ACIT, CIRCLE-33, KOLKATA, KOLKATA vs. M/S RAHEE JHAJHARIA E TO E JV, KOLKATA

आयकर अपीलीय अिधकरण "यायपीठ, कोलकाता । IN THE INCOME TAX APPELLATE TRIBUNAL “C” BENCH, KOLKATA BEFORE SHRI RAJPAL YADAV, HON’BLE VICE PRESIDENT AND SHRI RAJESH KUMAR, HON’BLE ACCOUNTANT MEMBER I.T.A. No. 1125/Kol/2019 Assessment Year: 2014-15 Asstt. Commissioner of Income Tax, Rahee Jhajharia E to E JV Flat 1C, 1st Floor Circle-33, Kolkata Vs 4, Ho Chi Minh Sarani Chowringhee Kolkata - 700071 PAN : AABAR5042H अपीलाथ"/ (Appellant) "" यथ"/ (Respondent) I.T.A. No. 343/Kol/2019 Assessment Year: 2014-15 Rahee Jhajharia E to E JV Asstt. Commissioner of Flat 1C, 1st Floor Income Tax, Circle-33, Vs 4, Ho Chi Minh Sarani Kolkata Chowringhee Kolkata - 700071 PAN : AABAR5042H अपीलाथ"/ (Appellant) "" यथ"/ (Respondent) Assessee by : Shri K.K. Khemka, Advocate Revenue by : Shri Gaurav Kananjia, CIT D/R सुनवाई क" तारीख/Date of Hearing : 30/06/2022 घोषणा क" तारीख /Date of Pronouncement: 12/07/2022 आदेश/O R D E R PER SHRI RAJPAL YADAV, VICE PRESIDENT : The assessee and the revenue are in cross-appeals against the order of the learned Commissioner of Income Tax (Appeals)-09, [hereinafter the “ld. CIT(A)”] Kolkata, dt.12/02/2019, passed u/s 250 of the Income Tax Act, 1961 (“the Act”) passed for the Assessment Year 2014-15. I.T.A. No. 1125/Kol/2019 Assessment Year: 2014-15 I.T.A. No. 343/Kol/2019 Assessment Year: 2014-15 Rahee Jhajharia E to E JV 2 2. The revenue has taken seven grounds of appeal. Similarly, the assessee has taken five grounds of appeal. But the assessee subsequently filed additional grounds of appeal, which read as under:- “A/G-1. For that since clause (i) of section 92BA has been omitted by the Finance Act, 2017 means that provisions was not in existence or never existed in Statute. Therefore, the jurisdiction exercised by the T.P.O. and Income Tax Department is void and as a result the order by assessing officer dt. 26.12.2017 u/s 143(3) of the Act is void ab initio wrong, illegal, bad in law as well as on facts. A/G-2. That because of such omission, the addition of Rs.6,19,14,682/- made by the AO in this case for the A.Y. 2014-15 as per T.P.O.’s order is invalid and bad in law, and as such the addition should be directed to be deleted.” 3. The seven grounds of appeal taken by the revenue and four ground of appeals taken by the assessee revolve around these two additional grounds of appeals taken by the assessee.

I.T.A. No. 1125/Kol/2019 Assessment Year: 2014-15 I.T.A. No. 343/Kol/2019 Assessment Year: 2014-15 Rahee Jhajharia E to E JV 3 6. Aggrieved with the assessment order, the assessee carried the matter in appeal before the ld. First Appellate Authority. The ld. First Appellate Authority has allowed the appeal of the assessee substantially but rejected its grounds partially. Hence, both the parties are before us.

I.T.A. No. 1125/Kol/2019 Assessment Year: 2014-15 I.T.A. No. 343/Kol/2019 Assessment Year: 2014-15 Rahee Jhajharia E to E JV 4 in the case of Texport Overseas Private Limited vs. DCIT; IT(TP)A No. 1722/Bang/2017 Assessment Year 2013-14, order dt. 22/12/2017, held that omission of the provision would mean that it has to be presumed with such clause was never there in the statute and all consequential proceedings including the ones pending at the time when the omission had taken place, have to be dropped. He further placed reliance on the order of the ITAT Ahmedabad Bench in the case of Amman India Pvt. Ltd. vs. ACIT in ITA No. 2262/Ahd/2018; Assessment Year 2014-15, order dt. 03/01/2022, copy of which is placed on record. Lastly he placed reliance on the order of the Co-ordinate Bench of ITAT Kolkata, in the case of M/s. Raipur Steel Casting India (P) Ltd. vs. PCIT-5, Kolkata in ITA No. 895/Kol/2019. Copy of all these decisions are placed on record.

I.T.A. No. 1125/Kol/2019 Assessment Year: 2014-15 I.T.A. No. 343/Kol/2019 Assessment Year: 2014-15 Rahee Jhajharia E to E JV 5 In addition to these verbal arguments, Shri Vijay Shankar, (CIT-DR) submitted written submissions before the Bench, the same is reproduced below, in brief, to the extent applicable for our discussion: "In the present case, the Principal Commissioner of Income Tax-5, Kolkata passed an order u/s.263 holding that specified domestic transactions shown by the assessee were not taken into cognizance by the A.O. and not referred to the TPO before completing the assessment, which he was required to do statutorily, for the correct Benchmarking of the domestic transactions undertaken by the assessee with specified domestic parties. The notice for 263 proceedings was issued dated 20.11.2018. The assessee is contesting the jurisdiction of the Pr. C.I.T.-5, Kolkata in initiating proceedings u/s.263 on the ground that the reference to the TPO on the specified domestic transactions was not applicable to him since Section 92BA(i) was omitted by Finance Act, 2017 w.e.f. 01.04.2017. The assessee is relying on Section-6 of the General Clause Act, 1897(GCA 1897) to contend that an omission is not entailed in repeal, and upon omission, the provision results in obliteration from the very beginning. The appellant has relied on the decision of ITAT, Bangalore in the case of M/s. Texport Overseas (P) Ltd. vs. DCIT, A.Y. 2013-14, ITA No.IT(TP)A No.1722/Bang/2017, order dated 22.12.2017 for the proposition that since clause 92BA(i) was omitted w.e.f. 01.09.2017 it is to be treated as if it never existed in the statute and thus no adverse inference can be drawn against the appellant under the said provisions. Against this it is submitted that Section-6 of GCA, 1897 has to be read in consonance with Section-6A of GCA, 1897. The relevant portion of the GCA, 1897 is reproduced as under- 8 "6. Effect of repeal- Where this Act, or any [Central Act} or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not – (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or I.T.A. No. 1125/Kol/2019 Assessment Year: 2014-15 I.T.A. No. 343/Kol/2019 Assessment Year: 2014-15 Rahee Jhajharia E to E JV 6 enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed. 6A. Repeal of Act making textual amendment in Act or Regulation. - Where any [Central Act] or Regulation made after the commencement of this Act repeals any enactment by which the text of any [Central Act] or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so repealed and in operation at the time of such repeal." Copy of General Clause Act, 1897 enclosed as Annexure-A 1. The following decisions, (1) M/s. Shree Bhagwati Steel Rolling Mills vs. C.I.T. Excise & Others - 2015(326) ELT 209(S.C.), M/s. Fibre Boards 62 Taxmann.com 135 (S.C.) interpret the matter in favour of the Revenue's stand that omission of a provision shall have to be interpreted as per sec.6 and sec.6A of GCA 1897 and read in togetherness. For proceedings which stem from the omitted provision, or part thereof, including consequential proceedings, it shall not mean an obliteration from the very beginning; it will have the effect as if the omitted part is in full force before such omission of the provision, or part thereof. The Hon'ble Bangalore Bench in the case of M/s. Texport Overseas Pvt. Ltd. (supra) has given the finding on the basis of Apex Court decision in the case of General Finance Company 257 ITR 338. This is an old decision pronounced on 04/09/2002. However, it may kindly be pointed out that the Hon'ble Bench of Bangalore Tribunal did not take into consideration the subsequent decision of the Apex Court constitutional bench on the same issue in the case of M/s. Shree Bhagwati Steel Rolling Mills (supra) and M/s. Fibre Boards (supra). The constitutional bench in the above cases, orders passed in 2015, have held that repeal, delete and omit can be used interchangeably and, therefore, section 6 of the General Clauses Act would also save provisions which have been omitted from the Act. Therefore, the proceedings initiated during the omission of provision will continue. It cannot be obliterated from the very beginning."

I.T.A. No. 1125/Kol/2019 Assessment Year: 2014-15 I.T.A. No. 343/Kol/2019 Assessment Year: 2014-15 Rahee Jhajharia E to E JV 9 that these grounds were never raised before the DRP nor were they raised in the original grounds of appeal. Therefore, it cannot be admitted. 3. The learned counsel for the assessee has further contended that AO has made a reference under section 92CA, having observed that the assessee has entered into specified domestic transaction as this case is covered under section 928A of the IT Act but later on there was amendment in section 92BA by the Finance Act, 2017 w.e.f. 01.04.2017 whereby clause (ii) of section 92BA relating to any expenditure in respect of which payment has been made or is to be made to a person referred to clause (b) of sub section 2 of section 40A was omitted and on account of its omission, the impugned transaction would not fall within the definition of specified domestic transaction. Therefore, it has become necessary for the assessee to raise this additional ground before the Tribunal. 4. The learned counsel for the assessee has further invited bur attention that provision of section 928A was brought on statute by the Finance Act, 2012 w.e.f. 01.04.2013 relevant to assessment year 2013-14. Therefore, it is the first year when the transactions are to be examined in the light of provision of section 928A of the Act. Since the transactions under clause (i) exceeded the prescribed limit, the AO considered it to be specified domestic transaction and made a reference to TPO for computation of ALP. Accordingly, TPO ·has computed the ALP which was objected to by the assesses before the DRP and DRP disposed off the objections with certain findings/directions. 5. The learned counsel for the assessee further contended that sub clause (i) of section 92BA under which assessee has undertaken the transactions which has exceeded the prescribed limit, was omitted by the Finance Act, 2017 w.e.f. 01.04.2017. Since clause (i) has been omitted from the statute by virtue of the, amendment, this particular sub clause shall be deemed not to be on the statute since the beginning. In support of his contention, the learned counsel for the assessee has placed a heavy reliance upon the judgment of the Apex Court in the case of Kolhapur Canesugar Works Ltd., Vs. Union of India in Appeal (Civil) 2132 of 1994 vide judgment dated 01.02.2000 in which the constitution bench has held that section 6 only applies to repeals and not to omissions, and applies when the repeal is of a Central Act or Regulation and not as a Rule. It was further clarified by the Apex Court that in such a case the court is to look to the provisions in the rule which has been introduced after omission. of the previous rule to determine whether a pending proceeding will continue or lapse. If there is a provision therein that pending proceedings shall continue and be disposed of under the old rule as if the rule has not been deleted or omitted then such a proceeding will continue. If the case is covered by Section 6 of the General Clauses Act or there is a pari-materia provision in the statute under which the rule has been framed in that case also the pending proceeding will not be affected by omission of the rule. A further reliance was also placed upon the I.T.A. No. 1125/Kol/2019 Assessment Year: 2014-15 I.T.A. No. 343/Kol/2019 Assessment Year: 2014-15 Rahee Jhajharia E to E JV 10 judgment of the Apex Court in the case of General Finance Co. Vs. Assistant Commissioner of Income- tax 257 ITR 338 (SC) in which the Apex Court has held that the principle underlying section 6 as saving the right to initiate proceedings for liabilities incurred during the currency of the Act will not apply to omission of a provision in an Act but only to repeal, omission being different from repeal as held in the aforesaid decisions. Reliance was also placed upon the order of the Tribunal in lT(TP)A No. l 722/Bang/2017 Page 4 of7 the case of CIT Vs. GE Thermometrics India Pvt. Ltd., in ITA No. 876/2008 in which while dealing the omission sub- section (9) of Section 1 OB the Hon'ble High Court has held that once the section is omitted from the statute book, the result is it had never been passed and be considered as a law that never exists and therefore, when the assessment orders were passed, the AO was not justified in taking note of a provision which was not in the statute book and denying benefit to the assessee. Therefore, in the light of these judicial pronouncements, sub-section (i) of section 928A shall be deemed to be not on the statute since beginning. 6. The learned DR on the other-hand has contended that even if it is held that the clause (i) of section 928A relating to expenditures in respect of which payment has been made or is to be made to person referred to in clause (b) of sub section 2 of section 40A of the Act is not on the statute since beginning in view of the amendment and in the light of various judicial pronouncements the reference made by AO to TPO is bad in law, the AO is required to examine the claim of the assessee in the light of other provisions of the Act. 7. Having carefully examined the orders of authorities below in the light of rival submissions and relevant provisions and various judicial pronouncements, we find that by virtue of the insertion of section 92BA on the statute as per clause (i), any expenditure in respect of which payment has been made or is to be made to person referred to in clause (b) of sub section 2 of section 40A exceeds the prescribed limit, it would be a specified domestic transaction for which AO is required to make a reference to TPO under section 92CA of the Act for determination of the ALP. In the instant case, since the transaction exceeds the prescribed limit it becomes the specified domestic transaction for which reference was made by the AO to the TPO under section 92CA for determination of the ALP. Consequently, the TPO submitted a report which was objected to by the learned counsel for the assessee and filed a objection before the ORP. Having adjudicated the objections the ORP has issued certain directions and consequently the AO passed an order. Subsequently, by Finance Act, 2017 w.e.f. 01.04.2017, clause (i) of section 92BA was omitted from the statute. Now the question arises as to whether on account of omission of clause (i) from the statute, the proceedings already initiated or action taken under clause (i) becomes redundant or otiose. In this regard, our attention was invited to judgment

I.T.A. No. 1125/Kol/2019 Assessment Year: 2014-15 I.T.A. No. 343/Kol/2019 Assessment Year: 2014-15 Rahee Jhajharia E to E JV 11 of the Apex Court in the case of Kolhapur Canesugar Works Ltd., (supra) in which the impact of omission of old rule 10 and 1 OA was examined. Having carefully examined the issue in the light of provisions of section 6 of the General Clauses Act, their Lordship has observed "that in such a case, the court is to look to the provisions in the rule which has been introduced after omission of the previous rule to determine whether a pending proceeding will continue or lapse. If there is a provision therein that pending proceedings shall continue and be disposed of under the old rule as if the rule has not been deleted or omitted then such a proceeding will continue. If the case is covered by Section 6 of the General Clauses Act or there is a pari-materia provision in the statute under which the rule has been framed in that case also the pending proceeding will not be affected by omission of the rule. In the absence of any such provisions in the statute or in the rule, the pending proceeding will lapse under rule under which the notice was issued or proceeding being omitted or deleted". 8. In the case of General Finance Co., Vs. ACIT, their Lordship Of the Apex Court has again examined the issue and held that the principle underlying section 6 as saving the right to initiate proceedings for liabilities incurred during the currency of the Act will not apply to omission of a provision in an Act but only to repeal, omission being different from repeal as held in different cases. Following the aforesaid judgments, the jurisdictional High Court has also expressed the same view in the case of CIT Vs. GE Thermometrics India Pvt. Ltd. The relevant observation of the jurisdictional High Court is extracted hereunder: "8. Admittedly, in the instant case, there is no saving clause or provision introduced by way of an amendment while omitting sub- section (9) of Section 10B. Therefore, once the aforesaid section is omitted from the statute book, the result is it had never been passed and be considered as a law that never exists and therefore, when the assessment orders were passed in 2006, the AO was not justified in taking note of a provision which was not in the statute book and denying benefit to the assessee. The whole object of such omission is to extend the benefit under Section 10B of the Act irrespective of the fact whether during the period to which they are entitled to the benefit, the ownership continues with the original assessee or it is transferred to another person. Benefit is to the undertaking and not to the person who is running the business. We do not see any merit in these appeals. The substantial question of law is answered in favour of the assessee and against the revenue. Accordingly, the appeals are dismissed." 9. From the aforesaid judgments, it has become abundantly clear that once a particular provision of section is omitted from the statute, it shall be deemed to be omitted from its inception unless and until there is some saving clause or provision to make it clear that action taken or proceeding initiated under I.T.A. No. 1125/Kol/2019 Assessment Year: 2014-15 I.T.A. No. 343/Kol/2019 Assessment Year: 2014-15 Rahee Jhajharia E to E JV 12 that provision or section would continue and would not be left on account of omission. 10. In the instant case, undisputedly, by the Finance Act, 2017, clause (i) of section 92BA has been omitted w.e.f. 01.04.2017. Once this clause is omitted by subsequent amendment, it would be deemed that clause (i) was never been on the statute. While omitting the clause (i) of section 92BA, nothing was specified whether the proceeding initiated or action taken on this continue. Therefore, the proceeding initiated or action taken under that clause would not survive at all. In this legal position, the cognizance taken by the AO under section 92B(i) and reference made to TPO under section 92CA is invalid and bad in law. Therefore, the consequential order passed by the TPO and DRP is also not sustainable in the eyes of law. 11. Under these circumstances, where this clause (i) is omitted from the statute since its inception, the AO ought have required to frame the assessment in normal course after making necessary enquiries of particular claim of expenditure in accordance with law. But this exercise could not have been done on account of provisions of section 92BA Clause (i) of the Act. Now when this clause (i) has been omitted from the statute by virtue of the aforesaid amendments, the AO is required to adjudicate the issue of claim of expenditures in accordance with law after affording opportunity of being heard to the assessee. We therefore set aside the orders of the AO and the DRP and restore the matter to the AO with the direction to readjudicate the issue of claim of expenditure incurred in respect of which payment has been made or is to be made to person referred to in clause (b) of sub section 2 of section 40A of the Act. Accordingly, since we have restored the matter to the AO, we find no justification to deal with the other issues on merit. Accordingly, appeal of the assessee stand allowed for statistical purposes." 5. Respectfully following the aforesaid order of the Tribunal, we note that in the instant case, by the Finance Act, 2017, clause (i) of section 92BA has been omitted w.e.f. 01.04.2017. The legal effect of a provision being omitted by subsequent amendment, then it would be deemed that clause (i) was never been on the statute book. While omitting the clause (i) of section 92BA, we note that nothing was specified whether the proceeding initiated or action taken on this continue. Therefore, the proceeding initiated or action taken under that clause would not survive at all. In the light of this legal position, the cognizance taken by the AO under section 92BA(i) and reference made to TPO under section 92CA is invalid and bad in law. Therefore, the consequential order passed by the TPO and DRP is also not sustainable in the eyes of law. Therefore, the legal effect is when this clause (i) is omitted from the statute it has to be taken as though there is no clause (i) since its inception. And when looked from that angle, the AO should have framed the assessment as in normal course after making necessary enquiries of particular claim of expenditure in accordance with law. But this exercise could not happen on account of provisions of section 92BA clause (i) of the Act. Therefore, since this clause (i) has been omitted from the statute by virtue of the aforesaid amendments, the AO is required to adjudicate the issue of claim of expenditures in accordance

I.T.A. No. 1125/Kol/2019 Assessment Year: 2014-15 I.T.A. No. 343/Kol/2019 Assessment Year: 2014-15 Rahee Jhajharia E to E JV 13 with law after affording opportunity of being heard to the assessee. We therefore set aside the orders of the AO and the DRP and restore the matter back to the AO with the direction to readjudicate the issue of claim of expenditure incurred in respect of which payment has been made or is to be made to person referred to in clause (b) of sub section 2 of section 40A of the Act. Accordingly, since we have restored the matter to the AO, we find no justification to deal with the other issues on merit. Accordingly, appeal of the assessee stand allowed for statistical purposes. Therefore, all the appeals of assessee are allowed for statistical purposes.”

आदेशानुसार/ BY ORDER,