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TMI Blog2023 (2) TMI 1256X X X X Extracts X X X X X X X X Extracts X X X X ..... in the business of trading in polymers. The assessee had entered in Specified Domestic Transactions to the tune of Rs.87.52 crores and hence the AO referred the matter of determining ALP of the same to the Transfer Pricing Officer (TPO) u/s 92C of the Act. The TPO made transfer pricing adjustment of Rs.3,91,41,811/-. The AO passed draft assessment order, which was objected to by the assessee before Ld DRP. The Ld DRP gave certain directions to the AO/TPO and the same has resulted in upward adjustment of Rs.6,76,57,646/-. The AO accordingly passed the final assessment order making above said transfer pricing adjustment. The assessee has filed this appeal before the Tribunal challenging the above said addition. 3. The Ld A.R, at the outset, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) has since been upheld by the Hon'ble Karnataka High Court in the very same case, referred supra. For the sake of convenience, we extract below the decision rendered by Hon'ble Karnataka High Court in the above said case:- "2. We have heard the arguments of Sri. Jeevan J. Neeralagi and Sri. E.I. Sanmathi, learned Advocates appearing for revenue in respective appeals and Sri. Sharath, learned counsel appearing on behalf of Sri. Chythanya K.K. for respondent/assessee. 3. It is the contention of learned Advocates appearing for revenue that tribunal was not justified in arriving at a conclusion that Clause (i) of section 92BA of the Act, which had been omitted w.e.f. 01.04.2017 would be applicable retrospectively by presuming the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts effect thereof. The import of section 6 of General Clauses Act has also been examined and it came to be held: "37. The position is well known that at common law, the normal 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. To this rule, an exception is engrafted by the provisions of section 6(1). 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. Savings of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er-TPO under section 92CA could be invalid and bad in law. 7. It is for this precise reason, tribunal has rightly held that order passed by the TPO and DRP is unsustainable in the eyes of law. The said finding is based on the authoritative principles enunciated by the Hon'ble Supreme Court in Kolhapur Canesugar Works Ltd. referred to herein supra which has been followed by Co-ordinate Bench of this Court in the matter of M/s. GE Thermometrias India Private Ltd., stated supra. As such we are of the considered view that first substantial question of law raised in the appeal by the revenue in respective appeal memorandum could not arise for consideration particularly when the said issue being no more res integra." Even though the co-o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture incurred in respect of which payment has been made or is to be made to person referred to in clause (b) of sub section 2 of section 40A of the Act. Accordingly, since we have restored the matter to the AO, we find no justification to deal with the other issues on merit. Accordingly, appeal of the assessee stand allowed for statistical purposes." 7. We notice that the Bangalore bench of Tribunal has expressed the view that the transactions with Associated Enterprises need to be examined u/s 40A(2)(b) of the Act after omission of sec.92BA(i). Accordingly, the matter has been restored to the file of AO. Following the said decision, we set aside the order passed by Ld CIT(A) on the impugned transfer pricing issue and direct the AO to del ..... X X X X Extracts X X X X X X X X Extracts X X X X
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