TMI Blog2022 (1) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... A was omitted by Finance Act, 2017 w.e.f. 01.04.2017 from the statute the same cannot be made applicable in the pending proceeding. It is, therefore, to be considered non-est in the concerned statute as if it had never been passed. In that view of the matter once the said Clause being omitted w.e.f. 01.04.2017 the decision made by AO/TPO and DRP invoking such Section 91BA is without any basis, and/or jurisdiction, invalid and bad in law and, thus, the same is liable to be quashed. No justification in passing the impugned order by the TPO/AO in making upward adjustment invoking Section 92BA(i) of the Act in the present facts and circumstances of the case particularly when the said section stood omitted w.e.f. 01.04.2017 from the statute itself. Hence, we find the same is without any basis, void ab initio and without jurisdiction. In our considered opinion the impugned order is, thus, bad in law and hence the same is hereby quashed. - Decided in favour of assessee. - I.T.A. No. 2262/Ahd/2018 - - - Dated:- 3-1-2022 - Waseem Ahmed, Member (A) And Madhumita Roy, Member (J) For the Appellant : S.N. Soparkar, Sr. Adv. and Parin Shah, AR For the Respondents : Mohd. Usma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it and purview of Specified Domestic Transaction. In the case in hand, AIPL has not made payment for any expenditure rather it has purchased an undertaking under the slump sale arrangement. Since this is a purchase of undertaking it is not covered under the scope of SDT specified under Section 92BA(i) r.w.s. 40A(2)(b) of the Act the Ld. Counsel appearing for the assessee submitted that the transfer pricing provisions itself do not apply. The Ld. Senior Counsel appearing for the assessee further contended before us that Section 92BA(i) was deleted from the statute by the Finance Act, 2017 w.e.f. 01.04.2017, and once deleted it has lost its existence and further that it has to be considered as a law never been existed. In that view of the matter the decision taken by the Ld. AO/TPO in treating the purchase of those two business undertaking under a slump sale arrangement as specified domestic transaction under Section 92BA(i) r.w.s. 40A(2)(b) of the Act is bad in law and liable to be quashed as contended by him. 6. On this issue he has relied upon the judgment passed by the Hon'ble Karnataka High Court in the matter of PCIT-7 vs. Texport Overseas Pvt. Ltd., reported in (2020) 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter once the said Clause being omitted w.e.f. 01.04.2017 the decision made by AO/TPO and DRP invoking such Section 91BA is without any basis, and/or jurisdiction, invalid and bad in law and, thus, the same is liable to be quashed. On this aspect, we have further carefully considered the judgment passed by the Hon'ble Karnataka High Court. While dealing with the issue the Hon'ble Court was pleased to observe as follows: 6. In fact, Coordinate Bench under similar circumstances had examined the effect of omission of sub-section (9) to Section 10B of the Act w.e.f. 01.04.2004 by Finance Act, 2003 and held that there was no saving clause or provision introduced by way of amendment by omitting sub-section (9) of Section 10B. In the matter of GENERAL FINANCE CO. vs. ACIT, which judgment has also been taken note of by the tribunal while repelling the contention raised by revenue with regard to retrospectivity of Section 92BA(i) of the Act. Thus, when clause (i) of Section 92BA having been omitted by the Finance Act, 2017, with effect from 01.07.2017 from the Statute the resultant effect is that it had never been passed and to be considered as a law never been existed. Hence, d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect of specified domestic transactions referred to in clause (i) of section 92BA of the Act which was omitted with effect from 01.04.2017, and effect of such omission of clause (i) of section 92BA means that this provision never existed in the statute book, since clause (i) of section 92BA never existed in the statute book therefore, ld. PCIT cannot exercise his jurisdiction under section 263 of the Act in respect of specified domestic transactions referred to in clause (i) of section 92BA of the Act. Therefore, the action of the Assessing Officer cannot be held to be erroneous as well as prejudicial to the interest of the revenue, in the facts and circumstances as narrated above. Thus, the usurpation of jurisdiction of exercising revisional jurisdiction by the Principal CIT is null in the eyes of law and, therefore, we are inclined to quash the very assumption of jurisdiction to invoke revisional jurisdiction u/s. 263 of the Act by the Principal CIT. Therefore, we quash the order of the Principal CIT dated 08.03.2019 being ab initio void. (iv) ITAT Indore Bench in the matter of Swastik Coal Corporation Pvt. Ltd. vs. PCIT-2 in ITA No. 486/Ind/2018 for A.Y. 2014-15 on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
