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TMI Blog2020 (10) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment cannot be said to be erroneous in order to invoke the provisions of section 263 by the Commissioner of Income Tax? - HELD THAT:- A reference to the TPO is required to be made under Sub section (1) of Section 92CA. There is no amendment to the said Section. Shri Raghavan is right in his submission to the extent that sub section (4) of Section 92CA has been substituted with effect from 01.06.2007. No authority of the Supreme Court of India is cited to show that the position of law stated in S.G.ASIA [ 2019 (8) TMI 661 - SUPREME COURT ] has been altered. Therefore, in view of the unambiguous language employed in paragraph No.7 of S.G.ASIA extracted hereinabove, we are of the considered view that Instruction No.3/2003 issued by the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts and in the circumstances of the case and in law, the Tribunal is justified in quashing the order passed by the Commissioner under section 263 which was invoked on two separate grounds and the Tribunal deciding only one ground and leaving the other issue undecided and as such the order of the Tribunal perverse? 3. We have heard Shri Y.V. Raviraj, learned Standing Counsel for the Revenue and Shri K.G. Raghavan, learned Senior Advocate for the assessee-respondent. 4. Shri Raviraj in substance, contended that as held in the case of PRINCIPAL COMMISSIONER OF INCOME TAX-4, MUMBAI VS. M/s. S.G. ASIA HOLDINGS (INDIA) PRIVATE LIMITED (2019) 13 SCC 353, (for short S.G.ASIA ) Instruction No.3/2003 dated 20.05.2003 issued by the Central Board o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 007 (15) SCC 401); ii) MALABAR INDUSTRIAL CO., LTD., VS. COMMISSIONER OF INCOME TAX (2000) 2 SCC 718; iii) VODAFONE INDIA SERVICES PVT. LTD., VS. UNION OF INDIA AND OTHERS (2013 SCC ONLINE BOM.1534); iv) COMMISSIONER OF INCOME TAX VS. TATA CONSULTANCY SERVICES LTD., (decision of Income Tax Appellate Tribunal, Mumbai Bench E Mumbai, in I.T.A. No. 7513/M/2010), 9. The assessee is engaged in the business of mining and export of iron ore. During the assessment year, it has sold iron ore to M/s. GLA Trading International PTE Ltd., Singapore, at a much lower price when compared with the export of iron, in other overseas transactions. The Assessing Officer has recorded that between December 2007 and March 2008, assessee has sold iron ore to variou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee s income in conformity with the arm s length price determined by the TPO . Thus, after the amendment, the Assessing Officer has no power of independent assessment in cases referred to TPO. Therefore, Instruction No.3 cannot be held mandatory, at least, post amendment which came into effect from 01.06.2007. 12. Thus, according to Shri Raghavan, Instruction No.3 is not mandatory at all. Even prior to amendment, S.G.ASIA could not be considered as law declared under Article 141 of the Constitution of India. 13. In S.G.ASIA, the Hon ble Supreme Court has held as follows: 7. In view of the guidelines issued by CBDT in Instruction No.3/2003 the Tribunal was right in observing that by not making reference to TPO, the assessing officer had bre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 31 of the judgment and the issue whether Instruction No.3 is mandatory is not decided in that judgment. 18. Shri Raghavan also cited an order passed by Income Tax Appellate Tribunal in COMMISSIONER OF INCOME TAX VS. M/S.TATA CONSULTANCY SERVICES LTD., It is a judgment rendered by the Tribunal on the facts of that case and not an authority for consideration. 19. Thus, the authorities relied upon by Shri Raghavan do not support respondent s case. 20. In view of the above discussion, the impugned order passed by the ITAT is clearly unsustainable in law as it runs counter to S.G.ASIA. Hence, we have considered the first question raised by the Revenue as a substantial question of law and answer the same in favour of the Revenue. Resultantly, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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