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TMI Blog2024 (11) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 in appeal proceedings No. IT[TP]A No.375/Bang/2021 which were for the assessment year 2016-17. 2. The learned counsel for the appellants submits that the following substantial questions of law arise for consideration: (i) "Whether the Tribunal was right in holding that the reference made to TPO for specified domestic transaction mentioned in clause (i) of Section 92BA of the Act is not valid as the said provision has been omitted and as such addition made in respect of same needs to be deleted without appreciating that reference made to Transfer Pricing Officer was in accordance with parameters of Section 92CA of the Act and the amendment takes effect from 1/4/2027 which applies to A.Y.2017-18 and subsequent years"? (ii)" Whether on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (with regard to questions Nos. 1 to 3) and also of the High Court of Bombay (with regard to question No. 4). 4. On questions No. 1 to 3, he states the same are primarily relatable to Section 92 (BA) (i) which provision has been omitted by the Finance Act,2017 with effect from 01.04.2017. The Senior Counsel states though the assessment year is prior to the omission of the said provision with effect from 01.04.2017, but in view of the judgment of the Coordinate Bench wherein the Co-ordinate Bench has followed the judgment of the Apex Court in Kohlapur Canesugar Works Ltd., Vs. Union of India reported in AIR 2000 SC 811 and also in view of the judgment of the Co-ordinate Bench of this Court in M/s. GE Thermometrics India private limited Vs th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same in favour of revenue and against the assessee. 4. Sri. E.I. Sanmathi, learned counsel appearing for revenue/appellant in ITA No. 170/2019 would contend that even the disallowance made by the AO under Section 14A r/w Section 8 (2) (iii) of Income Tax Rules for a sum of Rs. 14,88,870/- by holding that there was no exempted income and as such disallowance could not have been made even though said provision was rightly invoked by AO, and as such setting aside the disallowance is erroneous. Hence, he prays for substantial question of law as formulated in the appeal memorandum (ITA 170/2019) be formulated, adjudicated and answered in favour of assessee. 5. Having heard learned Advocates appearing for parties and on perusal of recor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 o pending proceedings then it can be reasonably 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." 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 FIN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finding is based on factual aspects which would not call for interference by us, that too, by formulating substantial question of law. The Assessing Officer has to undertake the exercise of factual determination. As such, without expressing any opinion on merits with regard to question No.2 formulated by the revenue in the respective appeals, we proceed to pass the following: ORDER i) Both the appeals i.e., ITA No.392/2018 and ITA No. 170/2019 are dismissed. ii) Order dated 22.12.2017 passed by the Income Tax Appellate Tribunal, Bangalore in IT(TP)A No. 1722/Bang/2017 is affirmed." 6. Insofar as issue No. 4 is concerned, the substantial question of law framed by the Bombay High Court is identical to the question No. 4 in this app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age, we may state here that the judgment of the Co-ordinate Bench in PR. Commissioner of Income Tax-7 and another Vs. M/s, Texport Overseas Private Limited was taken in appeal to the Hon'ble Supreme Court, but the tax effect being less than prescribed limit, the appeal was withdrawn. Since the issue with regard question Nos. 1 to 3 is covered by the judgment of Co-ordinate Bench of this Court, for parity of reasons, we hold, the questions are not sustainable. Insofar as, question No. 4 is concerned, though the learned Senior Counsel for the respondent has also relied upon another judgment of Bombay High Court in the case of Commissioner of Income Tax-8, Mumbai Vs Phoenix Mecvano (India)(P.) Ltd. [2019] 108 taxmann.com 124 (Bombay) wherein a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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