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TMI Blog2023 (5) TMI 255X X X X Extracts X X X X X X X X Extracts X X X X ..... self stood omitted at the time when the order was passed by the ld. Pr. CIT, in the light of the above judgements and also the decision of the Hon ble Supreme Court in the case of General Finance Company[ 2002 (9) TMI 3 - SUPREME COURT] the impugned order of the ld. Pr. CIT passed under section 263 cannot be sustained and the same is hereby quashed. The ground raised by the assessee is allowed. - I.T.A No. 803/Del/2021 - - - Dated:- 4-5-2023 - Shri G. S. Pannu, President And Shri Challa Nagendra Prasad, Judicial Member For the Assessee : Shri Alok Gupta, C. A.; Shri Vivek Chauhan, C. A. For the Department : Ms. Sapna Bhatia; [CIT] - D. R. ORDER PER C. N. PRASAD, J. M. : 1. This appeal is filed by the assessee against the order of the ld. Pr. Commissioner of Income Tax (hereinafter referred to Pr. CIT) Dehradun, dated 26.03.2021 for assessment year 2015-16 holding that the assessment order passed under section 143(3) of the Income Tax Act, 1961 (the Act) as erroneous and prejudicial to the interest of Revenue and setting aside the assessment. 2. The assessee in its appeal has raised the following ground of appeal:- That on the facts and circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned assessment without any reference to TPO for determining the Arm s Length Price is not in contravention of Board s Circular No. 3/2016 dated 10.03.2016. It is the case of the assessee that all the documents pertaining to specified domestic transactions as per Form 3CBE with details and comparisons were furnished before the Assessing Officer, who had duly examined the same. It was also further contended that one of the scrutiny reasons was mismatch in the amount paid to related persons under section 40A(2)(b) of the Act reported in the audit report and ITR and as per CBDT Circular No. 3/2016 which replaced earlier Circular No. 2015 and as such it was not mandatory on the part of the Assessing Officer to refer the case to TPO and mismatch in figures cannot be said to be a case for transfer pricing risk parameters. 5. However, the ld. Pr. CIT by order under section 263 of the Act dated 26.03.2021 cancelled the assessment order passed under section 143(3) of the Act and to pass fresh assessment order after due verification of the issue as the Assessing Officer failed to refer the specified domestic transactions to the TPO for determining the Arm s Length Price after due enqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns that the said provision was not in existence or never existed in the statute book. If a provision of a statute is unconditionally omitted without a saving clause in favour of pending proceedings all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. It is submitted that the omission of clause (i) of section 92BA is unconditional, that is, it does not say that pending proceedings under the clause would continue in future even after its omission on 01.04.2017. Therefore, in the absence of such condition/ saving clause it would be presumed that clause (i) of section 92BA had obliterated from the inception, that is, it would be presumed that clause (i) of section 92BA never existed in the statute book, it had never been passed and to be considered as a law never been existed Ld. Counsel submits that the effect of repealing a statute or deleting a provision is to obliterate it from the statute- book as completely as if it had never been passed, and the statute must be considered as a law that never existed. Reliance was placed on the following decisions:- (i) Pr. CIT Vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew of the aforesaid discussion, moreover, the coordinate bench has also examined the issue in the case of Overseas Pvt. Ltd. in IT(TP)A No.1722/Bang/2017. 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 TPO. Since the provision itself stood omitted at the time when the order was passed by the Ld. Pr. CIT under these undisputed facts in the light of the Judgement of the Hon'ble Supreme Court rendered in the case of General Finance Company (supra) as well as the order of the coordinate bench rendered in the case of Texport Overseas Pvt. Ltd. [supra]. The impugned order cannot be sustained hence is hereby quashed. The order impugned is thus quashed and the grounds raised in the appeal are allowed 10. On the very identical facts the Coordinate Bench of ITAT Kolkata in the case of M/s Raipur Steel Casting India Pvt. Ltd., in ITA No. 895/Kol/2019 for AY 2014-15 order dated 10.06.2020 held as follows: 12. .... We note that Id PCIT issued the above show cause notice u/s 263 in respect of specified domestic transactions referred to in clause (i) of section 92BA of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preme Court in the case of M/s Shree Bhagwati Steel Rolling Mills (supra) 486/Ind/2018 ordit can be Page / 12 M/s. Bhartia-SMSIL (JV) ITA No.117/Gau/2019 Assessment Year: 2014-15 said that since clause (i) of section 92BA was omitted w.e.f. 01.04.2017 therefore, it would be treated that said since clause (i) of section 92BA was never existed in the statute book. II. Therefore based on the above judgements of the Coordinate Benches [in the case of Swastik Coal Corporation Pvt Ltd and in the case of M/s Raipur Steel Casting India (p) Ltd. (supra)] we hold that since clause (i) section 92 A was omitted with effect from 1st April Bhagwati Steel Rolling Mills (2017 and the effect of such omission is that the said clause(i) was never existed in the statute. Hence. Ld. PCIT cannot exercise the jurisdiction u/s 263 of the Act. 12. Similarly in the case of M/s. Raipur Steel Casting India Pvt. Ltd. (supra) Kolkata Bench held as under:- 11 As we noticed that clause (i) of section 92BA has been omitted with effect from 01.04.2017. The effect of such omission without any saving clause of General Clauses Act, means that the above provision was not in existence or never existed in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e case of M/s. Shree Bhagwati Steel Rolling Mills vs. C.I.T. Excise Others 2015 (326) ELT 209 (SC). the relevant paras of the said judgment are reproduced below: The said judgment of the Hon'ble Supreme Court also advocates that omitted provision being treated as if it never existed and as Section 6 of the General Clauses Act would not then apply to allow the previous operation of the provision so omitted or anything duly done or suffered thereunder. Nor may a legal proceeding in respect of any right or liability be instituted continued or enforced in respect of rights and liabilities acquired or incurred under the enactment, so omitted. Therefore, considering the judgment of the Hon'ble Supreme Court in the case of M/s. Shree Bhagwati Steel Rolling Mills supra, it can be said that since clause (i) of section 92BA was omitted w.e.f. 01.04.2017 therefore, it would be treated that said since clause (i) of section 92BA was never existed in the statute hook. 20. We are of the view that at this juncture it is necessary to examine, the meaning of saving clause? As Per the law. Com Law Dictionary Black's Law Dictionary 2nd Ed. the saving clause has been defined as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Pvt. Ltd. in ITA No. 486/Ind/2018 order dated 26.07.2011, has quashed the order of Id PCIT under section 263 of the Act, on the identical facts, as narrated above. The findings of the Coordinate Bench is reproduced below: 8. We find that the above view of the Ld. Pr. CIT is not correct. In view of the aforesaid discussion moreover, the coordinate bench has also examined the issue in the case of Texport Overseas Pvt. Ltd. in IT [TP]A No.1722/Bang/2017 015 (326) ELT 209 (SC) 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 TPO. Since the provision itself stood omitted at the time when the order was passed by the Ld Pr. CIT, under these undisputed facts in the light of the Judgement of the Hon'ble Supreme Court rendered in the case of General Finance Company [supra] as well as the order of the coordinate bench rendered in the case of Texport Overseas Pvt. Ltd. [supra] the impugned order cannot be sustained, hence is hereby quashed. The order impugned is thus quashed and the grounds raised in the appeal are allowed. 13. In the case of Yorkn Tech Pvt. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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