The TPO's order is dated one day inside the sixty-day window as I count it, but the department counts it differently. Is the order time barred, and if it is, does the assessment fall with it?
On the counting the Tribunal applied Pfizer Healthcare and the Madras High Court Division Bench in DCIT v Saint Gobain India: the s.153 expiry date is EXCLUDED, sixty days are counted back from it, and the TPO must pass his order BEFORE the sixtieth day. On that arithmetic a 31 March 2014 assessment deadline meant a TPO order by 29 January 2014, and the order of 30 January 2014 was barred by one day. THAT ARITHMETIC HAS SINCE BEEN REVERSED RETROSPECTIVELY: s.92CA(3AA), inserted by the Finance Act 2026 (Act 4 of 2026) with effect from 1 June 2007 and expressly notwithstanding any judgment of any court, deems the sixty days to be counted so that a 31 March (non-leap year) deadline permits a TPO order up to 30 January, a 31 March (leap year) deadline up to 31 January, and a 31 December deadline up to 1 November. The second holding survives the amendment: where the TPO's order IS invalid, there is no order under s.92CA(3), so there is no 'eligible assessee' within s.144C(15)(b), no reference to the DRP could be made, and the subsequent proceedings are without jurisdiction.
Decided by the ITAT (Vikas Awasthy, Judicial Member and S. Rifaur Rahman, Accountant Member (Mumbai Bench 'J')) on 2022-11-14, reported as ITA No.1492/MUM/2015 (AY 2010-11). The order is composite and also disposes of ITA Nos.1576/MUM/2015 and 2340/MUM/2015 (AY 2009-10) in the unrelated case of M/s. Shell India Markets Private Ltd.. It bears on section 92CA, section 92CA(3), section 92CA(3A), section 153, section 153(1), section 144C, section 144C(15) of the Income Tax Act 1961, in Assessment & Scrutiny, Appeals and How Tax Law Is Read matters.
Every limitation win on s.92CA(3A) taken between 2020 and 2026 rested on the Pfizer/Saint Gobain counting, and s.92CA(3AA) has now taken that ground away for the past as well as the future. Before you plead the point, do the arithmetic under s.92CA(3AA), not under Pfizer: on the new deeming, Mondelez's own TPO order of 30 January 2014 against a 31 March 2014 deadline would be IN TIME. What the amendment does not touch is the consequence limb. Where a TPO order is invalid for some other reason, this order is the authority for the proposition that the invalidity travels downstream — no valid s.92CA(3) order means no eligible assessee, no DRP reference, and an assessment resting on a flawed foundation. Note also the Tribunal's answer to the Revenue's reliance on Circular No. 3/2008: the Act fixes the period in DAYS, and 'two months' in an explanatory circular cannot be substituted for sixty days. Two qualifications go with the amendment. Sub-section (3AA) legislates for only three expiry dates — 31 March in a non-leap year, 31 March in a leap year and 31 December — and is silent on any other; where the s.153 period expires on some other date, 30 September being the common one, (3AA) supplies no rule and the Pfizer and Saint Gobain counting is untouched. And only the arithmetic is reversed: Saint Gobain's holding that 'may' in s.92CA(3A) must be read as 'shall', so that the period is mandatory, survives the amendment intact.
Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere.
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For AY 2010-11 a reference was made to the Transfer Pricing Officer under s.92CA(1). Because a reference had been made, the third proviso to s.153(1) as it then stood substituted three years for two, so the assessment had to be completed by 31 March 2014. The TPO passed his order under s.92CA(3) on 30 January 2014. Before the Tribunal the assessee raised additional grounds 48 and 49 contending that the order was barred by limitation under s.92CA(3A), which requires the order to be made 'at any time before sixty days prior to the date on which the period of limitation referred to in section 153 ... expires'. The Revenue relied on clause 43 of the Explanatory Notes to the Finance Act 2007 issued as Circular No. 3/2008, which described the time limit in months rather than days. Counsel argued in the alternative that if the TPO's order was invalid there was no variation arising as a consequence of an order under s.92CA(3), so the assessee was not an 'eligible assessee' under s.144C(15)(b) and the reference to the DRP was incompetent.
The additional grounds succeeded. Applying Pfizer Healthcare India (P) Ltd v JCIT and the affirming Division Bench decision in DCIT v Saint Gobain India (P) Ltd, the date on which the s.153 period expires is excluded, the sixty days run backwards from that date, and the TPO's order must be passed before the sixtieth day. The 'may' in s.92CA(3A) is to be read as 'shall'. Because the TPO's order was invalid, there was no 'eligible assessee' within s.144C(15)(b), no reference to the DRP could have been made, and the proceedings emanating from that flawed foundation were without jurisdiction (paras 13 to 17). The Mondelez appeal was allowed (para 19). Paragraphs 27 and 29 of the same composite order dispose of the Shell India Markets appeals and are not disposals of this appeal.
The Tribunal set s.92CA(3A) beside the third proviso to s.153(1) and reproduced the Madras High Court's reasoning at length. The single Judge in Pfizer had held that limitation for the assessment expires at 11.59.59 on 31 December, that 31 December must therefore stand excluded because s.92CA(3A) says 'before 60 days prior to the date on which the period of limitation ... expires', and that excluding it the sixtieth day falls on 1 November so the transfer pricing order must be passed on 31 October or earlier. The Division Bench in Saint Gobain reinforced this: the words 'prior to' cannot be treated as redundant, they fix the date from which the sixty days is calculated, and even on an alternative route through s.9 of the General Clauses Act, where 'from' is used the starting date is excluded, so the answer is the same either way. On mandatory versus directory, the Division Bench held that 'may' must be read as 'shall' because the proviso to s.92CA(3A) itself extends a shorter period up to sixty days, because the second proviso to s.153 correspondingly extends the assessment period, and because a determination not made in time cannot be relied upon by the Assessing Officer. On the Revenue's circular, the Tribunal held that where the Act specifies the period in days, 'two months' in an explanatory note cannot be substituted, since two months may be more or less than sixty days (para 15). On the consequence, the Tribunal read the definition of 'eligible assessee' in s.144C(15)(b) as requiring a valid order of the TPO (para 16).
The order has to be a valid order. In the instant case since, the order of TPO was beyond the period of limitation it is not a valid order. Therefore, there is no "eligible assessee" in terms of the definition provided in sub-section (15) to section 144C of the Act .
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Handle my notice → Ask a CA on WhatsAppOn the counting the Tribunal applied Pfizer Healthcare and the Madras High Court Division Bench in DCIT v Saint Gobain India: the s.153 expiry date is EXCLUDED, sixty days are counted back from it, and the TPO must pass his order BEFORE the sixtieth day. On that arithmetic a 31 March 2014 assessment deadline meant a TPO order by 29 January 2014, and the order of 30 January 2014 was barred by one day. THAT ARITHMETIC HAS SINCE BEEN REVERSED RETROSPECTIVELY: s.92CA(3AA), inserted by the Finance Act 2026 (Act 4 of 2026) with effect from 1 June 2007 and expressly notwithstanding any judgment of any court, deems the sixty days to be counted so that a 31 March (non-leap year) deadline permits a TPO order up to 30 January, a 31 March (leap year) deadline up to 31 January, and a 31 December deadline up to 1 November. The second holding survives the amendment: where the TPO's order IS invalid, there is no order under s.92CA(3), so there is no 'eligible assessee' within s.144C(15)(b), no reference to the DRP could be made, and the subsequent proceedings are without jurisdiction. This was decided by the ITAT (Vikas Awasthy, Judicial Member and S. Rifaur Rahman, Accountant Member (Mumbai Bench 'J')) and bears on section 92CA, section 92CA(3), section 92CA(3A), section 153, section 153(1), section 144C, section 144C(15) of the Income Tax Act 1961. It is reported as ITA No.1492/MUM/2015 (AY 2010-11). The order is composite and also disposes of ITA Nos.1576/MUM/2015 and 2340/MUM/2015 (AY 2009-10) in the unrelated case of M/s. Shell India Markets Private Ltd.. Every limitation win on s.92CA(3A) taken between 2020 and 2026 rested on the Pfizer/Saint Gobain counting, and s.92CA(3AA) has now taken that ground away for the past as well as the future. Before you plead the point, do the arithmetic under s.92CA(3AA), not under Pfizer: on the new deeming, Mondelez's own TPO order of 30 January 2014 against a 31 March 2014 deadline would be IN TIME. What the amendment does not touch is the consequence limb. Where a TPO order is invalid for some other reason, this order is the authority for the proposition that the invalidity travels downstream — no valid s.92CA(3) order means no eligible assessee, no DRP reference, and an assessment resting on a flawed foundation. Note also the Tribunal's answer to the Revenue's reliance on Circular No. 3/2008: the Act fixes the period in DAYS, and 'two months' in an explanatory circular cannot be substituted for sixty days. Two qualifications go with the amendment. Sub-section (3AA) legislates for only three expiry dates — 31 March in a non-leap year, 31 March in a leap year and 31 December — and is silent on any other; where the s.153 period expires on some other date, 30 September being the common one, (3AA) supplies no rule and the Pfizer and Saint Gobain counting is untouched. And only the arithmetic is reversed: Saint Gobain's holding that 'may' in s.92CA(3A) must be read as 'shall', so that the period is mandatory, survives the amendment intact. If it applies to you, the first step is this: Before pleading any s.92CA(3A) limitation ground, apply s.92CA(3AA) as inserted by the Finance Act 2026 with retrospective effect from 1 June 2007, and check the section text on the department's live page rather than on any commentary written before March 2026.
For AY 2010-11 a reference was made to the Transfer Pricing Officer under s.92CA(1). Because a reference had been made, the third proviso to s.153(1) as it then stood substituted three years for two, so the assessment had to be completed by 31 March 2014. The TPO passed his order under s.92CA(3) on 30 January 2014. Before the Tribunal the assessee raised additional grounds 48 and 49 contending that the order was barred by limitation under s.92CA(3A), which requires the order to be made 'at any time before sixty days prior to the date on which the period of limitation referred to in section 153 ... expires'. The Revenue relied on clause 43 of the Explanatory Notes to the Finance Act 2007 issued as Circular No. 3/2008, which described the time limit in months rather than days. Counsel argued in the alternative that if the TPO's order was invalid there was no variation arising as a consequence of an order under s.92CA(3), so the assessee was not an 'eligible assessee' under s.144C(15)(b) and the reference to the DRP was incompetent. The matter was decided on 2022-11-14 by the ITAT (Vikas Awasthy, Judicial Member and S. Rifaur Rahman, Accountant Member (Mumbai Bench 'J')). On those facts the ITAT held as follows. The additional grounds succeeded. Applying Pfizer Healthcare India (P) Ltd v JCIT and the affirming Division Bench decision in DCIT v Saint Gobain India (P) Ltd, the date on which the s.153 period expires is excluded, the sixty days run backwards from that date, and the TPO's order must be passed before the sixtieth day. The 'may' in s.92CA(3A) is to be read as 'shall'. Because the TPO's order was invalid, there was no 'eligible assessee' within s.144C(15)(b), no reference to the DRP could have been made, and the proceedings emanating from that flawed foundation were without jurisdiction (paras 13 to 17). The Mondelez appeal was allowed (para 19). Paragraphs 27 and 29 of the same composite order dispose of the Shell India Markets appeals and are not disposals of this appeal.
The Tribunal set s.92CA(3A) beside the third proviso to s.153(1) and reproduced the Madras High Court's reasoning at length. The single Judge in Pfizer had held that limitation for the assessment expires at 11.59.59 on 31 December, that 31 December must therefore stand excluded because s.92CA(3A) says 'before 60 days prior to the date on which the period of limitation ... expires', and that excluding it the sixtieth day falls on 1 November so the transfer pricing order must be passed on 31 October or earlier. The Division Bench in Saint Gobain reinforced this: the words 'prior to' cannot be treated as redundant, they fix the date from which the sixty days is calculated, and even on an alternative route through s.9 of the General Clauses Act, where 'from' is used the starting date is excluded, so the answer is the same either way. On mandatory versus directory, the Division Bench held that 'may' must be read as 'shall' because the proviso to s.92CA(3A) itself extends a shorter period up to sixty days, because the second proviso to s.153 correspondingly extends the assessment period, and because a determination not made in time cannot be relied upon by the Assessing Officer. On the Revenue's circular, the Tribunal held that where the Act specifies the period in days, 'two months' in an explanatory note cannot be substituted, since two months may be more or less than sixty days (para 15). On the consequence, the Tribunal read the definition of 'eligible assessee' in s.144C(15)(b) as requiring a valid order of the TPO (para 16). In the words reproduced by the source cited on this page: "The order has to be a valid order. In the instant case since, the order of TPO was beyond the period of limitation it is not a valid order. Therefore, there is no "eligible assessee" in terms of the definition provided in sub-section (15) to section 144C of the Act ." The decision followed or applied Pfizer Healthcare India (P) Ltd v. JCIT (Madras High Court, single Judge, 7 September 2020) — followed; DCIT v. Saint Gobain India (P) Ltd (Madras High Court, Division Bench) — followed; paras 28 to 39 reproduced; Grasim Industries Ltd v. Collector of Customs — relied on within the Saint Gobain extract for the rule against treating statutory words as redundant.
It was decided by the ITAT on 2022-11-14 and is reported as ITA No.1492/MUM/2015 (AY 2010-11). The order is composite and also disposes of ITA Nos.1576/MUM/2015 and 2340/MUM/2015 (AY 2009-10) in the unrelated case of M/s. Shell India Markets Private Ltd.. Binding on the AO and CIT(A) within the Tribunal's jurisdiction. Persuasive elsewhere. A Tribunal decision binds the assessing officer and the Commissioner (Appeals) within that Tribunal's jurisdiction, and is persuasive before other benches. It is not binding on a High Court, and a contrary co-ordinate bench decision will be argued against you, so check whether the point has been taken the other way before you build a reply around it. On section 92CA, section 92CA(3), section 92CA(3A), section 153, section 153(1), section 144C, section 144C(15), the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It helps the taxpayer. The additional grounds succeeded. Applying Pfizer Healthcare India (P) Ltd v JCIT and the affirming Division Bench decision in DCIT v Saint Gobain India (P) Ltd, the date on which the s.153 period expires is excluded, the sixty days run backwards from that date, and the TPO's order must be passed before the sixtieth day. The 'may' in s.92CA(3A) is to be read as 'shall'. Because the TPO's order was invalid, there was no 'eligible assessee' within s.144C(15)(b), no reference to the DRP could have been made, and the proceedings emanating from that flawed foundation were without jurisdiction (paras 13 to 17). The Mondelez appeal was allowed (para 19). Paragraphs 27 and 29 of the same composite order dispose of the Shell India Markets appeals and are not disposals of this appeal. It arises in Assessment & Scrutiny, Appeals and How Tax Law Is Read matters, on section 92CA, section 92CA(3), section 92CA(3A), section 153, section 153(1), section 144C, section 144C(15) of the Income Tax Act 1961, and was decided by Vikas Awasthy, Judicial Member and S. Rifaur Rahman, Accountant Member (Mumbai Bench 'J'). Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. Work out which of the three deemed dates applies: 30 January (31 March deadline, non-leap year), 31 January (31 March deadline, leap year), or 1 November (31 December deadline). Where the appeal is already decided in your favour on the old counting, expect the Revenue to seek relief on the retrospective amendment; consider whether the amendment is open to challenge on the ground that it validates without removing the basis of the decisions, and preserve the point. Keep the second limb alive: if the TPO's order is invalid for a reason the amendment does not cure, plead that there is then no 'eligible assessee' under s.144C(15)(b), that the DRP reference was incompetent, and that the final order is without jurisdiction. Do not let the Revenue substitute 'two months' from Circular No. 3/2008 for the sixty days the statute prescribes.
Superseded by amendment. The counting limb is superseded. Section 92CA(3AA), inserted by the Finance Act 2026 (Act No. 4 of 2026) with retrospective effect from 1 June 2007, opens 'Notwithstanding anything contained in any judgment, order or decree of any court' and deems the sixty days to be counted so that a 31 March deadline in a non-leap year permits an order up to 30 January, a 31 March deadline in a leap year up to 31 January, and a 31 December deadline up to 1 November. Read on the department's live section page (Year: 2026), footnote 11. That reverses Pfizer, Saint Gobain and this order on the arithmetic, and on the new counting the TPO order of 30 January 2014 in this very case would be in time. The second limb — that an invalid TPO order leaves no 'eligible assessee' under s.144C(15)(b) — is untouched by the amendment. I did not carry out a later-treatment search on the second limb. Two qualifications on the scope of (3AA). It legislates for only the three expiry dates it names — 31 March in a non-leap year, 31 March in a leap year and 31 December — and is silent on any other expiry date, 30 September being the common one, where the Pfizer and Saint Gobain counting continues to govern. And it reverses the arithmetic only: Saint Gobain's holding that 'may' in s.92CA(3A) is to be read as 'shall' is left intact. The Gujarat High Court has since applied (3AA) in PCIT v Zydus Lifesciences Ltd (R/Tax Appeal No.69 of 2025, 13 August 2026), and a challenge by the Revenue Bar Association to the retrospective amendments made by the Finance Act 2026 is pending before the Madras High Court, notice having issued in June 2026; I could not confirm that s.92CA(3AA) is among the provisions named. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
The Tribunal's own arithmetic (31/03/2014 assessment deadline, TPO order 30/01/2014, barred by one day) is stated in the Tribunal's own words in unquoted text at the foot of paragraph 14, immediately after the Saint Gobain extract closes; the Tribunal then records at paragraph 17 that it finds merit in additional grounds 48 and 49. Paragraph 19 records 'In the result, appeal by the assessee is allowed' for one appeal and paragraph 29 carries the composite disposal, 'appeal of the assessee is allowed and that of Revenue is dismissed'. The statutory text of s.92CA(3AA) reproduced in the summary was NOT taken from this order; it was read on the department's own live page for s.92CA (Year stamp 2026), which carries footnote 11, 'Ins. by Act No. 4 of 2026, w.r.e.f. 1-6-2007'. I did not trace the corresponding provision, if any, in the Income-tax Act 2025. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
The additional grounds succeeded. Applying Pfizer Healthcare India (P) Ltd v JCIT and the affirming Division Bench decision in DCIT v Saint Gobain India (P) Ltd, the date on which the s.153 period expires is excluded, the sixty days run backwards from that date, and the TPO's order must be passed before the sixtieth day. The 'may' in s.92CA(3A) is to be read as 'shall'. Because the TPO's order was invalid, there was no 'eligible assessee' within s.144C(15)(b), no reference to the DRP could have been made, and the proceedings emanating from that flawed foundation were without jurisdiction (paras 13 to 17). The Mondelez appeal was allowed (para 19). Paragraphs 27 and 29 of the same composite order dispose of the Shell India Markets appeals and are not disposals of this appeal.
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