficial provisions have been made forrecovery of possession from the tenants on certaingrounds, will stand deprived of them." construction is certainly warranted becauseo