Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, ‘’ D’’ BENCH, AHMEDABAD
Before: SHRI MAHAVIR PRASAD & SHRI WASEEM AHMED
आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:
The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax (Appeals)-3, Ahmedabad, dated 28/12/2018 arising in the matter of assessment order passed under s. 143(3) r.w.s. 144C of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2014-2015.
2. The only effective issue raised by the assessee is that learned CIT (A) erred in confirming the addition made by the AO/TPO for Rs. 19,28,148/- on account of adjustment in Specified Domestic Transactions.
3. The facts in brief are that the assessee in the present case is a partnership firm and engaged in the business of manufacturing of Guar gum power from Guar dal. The assessee in the year under consideration has declared certain Specified Domestic Transactions in form No. 3CEB. The details of the same stand as under: Sr.No. Name of the Name of Transaction MAM as per the Related Party Transaction Value(Rs) assessee 1. Rama Gum Purchase of Guar 334912325 CUP Industries Ltd gum dal 2. Amit Panchal Partner 1854375 CUP remuneration and interest 3. Vipul Panchal Partner 452937 CUP remuneration and interest 4. Jinpal B Shah Partner 1847350 CUP remuneration and interest 5. Laxmi Microtech labor 2180000 CUP 3.1 The assessee to justify the arm length price of impugned Specified Domestic Transactions has adopted the CUP method as the most appropriate method, treating itself as the tested party. It was the claim of the assessee that the impugned Specified Domestic Transactions have been carried out at the Arm length price and therefore no adjustment is required to be made.
3.2 However, the TPO based on the comparative chart filed by the assessee found that there were instances wherein the difference between the actual price of the assessee and the comparable cases is more than the acceptable range of +(-) 3% of the ALP. Thus the TPO proposed to make an upward adjustment of Rs. 36,07,283/- which was added by the AO to the total income of the assessee.
4. Aggrieved assessee preferred an appeal to the Ld.CIT(A) who was pleased to uphold the order of the AO but after making the correction with the arithmetical error in the computation made by the TPO/AO. As such the Ld.CIT(A), confirmed the upward adjustment of Rs.19,28,148/- only. Hence, the ground of appeal of the assessee was partly allowed by the Ld. CIT(A).
5. Being aggrieved by the order of the Ld. CIT(A), the assessee is in appeal before us.
6. The Ld. Counsel before us filed a paper book running from pages 1 to 97 and submitted that the impugned transaction has been removed from the scope of Specified Domestic Transactions by way of an amendment by the Finance Act, 2017 with effective from 01/03/2017. Accordingly, once the provision of section 92BA(i) of the Act, has been deleted from the statute, then it has to be construed as if such provision has never existed under the provision of law. Accordingly, the Ld. A.R contended that no upward adjustment can be made.
7. On the contrary, the Ld. DR vehemently supported the order of the authorities below.
8. We have heard the rival contentions of both the parties and perused the materials available on record. At the outset, we note that the identical issue has been decided by this Tribunal in favor of the assessee in the case of Ammann India (P) Ltd. Vs. ACIT reported in 2022 Tax Pub(DT) 078 by observing as under:
The short point involved on the maintainability of the order impugned on the issue as to whether under the present facts and circumstances of the case section 92-BA(i) would be applicable particularly when the said section was omitted from the statute by the Finance Act, 2017 with effect from M-2017. In fact, it is to be considered as to whether clause (i) of section 92-BA of the Act which has been omitted with effect from 1-4-2017 would be applicable retrospectively. It is a settled principle of law that when a particular provision is repealed from the statue the normal effect would be to obliterate it from the statute book as completely as if it had never been passed and the statute must be considered as a law that never existed. Further that in a case where a particular provision in a statute is unconditionally omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceeding shall not continue but fresh proceedings for the same purpose may be initiated under the new provision. If that be so, then since the clause (i) of section 92BA was omitted by Finance Act, 2017 with effect from 1-4-2017 from the statute the same cannot be made applicable in the pending proceeding. It is, therefore, to be considered no nest in the concerned statute as if it had never been passed. In that view of the matter once the said Clause being omitted with effect from M-2017 the decision made by Assessing officer/Transfer Pricing Officer and Dispute Resolution Panel invoking such section 91BA is without any basis, and/or jurisdiction, invalid and bad in law and, thus, the same is liable to be quashed. On this aspect, we have further carefully considered the judgment passed by the Hon'ble Karnataka High Court. While dealing with the issue the Hon'ble Court was pleased to observe as follows: '6. In fact, Coordinate Bench under similar circumstances had examined the effect of omission of sub-section (9) to section 10B of the Act with effect from 1-4-2004 by Finance Act, 2003 and held that there was no saving clause or provision introduced by way of amendment by omitting sub-section (9) of section 1 OB. hi the matter of General Finance Co. v. ACIT, which judgment has also been taken note of by the tribunal while repelling the contention raised by revenue with regard to retrospectively of section 92-BA (i) of the Act. Thus, when clause (i) of section 92-BA having been omitted by the Finance Act, 2017, with effect from 1-7-2017 from the Statute the resultant effect is that it had never been passed and to be considered as a law never been existed. Hence, decision taken by the assessing officer under the effect of section 92-BI and reference made to the order of Transfer Pricing Officer-TCP under section 92-CA could be invalid and bad in law.' 10. We have further considered the following various judgments passed by the Hon'ble Benches as relied upon by the learned Authorized Representative: (i) ITAT Cuttack Bench in the matter of Mr. SKM- UMSL JV v. ITO inlTA No. 229/CTK/2019 (Cuttack ITAT) : 2020 TaxPubtDT) 1113 (Ctk-Trib) for assessment year 2014-15 observed as follows: '...In view of the above, we are of the considered opinion that the transactions related to the assessee falls under the clause (i) at section 92-BA of the Act, which has already been removed by the Finance Act, 2017 with effect from 1-4-2017, therefore, the imposition of penalty under section 271-BA of the Act for failure to furnish the report in prescribed Form No. 3CEB in terms of provisions of section 92- E of the Act, does not survive at all. Accordingly, we allow the appeal of the assessee and cancel levied under section 271BA of the Act by the assessing officer and upheld by the Commissioner (Appeals).
8. In the result, appeal of the assessee is allowed.' ii) ITAT Gauhati Bench in the matter of Shree Shai Smelters (I) Ltd v. ACIT'mlTA No. 228/GAU/2019 for assessment year 2014-15 :2020 TaxPuhfDT) 3091 (Gau-Trib) dealt with the identical issue. The relevant portion whereof is as follows: '5. We note that in respect of specified domestic transactions which is referred to clause (i) of section 92-BA of the Act, which was omitted with effect from 1-4-2017 and the effect of such 'omission' of clause (i) of section 92-BA means that this provision never existed in the statute book, hence reference to Transfer Pricing Officer was bad in law. As the issue is squarely covered in favour of the assessee by the decision of Co- ordinate Bench in the case of M/s. Raipur Steel Casting India (P) Ltd. (supra), and there is no change in facts and law and the Revenue is unable to produce any material to convert the above said findings of the Coordinate Bench. Therefore, respectfully following the decision of Co-ordinate Bench on the technical issue referred above, we allow the appeal of the assessee.
6. In the result, the appeal of the assessee is allowed.' (iii) ITAT Kolkata Bench in the matter ofM/s. Raipur Steel Casting India (P) Ltd. v. Pr. CIT- 5 in for assessment year 2014-15 : (2020) 117 taxmann.com 944 (Kol) (Kolkata ITAT) : 2020 TaxPuhfDT) 2659 (Kol-Trib) on the identical issue observed the following: '...We note that learned Principal Commissioner issued the above show-cause notice under section 263 in respect of specified domestic transactions referred to in clause (i) of section 92-BA of the Act which was omitted with effect from 1-4-2017, and effect of such 'omission' of clause (i) of section 92-BA means that this provision never existed in the statute book, since clause (i) of section 92-BA never existed in the statute book therefore, learned Principal Commissioner cannot exercise his jurisdiction under section 263 of the Act in respect of specified domestic transactions referred to in clause (i) of section 92-BA of the Act. Therefore, the action of the assessing officer cannot be held to be erroneous as well as prejudicial to the interest of the revenue, in the facts and circumstances as narrated above. Thus, the usurpation of jurisdiction of exercising revisional jurisdiction by the Principal Commissioner is 'null' in the eyes of law and, therefore, we are inclined to quash the very assumption of jurisdiction to invoke revisional jurisdiction under section 263 of the Act by the Principal Commissioner. Therefore, we quash the order of the Principal Commissioner dated 8-3-2019 being void ab initio.' (iv) ITAT Indore Bench in the matter of Swastik Coal Corporation (P) Ltd. v. Pr. CIT-2 in (ITA 486/IND/20I8) (Indore ITAT) :2019 TaxPub(DT) 5019 (Ind-Trib) for assessment year 2014-15 on the identical issue observed the following: '8. We find that the above view of the learned Principal Commissioner is not correct, hi view of the aforesaid discussion, moreover, the coordinate bench has also examined the issue in the case of Texport Overseas (P) Ltd. in IT (2020) 114 taxmann.com 568 (Karnataka) : 2020 Tax Pub(DT) 2756 (Karn-HC). Admittedly, in this case, the order has been revised purely on the basis that the assessing officer has not referred to determine the arm's length price to the Transfer Pricing Officer. Since the provision itself stood omitted at the time when the order was passed by the learned Principal Commissioner, under these undisputed facts in the light of the Judgment of the Hon’ble Supreme Court rendered in the case of General Finance Company (supra) as well as the order of the coordinate bench rendered in the case of Texport Overseas (P) Ltd. (supra), the impugned order cannot be! sustained, hence is hereby quashed. The order impugned is thus quashed and the grounds' raised in the appeal are allowed.
9. In the result, the appeal filed by the assessee in ITA No. 486/IND/2018 for the assessment year 2014-15 is allowed.' Thus, relying upon the ratio laid down upon the Hon'ble Kamataka High Court and different benches of the Tribunal we find no justification in passing the impugned order by the Transfer Pricing Officer/Assessing officer in making upward adjustment invoking section 92- BA (i) of the Act in the present facts and circumstances of the case particularly when the said section stood omitted with effect from 1^-2017 from the statute itself. Hence, we find the same is without any basis, void ab initio and without jurisdiction, hi our considered opinion the impugned order is, thus, bad in law and hence the same is hereby quashed. Since the matter is allowed on the maintainability point itself further discussion of the ground on merit has become academic.
11. In the result, the appeal preferred by the assessee is allowed.
9.1 The facts of the case on hand are identical to the facts of the case as discussed above. At the time of hearing the Ld. D.R has also not brought anything on record suggesting any difference in facts or change in the provision of Law. Thus respectfully following the decision of the Co-ordinate Bench as discussed above we do not find any reason to uphold the order of the authorities below. Thus, in our considered view, the order passed by the authorities below is bad in law and therefore the same is liable to the quashed. As the ground of appeal of the assessee has been allowed on technical reason, we are not inclined to adjudicate the issue raised by the assessee on merit. Hence, the ground of appeal of the assessee is allowed.
10. In the result, the appeal of the assessee is partly allowed.
Order pronounced in the Court on 23/03/2022 at Ahmedabad.
Sd/- Sd/- (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 23/03/2022 Manish
आयकर अपीलीय अिधकरण, अहमदाबाद �यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’ D’’ BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER And SHRI WASEEM AHMED, ACCOUNTANT MEMBER आयकर अपील सं./ िनधा�रण वष�/Asstt. Year: 2014-2015 Laxmi Hydrocolloids, I.T.O., Plot No.104, Vs. Ward-3(2)(8), Devraj Industrial Estate, Ahmedabad. Piplej Pirana Road, Ahmedabad-380022.
PAN: AAEFL2440D
(Applicant) (Respondent)
Assessee by : Shri Jaymin Shah, A.R Revenue by : Shri Purushottam Kumar, Sr.D.R सुनवाई क� तारीख/Date of Hearing : 09/03/2022 घोषणा क� तारीख /Date of Pronouncement: 23/03/2022
आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:
The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax (Appeals)-3, Ahmedabad, dated 28/12/2018 arising in the matter of assessment order passed under s. 143(3) r.w.s. 144C of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2014-2015.
2. The only effective issue raised by the assessee is that learned CIT (A) erred in confirming the addition made by the AO/TPO for Rs. 19,28,148/- on account of adjustment in Specified Domestic Transactions.
3. The facts in brief are that the assessee in the present case is a partnership firm and engaged in the business of manufacturing of Guar gum power from Guar dal. The assessee in the year under consideration has declared certain Specified Domestic Transactions in form No. 3CEB. The details of the same stand as under: Sr.No. Name of the Name of Transaction MAM as per the Related Party Transaction Value(Rs) assessee 1. Rama Gum Purchase of Guar 334912325 CUP Industries Ltd gum dal 2. Amit Panchal Partner 1854375 CUP remuneration and interest 3. Vipul Panchal Partner 452937 CUP remuneration and interest 4. Jinpal B Shah Partner 1847350 CUP remuneration and interest 5. Laxmi Microtech labor 2180000 CUP 3.1 The assessee to justify the arm length price of impugned Specified Domestic Transactions has adopted the CUP method as the most appropriate method, treating itself as the tested party. It was the claim of the assessee that the impugned Specified Domestic Transactions have been carried out at the Arm length price and therefore no adjustment is required to be made.
3.2 However, the TPO based on the comparative chart filed by the assessee found that there were instances wherein the difference between the actual price of the assessee and the comparable cases is more than the acceptable range of +(-) 3% of the ALP. Thus the TPO proposed to make an upward adjustment of Rs. 36,07,283/- which was added by the AO to the total income of the assessee.
4. Aggrieved assessee preferred an appeal to the Ld.CIT(A) who was pleased to uphold the order of the AO but after making the correction with the arithmetical error in the computation made by the TPO/AO. As such the Ld.CIT(A), confirmed the upward adjustment of Rs.19,28,148/- only. Hence, the ground of appeal of the assessee was partly allowed by the Ld. CIT(A).
5. Being aggrieved by the order of the Ld. CIT(A), the assessee is in appeal before us.
6. The Ld. Counsel before us filed a paper book running from pages 1 to 97 and submitted that the impugned transaction has been removed from the scope of Specified Domestic Transactions by way of an amendment by the Finance Act, 2017 with effective from 01/03/2017. Accordingly, once the provision of section 92BA(i) of the Act, has been deleted from the statute, then it has to be construed as if such provision has never existed under the provision of law. Accordingly, the Ld. A.R contended that no upward adjustment can be made.
7. On the contrary, the Ld. DR vehemently supported the order of the authorities below.
8. We have heard the rival contentions of both the parties and perused the materials available on record. At the outset, we note that the identical issue has been decided by this Tribunal in favor of the assessee in the case of Ammann India (P) Ltd. Vs. ACIT reported in 2022 Tax Pub(DT) 078 by observing as under:
The short point involved on the maintainability of the order impugned on the issue as to whether under the present facts and circumstances of the case section 92-BA(i) would be applicable particularly when the said section was omitted from the statute by the Finance Act, 2017 with effect from M-2017. In fact, it is to be considered as to whether clause (i) of section 92-BA of the Act which has been omitted with effect from 1-4-2017 would be applicable retrospectively. It is a settled principle of law that when a particular provision is repealed from the statue the normal effect would be to obliterate it from the statute book as completely as if it had never been passed and the statute must be considered as a law that never existed. Further that in a case where a particular provision in a statute is unconditionally omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceeding shall not continue but fresh proceedings for the same purpose may be initiated under the new provision. If that be so, then since the clause (i) of section 92BA was omitted by Finance Act, 2017 with effect from 1-4-2017 from the statute the same cannot be made applicable in the pending proceeding. It is, therefore, to be considered no nest in the concerned statute as if it had never been passed. In that view of the matter once the said Clause being omitted with effect from M-2017 the decision made by Assessing officer/Transfer Pricing Officer and Dispute Resolution Panel invoking such section 91BA is without any basis, and/or jurisdiction, invalid and bad in law and, thus, the same is liable to be quashed. On this aspect, we have further carefully considered the judgment passed by the Hon'ble Karnataka High Court. While dealing with the issue the Hon'ble Court was pleased to observe as follows: '6. In fact, Coordinate Bench under similar circumstances had examined the effect of omission of sub-section (9) to section 10B of the Act with effect from 1-4-2004 by Finance Act, 2003 and held that there was no saving clause or provision introduced by way of amendment by omitting sub-section (9) of section 1 OB. hi the matter of General Finance Co. v. ACIT, which judgment has also been taken note of by the tribunal while repelling the contention raised by revenue with regard to retrospectively of section 92-BA (i) of the Act. Thus, when clause (i) of section 92-BA having been omitted by the Finance Act, 2017, with effect from 1-7-2017 from the Statute the resultant effect is that it had never been passed and to be considered as a law never been existed. Hence, decision taken by the assessing officer under the effect of section 92-BI and reference made to the order of Transfer Pricing Officer-TCP under section 92-CA could be invalid and bad in law.' 10. We have further considered the following various judgments passed by the Hon'ble Benches as relied upon by the learned Authorized Representative: (i) ITAT Cuttack Bench in the matter of Mr. SKM- UMSL JV v. ITO inlTA No. 229/CTK/2019 (Cuttack ITAT) : 2020 TaxPubtDT) 1113 (Ctk-Trib) for assessment year 2014-15 observed as follows: '...In view of the above, we are of the considered opinion that the transactions related to the assessee falls under the clause (i) at section 92-BA of the Act, which has already been removed by the Finance Act, 2017 with effect from 1-4-2017, therefore, the imposition of penalty under section 271-BA of the Act for failure to furnish the report in prescribed Form No. 3CEB in terms of provisions of section 92- E of the Act, does not survive at all. Accordingly, we allow the appeal of the assessee and cancel levied under section 271BA of the Act by the assessing officer and upheld by the Commissioner (Appeals).
8. In the result, appeal of the assessee is allowed.' ii) ITAT Gauhati Bench in the matter of Shree Shai Smelters (I) Ltd v. ACIT'mlTA No. 228/GAU/2019 for assessment year 2014-15 :2020 TaxPuhfDT) 3091 (Gau-Trib) dealt with the identical issue. The relevant portion whereof is as follows: '5. We note that in respect of specified domestic transactions which is referred to clause (i) of section 92-BA of the Act, which was omitted with effect from 1-4-2017 and the effect of such 'omission' of clause (i) of section 92-BA means that this provision never existed in the statute book, hence reference to Transfer Pricing Officer was bad in law. As the issue is squarely covered in favour of the assessee by the decision of Co- ordinate Bench in the case of M/s. Raipur Steel Casting India (P) Ltd. (supra), and there is no change in facts and law and the Revenue is unable to produce any material to convert the above said findings of the Coordinate Bench. Therefore, respectfully following the decision of Co-ordinate Bench on the technical issue referred above, we allow the appeal of the assessee.
6. In the result, the appeal of the assessee is allowed.' (iii) ITAT Kolkata Bench in the matter ofM/s. Raipur Steel Casting India (P) Ltd. v. Pr. CIT- 5 in for assessment year 2014-15 : (2020) 117 taxmann.com 944 (Kol) (Kolkata ITAT) : 2020 TaxPuhfDT) 2659 (Kol-Trib) on the identical issue observed the following: '...We note that learned Principal Commissioner issued the above show-cause notice under section 263 in respect of specified domestic transactions referred to in clause (i) of section 92-BA of the Act which was omitted with effect from 1-4-2017, and effect of such 'omission' of clause (i) of section 92-BA means that this provision never existed in the statute book, since clause (i) of section 92-BA never existed in the statute book therefore, learned Principal Commissioner cannot exercise his jurisdiction under section 263 of the Act in respect of specified domestic transactions referred to in clause (i) of section 92-BA of the Act. Therefore, the action of the assessing officer cannot be held to be erroneous as well as prejudicial to the interest of the revenue, in the facts and circumstances as narrated above. Thus, the usurpation of jurisdiction of exercising revisional jurisdiction by the Principal Commissioner is 'null' in the eyes of law and, therefore, we are inclined to quash the very assumption of jurisdiction to invoke revisional jurisdiction under section 263 of the Act by the Principal Commissioner. Therefore, we quash the order of the Principal Commissioner dated 8-3-2019 being void ab initio.' (iv) ITAT Indore Bench in the matter of Swastik Coal Corporation (P) Ltd. v. Pr. CIT-2 in (ITA 486/IND/20I8) (Indore ITAT) :2019 TaxPub(DT) 5019 (Ind-Trib) for assessment year 2014-15 on the identical issue observed the following: '8. We find that the above view of the learned Principal Commissioner is not correct, hi view of the aforesaid discussion, moreover, the coordinate bench has also examined the issue in the case of Texport Overseas (P) Ltd. in IT (2020) 114 taxmann.com 568 (Karnataka) : 2020 Tax Pub(DT) 2756 (Karn-HC). Admittedly, in this case, the order has been revised purely on the basis that the assessing officer has not referred to determine the arm's length price to the Transfer Pricing Officer. Since the provision itself stood omitted at the time when the order was passed by the learned Principal Commissioner, under these undisputed facts in the light of the Judgment of the Hon’ble Supreme Court rendered in the case of General Finance Company (supra) as well as the order of the coordinate bench rendered in the case of Texport Overseas (P) Ltd. (supra), the impugned order cannot be! sustained, hence is hereby quashed. The order impugned is thus quashed and the grounds' raised in the appeal are allowed.
9. In the result, the appeal filed by the assessee in ITA No. 486/IND/2018 for the assessment year 2014-15 is allowed.' Thus, relying upon the ratio laid down upon the Hon'ble Kamataka High Court and different benches of the Tribunal we find no justification in passing the impugned order by the Transfer Pricing Officer/Assessing officer in making upward adjustment invoking section 92- BA (i) of the Act in the present facts and circumstances of the case particularly when the said section stood omitted with effect from 1^-2017 from the statute itself. Hence, we find the same is without any basis, void ab initio and without jurisdiction, hi our considered opinion the impugned order is, thus, bad in law and hence the same is hereby quashed. Since the matter is allowed on the maintainability point itself further discussion of the ground on merit has become academic.
11. In the result, the appeal preferred by the assessee is allowed.
9.1 The facts of the case on hand are identical to the facts of the case as discussed above. At the time of hearing the Ld. D.R has also not brought anything on record suggesting any difference in facts or change in the provision of Law. Thus respectfully following the decision of the Co-ordinate Bench as discussed above we do not find any reason to uphold the order of the authorities below. Thus, in our considered view, the order passed by the authorities below is bad in law and therefore the same is liable to the quashed. As the ground of appeal of the assessee has been allowed on technical reason, we are not inclined to adjudicate the issue raised by the assessee on merit. Hence, the ground of appeal of the assessee is allowed.
10. In the result, the appeal of the assessee is partly allowed.
Order pronounced in the Court on 23/03/2022 at Ahmedabad.
Sd/- Sd/- (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 23/03/2022 Manish
आयकर अपीलीय अिधकरण, अहमदाबाद �यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’ D’’ BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER And SHRI WASEEM AHMED, ACCOUNTANT MEMBER आयकर अपील सं./ िनधा�रण वष�/Asstt. Year: 2014-2015 Laxmi Hydrocolloids, I.T.O., Plot No.104, Vs. Ward-3(2)(8), Devraj Industrial Estate, Ahmedabad. Piplej Pirana Road, Ahmedabad-380022.
PAN: AAEFL2440D
(Applicant) (Respondent)
Assessee by : Shri Jaymin Shah, A.R Revenue by : Shri Purushottam Kumar, Sr.D.R सुनवाई क� तारीख/Date of Hearing : 09/03/2022 घोषणा क� तारीख /Date of Pronouncement: 23/03/2022
आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:
The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax (Appeals)-3, Ahmedabad, dated 28/12/2018 arising in the matter of assessment order passed under s. 143(3) r.w.s. 144C of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2014-2015.
2. The only effective issue raised by the assessee is that learned CIT (A) erred in confirming the addition made by the AO/TPO for Rs. 19,28,148/- on account of adjustment in Specified Domestic Transactions.
3. The facts in brief are that the assessee in the present case is a partnership firm and engaged in the business of manufacturing of Guar gum power from Guar dal. The assessee in the year under consideration has declared certain Specified Domestic Transactions in form No. 3CEB. The details of the same stand as under: Sr.No. Name of the Name of Transaction MAM as per the Related Party Transaction Value(Rs) assessee 1. Rama Gum Purchase of Guar 334912325 CUP Industries Ltd gum dal 2. Amit Panchal Partner 1854375 CUP remuneration and interest 3. Vipul Panchal Partner 452937 CUP remuneration and interest 4. Jinpal B Shah Partner 1847350 CUP remuneration and interest 5. Laxmi Microtech labor 2180000 CUP 3.1 The assessee to justify the arm length price of impugned Specified Domestic Transactions has adopted the CUP method as the most appropriate method, treating itself as the tested party. It was the claim of the assessee that the impugned Specified Domestic Transactions have been carried out at the Arm length price and therefore no adjustment is required to be made.
3.2 However, the TPO based on the comparative chart filed by the assessee found that there were instances wherein the difference between the actual price of the assessee and the comparable cases is more than the acceptable range of +(-) 3% of the ALP. Thus the TPO proposed to make an upward adjustment of Rs. 36,07,283/- which was added by the AO to the total income of the assessee.
4. Aggrieved assessee preferred an appeal to the Ld.CIT(A) who was pleased to uphold the order of the AO but after making the correction with the arithmetical error in the computation made by the TPO/AO. As such the Ld.CIT(A), confirmed the upward adjustment of Rs.19,28,148/- only. Hence, the ground of appeal of the assessee was partly allowed by the Ld. CIT(A).
5. Being aggrieved by the order of the Ld. CIT(A), the assessee is in appeal before us.
6. The Ld. Counsel before us filed a paper book running from pages 1 to 97 and submitted that the impugned transaction has been removed from the scope of Specified Domestic Transactions by way of an amendment by the Finance Act, 2017 with effective from 01/03/2017. Accordingly, once the provision of section 92BA(i) of the Act, has been deleted from the statute, then it has to be construed as if such provision has never existed under the provision of law. Accordingly, the Ld. A.R contended that no upward adjustment can be made.
7. On the contrary, the Ld. DR vehemently supported the order of the authorities below.
8. We have heard the rival contentions of both the parties and perused the materials available on record. At the outset, we note that the identical issue has been decided by this Tribunal in favor of the assessee in the case of Ammann India (P) Ltd. Vs. ACIT reported in 2022 Tax Pub(DT) 078 by observing as under:
The short point involved on the maintainability of the order impugned on the issue as to whether under the present facts and circumstances of the case section 92-BA(i) would be applicable particularly when the said section was omitted from the statute by the Finance Act, 2017 with effect from M-2017. In fact, it is to be considered as to whether clause (i) of section 92-BA of the Act which has been omitted with effect from 1-4-2017 would be applicable retrospectively. It is a settled principle of law that when a particular provision is repealed from the statue the normal effect would be to obliterate it from the statute book as completely as if it had never been passed and the statute must be considered as a law that never existed. Further that in a case where a particular provision in a statute is unconditionally omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceeding shall not continue but fresh proceedings for the same purpose may be initiated under the new provision. If that be so, then since the clause (i) of section 92BA was omitted by Finance Act, 2017 with effect from 1-4-2017 from the statute the same cannot be made applicable in the pending proceeding. It is, therefore, to be considered no nest in the concerned statute as if it had never been passed. In that view of the matter once the said Clause being omitted with effect from M-2017 the decision made by Assessing officer/Transfer Pricing Officer and Dispute Resolution Panel invoking such section 91BA is without any basis, and/or jurisdiction, invalid and bad in law and, thus, the same is liable to be quashed. On this aspect, we have further carefully considered the judgment passed by the Hon'ble Karnataka High Court. While dealing with the issue the Hon'ble Court was pleased to observe as follows: '6. In fact, Coordinate Bench under similar circumstances had examined the effect of omission of sub-section (9) to section 10B of the Act with effect from 1-4-2004 by Finance Act, 2003 and held that there was no saving clause or provision introduced by way of amendment by omitting sub-section (9) of section 1 OB. hi the matter of General Finance Co. v. ACIT, which judgment has also been taken note of by the tribunal while repelling the contention raised by revenue with regard to retrospectively of section 92-BA (i) of the Act. Thus, when clause (i) of section 92-BA having been omitted by the Finance Act, 2017, with effect from 1-7-2017 from the Statute the resultant effect is that it had never been passed and to be considered as a law never been existed. Hence, decision taken by the assessing officer under the effect of section 92-BI and reference made to the order of Transfer Pricing Officer-TCP under section 92-CA could be invalid and bad in law.' 10. We have further considered the following various judgments passed by the Hon'ble Benches as relied upon by the learned Authorized Representative: (i) ITAT Cuttack Bench in the matter of Mr. SKM- UMSL JV v. ITO inlTA No. 229/CTK/2019 (Cuttack ITAT) : 2020 TaxPubtDT) 1113 (Ctk-Trib) for assessment year 2014-15 observed as follows: '...In view of the above, we are of the considered opinion that the transactions related to the assessee falls under the clause (i) at section 92-BA of the Act, which has already been removed by the Finance Act, 2017 with effect from 1-4-2017, therefore, the imposition of penalty under section 271-BA of the Act for failure to furnish the report in prescribed Form No. 3CEB in terms of provisions of section 92- E of the Act, does not survive at all. Accordingly, we allow the appeal of the assessee and cancel levied under section 271BA of the Act by the assessing officer and upheld by the Commissioner (Appeals).
8. In the result, appeal of the assessee is allowed.' ii) ITAT Gauhati Bench in the matter of Shree Shai Smelters (I) Ltd v. ACIT'mlTA No. 228/GAU/2019 for assessment year 2014-15 :2020 TaxPuhfDT) 3091 (Gau-Trib) dealt with the identical issue. The relevant portion whereof is as follows: '5. We note that in respect of specified domestic transactions which is referred to clause (i) of section 92-BA of the Act, which was omitted with effect from 1-4-2017 and the effect of such 'omission' of clause (i) of section 92-BA means that this provision never existed in the statute book, hence reference to Transfer Pricing Officer was bad in law. As the issue is squarely covered in favour of the assessee by the decision of Co- ordinate Bench in the case of M/s. Raipur Steel Casting India (P) Ltd. (supra), and there is no change in facts and law and the Revenue is unable to produce any material to convert the above said findings of the Coordinate Bench. Therefore, respectfully following the decision of Co-ordinate Bench on the technical issue referred above, we allow the appeal of the assessee.
6. In the result, the appeal of the assessee is allowed.' (iii) ITAT Kolkata Bench in the matter ofM/s. Raipur Steel Casting India (P) Ltd. v. Pr. CIT- 5 in for assessment year 2014-15 : (2020) 117 taxmann.com 944 (Kol) (Kolkata ITAT) : 2020 TaxPuhfDT) 2659 (Kol-Trib) on the identical issue observed the following: '...We note that learned Principal Commissioner issued the above show-cause notice under section 263 in respect of specified domestic transactions referred to in clause (i) of section 92-BA of the Act which was omitted with effect from 1-4-2017, and effect of such 'omission' of clause (i) of section 92-BA means that this provision never existed in the statute book, since clause (i) of section 92-BA never existed in the statute book therefore, learned Principal Commissioner cannot exercise his jurisdiction under section 263 of the Act in respect of specified domestic transactions referred to in clause (i) of section 92-BA of the Act. Therefore, the action of the assessing officer cannot be held to be erroneous as well as prejudicial to the interest of the revenue, in the facts and circumstances as narrated above. Thus, the usurpation of jurisdiction of exercising revisional jurisdiction by the Principal Commissioner is 'null' in the eyes of law and, therefore, we are inclined to quash the very assumption of jurisdiction to invoke revisional jurisdiction under section 263 of the Act by the Principal Commissioner. Therefore, we quash the order of the Principal Commissioner dated 8-3-2019 being void ab initio.' (iv) ITAT Indore Bench in the matter of Swastik Coal Corporation (P) Ltd. v. Pr. CIT-2 in (ITA 486/IND/20I8) (Indore ITAT) :2019 TaxPub(DT) 5019 (Ind-Trib) for assessment year 2014-15 on the identical issue observed the following: '8. We find that the above view of the learned Principal Commissioner is not correct, hi view of the aforesaid discussion, moreover, the coordinate bench has also examined the issue in the case of Texport Overseas (P) Ltd. in IT (2020) 114 taxmann.com 568 (Karnataka) : 2020 Tax Pub(DT) 2756 (Karn-HC). Admittedly, in this case, the order has been revised purely on the basis that the assessing officer has not referred to determine the arm's length price to the Transfer Pricing Officer. Since the provision itself stood omitted at the time when the order was passed by the learned Principal Commissioner, under these undisputed facts in the light of the Judgment of the Hon’ble Supreme Court rendered in the case of General Finance Company (supra) as well as the order of the coordinate bench rendered in the case of Texport Overseas (P) Ltd. (supra), the impugned order cannot be! sustained, hence is hereby quashed. The order impugned is thus quashed and the grounds' raised in the appeal are allowed.
9. In the result, the appeal filed by the assessee in ITA No. 486/IND/2018 for the assessment year 2014-15 is allowed.' Thus, relying upon the ratio laid down upon the Hon'ble Kamataka High Court and different benches of the Tribunal we find no justification in passing the impugned order by the Transfer Pricing Officer/Assessing officer in making upward adjustment invoking section 92- BA (i) of the Act in the present facts and circumstances of the case particularly when the said section stood omitted with effect from 1^-2017 from the statute itself. Hence, we find the same is without any basis, void ab initio and without jurisdiction, hi our considered opinion the impugned order is, thus, bad in law and hence the same is hereby quashed. Since the matter is allowed on the maintainability point itself further discussion of the ground on merit has become academic.
11. In the result, the appeal preferred by the assessee is allowed.
9.1 The facts of the case on hand are identical to the facts of the case as discussed above. At the time of hearing the Ld. D.R has also not brought anything on record suggesting any difference in facts or change in the provision of Law. Thus respectfully following the decision of the Co-ordinate Bench as discussed above we do not find any reason to uphold the order of the authorities below. Thus, in our considered view, the order passed by the authorities below is bad in law and therefore the same is liable to the quashed. As the ground of appeal of the assessee has been allowed on technical reason, we are not inclined to adjudicate the issue raised by the assessee on merit. Hence, the ground of appeal of the assessee is allowed.
10. In the result, the appeal of the assessee is partly allowed.
Order pronounced in the Court on 23/03/2022 at Ahmedabad.
Sd/- Sd/- (MAHAVIR PRASAD) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (True Copy) Ahmedabad; Dated 23/03/2022 Manish
आयकर अपीलीय अिधकरण, अहमदाबाद �यायपीठ IN THE INCOME TAX APPELLATE TRIBUNAL, ‘’ D’’ BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT AT AHMEDABAD) BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER And SHRI WASEEM AHMED, ACCOUNTANT MEMBER आयकर अपील सं./ िनधा�रण वष�/Asstt. Year: 2014-2015 Laxmi Hydrocolloids, I.T.O., Plot No.104, Vs. Ward-3(2)(8), Devraj Industrial Estate, Ahmedabad. Piplej Pirana Road, Ahmedabad-380022.
PAN: AAEFL2440D
(Applicant) (Respondent)
Assessee by : Shri Jaymin Shah, A.R Revenue by : Shri Purushottam Kumar, Sr.D.R सुनवाई क� तारीख/Date of Hearing : 09/03/2022 घोषणा क� तारीख /Date of Pronouncement: 23/03/2022
आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:
The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax (Appeals)-3, Ahmedabad, dated 28/12/2018 arising in the matter of assessment order passed under s. 143(3) r.w.s. 144C of the Income Tax Act, 1961 (here-in-after referred to as "the Act") relevant to the Assessment Year 2014-2015.
The only effective issue raised by the assessee is that learned CIT (A) erred in confirming the addition made by the AO/TPO for Rs. 19,28,148/- on account of adjustment in Specified Domestic Transactions.
The facts in brief are that the assessee in the present case is a partnership firm and engaged in the business of manufacturing of Guar gum power from Guar dal. The assessee in the year under consideration has declared certain Specified Domestic Transactions in form No. 3CEB. The details of the same stand as under: Sr.No. Name of the Name of Transaction MAM as per the Related Party Transaction Value(Rs) assessee 1. Rama Gum Purchase of Guar 334912325 CUP Industries Ltd gum dal 2. Amit Panchal Partner 1854375 CUP remuneration and interest 3. Vipul Panchal Partner 452937 CUP remuneration and interest 4. Jinpal B Shah Partner 1847350 CUP remuneration and interest 5. Laxmi Microtech labor 2180000 CUP 3.1 The assessee to justify the arm length price of impugned Specified Domestic Transactions has adopted the CUP method as the most appropriate method, treating itself as the tested party. It was the claim of the assessee that the impugned Specified Domestic Transactions have been carried out at the Arm length price and therefore no adjustment is required to be made.
3.2 However, the TPO based on the comparative chart filed by the assessee found that there were instances wherein the difference between the actual price of the assessee and the comparable cases is more than the acceptable range of +(-) 3% of the ALP. Thus the TPO proposed to make an upward adjustment of Rs. 36,07,283/- which was added by the AO to the total income of the assessee.
Aggrieved assessee preferred an appeal to the Ld.CIT(A) who was pleased to uphold the order of the AO but after making the correction with the arithmetical error in the computation made by the TPO/AO. As such the Ld.CIT(A), confirmed the upward adjustment of Rs.19,28,148/- only. Hence, the ground of appeal of the assessee was partly allowed by the Ld. CIT(A).
Being aggrieved by the order of the Ld. CIT(A), the assessee is in appeal before us.
6. The Ld. Counsel before us filed a paper book running from pages 1 to 97 and submitted that the impugned transaction has been removed from the scope of Specified Domestic Transactions by way of an amendment by the Finance Act, 2017 with effective from 01/03/2017. Accordingly, once the provision of section 92BA(i) of the Act, has been deleted from the statute, then it has to be construed as if such provision has never existed under the provision of law. Accordingly, the Ld. A.R contended that no upward adjustment can be made.
On the contrary, the Ld. DR vehemently supported the order of the authorities below.
8. We have heard the rival contentions of both the parties and perused the materials available on record. At the outset, we note that the identical issue has been decided by this Tribunal in favor of the assessee in the case of Ammann India (P) Ltd. Vs. ACIT reported in 2022 Tax Pub(DT) 078 by observing as under:
The short point involved on the maintainability of the order impugned on the issue as to whether under the present facts and circumstances of the case section 92-BA(i) would be applicable particularly when the said section was omitted from the statute by the Finance Act, 2017 with effect from M-2017. In fact, it is to be considered as to whether clause (i) of section 92-BA of the Act which has been omitted with effect from 1-4-2017 would be applicable retrospectively. It is a settled principle of law that when a particular provision is repealed from the statue the normal effect would be to obliterate it from the statute book as completely as if it had never been passed and the statute must be considered as a law that never existed. Further that in a case where a particular provision in a statute is unconditionally omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceeding shall not continue but fresh proceedings for the same purpose may be initiated under the new provision. If that be so, then since the clause (i) of section 92BA was omitted by Finance Act, 2017 with effect from 1-4-2017 from the statute the same cannot be made applicable in the pending proceeding. It is, therefore, to be considered no nest in the concerned statute as if it had never been passed. In that view of the matter once the said Clause being omitted with effect from M-2017 the decision made by Assessing officer/Transfer Pricing Officer and Dispute Resolution Panel invoking such section 91BA is without any basis, and/or jurisdiction, invalid and bad in law and, thus, the same is liable to be quashed. On this aspect, we have further carefully considered the judgment passed by the Hon'ble Karnataka High Court. While dealing with the issue the Hon'ble Court was pleased to observe as follows: '6. In fact, Coordinate Bench under similar circumstances had examined the effect of omission of sub-section (9) to section 10B of the Act with effect from 1-4-2004 by Finance Act, 2003 and held that there was no saving clause or provision introduced by way of amendment by omitting sub-section (9) of section 1 OB. hi the matter of General Finance Co. v. ACIT, which judgment has also been taken note of by the tribunal while repelling the contention raised by revenue with regard to retrospectively of section 92-BA (i) of the Act. Thus, when clause (i) of section 92-BA having been omitted by the Finance Act, 2017, with effect from 1-7-2017 from the Statute the resultant effect is that it had never been passed and to be considered as a law never been existed. Hence, decision taken by the assessing officer under the effect of section 92-BI and reference made to the order of Transfer Pricing Officer-TCP under section 92-CA could be invalid and bad in law.' 10. We have further considered the following various judgments passed by the Hon'ble Benches as relied upon by the learned Authorized Representative: (i) ITAT Cuttack Bench in the matter of Mr. SKM- UMSL JV v. ITO inlTA No. 229/CTK/2019 (Cuttack ITAT) : 2020 TaxPubtDT) 1113 (Ctk-Trib) for assessment year 2014-15 observed as follows: '...In view of the above, we are of the considered opinion that the transactions related to the assessee falls under the clause (i) at section 92-BA of the Act, which has already been removed by the Finance Act, 2017 with effect from 1-4-2017, therefore, the imposition of penalty under section 271-BA of the Act for failure to furnish the report in prescribed Form No. 3CEB in terms of provisions of section 92- E of the Act, does not survive at all. Accordingly, we allow the appeal of the assessee and cancel levied under section 271BA of the Act by the assessing officer and upheld by the Commissioner (Appeals).
In the result, appeal of the assessee is allowed.' ii) ITAT Gauhati Bench in the matter of Shree Shai Smelters (I) Ltd v. ACIT'mlTA No. 228/GAU/2019 for assessment year 2014-15 :2020 TaxPuhfDT) 3091 (Gau-Trib) dealt with the identical issue. The relevant portion whereof is as follows: '5. We note that in respect of specified domestic transactions which is referred to clause (i) of section 92-BA of the Act, which was omitted with effect from 1-4-2017 and the effect of such 'omission' of clause (i) of section 92-BA means that this provision never existed in the statute book, hence reference to Transfer Pricing Officer was bad in law. As the issue is squarely covered in favour of the assessee by the decision of Co- ordinate Bench in the case of M/s. Raipur Steel Casting India (P) Ltd. (supra), and there is no change in facts and law and the Revenue is unable to produce any material to convert the above said findings of the Coordinate Bench. Therefore, respectfully following the decision of Co-ordinate Bench on the technical issue referred above, we allow the appeal of the assessee.
In the result, the appeal of the assessee is allowed.' (iii) ITAT Kolkata Bench in the matter ofM/s. Raipur Steel Casting India (P) Ltd. v. Pr. CIT- 5 in for assessment year 2014-15 : (2020) 117 taxmann.com 944 (Kol) (Kolkata ITAT) : 2020 TaxPuhfDT) 2659 (Kol-Trib) on the identical issue observed the following: '...We note that learned Principal Commissioner issued the above show-cause notice under section 263 in respect of specified domestic transactions referred to in clause (i) of section 92-BA of the Act which was omitted with effect from 1-4-2017, and effect of such 'omission' of clause (i) of section 92-BA means that this provision never existed in the statute book, since clause (i) of section 92-BA never existed in the statute book therefore, learned Principal Commissioner cannot exercise his jurisdiction under section 263 of the Act in respect of specified domestic transactions referred to in clause (i) of section 92-BA of the Act. Therefore, the action of the assessing officer cannot be held to be erroneous as well as prejudicial to the interest of the revenue, in the facts and circumstances as narrated above. Thus, the usurpation of jurisdiction of exercising revisional jurisdiction by the Principal Commissioner is 'null' in the eyes of law and, therefore, we are inclined to quash the very assumption of jurisdiction to invoke revisional jurisdiction under section 263 of the Act by the Principal Commissioner. Therefore, we quash the order of the Principal Commissioner dated 8-3-2019 being void ab initio.' (iv) ITAT Indore Bench in the matter of Swastik Coal Corporation (P) Ltd. v. Pr. CIT-2 in (ITA 486/IND/20I8) (Indore ITAT) :2019 TaxPub(DT) 5019 (Ind-Trib) for assessment year 2014-15 on the identical issue observed the following: '8. We find that the above view of the learned Principal Commissioner is not correct, hi view of the aforesaid discussion, moreover, the coordinate bench has also examined the issue in the case of Texport Overseas (P) Ltd. in IT (2020) 114 taxmann.com 568 (Karnataka) : 2020 Tax Pub(DT) 2756 (Karn-HC). Admittedly, in this case, the order has been revised purely on the basis that the assessing officer has not referred to determine the arm's length price to the Transfer Pricing Officer. Since the provision itself stood omitted at the time when the order was passed by the learned Principal Commissioner, under these undisputed facts in the light of the Judgment of the Hon’ble Supreme Court rendered in the case of General Finance Company (supra) as well as the order of the coordinate bench rendered in the case of Texport Overseas (P) Ltd. (supra), the impugned order cannot be! sustained, hence is hereby quashed. The order impugned is thus quashed and the grounds' raised in the appeal are allowed.
In the result, the appeal filed by the assessee in ITA No. 486/IND/2018 for the assessment year 2014-15 is allowed.' Thus, relying upon the ratio laid down upon the Hon'ble Kamataka High Court and different benches of the Tribunal we find no justification in passing the impugned order by the Transfer Pricing Officer/Assessing officer in making upward adjustment invoking section 92- BA (i) of the Act in the present facts and circumstances of the case particularly when the said section stood omitted with effect from 1^-2017 from the statute itself. Hence, we find the same is without any basis, void ab initio and without jurisdiction, hi our considered opinion the impugned order is, thus, bad in law and hence the same is hereby quashed. Since the matter is allowed on the maintainability point itself further discussion of the ground on merit has become academic.
In the result, the appeal preferred by the assessee is allowed.
9.1 The facts of the case on hand are identical to the facts of the case as discussed above. At the time of hearing the Ld. D.R has also not brought anything on record suggesting any difference in facts or change in the provision of Law. Thus respectfully following the decision of the Co-ordinate Bench as discussed above we do not find any reason to uphold the order of the authorities below. Thus, in our considered view, the order passed by the authorities below is bad in law and therefore the same is liable to the quashed. As the ground of appeal of the assessee has been allowed on technical reason, we are not inclined to adjudicate the issue raised by the assessee on merit. Hence, the ground of appeal of the assessee is allowed.
In the result, the appeal of the assessee is partly allowed.
Order pronounced in the Court on 23/03/2022 at Ahmedabad.