TMI Blog2023 (4) TMI 1296X X X X Extracts X X X X X X X X Extracts X X X X ..... ken in the Assessment Year 2016-17. We also notice that the co-ordinate bench in the case of Maari Multi Trading Pvt Ltd vs ACIT [ 2023 (2) TMI 1256 - ITAT MUMBAI] has also deleted the TP adjustment by relying on the decision of Texport Overseas (P.) Ltd [ 2019 (12) TMI 1312 - KARNATAKA HIGH COURT] With respect to the contention that the issue should be remitted back to the AO to examine the impugned addition from the perspective of section 40A(2)(b), we notice that the AO, considering the volume of SDT has made the reference to the TPO and has not recorded any adverse finding with regard to the impugned transactions. We, therefore, see no reason to remit the issue for reexamining the impugned transactions from the perspective of section 40A(2)(b) and accordingly we see no merit in the claim of Revenue. Appeal of the assessee is allowed. - Amit Shukla (Judicial Member) And Ms. Padmavathy S. (Accountant Member) For the Assessee : None. For the Department : Shri Samuel Pitta. ORDER PER : MS PADMAVATHY S. (AM) This appeal of the Assessee is against order of Income-tax Officer, Ward 014(3)(2), Mumbai passed under section 143(3) read with section 144C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision taken by the Assessing Officer under section 92BA(i) of the reference made to TPO under section 92CA was invalid and bad in law. 6. The Ld.DR, on the other hand, relied on the decision of the co-ordinate bench in the case of Maari Multi Trading Pvt Ltd vs ACIT in ITA No.1471/Mum/2020 dated 24/02/2023 wherein the Hon ble Tribunal has, though deleted the TP adjustment made, has remitted the issue back to the Assessing Officer with a direction to re-adjudicate the issue claim of expenditure incurred in respect of the transactions with AE and the clause (b) of sub section (2) to section 40A. Accordingly, the Ld.DR prayed for a similar direction in this regard. 7. We have heard the rival submissions and perused the material on record. We notice that the Delhi Bench of the Tribunal in the case of Yorkn Tech Pvt Ltd vs DICT in ITA No.635/DEL/2021 dated 18/08/2021 while considering a similar issue has discussed the various decisions rendered with respect to the impugned issue and held that - 7. We have heard the rival submissions and also perused the relevant facts arising out from the records on the legal issue raised by the ld. counsel. It is an undisputed fact that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, in the absence of any such provision in the statue or in the rule, the pending proceeding will lapse. Section 6 and 6A of the General Clauses Act for sake of ready reference are reproduced herein below:- 6 Effect of repeal. Where this Act, or any [Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not (a) revive anything not in force or existing at the time at 29 which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d without a saving clause in favour of pending proceedings then it can be reasonable inferred that the intention of the legislature is that the pending proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision. 10. Thus, if a provision or statute is unconditionally omitted without any saving clause in favour of the pending proceedings, all actions must stop where such an omission is found, especially when action has been taken after the provision has been omitted. During the course of argument a reference was made to the judgment of Hon ble Supreme Court in the case of Fiber Boards (P) Ltd., Bangalore v. Commissioner of Income Tax, Bangalore, (2015) 10 SCC 333 and Shree Bhagwati Steel Rolling v. Commissioner of Central Excise (2016) 3 SCC 643 to convass the point that the earlier judgments of Constitutional Bench in the case of Rayala Corporation Pvt. Ltd., 1970 SCR 1 (69) and Kohlapur Cane Sugar [supra] have been not followed or have been overruled. First of all, nowhere the Hon ble Apex Court in both the judgments have overruled earlier two judgment of the Constitutional bench of the Hon ble Apex Court rather they ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislation, and as the notification dated 22.9.1967 did not by itself confer any right on the appellant, section 24 of the General Clauses Act would not be attracted. 11.1 The Apex Court in the case of Fibre Boards (supra) was of the view that there is no need for the later enactment to state in express terms that an earlier enactment has been repealed by using any particular set of words or form of drafting but that if the legislative intent to supersede the earlier law is manifested by the enactment of provisions as to effect such supersession, then there is in law a repeal notwithstanding the absence of the word repeal in the later statute. Repeals may take any form and so long as a statute or part of it is obliterated, such obliteration would be covered by the expression repeal in Section 6 of the General Clauses Act. All that is required is that an intention to abrogate the enactment or portion in question should be clearly shown. 11.2 The Apex Court held that the idea of omitting section 280ZA and introducing Section 54G on the same date was to do away with the tax credit certificate scheme together with the prior approval required by the Board and to substit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts. On 1.9.1997 the compounded levy scheme was introduced by insertion of section 3A of the Central Excise Act. The appellant opted for the aforesaid scheme under Rule 96ZP of the Central Excise Rules. When the lease expired, the appellant surrendered its registration certificate on 1.6.2000. Section 3A was omitted in 2001. On 19.8.2005 notice was issued to the appellant demanding interest for delayed payment of central excise duty under section 3A of the Central Excise Act for the period 1997 to 2000. 12.1 The question framed before the Hon ble High Court was whether omission of the compounded levy scheme in 2001 wipes out the liability of the assessee for the period during which the scheme was in operation. The Hon ble High Court held that on omission of section 3A, the liability of the assessee was not wiped out. 12.2 The appellant contended that there is a fundamental distinction between repeal and an omission , in the case of a repeal the statute is obliterated from the very beginning whereas in the case of an omission what gets omitted is only from the date of omission and not before. This being the case, it is clear that things already done in the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... leads to the conclusion that repeal would include repeal by way of an express omission. The Apex Court arrived at the conclusion that an omission would amount to a repeal for the purpose of Section 24 of the General Clauses Act. Since the same expression, namely, repeal is used both in Section 6 and Section 24 of the General Clauses Act, the construction of the said expression in both sections would, therefore, include within it omissions made by the legislature. I.T.A. No.635/DEL/2021 38 12.6 The Court was also of the view that merely because the Constitution Bench in case of Rayala Corporation referred to a repeal not amounting to an omission this would not undo the effect of decision in Fibre Board s case and the statement of the law in Rayala Corporation is no longer the law declared by the Hon ble Supreme Court after the decision in the Fibre Board s case. Fibre Board (supra) is a recent judgment which clarifies the law in holding that an omission would amount to a repeal . 13. The converse view of the law led to an omitted provision being treated as if it never existed, as section 6 of the General Clauses Act would not then apply to allow the previous operation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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