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TMI Blog2021 (7) TMI 948X X X X Extracts X X X X X X X X Extracts X X X X ..... And Shri Laxmi Prasad Sahu, Accountant Member For the Assessee : Shri P.V.S.S.Prasad, AR For the Revenue : Shri Rajiv Ranka, CIT-DR ORDER PER S.S.GODARA, J.M. : This Revenue s appeal for AY.2013-14 arises from the CIT(A)-4, Hyderabad s order dated 29-01-2018 passed in case No.0457 / 2016-17 / ACIT,Cir.16(1) / CIT(A)-4 / Hyd / 17-18, in proceedings u/s.143(3) r.w.s.92CA(3) of the Income Tax Act, 1961 [in short, the Act ]. Heard both the parties. Case file perused. 2. The Revenue has proposed the following twin substantive grounds in the instant appeal: 1.In the facts and circumstances of the case whether CIT(A) is justified in holding that DEPB incentives are to be considered for comparability analysis, ignoring the fact that DEPB incentives are export incentives given by Government and are not profits derived from the business directly. 2.In the facts and circumstances of the case whether CIT(A) is justified in holding that DEPB incentives are to be considered for comparability analysis ignoring the fact that considering DEPB incentives for comparability analysis results in shifting of incentives to foreign territory which is against the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 11-2016 followed the impugned assessment dt.09-01-2017 in view of the fact that this taxpayer had not preferred objections before the DRP . The Assessing Officer s assessment went by the foregoing TPO s proposing ALP adjustment relating to sale of Silico Manganese and Ferro Chrome of ₹ 2,50,63,257/- against the assessee. 6. The assessee preferred appeal. The CIT(A) has directed the Assessing Officer to verify and consider the foregoing DPEB benefit for comparability analysis and re-work the consequential adjustment of the selling price as under: 5. I have carefully considered the assessment order, facts of the case and submissions furnished by the appellant. The Assessing Officer made the addition in two aspects viz., shortfall in respect of sale of Silico Manganese at ₹ 2,50,63,257/- and in respect of corporate guarantee fee at ₹ 3,51,06,335/-, totaling to ₹ 6,01,69,592/- as adjustment u/s 92CA(3) of the I.T.Act, as determined by the TPO. In this regard, the submissions made by the appellant company were verified and it is noticed that the appellant company has relied upon the Hon'ble Bombay High Court decision in the case of CIT vs. Welspun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of adjudication in this tribunal s Special Bench s decision Doshi Services P. Ltd. Vs. DCIT (TS) 1086- ITAT-2019 (Ahd) wherein the assessee s endeavour seeking to apply purposive construction stands declined on 24-10-2019. 8.2. Coupled with this, the legislature has also invested a definition clause in Section 92F(ii) that arm s length price means a price which is applied or proposed to be applied in a transaction between persons other than associated enterprises in un-controlled conditions . Learned counsel is fair enough in highlighting the issue before us as to whether the DPEB benefits derived from the corresponding scheme ought to be considered for adjustment or not under rule 10B(1)(a)(iii) being in the nature of a difference materially affecting the price in open market . Hon ble apex court s latest Full Bench decision in Commissioner of Customs Vs. Dilip Kumar (2018) 9 SCC 1 (FB)(SC) holds that taxing and an exemption provisions have to be strictly construed and benefit of doubt in such an instance goes to the assessee and Revenue; respectively. We are unable to loose sight of the fact that chapter-X is special as against all other general provisions including Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon in that decision is overruled by a Full Bench or the Supreme Court, or when the law laid down by a Full Bench or the Supreme Court is inconsistent with the decision. 38. It may be noticed that precedent ceases to be a binding precedent - (i) if it is reversed or overruled by a higher court, (ii) when it is affirmed or reversed on a different ground, (iii) when it is inconsistent with the earlier decisions of the same rank, (iv) when it is sub silentio, and (v) when it is rendered per incuriam. 39. In paragraph 578 at page 297 of Halsbury's Laws of England, Fourth Edition, the rule of per incuriam is stated as follows : A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, in which case it must decided which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force. 40. In Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Lords as per incuriam. Lord Hailsham observed (at page 809) : It is not open to the Court of Appeal to give gratuitous advice to judges of first instance to ignore decisions of the House of Lords in this way. 45. It is recognised that the rule of per incuriam is of limited application and will be applicable only in the rarest of rare cases. Therefore, when a learned single judge or a Division Bench doubts the correctness of an otherwise binding precedent, the appropriate course would be to refer the case to a Division Bench or Full Bench, as the case may be, for an authoritative pronouncement on the question involved as indicated above. The above-said two questions are answered as indicated above. 46. In the result, the questions referred to us are answered accordingly . We conclude in this factual and legal backdrop that the assessee s argument seeking to include DEPB as an adjustment for ALP computation because it is in the nature of an operating income, ought not be accepted as it tends to have an overriding effect on application of chapter-X of the Act as per stricter interpretation rule. We therefore accept the Revenue s instant former substantive grievance. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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