TMI Blog2023 (2) TMI 1256X X X X Extracts X X X X X X X X Extracts X X X X ..... nt relating to Specified Domestic Transactions is liable to be deleted on account of omission of provisions of sec. 92BA(i) of the Act. Even though the co-ordinate bench of Mumbai, in the case of Firemenich Aromatics (I) (P) Ltd [ 2020 (7) TMI 658 - ITAT MUMBAI] has expressed its doubt on the correctness of the decision rendered by the Bangalore bench of Tribunal in the case of Texport Overseas (P) Ltd (supra), yet the fact remains that the said decision of Bangalore bench has since been upheld by Hon ble Karnataka High Court. Accordingly, we prefer to follow the decision rendered by Higher Court of Wisdom and accordingly hold that the transfer pricing adjustment made in respect of Specified Domestic Transaction on the basis of omitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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, submitted that the provisions of Sec. 92BA(i) of the Act provided for making transfer pricing adjustment in respect of Specified Domestic Transaction. However, said provision was omitted by Finance Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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 retrospectivity, particularly when the statue itself explicitly stated it to be prospective in nature. As such they have sought for formulating substantial questions of law and have sought for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct 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 the nature contained in section 6 or in special Acts may modify the position. Thus the operation of repeal or deletion as to the future and the past largely depends on the savings appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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-ordinate bench of Mumbai, in the case of Firemenich Aromatics (I) (P) Ltd (supra) has expressed its doubt on the correctness of the decision rendered by the Bangalore bench of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 delete the addition made towards the transfer pricing adjustment. Since the said specified domestic transactions are required to be examined u/s 40A(2)(b) of the Act, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
