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TMI Blog2020 (2) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the case of the assessee following the above amendment in the provisions and relying on the decisions of Kolhapur Canesugar Works Ltd. [ 2000 (2) TMI 823 - SUPREME COURT], GENERAL FINANCE CO. AND ANOTHER [ 2002 (9) TMI 3 - SUPREME COURT], TEXPORT OVERSEAS PRIVATE LIMITED VERSUS DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE (1) (1) , BENGALURU. [ 2017 (12) TMI 1719 - ITAT BANGALORE] When the transactions related to the assessee falls under the clause(i) of Section 92BA of the Act, which has already been removed by the Finance Act, 2017 w.e.f. 01.04.2017, therefore, the imposition of penalty u/s.271BA of the Act for failure to furnish the report in prescribed Form No.3CEB in terms of provisions of section 92E of the Act, does not su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joint Venture and engaged in the business of contract works and filed its return of income electronically on 30.09.2014 showing total income at ₹ 3,86,200/-, which was selected for scrutiny under CASS. Subsequently, statutory notices were issued to the assessee. During the course of assessment proceedings, on being asked by the AO, the assessee filed report in prescribed Form No.3CEB in terms of provision of Section 92E of the Act, however, the AO found that the report filed by the assessee after the due date of filing of return of income for the assessment year under consideration. Thereafter the AO sought approval to refer the matter to the TPO for computation of arm s length price in relation to specified domestic transactions u/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support his contentions, has placed reliance in the case of Texport Overseas Private Limited Vs. DCIT, in ITA No.1722/Bang/2017, order dated 22.12.2017. Therefore, ld. AR submitted that when the CIT(A) has already deleted the addition, the penalty levied by the AO and upheld by the CIT(A) deserves to be deleted as the said provision has been omitted from the statute. 6. On the other hand, ld. DR relied on the orders of authorities below. 7. After hearing both the sides and perusing the entire material available on record, we find that due to late filing of audit report in the prescribed form, the AO levied penalty u/s.271BA of the Act and the CIT(A) has also went with the observations of the AO. On perusal of the assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Karnataka High Court) and Textport Overseas Pvt. Ltd., ITA No.1722/Bang/2017, order dated 22.12.2017. Ld. DR also could not controvert the above findings of the CIT(A) before us. The coordinate bench in the case of Texport Overseas Private Limited (supra), has held as under :- 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isposed 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 hot 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 proceed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 9EBA. 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 ac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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