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TMI Blog2022 (3) TMI 1499X X X X Extracts X X X X X X X X Extracts X X X X ..... present facts and circumstances of the case particularly when the said section stood omitted with effect from 1-03-2017 from the statute itself. Appeal of assessee allowed. - ITA No. 416/AHD/2019 - - - Dated:- 23-3-2022 - SHRI MAHAVIR PRASAD, JUDICIAL MEMBER And SHRI WASEEM AHMED, ACCOUNTANT MEMBER For the Assessee : Shri Jaymin Shah, A.R For the Revenue : Shri Purushottam Kumar, Sr.D.R ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order of the Learned Commissioner of Income Tax (Appeals)-3, Ahmedabad, dated 28/12/2018 arising in the matter of assessment order passed under s. 143(3) r.w.s. 144C of the Income Tax Act, 1961 (here-in-after referred to as the Act ) relevant to the Assessment Year 2014-2015. 2. The only effective issue raised by the assessee is that learned CIT (A) erred in confirming the addition made by the AO/TPO for Rs. 19,28,148/- on account of adjustment in Specified Domestic Transactions. 3. The facts in brief are that the assessee in the present case is a partnership firm and engaged in the business of manufacturing of Guar gum power from Guar d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been removed from the scope of Specified Domestic Transactions by way of an amendment by the Finance Act, 2017 with effective from 01/03/2017. Accordingly, once the provision of section 92BA(i) of the Act, has been deleted from the statute, then it has to be construed as if such provision has never existed under the provision of law. Accordingly, the Ld. A.R contended that no upward adjustment can be made. 7. On the contrary, the Ld. DR vehemently supported the order of the authorities below. 8. We have heard the rival contentions of both the parties and perused the materials available on record. At the outset, we note that the identical issue has been decided by this Tribunal in favor of the assessee in the case of Ammann India (P) Ltd. Vs. ACIT reported in 2022 Tax Pub(DT) 078 by observing as under: The short point involved on the maintainability of the order impugned on the issue as to whether under the present facts and circumstances of the case section 92-BA(i) would be applicable particularly when the said section was omitted from the statute by the Finance Act, 2017 with effect from M-2017. In fact, it is to be considered as to whether clause (i) of section 92 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. Hence, decision taken by the assessing officer under the effect of section 92-BI and reference made to the order of Transfer Pricing Officer-TCP under section 92-CA could be invalid and bad in law.' 10. We have further considered the following various judgments passed by the Hon'ble Benches as relied upon by the learned Authorized Representative: (i) ITAT Cuttack Bench in the matter of Mr. SKM- UMSL JV v. ITO inlTA No. 229/CTK/2019 (Cuttack ITAT) : 2020 TaxPubtDT) 1113 (Ctk-Trib) for assessment year 2014-15 observed as follows: '...In view of the above, we are of the considered opinion that the transactions related to the assessee falls under the clause (i) at section 92-BA of the Act, which has already been removed by the Finance Act, 2017 with effect from 1-4-2017, therefore, the imposition of penalty under section 271-BA of the Act for failure to furnish the report in prescribed Form No. 3CEB in terms of provisions of section 92- E of the Act, does not survive at all. Accordingly, we allow the appeal of the assessee and cancel levied under section 271BA of the Act by the assessing officer and upheld by the Commissioner (Appeals). 8. In the result, app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner is 'null' in the eyes of law and, therefore, we are inclined to quash the very assumption of jurisdiction to invoke revisional jurisdiction under section 263 of the Act by the Principal Commissioner. Therefore, we quash the order of the Principal Commissioner dated 8-3-2019 being void ab initio.' (iv) ITAT Indore Bench in the matter of Swastik Coal Corporation (P) Ltd. v. Pr. CIT-2 in (ITA 486/IND/20I8) (Indore ITAT) :2019 TaxPub(DT) 5019 (Ind-Trib) for assessment year 2014-15 on the identical issue observed the following: '8. We find that the above view of the learned Principal Commissioner is not correct, hi view of the aforesaid discussion, moreover, the coordinate bench has also examined the issue in the case of Texport Overseas (P) Ltd. in IT (2020) 114 taxmann.com 568 (Karnataka) : 2020 Tax Pub(DT) 2756 (Karn-HC). Admittedly, in this case, the order has been revised purely on the basis that the assessing officer has not referred to determine the arm's length price to the Transfer Pricing Officer. Since the provision itself stood omitted at the time when the order was passed by the learned Principal Commissioner, under these undisp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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