TMI Blog2023 (5) TMI 1052X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular provision of section is omitted from the Statute, it shall be deemed to be omitted from its inception until and unless there is some saving clause or provision to make it clear that action taken or proceedings initiated under that provision or section would continue and would not be left on account of omission. Since in the instant case, undisputedly, by the Finance Act, 2017, clause (i) of section 92BA has been omitted with effect from 01.04.2017, therefore, once this clause is omitted by subsequent amendment then it would be deemed that clause (i) was never there in the Statute. Therefore, we hold that the reference made to TPO under section 92CA is invalid and bad in law and hence consequential order passed by the TPO and AO is also not sustainable in the eyes of law and the addition so made/sustained by ld. CIT (A) too deserves to be deleted. Appeal of the assessee is allowed. - ITA No. 394/JP/2022 And ITA No. 431/JP/2022 - - - Dated:- 22-5-2023 - Shri Sandeep Gosain, JM And Shri Rathod Kamlesh Jayantbhai, AM For the Assessee : Shri Vijay Goyal, CA And Shri Gulshan Agarwal, CA For the Revenue : Shri A.K. Bhardwaj, CIT And Shri James Kurian, CIT OR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant is SPV (Special Purpose Vehicle) formed as a joint venture company of M/s Om Metals Infra Projects Ltd. M/s Subhash Projects Marketing Ltd. now known as SPML Infraprojects Ltd). The originally the tender was awarded by Water Resources Department, Government of Rajasthan on turnkey basis in name of M/s Subhash Projects Marketing Ltd in association with MOU partner M/s Om Metal Infra Projects Ltd. (PB page 76). The creation of SPV was one of the requirement of the tender document by the Water Resource Department, Government of Rajasthan (last para of letter at PB page 76). The qualifying party Om Metals Infraprojects Ltd. had vast experience in Hydro- mechanical construction and SPML Infraproject Ltd was qualifying party with respect to Civil Construction whereas the assessee company was incorporated on 10/05/2010 just after the allotment of work tender vide letter dated 30/04/2010. The incorporation of the assessee company was made with the main object to carry on the business of construction of infrastructure projects on turnkey basis as a special purpose vehicle (SPV) with the understanding that on allotment of contract, respective company will undertake the work on ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal comparable being M/s Jain Rai Construction Co. where 4.5% margin was retained. The Ld. TPO had rejected the other comparable being Joint Venture Agreement between M/s SMS Paryavaran Limited and M/s SPML Infra Ltd wherein 1.5% margin was retained stating that the sub-contract was between SPV and one of its participating company therefore it was controlled transaction. Further, there was a time difference of three years and this contract was for electrical contract whereas in the case of assessee the contract is for civil construction. 2.3. Aggrieved by the order of AO, the assessee filed an appeal u/s 246A before CIT (A). The assessee has challenged the action of the AO in referring the impugned domestic transaction in view of omission of clause (i) of section 92BA by Finance Act 2017, without saving clause for the pending proceedings. The ld. CIT (Appeals) rejected the assessee's ground on the basis of findings in Para 7.4 to 7.10 at pages 13-14 of his order. As regard the determination of arm's length price, he held that the TPO has rightly rejected the external comparables on the basis of his findings in para 8.2 to 8.3. As regard, internal comparables, the ld CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be deemed that it had never been passed and to be considered as a law never been existed. (i) Hon'ble Supreme Court decision in the case of KOBLAPUR CANESUGAR WORKS LTD. vs. UNION OF INDIA reported in AIR 2000 SC 811 (Case law Paper Book page 1-12) In this case Hon'ble Apex Court has examined the effect of repeal of a statute visa-vis deletion / addition of a provision in an enactment and its effect thereof without saving clause in favour of pending proceedings. The findings of Hon'ble Supreme Court is in para 38 and 39 of the order (Case law Paper Book page -10). 38. 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 gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e passed in 2006, the AO was not justified in taking note of a provision which was not in the statute book and denying benefit to the assessee. (iv) Hon'ble Karnatak High Court in the case of Principal Commissioner of Income-Tax-7 Versus Texport Overseas (P.) Ltd. 2019 (12) TMI 1312- KARNATAKA HIGH COURT (Case law Paper Book page 60-63) In this case Hon'ble High Court relied upon principles enunciated by the Hon'ble Supreme Court in Kolhapur Canesugar Works Ltd and in case of GE Thermometrias India Pvt Ltd and held that tribunal has rightly held that the order passed by the TPO and DRP is unsustainable in the eyes of law. This case relates to TP Adjustment - AO made a reference to TPO u's 92CA to determine arms length price as the assessee had entered into specified domestic transaction and on the ground it was covered u/s 92HA -contention for revenue that tribunal was not justified in arriving at a conclusion that Clause (i) of section 92BA which had been omitted w.e.f. 01.04.2017 would be applicable retrospectively by presuming the retrospectively, particularly when the statue itself explicitly stated it to be prospective in nature - HELD THAT:- On per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T BANGALORE], we hold that the reference to the TPO in respect of specified domestic transaction mentioned in section 92BA(i) of the Act is not valid as the said provision has been omitted. (vii) M/s. Sobha City vs. ACIT Circle 1(2)(2) Bangalore (ITA No.2936/Bang/20180) AY 2014-15 (Case law Paper Book page 38-53) Hon'ble Tribunal relied upon the decision in the case of M/S. Cauvery Aqua Pvt. Ltd., decision of Hon'ble Karnatak High Court in the case of Texport Overseas (P.) Ltd, and several other decisions mentioned in the order and held as under:- Para 6. Accordingly, following the binding decision rendered by Hon'ble High Court of Karnataka in the case of Texport Overseas P Ltd (supra), we hold that the reference to the TPO in respect of specified domestic transactions mentioned in clause (i) of sec.92BA is not valid, as the said provision has been omitted. Accordingly, we direct the AO to delete the addition relating to specified domestic transactions made u/s 92CA of the Act. (viii) ITAT Visakhapatnam in the case of 3F Industries Limited Versus The Assistant Commissioner of Income Tax, Circle-1, Andhra Pradesh I.T.A. No.54/Viz/2019 Dated: 15-12-2022 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t has been categorically held that omission of a provision would mean that it was never on the statue book-It has to be deemed that it was not in existence in A.Y. 2014-15 and if there was no such provision for recommending the transactions u/s 40A(2)(b) for determination of ALP, there cannot be any adjustment in the income of the assessee on the ground of TP adjustment. Accordingly these grounds of the assessee are allowed. The additions made in the income of the assessee on account of TP adjustment in the domestic transaction are deleted. (x) ITAT Mumbai in the case of Mahindra Two Wheelers Ltd Versus The Dy. Commissioner of Income Tax, 2 (2) (2), Mumbai ITA No. 519/Mum/2018 Dated: -28-4-2022 2022 (8) TMI 482-ITAT MUMBAI (Case law Paper Book page 82-98) TP adjustment made in pursuance of Section 92BA (1) - specified domestic transactions- HELD THAT: In the present case there is an adjustment made to the income of the assessee by determining arm's-length price of specified domestic provisions by invoking the provisions of Section 92BA (i) of the act. The impugned assessment year before us is assessment year 2013-14. The above provision i.e. 92BA (i) of the act was ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9/227 Taxman 121. In this regard we submit that both the decisions are not relevant to the issue in hand. The present issue is omission of law without saving clause for pending proceedings. In CIT vs. Vatika Township (P) Ltd the issue was retrospective applicability of S. 113 Proviso inserted by Finance Act 2002 w.e.f. 01.06.2002 to impose surcharge in search assessments. Here the issue was relating to insertion of new law which is totally different than the omission of law without saving clause for pending proceedings Further, in para 7.9 the Id CIT(A) rejected the assessee's contention that this issue was not raised during assessment. In this regard we submit that this issue is purely legal issue and there is no dispute over the facts relevant to this issue. The legal issue can be raised at any stage of the proceedings. There is no estoppels against the law. Even Hon'ble ITAT Delhi in the case of M/S SMR Automotive Systems India Ltd. (Supra) allowed the additional ground on this issue. In para 7.8 of the order, Ld CIT(A) has rejected the reliance made by the assessee on the decision of Hon'ble Karnataka High Court in the case of PCIT Vs M/s. Texport Overseas Pvt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bid for the said tender (Tender documents at Paper Book page 77-109) and these companies were jointly awarded the work by Government of Rajasthan with a condition to form a Special Purpose Vehicle ( SPV ) to execute the said project. Copy of approval of Tender in name of M/s Subhash Projects Marketing Ltd in association with MOU Partner M/s Om Metals Infra Projects Ltd is placed at PB page 76. The total contract value was approx. Rs. 457 crores. The tender was awarded on 30/04/2010 whereas the assessee company came into existence on 10/05/2010. 1.5. The qualifying party in respect to Hydro-mechanical construction was Om Metals Infra Projects Ltd as it had vast experience in Hydro- mechanical construction and M/s Subhash Projects Marketing Ltd (now known as SPML Infraprojects Ltd) was qualifying party with respect to Civil Construction. 1.6. The creation of SPV was one of the requirement of the tender document by the Water Resource Department, Government of Rajasthan. The Appellant is a joint venture company of two companies formed as Conduit Company by M/s Subhash Projects Marketing Ltd (now known as SPML Infraprojects Ltd) and its MOU partner Om Metals Infra Projects ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ting administrative expenses was most reasonable us the assessee company did nothing for the contract but got this profit just for name sake only. 1.10. As per the prevalent industry practice, a Memorandum of Understanding was entered into between OM SPML (Now Worship Infra), assessee and OM INFRA. qualifying party in May 2010 as per which 5% of the Contract value was to be retained by OMSPML, assessee company. During the year under consideration, i.e., FY 2013-14 i.e. Rs. 98,93,88,204/- (being 95% of Rs. 104,14,46,032) was given to OM INFRA by OM SPML and 5% was retained by OM SPML for meeting administrative and other expenses. Accordingly, OM SPML has passed Rs. 98,93,88,204 out of total amounting to Rs. 104,14,46,032/- to meet out contract expense by Om Infra and the assessee company retained 5% of the contract revenue for the year under consideration amounting to Rs. 5.20.57,828/-[104,14,46,0321-minus 98,93,88,204/-] and after meeting out the all expenses on labour cess, royalty expenses, vat Composition tax, entry tax, administrative and finance cost the net resulted net profit before tax 90,48,708/- giving earning per share Rs. 624.90/- (PB page 018) which is most reasonab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing activities (3)=(1)-(2) % of Sub- contract Revenue retained (4)=(3)/(1) Reasons of Rejection by TPO Anubhav Infrastructure Ltd. 141.63 140.27 1.36 0.96% For the want of strict comparability Gammon India Ltd. 15.23 15.23 - 0.00% Persistent losses P V V Infra Ltd 3.25 3.10 0.15 4.62% For the want of strict comparability Silverpoint Infratech Ltd. 167.89 166.76 1.13 0.67% For the want of strict comparability Skil Infrastructure Ltd. 377.58 349.24 28.34 7.51% Persistent losses As mentioned above, the Ld. TPO had rejected three external comparables being Anubhav Infrastructure Ltd., PVV Infra Ltd. and Silverpoint Infratech Ltd. for the want of strict compar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjusted percentage retained by the Appellant at 1.399% of the total receipts. Thus even if the adjustments made by the Ld. TPO is considered, the retention of net of expenses is higher in case of the Appellant than that of comparables. This, the transaction between the assessee company and Om Infra, can be considered to be at arm's length and no addition should be made in regard to the same. However, the lower authorities have rejected the external comparables one the following grounds- The assessee failed to submit the details of database on which this search was conducted; The assessee did not submit keywords and details of filters applied; From Prowess database it cannot be found that whether the comparable companies were undertaking product on its own or sub-contracting the entire project. Even if the contract is given on sub-contract them whether the sun- contract was on turnkey project basis or in parts. It is not ascertainable fun comparative analysis of the assessee and Prowess database whether several contracts were awarded by the comparable company or a single contact. It is also not ascertainable that how much margin has been kept by these compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Infra Limited has furnished the bank guarantee on behalf of the assessee company. 4. Without prejudice to the above submission, and in alternative arguments, we submit as under:- 4.1 that the lower authorities failed to consider the second proviso to section 92C(2) which is as under:- 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. ] The difference in the arm's length price and price actually taken may be seen as under:- As per findings of AO As per findings of CIT (A) % of profit to be retained by assessee 4.50% 3% Contract Revenue i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Actual Price undertaken by Assessee 98,93,88,204 98,93,88,204 Arm s length price after TP adjustment 95,75,17,030 97,31,45,257 Difference 3,18,71,174 1,62,42,947 Difference in percentage 3.22% 1.64% Since the difference in between the Arm's length price and actual price is within the limit prescribed in the second proviso to section 92C(2) of Income Tax Act, the difference should be ignored. 4.2 No disallowance can be made by applying the provisions of Section 40A(2)(b) as there is no question of diversion of profit to evade tax liability. The transfer pricing adjustment has been made in pursuance of provisions of clause (i) of sec. 92BA of the Act, which is in relation to expenditure in respect of which payment has been made or is to be made to a person referred to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the case of CIT Vs. Indo ITA No.7119/2011 Saudi Services (Travel) P. Ltd. (supra), wherein the Hon'ble High Court has observed in para 5 as under :- 5. In view of the aforesaid admitted facts we are of the view that the Tribunal was correct in coming to the conclusion that the Commissioner of Income-tax (Appeals) was wrong in disallowing half per cent commission to the sister concern of the assessee during the assessment years 1991-92 and 1992-93. The learned advocate appearing for the appellant is also not in a position to point out how the assessee evaded payment of tax by the alleged payment of higher commission to its sister concern since the sister concern was also paying tax at higher rate and copies of the payment orders of the sister concern were taken on record by the Tribunal. 2.5 Similarly, in the case of CIT Vs. V.S. Dempo Co. (P.) Ltd (supra), the Hon'ble High Court has held in para 4 as under- 4. Clause (a) of sub-s (2) of 404 of the income-tax provides that where the assessee incurs any expenditure in respect of which payment has been or is to be made to any person referred to in cl. (b) of the sub- section and the A0 is of the opinion t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... paying tax at the highest rate on the income and at least on the income to the extent of interest received, then no disallowance is called for under Section 40A(2) for want of motive of evasion of tax Accordingly on principle, we accept the contention of the learned AR however, the Assessing Officer to directed to verify the rate of tax at which the recipient of interest have paid tax and if the rate of tax paid by the recipient is equivalent to the rate of sax paid by the assessee, the assessee's claim should be allowed 5) Departmental Appeal:- SUBMISSION OF ASSESSEE:- (i) JV agreement was not in between the assessee and SMS Paryavaran Limited. The department has raised Ground No 1 to 3 presuming the JV agreement was in between the assessee and SMS Paryavaran Limited in the internal comparables submitted by the assessee, which is factually wrong, as the JV agreement was in between SMS Paryavaran Limited and SPML Infra Ltd ( para 7.2 (a) of Assessment Order). (ii) Further, JV Agreement in between M/s SMS Paravaran Ltd and M/s SPML Infra Ltd is dated 10th Jan 2013, which falls very nearer to FY 2013-14. The Arm's length price under the question is for FY 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not given any reason or basis for forming the view that SMS Paryavaran Limited was a related party. As SMS Paryavaran Limited was an unrelated party, the TPO was not justified in rejecting this comparable on the sole basis that it is a related party... . The department has not brought any positive material to show that M/s. SMS Paryavaran Ltd and SPML has common director, common shareholders and common management. 4.1. In addition to the above written submissions submitted by the ld. A/R of the assessee on 20.04.2023, he further submitted the following submissions in support of his case : The assessee has filed detailed submission on the hearing of the case on 20/04/2023. The assessee in addition to what has been submitted on 20/04/2023 further submits as under for your kind perusal and consideration. 1. The assessee has submitted 5 external comparables and 2 internal comparables. The ld TPO, Ld AO and Id CIT(A) has rejected the external comparables on technical grounds like not furnishing the sub contract agreement etc. The ld AO rejected the internal comparable being JV/Sub contract agreement in between SPML Ltd and SMS Paryavarn Ltd which show retention of prof ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jain Rai Construction co (comparable case) M/s SPML. Ltd and M/s Jain Rai Construction co both participated in the project management and monitoring the project. As stated earlier that SPML Ltd is a listed company and it has vast experience in civil construction, incorporated on 27/08/81 whereas the assessee has no experience, it was formed on 10/05/2010 as SPV just as a conduit to full fill the requirement of the contract agreement. This factor alone reduce the retention of profit margin by the assessee. 3) Functional difference in JV in between the assessee and Om Metals Infraprojects Ltd and JV in between SPML Ltd and Jain Rai construction Co. As mentioned in Para 7.2 (b) of Assessment order, agreement in between SPML Ltd and M/s Jain and Rai Construction co dated 20/08/2010 was regarding work of providing Strom Water Drainage System whereas the agreement in between the assessee and M/s Om Metals Infra Project Ltd was for Civil, Hydro Mechanical and Electric Work of Kalisindh Dam across River Kalisindh. The ld. TPO himself has mentioned in Para 13.1.7 that for application of CUP strict comparability is required. The above difference clearly shows that the agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bhawan Va Path Nirman (Bohra) Co (No. 1) 258 ITR 431 has held that the past history of the assessee is best guiding factor. In this case net profit rate was fixed on the basis of past history. Hon'ble ITAT Jaipur Bench in the case of M/s Asian Construction Co. Vs ITO 34 Tax World 89 has also held that the past history of assessee's case is the best reflector of the true trade results. Therefore, the humble assessee prays kindly to delete the addition sustained by Ld CIT(A) and dismiss the appeal filed by the revenue which is listed at ITA 431/JPR/2022 and allow the appeal filed by the assessee which is listed at ITA No.394/JPR/2022. 5. On the other hand, the ld. D/R relying on the orders of the revenue authorities, submitted that the order of the AO be sustained. 6. We have heard the rival contentions, perused the material on record and gone through the orders of the revenue authorities. After appreciating the facts of the case, we noticed that the transfer pricing adjustment was made in the present case in pursuance of provisions of clause (i) of section 92BA of the Act which reads as under :- (i) any expenditure in respect of which payment has been made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings then it can be reasonably inferred that the intention of the legislature is that the pending proceeding shall not continue bu a fresh proceeding for the same purpose may be initiated under the new provision. 39. In the present case, as noted earlier, Section 6 of the General Clauses Act has no application. There is no saving provision in favour of pending proceeding. Therefore action for realisation of the amount refunded can only be taken under the new provision in accordance with the terms thereof. Further, the Hon ble Supreme Court in another case of General Finance Co and Another vs. ACIT (2002) 257 ITR 338 (SC) has held that section 276DD stood omitted from the Act but not repealed and hence, a prosecution could not have been launched by invoking section 6 of the General Clauses Act after its omission. In this regard, we further place reliance on the following case laws :- Hon ble Karnataka High Court in the case of The Commissioner of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en passed and to be considered as a law never been existed. Hence, decision taken by the Assessing Officer under the effect of section 92BA and reference made to the order of Transfer Pricing Officer TPO under section 92CA could be invalid and bad in law. ITAT Bangalore in the case of M/S Nava Karnataka Steels Pvt. Ltd. Versus The Dy. Commissioner of Income Tax, Circle-5 (1) (1), Bengaluru 2022 (6) TMI 179-ITAT Bangalore (Case law Paper Book page 21-27) TP Adjustment - AO made a reference to TPO u/s 92CA to determine arms length price as the assessee had entered into specified domestic transaction Reference to the TPO in respect of specified domestic transactions - claim of expenditure in terms of the provisions of sec. 40A(2)(b) as submitted provisions of section 92BA of the income-tax Act 1961 have been amended vide Finance Act 2017 to exclude specified domestic transactions which are contained under section 92BA read with 40A(2)(b) from the purview of transfer pricing regulations-HELD THAT:- Considering the binding effect of the decision rendered in TEXPORT OVERSEAS (P.) LTD. [2019 (12) TMI 1312 KARNATAKA HIGH COURT] we respectfully follow the same and hold that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of clause(i) to section 92BA of the Act has been omitted by the Finance Act, 2017 w.e.f 1/4/2017 and hence it would be deemed that clause (1) of section 92BA of the Act was never in the statute - HELD THAT: Where a particular provision in a statute is omitted with a saving clause in favour of the pending proceedings, then it can be reasonably inferred that the intention of the Legislature is that pending proceedings shall not continue. Therefore, the omission of clause (i) of section 92BA w.e.f 1/42017 shall render the pending proceedings invalid. ITAT Kolkata in the case of Asstt. Commissioner of Income Tax, Circle-33, Kolkata Versus Rahee Jhajharia E To E JV And Vice- Versa 1.T.A. No. 1125/Kol/2019 1.T.A. No. 343/Kol/2019 Dated: 12-7-2022 2022 (7) TMI 790-ITAT KOLKATA (Case law Paper Book page 71-81) TP Adjustment - ALP determination qua domestic transactions entered into by the assessee with its partner u/s 92BA(i) of the Act-TP Adjustment of transactions falling u/s 40A(2)(b) - HELD THAT: We find that though all these arguments have been duly considered by the ITAT in the orders for the earlier years, particularly in the case of M/s. Raipur Steel Casting Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... This issue has been dealt with by the honourable Karnataka High Court in case of Texport overseas [2019 (12) TMI 1312 KARNATAKA HIGH COURT] in favour of the assessee holding that as the provisions of Section 92BA (i) has been omitted from the Income Tax Act without any saving clause therefore the natural corollary would be that it did not exist at all in the statute book. Accordingly, we allow the additional ground of appeal and hold that the impugned transfer pricing adjustment made by the learned assessing officer is not sustainable. ITAT Delhi in the case of M/S SMR Automotive Systems India Ltd. Versus Addl. CIT Special Range-8, Delhi LTA No.6614/Del/2017 Dated:- 3-4 2021 reported in 021 (6) TMI 449-ITAT DELHI. (Case law Paper Book page 105-112) Determination of the Arm's Length Price - reference u/s 92CA - HELD THAT: The undisputed fact is that as per sub-clause (1) of section 92BA the assessee has undertaken the transaction which has exceeded the prescribed limit. It is also not in dispute that vide Finance Act, 2017 w.e.f. 01.04.2017 the said sub-clause (1) of section 92BA has been omitted. We find that the AO has made a reference u/s 92CA having observed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntained as per facts of the present case. Therefore, the same are distinguishable. 6.3. Apart from the above, we also noticed that in para 7.9 of ld. CIT (A) s order, the plea of the assessee was rejected on the ground that this legal issue was not raised during the assessment proceedings. In this regard, we are of the firm view that the present issue under discussion is purely legal issue and there is no dispute over the facts relevant to this issue. In our considered view the legal issue which is beneficial for the parties can be raised at any step of proceedings even before the Appellate Authorities and there is no estoppels against the law. Even the Coordinate Bench of the ITAT Delhi in the case of M/s. SMR Automotive Systems India Ltd. (supra) allowed the additional ground on this issue. 6.4. Further, in para 7.9 of the order, the ld. CIT (A) rejected the reliance made by the assessee on the decision of Hon ble Karnataka High Court in the case of PCIT vs. M/s. Texport Overseas Pvt. Ltd. by holding that Hon ble Supreme Court has admitted the SLP against the decision of Hon ble Karnataka High Court in the case of PCIT vs. M/s. Texport Overseas Pvt. Ltd. so the issue has no ..... X X X X Extracts X X X X X X X X Extracts X X X X
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