DP JAIN NAGDA GOGAPUR BOT ANNUITY PROJECT PVT. LTD., NAGPUR V. THE PRINCIPAL COMMISSIONER OF INCOME TAX-1, NAGPUR

ITA 13/NAG/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 9630 (ITAT-NAGPUR)
• Duration Of Justice: 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 28-02-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PRADEEP HEDAOO
• Keywords: Revision of order; Transfer pricing; Opportunity of being heard; International transaction; Question of law
• Section: 6; 263; 143(3); 92D; 142(1); 92A; 10B; 143(2); 92CA; 101

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH, NAGPUR BEFORE SHRI SANDEEP GOSAIN, JM & SHRI O.P. KANT, AM ITA No. 13/NAG/2021 Assessment Year: 2015-16 DP Jain Nagda Gogapur BOT Annuity Project Pvt. Ltd. U-7, Himalaya Accord Apartment, Opp. Law College, Amravati Road, Nagpur. Vs. Pr. Commissioner of Income Tax-1, Aayakar Bhawan, Telangkhedi Road, Civil Lines, Nagpur. PAN No.: AAECD 8413 F Appellant Respondent Assessee by: Shri R.V. Loya (CA) Revenue by : Shri Pradeep Hedaoo (CIT-DR) Date of Hearing: 28/10/2021 Date of Pronouncement: 28/01/2022 ORDER PER: SANDEEP GOSAIN, J.M. The present appeal has been filed by the assessee against order dated 30/12/2020 passed U/s. 263 of the Income Tax Act, 1961 (in short, the Act) by the ld. Pr. Commissioner of Income Tax-1, Nagpur (PCIT, in short) for the Asstt. Year 2015-2016. The grounds of appeal raised by the assessee are as under “1. That the notice and the order of the Learned Pr. Commissioner of Income Tax (PCIT), Nagpur-1 passed u/ s.263 is bad in law and wrong on facts. On the facts and circumstances of the case, the assessment order passed by the AO u/s. 143(3) was neither erroneous nor prejudicial to the interest of the revenue and the notice u/ s.263 and the proceedings thereafter are illegal and liable to be quashed. 2 • 2. That the learned Pr. CIT erred in law and on facts in setting aside the order of the AO passed u/s 143(3) of the Income Tax Act, 1961 and directing him to pass a fresh assessment order after referring the case to the Transfer Pricing Officer. On the facts and circumstances of the case, the Pr. CIT erred in disregarding the fact that the details of transactions as disclosed in Form 3CEB alongwith the documentary evidences and explanations furnished during assessment proceedings with regard to such transactions have been verified by the AO. 3. That the learned Pr. CIT erred in law and on facts in holding that the AO miserably failed in applying his mind in executing the prevailing law in its right perspective. On the facts and circumstances of the case, the clause (i) of Section 92BA of Income Tax Act was omitted by Finance Act, 2017 with effect from 1-4-2017 and therefore this sub clause shall be deemed not be on the statute since inception and hence the learned Pr. CIT cannot exercise the jurisdiction u/s 263 and the action is highly unjustified. 4. That for any other ground with kind permission of your honour at the time of hearing of appeal.” 2. The brief facts of the case are that the assessee has filed its return of income on 30/11/2015 declaring NIL income. The case of the assessee was selected for scrutiny and necessary notices were issued and served upon the assessee. Finally the assessment was completed U/s 143(3) of the Act vide order dated 29/06/2017 by accepting the ITR filed as NIL income. Later on, the ld. Pr.CIT invoked provisions of Section 263 of the Act and held that the order passed by the A.O. is erroneous in so far as it is prejudicial to the interests of the revenue. 3 3. All the grounds raised by the assessee in this appeal are interrelated and interconnected and mainly relates to challenging the order of the ld. Pr.CIT in initiating the proceedings U/s 263 of the Act. 4. The ld. AR appearing on behalf of the assessee has reiterated the same arguments as were raised before the ld. Pr.CIT and also relied on the written submissions filed before him. He further submitted that exactly similar issue has been decided by the ITAT ‘B’ Bench, Ahmadabad Tribunal in the case of Shri Ashish Subodchandra Shah Vs Pr.CIT-3 in ITA No. 530/Ahd/2019 order dated 16/07/2021 and ITAT, Gauhati ‘E’ Court at Kolkata in the case of M/s Bhartia- SMSIL (JV) Vs ITO in ITA No. 117/Gau/2019 order dated 17/06/2020. The ld. AR also relied on the written submissions filed before the ld. Pr.CIT and the contents of the same are reproduced below: “(1) The assessee has disclosed the specified domestic transactions entered during the year under consideration in Form 3CEB. We would like to draw your kind attention to the provisions of section 92BA where the meaning of "Specified Domestic Transaction" is provided. This section was introduced through Finance Act, 2012 w.e.f. 1 st April, 2013 and it provides an exhaustive list of transactions. Clause (i) to section 92BA covered the expenditure in respect of which payment has been made or is to be made to a person referred to in clause (b) of sub-section (2) of section 40A. The said clause (1) of Section 92BA of Income Tax Act was omitted by Finance Act, 2017, with effect from 1-42017 and therefore this sub clause shall be deemed not to be on the statute since the 4 beginning. The aforesaid submission is supported by various case laws and decisions as under :- ( i ) H o n o u r a bl e K a r n at ak a Hi g h C o u rt i n t he c a s e of P r . C I T -7 V s . T e x p o r t Overseas Pvt. Ltd. (2020) 114 Taxmann.com (568) (Kar.) vide order dated 12th December, 2019, held that when Clause (i) of Section 92BA having been omitted by the Finance Act, 2017, w.e.f. 1st July, 2017 from the statute the resultant effect is that it had never been passed and to be considered as a law never been existed. While holding so Honourable High Court followed the authoritative Principles enunciated by the Honourable Supreme Court in the case of Kolhapur Canesugar Works Ltd. Vs Union of India AIR 2000 SC 811 and in the case of General Finance Co. Vs Assistant Commissioner of Income tax 257 ITR 338 (SC) and Honourable Karnataka High Court in the case of GE Thermometrics India Pvt. Ltd. It is further informed that Bangalore tribunal in the case of Texport Overseas Private Limited Vs. Dy. CIT reached a conclusion that any amendment made in the Act which has the effect of omitting a provision/clause from the statute has to be read in line with Section 6 of the General Clause Act, if an amendment for omission has a provision therein that pending proceedings shall continue then such a proceeding will continue. However, in absence of any such provision in the statute or in the rule, the pending proceeding will lapse. The Finance Act, 2017, while deleting clause (i) of Section 92BA, did not specify whether the proceeding initiated or action taken on this section will continue or not. Since, there was no express 'saving clause or provision' stating whether the pending proceedings shall continue, it is deemed that the said clause has been deleted since its inception. Accordingly, any pending assessment or appellate proceedings are null and void and bad in the eyes of law. The Bangalore ITAT held that as clause (i) of Section 92BA was omitted by Finance Act, 2017 w.e.f. April 1, 2017, it would be deemed that clause (i) was never been on the statue. It was further observed that while omitting the clause (i) of section 92BA, nothing was specified whether the proceedings initiated or action taken on this shall continue. Therefore, the proceedings initiated or action taken under that clause would not survive at all. ITAT further opined that the cognizance taken by the Assessing Officer (AO) under section 92B(i) and reference made to the TPO under section 92CA is invalid and bad. This view of tribunal is further upheld by the High Court of Karnataka in ITA 392/2018 as mentioned above. 5 (ii) In the recent judgement of ITAT Guwahati in the case of M/s Bhartia- SMSIL (JV) Vs ITO in ITA No. 117/Gau/2019 dated 17-6-2020, it is held that, "11. Therefore based on the above judgements of the Coordinate Benches, [in the case of Swastik Coal Corporation Pvt Ltd and in the case of M/s Raipur Steel Casting India (p) Ltd-supra)] we hold that since clause (i) section 92A was omitted with effect from 1st April, 2017 and the effect of such omission is that the said clause(i) was never existed in the statute. Hence, Ld. PCIT can not exercise the jurisdiction u/s 263 of the Act." (iii) In the case of DVC Emta Coal Mines Ltd &Ors Vs ACIT in ITA Nos. 2430- 2432/Kol/2017 dated 01.05.2019, it was held that the legal effect of clause (i) of Section 92BA being omitted by subsequent amendment, would mean that clause (i) never existed in the statute and consequently no adverse inference with reference to omitted provision can be drawn against an assessee. While omitting the clause (i) of section 92BA of the Act, nothing was specified whether the proceeding initiated or action taken on this count can continue. Therefore, this Tribunal held that any proceeding initiated or action taken under that clause would not survive at all and any reference made to TPO under section 92CA in respect of transactions referred to in clause (i) of Section 92BA of the Act shall be invalid and bad in law. (iv) In the case of M/s AIC Iron Industries Pvt Ltd vs Pr.CIT, Kolkata in ITA No.1332/kol/2019 dated 31-12-2019, the principle laid down in the case of DVC Emta Coal Mines Ltd is followed. The decisive para is reproduced below: "31. Applying the ratio laid down in the foregoing decision to the facts of the present case, we note that when the impugned order was passed by the Ld. Pr. CIT, clause (i) of section 92BA of the Act had already been omitted by the Finance Act, 2017 and in that view of the matter the Ld. Pr. CIT could not set aside the order for alleged non-compliance with provision of law which no longer existed in the statute as on the date of order. The Ld. Pr. CIT's direction requiring the AO to consider making a reference to the TPO in the set aside proceedings is also contrary to the view expressed in the foregoing decision of the coordinate bench(supra). For all the foregoing 6 reasons therefore, we hold that the AO's order did not suffer from any error for the reason that he did not make reference to the TPO. Accordingly the Ld. Pr. CIT's order for the reason setout in clause 3(b) of the SCN and for the entirely new set of reasons contained in the impugned order, is set aside. Grounds Nos. 5 to 7 are accordingly allowed. 5. We adopt the above detailed discussion mutatis mutandis and conclude that the PCIT has erred in law and as well as on facts in terming the above regular assessment dated 19.12.16 as erroneous causing prejudice to interest of the revenue qua the assessee's specified domestic transaction not having subjected to section 92CA reference to the Transfer Pricing Officer. We make it clear that learned coordinate bench has already held in assessment year 2014-15 itself that the Finance Act 2017's omission of section 92BA(i) carrying retrospective effect and therefore, such an inaction in not making reference to the TPO does not render the assessment erroneous causing prejudice to interest of the revenue. We accordingly reverse the PCIT's revision directions." (2) In view of the submissions made above, facts and circumstances of the case and case laws relied upon, it is submitted that no mistake has been committed by the AO and a proper enquiry and verification has been already made in the assessment proceedings. The order of the AO was not erroneous in so far as it is not prejudicial to the interest of the revenue. Further, clause (i) of Section 92BA of Income Tax Act was omitted by Finance Act, 2017, with effect from 1-4-2017 and therefore this sub clause shall be deemed not to be on the statute since inception and hence, proposal for revision of the order passed by the AO u/s. 143(3) is invalid in the eyes of law. We therefore request your goodself to kindly drop the proceedings u/s. 263 and oblige. Any other details that your goodself may require may kindly be intimated so that the same can be furnished to your goodself.” 5. On the other hand, the ld. CIT-DR has vehemently supported the order of the ld. Pr.CIT. 7 6. We have considered the rival contentions and carefully perused the material placed on record. From perusal of the record, we observed that exactly identical issue had been decided by the Coordinate Bench Ahmadabad Tribunal in the case of Shri Ashish Subodchandra Shah Vs Pr.CIT-3 in ITA No. 530/Ahd/2019 order dated 16/07/2021 wherein the Coordinate Bench has held as under: “7. We have duly considered rival submissions and gone through the record carefully. Section 263 of the Income Tax Act has direct bearing on the controversy, therefore, it is pertinent to take note of this section. It reads as under: “263(1) The Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interest of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. [Explanation.- For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,- (a) an order passed on or before or after the 1st day of June, 1988 by the Assessing Officer shall include- (i) an order of assessment made by the Assistant Commissioner or Deputy Commissioner or the Income-tax Officer on the basis of the directions issued by the Joint Commissioner under section 144A; (ii) an order made by the Joint Commissioner in exercise of the powers or in the performance of the functions of an Assessing Officer conferred on, or assigned to, him under the orders or directions issued by the Board or by 8 the Chief Commissioner or Director General or Commissioner authorized by the Board in this behalf under section 120; (b) “record shall include and shall be deemed always to have included all records relating to any proceeding under this Act available at the time of examination by the Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal filed on or before or after the 1st day of June, 1988, the powers of the Commissioner under this sub-section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal. (2) No order shall be made under sub-section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, National Tax Tribunal, the High Court or the Supreme Court. Explanation.- In computing the period of limitation for the purposes of sub- section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded.” 8. On a bare perusal of the sub section-1 would reveal that powers of revision granted by section 263 to the learned Commissioner have four compartments. In the first place, the learned Commissioner may call for and examine the records of any proceedings under this Act. For calling of the record and examination, the learned Commissioner was not required to show any reason. It is a part of his administrative control to call for the records and examine them. The second feature would come when he will judge an order passed by an Assessing Officer on culmination of any proceedings or during the pendency of those proceedings. On an analysis of the 9 record and of the order passed by the Assessing Officer, he formed an opinion that such an order is erroneous in so far as it is prejudicial to the interests of the Revenue. By this stage the learned Commissioner was not required the assistance of the assessee. Thereafter the third stage would come. The learned Commissioner would issue a show cause notice pointing out the reasons for the formation of his belief that action u/s 263 is required on a particular order of the Assessing Officer. At this stage the opportunity to the assessee would be given. The learned Commissioner has to conduct an inquiry as he may deem fit. After hearing the assessee, he will pass the order. This is the 4th compartment of this section. The learned Commissioner may annul the order of the Assessing Officer. He may enhance the assessed income by modifying the order. At this stage, before considering the multi-fold contentions of the ld. Representatives, we deem it pertinent to take note of the fundamental tests propounded in various judgments relevant for judging the action of the CIT taken u/s 263. The ITAT in the case of Mrs. Khatiza S. Oomerbhoy Vs. ITO, Mumbai, 101 TTJ 1095, analyzed in detail various authoritative pronouncements including the decision of Hon’ble Supreme Court in the case of Malabar Industries 243 ITR 83 and has propounded the following broader principle to judge the action of CIT taken under section 263. (i) The CIT must record satisfaction that the order of the AO is erroneous and prejudicial to the interest of the Revenue. Both the conditions must be fulfilled. (ii) Sec. 263 cannot be invoked to correct each and every type of mistake or error committed by the AO and it was only when an order is erroneous that the section will be attracted. (iii) An incorrect assumption of facts or an incorrect application of law will suffice the requirement of order being erroneous. (iv) If the order is passed without application of mind, such order will fall under the category of erroneous order. (v) Every loss of revenue cannot be treated as prejudicial to the interests of the Revenue and if the AO has adopted one of the courses permissible under law or 10 where two views are possible and the AO has taken one view with which the CIT does not agree. If cannot be treated as an erroneous order, unless the view taken by the AO is unsustainable under law (vi) If while making the assessment, the AO examines the accounts, makes enquiries, applies his mind to the facts and circumstances of the case and determine the income, the CIT, while exercising his power under s 263 is not permitted to substitute his estimate of income in place of the income estimated by the AO. (vii) The AO exercises quasi-judicial power vested in his and if he exercises such power in accordance with law and arrive at a conclusion, such conclusion cannot be termed to be erroneous simply because the CIT does not fee stratified with the conclusion. (viii) The CIT, before exercising his jurisdiction under s. 263 must have material on record to arrive at a satisfaction. (ix) If the AO has made enquiries during the course of assessment proceedings on the relevant issues and the assessee has given detailed explanation by a letter in writing and the AO allows the claim on being satisfied with the explanation of the assessee, the decision of the AO cannot be held to be erroneous simply because in his order he does not make an elaborate discussion in that regard. 9. In the light of the above, let us examine the facts of the present case. A perusal of the transactions entered with the related parties whose value at the most could be determined at arm’s length, are the transactions with related parties. We have noticed the break-up of such transactions (supra) and at the cost of repetition, we take this transaction again below: 11 10. At this stage, we would like to take note of the definition of expression “specified domestic transaction” provided under section 92BA, which reads as under: 92BA. For the purposes of this section and sections 92, 92C, 92D and 92E, "specified domestic transaction" in case of an assessee means any of the following transactions, not being an international transaction, namely:— (i) any expenditure in respect of which payment has been made or is to be made to a person referred to in clause (b) of subsection (2) of section 40A; (ii) any transaction referred to in section 80A; (iii) any transfer of goods or services referred to in sub-section (8) of section 80- IA; (iv) any business transacted between the assessee and other person as referred to in sub-section (10) of section 80-IA; (v) any transaction, referred to in any other section under Chapter VI-A or section 10AA, to which provisions of subsection (8) or sub-section (10) of section 80-IA are applicable; or (vi) any other transaction as may be prescribed, 12 and where the aggregate of such transactions entered into by the assessee in the previous year exceeds a sum of five crore rupees.] 11. Sub-clause (i) of the above provision has been omitted from the Act w.e.f. 1.4.2017. If this clause is taken out, then the remaining clauses are clause (ii) to (vi). Let us evaluate the transaction which at the most should be referred to TPO for determination of arm’s length price in the present case. We have taken note of bifurcation of the transaction, and out of all seven transactions only transaction no.1 i.e. purchase from Global Enterprises at the most could be referred for determination of ALP under sub-clause (i) of section 92BA. This aspect has been gone into by the ld.AO and the assessee has explained qua this transaction. The relevant part of the same reads as under: “Re.: Your notice u/s 142(1) dtd. 30th June, 2016 With reference to above and on behalf of and upon request from aforesaid assessee, we would like to state that your notice dtd. above has been received by assessee on 8th July 2016 only and hence, we could get very little time to prepare documents required by you. We have however, attempted to prepare and submit as much details and now we are submitting those as below: 1. Point no.1 of notice It seems that scrutiny is attracted due to following 3 broad points on which you sought to file a. Large commission expense and low net profit Kindly note that assessee deals in knitted fabrics and much of the sales is done through commission agents and brokers and hence, commission expenses is found to be high. For the sake of comfort, we attempt to give comparative list of past 2 years also which will clarify that during the year under assessment, commission as % of sales has reduced but sales is much dependent upon commission agents. 13 b. Justification of large specified domestic transaction (form 3CEB) In this connection, we would like to brief you about background of business which is relevant to explain this point. Earlier in 1996 when the assessee started the business in the name of G.N. Textiles of trading in knitted fabrics, it used to source ready fabrics from Ludhiana and Tirupur. Thereafter, slowly he realized that it is beneficial to get the fabric manufactured and sell it. Hence, new unit viz. Global Enterprise in proprietorship of HUF of assessee was started in 2006 with its branch located at Ludhiana. It started to purchase yarn there, get it processed like dyeing, knitting, finishing etc. at premises of jobworkers and sell ready fabric to G.N. Textiles. Global enterprise has its own office cum godown at Ludhiana and has also staff strength there to look after activities there. M/s. G.N. Textiles traditionally sources most of the material from Global enterprise only since long. This is to reduce overall cost of the product procured. We hereby make an attempt to submit purchases made by assessee from Global enterprise for last 3 assessment years to prove that this practice is followed by assessee since long not to save taxes but to cut costs and get good margins. 14 Further there is no attempt to reduce taxes but just to earn good margins by self engaging in the same line rather than procuring material directly from outside parties. This is further done in the name of associate concern to distinguish identity of both the units in Ludhiana local market so that adequate benefits of lowest purchase prices and lowest processing charges can be enjoyed. It is also imperative to note that the assessee has got transfer pricing audit for the year and is getting it done since introduced. The copy of form no.3CEB duly uploaded within time has been submitted to you during our earlier submission dtd.23rd October 2015. *** **** **** *** With reference to the above we would like to submit the following details regarding ongoing scrutiny as required by you. 1. Working of Domestic Arm Length transaction along with copy of purchase invoices: With regard to our major purchase from related party viz. Global Enterprise, you have asked to justify purchase prices with those of other unrelated suppliers. In this regard, please find herewith enclosed detailed working of purchase price comparison in respect of material purchased from Global Enterprise with other unrelated party either on same day or nearby date along with few sample purchase bills of Global enterprise i.e. related party as well as of other unrelated parties. 15 List of unrelated suppliers of which copies of bill are produced: a) Dewan Knitwear b) Sweety fabrics Pvt. Ltd c) Amit enterprise Kindly note that there is difference in prices on account of different material also.” 12. On the basis of the explanation given by the assessee during the course of scrutiny assessment, the ld.AO did not refer this transaction to the TPO for determination of ALP. Now reverting back to section 92BA, it reveals that transaction mentioned at Sr.No.2 to 6 are not attracted in the case of the assessee; because he has not undertaken any of the transaction mentioned in serial nos.2 to 6. Only transaction, which could be fallen in the definition of specified domestic transaction is transaction mentioned at Serial no.1, and in the case of the assessee, that transaction could be purchase from the related parties. Now at the time of assessment proceedings, the ld.AO did not make reference to the TPO, but by the time, the ld.Commissioner took cognizance of the record for re-initiation of assessment order by exercising power under section 263. This clause has been omitted from the statute book. Therefore, the question before us is, whether in the absence of sub-clause (i) of section 92BA in the provision can still be transaction of the assessee regarding purchase made from the related party deserves to be referred to the TPO. Reply to this question has been given by the Hon’ble Karnataka High Court in the judgment of Pr.CIT Vs. Texport Overseas P.Ltd. 114 taxmann.com 568. The facts before the Hon’ble Karnataka High Court was that there was a domestic transaction which fall within the definition of “specified domestic transaction” with help of section 92BA(i). A reference was made to the TPO and objections were filed before the DRP also. But ultimately when the assessment order was passed under section 144(3) of the Act, read with section 143(3) of the Act, this clause has been omitted from the Act. In other words, the assessment order was passed on 30.6.2017, and this clause, on the strength of which this reference was made to the TPO, stand omitted w.e.f. 1.4.2017. The case of the assessee was that 16 after April, 2017 this proceeding would lapse, which was not accepted by the AO as well as TPO, but the Tribunal accepted the stand of the assessee. Department took the matter in appeal before the Hon’ble Karnataka High Court, and the Hon’ble High Court answered the question in favour of the assessee, and against the Revenue. The discussion made by the Hon’ble High Court reads as under: “5. Having heard learned Advocates appearing for parties and on perusal of records in general and order passed by tribunal in particular it is clearly noticeable that Clause (i) of section 92BA of the Act came to be omitted w.e.f. 01.04.2019 by Finance Act, 2014. As to whether omission would save the acts is an issue which is no more res intigra in the light of authoritative pronouncement of Hon'ble Apex Court in the matter of Kolhapur Canesugar Works Ltd. v. Union of India AIR 2000 SC 811 whereunder Apex Court has examined the effect of repeal of a statute vis- avis deletion/addition of a provision in an enactment and its effect thereof. The import of section 6 of General Clauses Act has also been examined and it came to be held: "37. 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 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 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 proceedings shall not continue but fresh proceedings for the same purpose may be initiated under the new provision." 6. In fact, Co-ordinate 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 17 introduced by way of amendment by omitting sub-section (9) of section 10B. In the matter of General Finance Co. v. 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, decision taken by the Assessing Officer under the effect of section 92BI and reference made to the order of Transfer Pricing Officer-TPO under section 92CA could be invalid and bad in law. 7. It is for this precise reason, tribunal has rightly held that order passed by the TPO and DRP is unsustainable in 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. 8. Insofar as question No. 2 is concerned, we find from the order of the Tribunal that issue relating to the deletion of disallowance made by the Assessing Officer has been remitted back to the Assessing Officer which 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...” 13. The above discussion is clearly applicable on the facts of the present case, when the ld. Commissioner issued a show cause notice under section 263 and ultimately passed impugned order; by that time the alleged domestic transaction of purchase from related party was not required to be considered as a specified domestic transaction under section 92BA of the Act. It has been omitted, and therefore, no proceedings under section 263 should have been undertaken by the ld. Commissioner. 14. In view of the above discussion, we allow this appeal, and quash the impugned order.” 7. We also observed that the AO after due verification of all the details and documents submitted during assessment proceedings which includes details relating to Specified Domestic Transactions, has passed 18 order u/s 143(3) dated 29-6-2017 in which returned loss is accepted and the ld. Pr.CIT has held that the assessment order is erroneous and prejudicial to the interest of revenue for the reason that the case was selected for scrutiny assessment and one of the reasons for selection was verification of specified domestic transactions and for that purpose the AO had to mandatorily refer the case to the Transfer Pricing Officer (TPO) under CBDT's Instruction No. 03/2016 dated 10-3-2016 which the AO has not done before passing assessment order. In this regard, we found that the notice issued u/s 143(2) dated 16-3-2016 selecting the case of assessee for Limited Scrutiny. In the said notice, no reason of selecting the case of assessee for scrutiny u/s 143(3) is mentioned and thus it cannot be concluded that one of the reasons for selection under CASS for scrutiny u/s 143(3) was verification of specified domestic transaction and in our view, the CBDT's Instruction No. 03/2016 dated 10-32016 is not applicable to the case of assessee. The provisions of section 92CA gives power to AO that he may refer the case to TPO if he desires so. The word "may" as used in Section 92CA are preceded by "necessary and expedient". Hence, by not making reference to the TPO, no error has been committed by the AO. 8. From perusal of the assessment records, we found that the A.O. had called for the details relating to Specified Domestic Transactions through 19 various notice as mentioned in the assessment records and examined in detail the Specified Domestic Transactions, details of expenses incurred and parties involved and the documents such as contracts, ledger accounts and supporting bills issued for the work done. After applying his mind, the AO was satisfied with the transactions and no adverse inference was drawn with regard to the same either during the assessment proceedings or in the assessment order. Thus, once the AO after verification has taken a view with regard to some issue, the assessment order cannot be revised by way of issuing notice u/s 263 on such issues. The revisional powers though could be exercised in a case where no inquiry as required under the law was done, however, the same could not be exercised for directing a fuller inquiry to find whether the view taken is erroneous, specifically when the view had already been taken after carrying out an inquiry. In view of the above facts and circumstances of the case, we are of the view that no mistake has been committed by the AO and a proper enquiry and verification has been already made in the assessment proceedings. The order of the AO was not erroneous in so far as it is not prejudicial to the interest of the revenue. Considering the totality of facts and circumstances of the case as well as the exact similar issue had been decided by the Coordinate Bench of Ahmadabad Tribunal in the case of Shri Ashish Subodchandra Shah Vs Pr.CIT-3 in ITA 20 No. 530/Ahd/2019 order dated 16/07/2021, we found merit in the contentions of the ld. AR and therefore, we quash the impugned order passed U/s 263 of the Act. 9. In the result, this appeal of the assessee stands allowed. Order pronounced under Rule 34(4) of the Income Tax (Appellate Tribunal) Rules, 1963 by placing the details on the notice board. Sd/- Sd/- (O.P. KANT) (SANDEEP GOSAIN) Accountant Member Judicial Member Nagpur Dated:- 28/01/2022 *Ranjan Copy of the order forwarded to: 1. The Appellant- DP Jain Nagda Gogapur BOT Annuity Project Pvt. Ltd., Nagpur. 2. The Respondent- The PCIT-1, Nagpur. 3. CIT 4. The CIT(A) 5. DR, ITAT, Nagpur 6. Guard File (ITA No. 13/Nag/2021) By order, Asst. Registrar