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TMI Blog2016 (7) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... other view of the matter than the view taken by the biding judicial precedents. - preliminary objection raised by the learned counsel rejected - Matter will be heard on merit - Decided against the assessee. - I.T.A. No.4048/Del/13 - - - Dated:- 28-6-2016 - Pramod Kumar AM and Sudhanshu Srivastava JM For The Appellant : Gaurav Gupta For The Respondent : Amrendra Kumar Interim Order Per Pramod Kumar, AM: 1. This is an appeal, filed by the assessee, challenging the arm s length price adjustment of ₹ 1,74,03,385 made by the Assessing Officer, in the assessment order passed under section 143(3) r.w.s. 144C of the Income Tax Act, 1961, for the assessment year 2006-07 2. When this appeal was called out for he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al position were not appreciated, in correct perspective, by the Tribunal. He submits that the transfer pricing provisions deal with the manner in which the income arising out of international transactions is to be computed but when income so arising is exempt from tax, there cannot be any occasion to invoke the transfer pricing provisions which remain confined to the income, in fact taxable income, arising from international transactions. In a situation in which income of the assessee is exempt from tax under section 10A, according to the learned counsel, there cannot be any occasion for erosion of Indian tax base, which was sought to be checked by the transfer pricing provisions, and, as such, transfer pricing provisions donot come into p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible- one which would preserve the and save constitutionality of the particular provision while the other would render it unconstitutional and void, the one which saves and preserves the constitutionality should be adopted and the other should be rejected. He then refers to Article 14 of the Constitution of India and takes plain to explain as to how the transfer provisions being applied to the situations of tax exempt incomes violates the principles of equality. He refers to Hon ble Supreme Court s judgment, in the case of State of West Bengal vs. Anwar Ali Sarkar AIR 1952 SC 75, and submits that in order to pass the test of permissible classification permissible under Article 14, two conditions must be fulfilled, namely (i) the classifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the consistency must be maintained by the bench. We are thus urged to reject the contentions of the assessee and deal with the matter on merits. 6. We have heard the rival contentions, perused the material on record and duly considered factual matrix of the case in the light of the applicable legal position. 7. We find that admittedly there is a direct decision of the Special bench, on this issue, and there is no voice of dissent by equivalent judicial forums of expression of disapproval by the higher judicial forums. In the hierarchical judicial system that we have, a lower judicial forum has to loyally accept and follow the views expressed by the higher wisdom of the judicial forums above; that is the strength of the hierarc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recedent. 8. Learned counsel fairly accepts that the issue is covered against the assessee by the Special Bench decision, yet he prays for constitution for an even larger bench of seven or more Members. Once the issue is covered by a binding judicial precedents, we see no reasons to take any other view of the matter than the view taken by the biding judicial precedents. The call on the correctness of such views is to taken by the Hon ble Courts above and not by this forum. As for the issues regarding constitutionality of the statutory provision, all we can say this that this Tribunal itself is a creature of the Income Tax Act and it is not for us to sit in judgment over constitutionality of the statutory provisions; that is for Hon ble c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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