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TMI Blog2019 (12) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... income of the assessee is eligible for tax exemption or tax holiday and thus not actually chargeable to tax in India, or in a situation in which there cannot be any motive in manipulating the prices at which international transactions have been entered into?" The subject matter of the above question is emanating in almost all the appeals under consideration. Therefore, for the sake of convenience, we are taking up the facts involved in the issue for the previous year 2005-06 relevant to the assessment year 2006-07, which is the first year under reference. 3. Briefly stated facts of the case are that the assessee is a private limited company and engaged in the activity of business process outsourcing (BPO) services in the field related to accounting & taxation such as book-keeping, VAT returns, payroll, management accounting, and audit. The major shareholder in the company is Mr. Dhiren Doshi, who is also the sole proprietor of the firm M/s Doshi & Co. based in the United Kingdom. The Assessee is providing these services to the firm, which is an AE of the assessee within the meaning of Section 92A of the Act. The assessee provides these services from the unit situated at Baroda w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riate method as in the case of TNMM a high degree of similarity of product/services is not necessary. 3.7 Thus, the TPO employed certain filters in prowess database to adopt more accurate comparables, wherein the process he picked up a set of four such comparables to work out the operating profit/ operating cost as PLI and show caused the assessee for application of TNMM 3.8 In reciprocation, the assessee objected to TNMM as the most appropriate method. However, the assessee at the same time without prejudice also submitted that except one, all the comparables selected by the TPO are involved in different kind of services and business segment. The assessee further filed two comparables and contended that finally, these three comparables should be considered where the average margin would come to 6.82%, and therefore, no adjustment is warranted. 3.9 However, the TPO disregarded the contention of the assessee and calculated the average margin of the comparables which was worked out by him as 33.10% whereas in the case of the assessee it was 7.97% only. Accordingly, the TPO made the upward adjustment of Rs. 1,48,23,848/-. 4. Aggrieved by the order of TPO/AO, assessee carried the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plemented without construing the true import of the provision. Accordingly to him, the special provisions relating to avoidance of tax in chapter X be construed in harmonious way and not be impleaded according to thumb rule. He further submitted that in order to bring his point at home, he has divided his arguments in V compartments viz: (a) purposive of interpretation of Tranfer Pricing provisions ...... ... (b) purpose of introducing Transfer Pricing provisions....... (c) why Aztec Software & Technology Services Ltd. v. Asstt. CIT , 107 ITD 141 (Banglore-Special Bench) is no more good law ..... (d) Income is sine qua non to apply the provisions of Chapter X ..... and (e) other arguments in support of this interpretation. 6.2. As far as submissions under first two folds are concerned, they are just two sides of same coin and in a way inter-connected with each other. The ld.counsel for the assessee appriased us purpose and objects required to be achieved by introducing TP regulations in Chapter X of the Income Tax Act. In his stride, he contended that by way of two amendments effected in Finance Act, 2001 and 2002, TP provisions were brought on the statute book. In ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal transactions. He also drew or attention towards decision of Hon'ble Supreme Court in the case of Morgan Stanley & Co. 292 ITR 416 in order to contend that object of the TP provisions is to protect India's tax base. 6.3 On the strength of the above, he emphases that fundamental object of these provisions is to ensure that India's tax base should not erode or profits taxable in India should not be shifted to other tax jurisdiction. If in a given situation, there is no motive or object to shift the taxability of profit then there should not be any determination of arm's length price for international transactions because the very object would frustrate. Once it is demonstrated that there is no chance of avoiding payment of taxes, then this Chapter should not have been applied on such international transactions. 6.4. The ld.counsel for the assessee further contended that assessee is entitled for exemption under section 10A on its eligible profit at the rate of hundred percent. This factor is required to be kept in mind while construing or interpreting TP provisions in Chapter-X. The object of introducing these provisions in Chapter- X was to avoid erosion of tax revenue from Ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both these transactions, the ld.TPO has recommended upward adjustment of Rs. 18.18 crores. This was added in the income of the assessee. Dissatisfied with the adjustment in the assessment order, the assessee went in appeal before the ld.CIT(A). It took various grounds viz. "(a)There is no finding anywhere before or after reference in the communication under section 92CA that transactions were entered into in a manipulative manner so as to avoid the tax payment in India as mentioned in Circular No. 12 of 2001 issued by :-; Board. In this case no such possibility exists as the entire income from the new industrial undertaking is eligible for deduction under section 10A, hence the very assumption of jurisdiction for ALP determination is erroneous and unsustainable in law. (b)The reference made to the TPO is without jurisdiction as reasons for such reference has not been furnished to the assessee. (c)The TPO ought to have insisted from Assessing Officer the material in his possession which would conclusively establish that the impugned transaction were entered into by the assessee with an intention to avoid the tax before acting upon the purported reference. It may be noted that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Special Bench: Whether is this a legal requirement under the provisions contained in Chapter X of the Income Tax Act, 1961 that the AO should prima facie demonstrate that there is a tax avoidance before invoking relevant provision ? 6.7 This question has been replied in favour of the Revenue and against the assessee by Five Members of the Special Bench of ITAT, Bangalore. Anticipating the stand of the Revenue, on the strength of this order, the ld.counsel for the assessee has submitted as to how ratio laid down in this case is no more a good law. He contended that an identical question was considered by the Hon'ble Bombay High Court in the case of Vodafone India Services P.Ltd., 361 ITR 531. The question before Hon'ble Bombay high Court was - Whether the existence of a potentially taxable income or an expenditure (capital or revenue) that impacts computation of taxable is a sine qua non for the invocation of jurisdiction under Chapter X ? 6.8 This question has been answered in affirmative i.e. in favour of the assessee and against the Revenue. Hence, Hon'ble Bombay High Court has expressly overruled the ratio laid down in the case of Aztec Software & Technology Service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no.7 upto 371. Apart from these decisions of Hon'ble Bombay High Court in the case of Vodafone Services P.Ltd. and Karnataka High Court decision in the case of Phillips Software, he drew or attention towards order of the ITAT, Mumbai in the case of Tata Consultancy Services. He pointed out that subsequent to the decisions of Hon'ble High Courts, even CBDT has issued circular recognising that this procedure required to be followed. The AO ought to have not made reference blindly to the TPO for determination of ALP of international transaction. He has to first prima facie look into whether any element of income or loss is involved in such transaction or not. He drew our attention towards circular nos.15 of 2015 and 3 of 2016 which are placed on page no.185 and 181 of case law compilation. Anticipating interdiction provided in sub-clause (4) of section 92C along with its provisions, he contended that no doubt this clause provides that in case of any adjustment was being recommended either upward side or downward side in the value of ALP deduction under section 10A, 10B, 80IA etc. has been prohibited. He also submitted that he is conscious of the contentions of the Revenue that if ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d fit. Similarly, upto Asstt.Year 2012-13, expression "market value" used in section (8) has been explained by way of an explanation. According to this explanation, the expression "market value" in relation to any goods and services means the price that such goods or services would ordinarily fetch in the market. After Asstt.Year 2013-14, the scope of expression "market value" used in sub-section(8) has been enhanced and it has been provided that it should be at an arm's length price as defined in clause (ii) of section 92F where the transfer of such goods or services is a specified domestic transaction referred to in section 92BA. He further pointed out that in sub-section (10) of section 80IA which is applicable on the computation admissible under section 10A, it has been provided that if the assessee owing to onerous connection between him and any other person arranged, in such a manner which result more than the ordinary profit, then the AO has been empowered to compute reasonably according to his wisdom. Thus, section 10A is a complete code in itself, which authorise the AO to determine the eligible profit for grant of exemption at the rates specified in section. It takes ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions starts with non-obstante clause exhibiting the overriding effect given to any of the provisions, then section 10A being substantive provisions provide incentive from taxation and also a machinery provisions providing the mode of computation, it should be given preference over the TP provisions. Therefore, once it is held that the assessee is entitled for hundred percent exemption of its profit under section 10A, then TP provision ought not to be applied. He relied upon the decision of Hon'ble Karnataka High Court in the case of CIT V. Hewlett Packard Global Soft Ltd., 403 ITR 453. He also relied upon the decision of Hon'ble Bombay High Court in the case of Vodafone India P.Ltd. (supra) as well as made reference to the decision of Hon'ble Supreme Court in the case of Bajaj Tempo Ltd., 196 ITR 188. On the strength of Hon'ble Supreme Court decision, he submitted that section 10A of the Act being a provision intended to promote for economic growth it should be construed liberally with an idea to achieve both these sections and not to frustrate such objects. The ld.counsel for the assessee further contended that Shri Diren Doshi is holding 99% of the shares of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'chargeable to tax' which denotes liable to tax. Thus the person enjoying tax exemption is chargeable to tax though the person may not be actually taxed upon the fulfillment of certain conditions. 7.1 Similarly, the second limb deals with the motive of tax avoidance before invoking the computation machinery, which is an incorrect onus on the Revenue. 7.2 Accordingly, the ld. DR claimed that the question referred to the special bench is not proper, i.e., chargeable to tax means liable to tax, and accordingly, he suggested the questions as under : Whether or not the provisions of section 92 can be invoked in a situation in which the assessee is eligible for tax exemption or tax holiday and thus actually not taxed in India? Whether or not the provisions of section 92 can be invoked in a situation in which the Assessing Officer cannot demonstrate that there is tax avoidance or possible tax avoidance? 7.3 The ld. DR further submitted that the ratio laid down by the Tribunal in the case of ASTSL is squarely applicable to the facts of the instant case. 7.4 The literal interpretation shall be applied where there is no ambiguity in the interpretation of the provisions of the law. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Accordingly, the case of Vodafone will not impact the invocation of Chapter X of the Act in the instant case. 7.11 The ld. DR also claimed that the assessee could not be given the benefit of the undue advantage on account of the non-discrimination clause in the DTAA between the UK and India. The ld. DR also submitted that the general clause in the DTAA could not be given wider meaning than the specific provisions of section 92 of the Act. 7.12 The Ld. DR vehemently argued based on findings culled by the AO and subsequently upheld by the ld. DRP in their respective orders. 8. The Ld. AR in his rejoinder objected on the change of the question either in form or in substance amidst the proceedings. Accordingly, the ld. AR claimed that the assessee is not "chargeable" to tax by virtue of 100% tax holiday u/s 10A of the Act. 8.1 In the case on hand, the AO is not necessitated by the statute to determine the motive of the Assessee. Rather, there is no question of determining the motive of the Assessee in a case such as this where the assessee is receiving/claiming/entitled to 100% tax exemption. Provided the state of affairs, there is no commercial prudence in shifting profits to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of Smt. Tarulata Shyam v. CIT 108 ITR 345 SC, approved the observations in the case of Cape Brandy Syndicate v. Inland Revenue Commission (1921) 1 KB 64 by observing as under: To us, there appears no justification to depart from the normal rule of construction according to which the intention of the Legislature is primarily to be gathered from the words used in the statute. It will be well to recall the words of Rowlatt, J. in Cape Brandy Syndicate v. Inland Revenue Commissioners (1921) 1 KB 64 (KB) at page 71, that : ...in the taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. Once it is shown that the case of the assessee comes within the letter of the law, he must be taxed, however, great the hardship may appear to the judicial mind to be.: 9.1 In the case of Keshavji Ravji & Co. v. CIT , the Apex Court observed as under: "As long as there is no ambiguity in the statutory language, resort to any interpretative process to unfold the legislative intent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed, not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them. **** **** **** While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the Legislature to amend, modify or repeal it, if deemed necessary. (see Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd. ). The legislative causus omissus cannot be supplied by judicial interpretative process. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peech of the Finance Minister may be referred to, to ascertain the history and object, but cannot control meaning of a provision when language is clear and free from ambiguity. xxxxxxx 44. There is, thus, no departure from the settled principle that primary rule of construction is the language used and in case of ambiguity or absurdity, meaning consistent with object and purpose of a statute has to be assigned without doing violence to the statute. Statement of objects can be referred to find out the history and object of the statute and does not control the interpretation when language is clear. We are unable to read the judgments relied upon to the contrary." 9.7 The above judgment makes it vivid and beyond any reasonable doubt that courts are not required to look into the object or intention of the Legislature by resorting to the aids of interpretation where the language used in the statute is clear and free from any ambiguity. To strengthen our findings, we also find support and guidance from the Apex court in case of M/s Rishabh agro industries Ltd vs. P.N.B. Capital services Ltd. (5 SCC 515) (2000) wherein it was held as under: "While interpreting, this Court only in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribed36 : Provided that where more than one price is determined by the most appropriate method, the arm's length price shall be taken to be the arithmetical mean of such prices: Provided further that if the variation between the arm's length price so determined and price at which the international transaction or specified domestic transaction has actually been undertaken does not exceed such percentage not exceeding three per cent of the latter, as may be notified by the Central Government in the Official Gazette in this behalf, the price at which the international transaction or specified domestic transaction has actually been undertaken shall be deemed to be the arm's length price : Provided also that where more than one price is determined by the most appropriate method, the arm's length price in relation to an international transaction or specified domestic transaction undertaken on or after the 1st day of April, 2014, shall be computed in such manner as may be prescribed and accordingly the first and second proviso shall not apply. Explanation.-For the removal of doubts, it is hereby clarified that the provisions of the second proviso shall also be appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the notice, why the arm's length price should not be so determined on the basis of material or information or document in the possession of the Assessing Officer. (4) Where an arm's length price is determined by the Assessing Officer under sub-section (3), the Assessing Officer may compute the total income of the assessee having regard to the arm's length price so determined : Provided that no deduction under section 10A or section 10AA or section 10B or under Chapter VI-A shall be allowed in respect of the amount of income by which the total income of the assessee is enhanced after computation of income under this sub-section : Provided further that where the total income of an associated enterprise is computed under this sub-section on determination of the arm's length price paid to another associated enterprise from which tax has been deducted or was deductible under the provisions of Chapter XVIIB, the income of the other associated enterprise shall not be recomputed by reason of such determination of arm's length price in the case of the first mentioned enterprise. ..... 92CA. (1) Where any person, being the assessee, has entered into an int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered, the Transfer Pricing Officer shall, by order in writing, determine the arm's length price in relation to the international transaction or specified domestic transaction in accordance with sub-section (3) of section 92C and send a copy of his order to the Assessing Officer and to the assessee. (3A) Where a reference was made under sub-section (1) before the 1st day of June, 2007 but the order under sub-section (3) has not been made by the Transfer Pricing Officer before the said date, or a reference under sub-section (1) is made on or after the 1st day of June, 2007, an order under sub-section (3) may be made at any time before sixty days prior to the date on which the period of limitation referred to in section 153, or as the case may be, in section 153B for making the order of assessment or reassessment or recomputation or fresh assessment, as the case may be, expires: Provided that in the circumstances referred to in clause (ii) or clause (x) of Explanation 1 to section 153, if the period of limitation available to the Transfer Pricing Officer for making an order is less than sixty days, such remaining period shall be extended to sixty days and the aforesaid period ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otal income of the assessee is enhanced after computation of income under this sub-section :" 9.11 Thus, the proviso itself vividly reflects the intent of lawmakers that the provisions of chapter X of the Act shall prevail in all the cases of international transactions falling under the umbrella of section 92 of the Act including the income-qualified for exemption under section 10A of the Act. In other words, it can be said that the intention of the statute was very much lucid that section 92 of the Act should be invoked even when the assessee is entitled to deduction u/s 10A of the Act. In the light of above perceivance, we are of the view that there is no need to refer to other means of interpretation if the words are clear and free from any ambiguity. However, if the words in the statute are vague and ambiguous, then external aid may be consulted for interpretation. This connotes that the statute should be read as a whole; therefore, the point which is not clear in one section may be explained in another section. 9.12 Accordingly, we are also of the view that if the purpose or object of Chapter X and/or Section 10A of the Act is being defeated, then it is up to the legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to its plain grammatical sense without addition or deletion of any words. As a general principle of interpretation, where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as Parliamentary Debates, Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction of a measure or by the framers of the Act is admissible to construe those words. It is only where a statute is not exhaustive or where its language is ambiguous, uncertain, clouded or susceptible of more than one meaning or shades of meaning, that external evidence as to the evils, if any, which the statute was intended to remedy, or of the circumstances which led to the passing of the statute may be looked into for the purpose of ascertain- ing the object which the Legislature had in view in using the words in question." In view of the above, the Finance Minister speech and memorandum explaining the bill will not provide any aid to the assessee in the given facts & circumstances. 10. In the context of the CBDT Circulars bearing Nos. 12/2001 dated 23- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d gains of an industrial undertaking engaged in the manufacture or production of articles or things in a free trade zone are exempt from tax for a certain number of years. With a view to providing further incentives for earning foreign exchange, it is proposed to clarify that manufacture for the above purposes will include the activities of processing and assembling. It will further include recording of programmes on any disc, tape, perforated media or other information storage device. The amendment will take effect retrospectively from 1st April, 1981, and will, accordingly, apply in relation to the assessment year 1981-82 and subsequent years. 10.2 From the above, it is clear that the spirit behind introducing section 10A was to bring foreign exchange in India. Granting exemption from Tax under section 10A of the Act was incidental and not the main object. Furthermore where amount fetched by the Indian AE as revenue and/or the amount paid to its counter-part, AE outside India, as expenditure is lower and higher respectively and does not correspond to an ALP, the same will adversely affect the inflow of foreign exchange in India. Perhaps this was the reason to insert the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 92 of the Act, was raised before the ITAT with respect to the assessee claiming the deduction/exemption under section 10A of the Act. Therefore, the observations/findings given in this regard by the Hon'ble special bench are "obiter dicta" and hence hold no binding value. 11.1 In this regard, we note that the relevant finding of the ITAT in the case of ASTSL (supra) to hold it as ratio decidendi has to pass the test as detailed under: i. Find out the proposition considered as to be ratio decidendi. ii. Remove the proposition from the judgment or reverse its meaning. iii. Observe whether the judgment in the absence of such a proposition is still for good. iv. If yes, then such a proposition cannot be categorized as ratio decidendi irrespective of the fact it was the relevant proposition. 11.2 If we apply the steps above to test whether the findings laid down by the Ld. ITAT in case of ASTSL (supra) in the context of the provisions of section 10A/10AA of the Act is obiter dicta, we note that there will not be any change in the decision of the Ld. ITAT, in the case of ASTSL (supra) qua the question framed before it. Accordingly, we concur with the argument of the Ld. AR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Officer. However, when the same objection was raised before the Assessing Officer post the order of the TPO, the Assessing Officer does not consider the same in the impugned draft assessment order dated 22 March 2013 on the ground that in view of Section 92 CA (4) , the Assessing Officer is obliged to pass an order in conformity with the ALP determined by the TPO. This jurisdictional issue has to be dealt with either by the TPO or the Assessing Officer when specifically raised by the petitioner/assessee. 12.1 However, it is also pertinent to mention here that the facts of the case giving rise to the question pleaded before this bench and in case of Vodafone (supra) are different. In that case, it was held, after considering section 2(24) and 56(2)(viib), that there was no income accruing in the hands of the assessee. Hence no question arises for invoking of chapter X of the Act. But in the instant case, the assessee has income accruing from the export to the UK based AE, which is on "revenue account" as defined under section 2(24) of the Act. Hence, the same has to be governed by the provisions of chapter X of the Act. As such, there was no income accruing in the case of Vodafo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the auditor in his report u/s 92E of the Act, we are not inclined to uphold the contention of the Ld. AR regarding the instructions issued by the CBDT. 13.1 The Ld. AR has in his rejoinder counter-argued the allegation put forth by the Ld. DR that no objection was posed by the assessee before AO while reference was made to the TPO stating that although the assessee did not object to the reference initially, he raised a contention before the Ld. DRP which can be deemed to have been posed to AO. 13.2 In our humble understanding, the contention of Ld. AR is not in accordance of instruction No. 15 of 2015 as replaced by Instruction No 3 of 2016 as it is mentioned therein that the qualifying remarks should be made in accountant's report. Therefore, even if the objection was raised before the AO prior to the final order passed in pursuance of the direction issued by ld. DRP, it does not fulfill the requirement of instruction No. 15 of 2015 as replaced by Instruction No 3 of 2016. 13.3 Moreover, when the AO received the order of Ld. DRP, he has to pass the order following the direction issued by the Ld. DRP. Since the Ld. DRP has rejected the objection raised by the assessee; AO wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of available material on record and such opinion would be having ad-hoc finality in the sense that for the purpose of reference to the TPO and till the stage that the TPO passes an order under subsection (3) of Section 92CA of the At, such issue would be closed. 14. Before making any such reference, sub-section (1) of Section 92C itself provides certain inbuilt safeguards. Firstly, the Assessing Officer has to consider it necessary or expedient to make a reference to the TPO and secondly the reference has to be made with the previous approval of the commissioner. Thus, not only the Assessing Officer before making a reference should be satisfied that with respect to an international transaction entered into by the assessee, it is necessary or expedient to refer the computation of arm's length price to the TPO, such opinion of the Assessing Officer would have to be approved by the Commissioner, before the same can be acted upon. This is one more filter provided by the statute to ensure that the reference is made only in appropriate cases with approval of the higher authority. 13.7 Our jurisdiction being in Gujarat; therefore, we are bound by Judgment/order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se tax considerations from economic decisions, the arm's length principle promotes the growth of international trade and investment. 14.3 As a consequence, in consonance with the aforementioned article and OECD extracts, it is manifestly clear that tax laws in India cannot be subjected to tax laws of a Foreign country. 14.4 We further note that to maintain harmony and avoid double taxation, there have been made various treaties with different countries under section 90 of the Act. Thus the taxes levied under Article 265 of the constitution of India will be subject to such treaties which do not even connote being subject to foreign tax law. 15. In the context of the provision of section 10A of the Act, we opine to hold that although it is a code, the same is limited to the manner of the computation of deduction for the income of the eligible undertaking. In this regard, we draw support from the judgment of Hon'ble Madras High Court in the case of Camiceria Apparels India (P.) Ltd. Vs. ACIT reported in 103 taxmann.com 238 wherein it was held as under: "that "Section 10A/10B of the Act is a complete code providing the mechanism for computing the 'profits of the business&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions of Section 92 can be invoked in a situation in which income of the assessee is eligible for tax exemption or tax holiday and thus not actually chargeable to tax in India, or in a situation in which there cannot be any motive in manipulating the prices at which international transactions have been entered into? 18. A copy of the order above was made available to the Revenue, and it did not register any objection qua the question framed for this special bench. 18.1 We further note that the matter was fixed for hearing on several occasions as evident from order sheet entry maintained by the Registry of this office after treating the same as part-heard. But the Ld. DR never raised any objection on the question framed for the special bench till his turn came for the argument. Therefore, after hearing the Ld. AR in length for the question as discussed above, we are not inclined to entertain the plea of the Ld. DR for framing the question differently. Hence, we reject the plea of the Ld. DR. 19. Regarding the Non-discrimination clause in the DTAA between India and UK, we find that the learned counsel's arguments proceed on the fallacious assumptions that while examining the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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