TMI Blog2014 (1) TMI 1545X X X X Extracts X X X X X X X X Extracts X X X X ..... ting only on the basis of retrospective amendment. We consider it appropriate to restore the entire issue regarding TP adjustment to the CIT(A) with a direction to re-adjudicate the same by taking into account the aforementioned amendment as well as the other grievances of the assessee on T.P adjustment by giving the assessee a reasonable opportunity of hearing – Decided partly in favour of Revenue. - ITA No. 8049/MUM/2011 & ITA No. 1322/MUM/2012 - - - Dated:- 19-8-2013 - I.P. BANSAL AND N.K.BILLAIYA, JJ. For the Appellant : Ajit Kumar Jain. For the Respondent : iten Vasant. ORDER:- PER BENCH: The appeals are filed by the revenue in respect of assessment year 2007-08 for which the AO had passed two assessment orders on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A)- 15/IT-Curr.66/11-12 dated 12/09/2011 in assessee's own case, without appreciating the fact that the Revenue has already filed an appeal against the said order before the Hon'ble ITAT, Mumbai on 01/12/2011". 2. "On the facts and in the circumstances of the case and in law, the Ld. CIT (A) failed to interpret the provisions of section 92C(2) of the Income Tax Act in order dated 12/09/2011, in its right perspective and true meaning." 3. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in allowing the benefit of -5% relief to the extent of Rs.1,21,74,468/- in his order dated 12/09/2011, without appreciating the fact that the benefit of -5% is not like a standard deduction available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforementioned reasons it is the case of the assessee that Ld. CIT(A) had decided the issue in favour of the assessee by following the decisions available on the issue that safe harbour of 5% should be granted as standard deduction, however, the said position has been reversed by the aforementioned retrospective amendment, therefore, as per rule of natural justice the matter should be restored back to the file of Ld. CIT(A) even in departmental appeal so that the assessee may get opportunity to meet with the retrospective amendment as well as to contest additions on other issues. 3. On the other hand, it was the case of Ld. DR that assessee's request for condonation of delay should not be accepted as the amendment referred by the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal field against the assessment order u/s. 143(3) was decided by me vide order in appeal No. CIT(A)-15/IT-Cuurr66/11-12 dated 12.09.2011. The grounds of appeal in both these appeals are same. Accordingly, in the facts of the case, the decision given by me, in the case of the appellant, vide order in appeal No. CIT(A)-15/IT-Curr66/11-12 dated 12.09.2011, would apply mutadis-mutandis to this appeal and the AO is directed to give effect accordingly. In view of the same, this appeal is accordingly disposed off as having partly allowed." 4. We have heard both the parties. Ld. CIT(A) in his order dated 12/9/2011 has granted relief to the assessee for a sum of Rs.1,21,74,468/- being 5% of the margin of international transactions and such d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to be dismissed for want of explanation from the assessee for filing it belatedly. However, following the rules of natural justice, while deciding the revenue's appeal in ITA No.8049/Mum/2011 we have to restore the issue raised by the revenue to the file of CIT(A) which really pertains to deletion of TP adjustment, which the revenue is contesting only on the basis of retrospective amendment. We consider it appropriate to restore the entire issue regarding TP adjustment to the file of Ld. CIT(A) with a direction to re-adjudicate the same by taking into account the aforementioned amendment as well as the other grievances of the assessee on T.P adjustment by giving the assessee a reasonable opportunity of hearing. After giving such opport ..... X X X X Extracts X X X X X X X X Extracts X X X X
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