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TMI Blog2021 (10) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... mployees contribution to ESI/PF - amount had been deposited beyond the due date prescribed under corresponding statute but before that of filing return u/s. 139(1) - HELD THAT:- Amount had been paid before the due date of filing sec. 139(1) return and after the due date prescribed in the corresponding statutes; respectively. We notice in this factual backdrop that the legislature has not only incorporated necessary amendments in Sections 36(va) as well as 43B vide Finance Act, 2021 to this effect but also the CBDT has issued Memorandum of Explanation that the same applies w.e.f. 1.4.2021 only. It is further not an issue that the foregoing legislative amendments have proposed employers contributions; disallowances u/s. 43B as against employee u/s. 36 (va) of the Act; respectively. However, keeping in mind the fact that the same has been clarified to be applicable only with prospective effect from 1.4.2021, we hold that the impugned disallowance is not sustainable - As relying on GUJARAT STATE ROAD TRANSPORT CORPORATION [ 2014 (1) TMI 502 - GUJARAT HIGH COURT] and M/S MERCHEM LIMITED [ 2015 (9) TMI 560 - KERALA HIGH COURT] the impugned ESI/PF disallowance is directed to be deleted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the respondent herein to delete the adjustment of ₹ 5,18,12,581/- made on account of transfer pricing in the assessment order. 3. We next note that the instant issue regarding inclusion of assessee's Duty Entitlement Pass Book (DEPB) and Focus Products Scheme (FPS) on export of Ferro Alloys; as an adjustment in computing Arm's Length Price (ALP) adjustment as per Rule 10B(1)(a)(2) and (3) is found to be no more res integra as Revenue's appeal ITA No. 634/Hyd/2018 dt. 22.07.2021 qua the same stands accepted as follows: 7. We have given our thoughtful consideration to rival pleadings qua the assessee's case that its DPEB benefits derived from sale of Silico Manganese Ferro Chrome deserve to be considered as an adjustment under rule 10B(1)(a)(ii) of the Income Tax Rules. Learned counsel has also filed a written note with catena of case law hon'ble Bombay high court (supra), (2020) 119 taxmann.com 401 (Bangalore-Trib) Reitzel India (P.) Ltd., Vs. DCIT, (2019) 101 taxmann.com 325 (PuneTrib), Cummins India Ltd., Vs. DCIT, (2018) 97 taxmann.com 494 (Kolkata - Trib) DCIT Vs. JJ Exporters Ltd. holding that since DPEB benefits are export incentives formin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tc; as the case may be. We cite legal maxim 'Generalia Speialibus Non-Derogant' meaning that a general provision does not apply at the cost of the special one or the former of them must make way for the latter; respectively; and, are of the opinion that the assessee's arguments go against arm's length price defined as a price which is applied or proposed to be applied in a transaction between persons other than associate enterprises, in uncontrolled conditions only. So far as the assessee's case that various judicial precedents (supra) have already decided the issue in its favour, we quote the foregoing hon'ble apex court's decision binding on all the Courts within the territory of India as per Article 141 of the Constitution and hold that none of them consider the legislature scheme in Chapter-X (supra). And that deviates therefrom would not only violates the same but also would amounts to non-compliance of between persons in Section 92F. 9. Hon'ble jurisdictional high court's full bench decision in (1993) 202 ITR 333 (AP) CIT vs. B.R. Constructions also holds that a judicial precedent ceases to be binding in the following conditions: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Officer, Labour Court, the Supreme Court explained the expression per incuriam thus (at page 36 of 77 FJR): The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when the Supreme Court has acted in ignorance of a pervious decision of its own or when a High Court has acted in ignorance of a decision of the Supreme Court. 42. As has been noticed above, a judgment can be said to be per incuriam if it is rendered in ignorance or forgetfulness of the provisions of a statute or a rule having statutory force or a binding authority. But, if the provision of the Act was noticed and considered before the conclusion arrived at, on the ground that it has erroneously reached the conclusion the judgment cannot be ignored as being per incuriam. In Salmond on Jurisprudence, Twelfth Edition, at page 151, the rule is sated as follows: The mere fact that (as is contended) the earlier court misconstrued a statute, or ignored a rule of construction, is no ground for impugning the authority of the precedent. A precedent on the construction of a statute is as much binding as any other, and the fact that it was mista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er substantive grievance. 9.1. Next comes latter issue of corporate guarantee adjustment of ₹ 3,51,06,335/- deleted in the CIT(A)'s detailed discussion as under: 5.1 With regard to adjustment on amount of shortfall in corporate guarantee commission of ₹ 3,51,06,335/-, after considering the submissions of the appellant company and also by following earlier order in the appellant's own case for the AY. 2011-12, wherein I decided the issue in favour of the appellant company by observing that, the Transfer Pricing Officer had charged corporate guarantee commission @ 2% which is higher than the appellant charged. Since the appellant has charged a reasonable corporate guarantee commission i.e. @ 0.875% are more than the Tribunals allowed. Therefore, the addition made by the Assessing Officer is hereby deleted . Therefore, the addition made by the Assessing Officer is deleted . 9.2. It has come on record that the assessee had itself recorded comparable guarantee commission @8.75% i.e. much more than that decided by the tribunal (supra). We therefore adopt judicial consistency and decline Revenue's instant latter substantive ground for this precise reaso ..... X X X X Extracts X X X X X X X X Extracts X X X X
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