ZENZI PHARMACEUTICAL INDUSTIES PVT LTD., Mumbai V. CIT (TRANSFER PRICING)-4, Mumbai

ITA 2003/MUM/2023

• Counselvise Citation: [2023] 101 COUNSELVISE.COM (IT) 9792 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: J
• Next Hearing Date: 05-11-2023
• Assessment Year: 2017-2018
• Appeal Filed On: 28-05-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK PERUMPURA
• Assessee Lawyers: ADOPTING WHICH METHOD; HOW ALP OF SUCH
• Keywords: Transfer pricing; Opportunity of being heard; International transaction; Competent authority
• Section: 131; 68; 148; 263; 133A; 115JB; 144C; 72; 13; 22; 92CA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “J” BENCH, MUMBAI BEFORE SHRI PRASHANT MAHARISHI, AM AND SHRI SANDEEP SINGH KARHAIL, JM ITA No. 2002/Mum/2023 (Assessment Year 2012-13) ITA No. 2003/Mum/2023 (Assessment Year 2017-18) ITA No. 2004/Mum/2023 (Assessment Year 2018-19) ITA No. 2005/Mum/2023 (Assessment Year 2019-20) Zen zi Pha rm aceuti cal Indust r ies Pvt . Ltd. B-205, Un i ve rsa l B usiness Par k, Chandi va li, Andher i (E ) Mum bai-400072 Vs. CIT (Transfer Pricing)-4 Room No. 3102, 3 rd Floor, B Wing, Mittal Court, 22, Nariman Point, Mumbai-400021 (Appellant) (Respondent) PAN No. AAFCA6695R Assessee by : Shri Devendra Jain & Shri Shashank Mehta, Advocates Revenue by : Shri Vivek Perumpura, Date of hearing: 06.11.2023 Date of pronouncement : 29.11.2023 O R D E R PER BENCH: 01. These are four appeals filed by the assessee for A.Y. 2012-13, 2017-18, 2018-19 & 2019-20 against the revisionary order passed by the CIT(TP)-4, Mumbai [ the Ld CIT ] on 30.03.2023, 29.03.2023, 31.03.2023 Page | 2 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. respectively under section 263 of The Income Tax Act, 1961 (The Act) holding that the order passed by the Ld. Transfer Pricing Officer-4(3)(1), Mumbai (“the Ld. TPO”) u/s 92CA 93) of the Act is erroneous and prejudicial to the interest of the revenue and therefore the Ld. TPO was directed to make a fresh order u/s 92CA of the Act. 02. The assessee aggrieved with the revisionary orders is in appeal before us for all these four Assessment years. It was stated that facts in all these four years are similar as similar TP order u/s 92CA (3) were passed by the ld TPO and Similar revisionary order are passed by the ld CIT. 03. The brief fact of the assessment year 2012-13 shows that the assessee dealt in Pharmaceutical products, manufacturing and export of various Pharmaceutical products. 04. Assessee filed its return of income on 21.06.2023 declaring total income of ₹ 1,63,90,590/-. This return of income was accepted under section 143 (1) of the Act. Page | 3 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. 05. A survey action was conducted on 17.01.2019 in case of Alpha Pharma group of companies. It was found that one Mr. Jacob Sporon Fielder, Dennis national and resident in India is engaged in the business of manufacturing and export of pharmaceutical products through various domestic and foreign incorporated entities. He has incorporated a number of entities in foreign jurisdiction such as St Lucia, Seychelles, Belize, Hong Kong etc. Assessee is also one such group company of Alpha Pharma group. 06. It was found that assessee has engaged in export sale and import from its associated enterprises. Therefore, the case was reopened by issuing notice under section 148 of the Act. In response to that notice, assessee filed return of income on 9/4/2019 declaring total income of ₹ 16,390,590. 07. As during the year the assessee has entered into several international transactions with its associated enterprises, however it did not file form no 3 CEB. The assessee was given a show cause notice on Page | 4 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. 26/12/2019 for referring the matter to the learned transfer-pricing officer for computation of the arm‟s- length price of such international transactions. Assessee objected to the same, which were disposed of on 27/12/2019. The reference was made to the learned transfer-pricing officer to compute the arm‟s- length price of the international transaction on 30/12/2019. The learned TPO passed an order under section 92CA (3) of the Act dated 27/1/2021 stating that the value of the international transaction with its associated enterprises are not being disturbed, since assessee has not filed 3CEB report. Penalty proceedings were initiated under section 271BA of the act 08. It was also found during the course of assessment proceedings that the assessee has received ₹ 49,375,458 from Alpha Pharma Company. The reference was made to FT and TR division on 22/12/2017. As per letter dated 9/4/2018 received from FT and TR division it is reported by the competent authority of Seychelles that Alpha Pharma Page | 5 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. group Ltd does not feature on any register maintained by the financial services authority. Therefore, it was crystal-clear that no such entity by the name Alpha Pharma group Ltd is registered in that jurisdiction. Therefore, the learned assessing officer made an enquiry by issuing summons under section 131 of the Act to Mr. Jacob and after detailed enquiry made an addition under section 68 of the act of ₹ 49,375,458. 09. Accordingly total income of the assessee was computed under section 143 (3) read with section 147 and 144C (3) of the act by order dated 6/4/2021 at ₹ 65,766,050/– as per normal computation of income and the addition to the book profit was also made of ₹ 49,375,458. Therefore, addition under section 68 was made in the normal computation of total income as well as in computation of profit under section 115JB of the act. 010. The Ld. CIT (TP)-4, Mumbai examined the case record and observed that the assessee has not filed form no. 3CEB relating to international transaction Page | 6 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. despite having international transaction of more than of ₹ 1 crore. A survey action u/s 133A was conducted on 17.01.2019 whereas the order u/s 92CA (3) was passed on 27.01.2021. He noted that the assessee has entered into several international transactions of import and export as well as receipt of Share capital from associated enterprises as under:- Serial number Nature of transaction Name of associated enterprises Amount of international transaction (rupees) 1 Receipt of share capital Alpha Pharma group Ltd Cecil is 4,95,66,178/– 2 export sales general Life science distributors GmbH 6,56,15,453 3 export sales Jinan pharmaceutical company Ltd 37,73,085 4 import purchases Jinan pharmaceutical company Ltd 42,08,526 011. The learned CIT noted that the case was reopened by issuing notice under section 148 of the act and reference was made to the learned transfer pricing officer in terms of Para number 3.3 of the instruction number 3/2016 and survey findings were also shared Page | 7 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. with the transfer pricing officer. During the proceedings, details regarding the transactions tabulated above were available with the learned transfer-pricing officer as the details thereof were as per the reference dated 30/12/2019. However, the learned transfer-pricing officer has not conducted any inquiries with regard to the above-referred transaction including export sales and import purchases with its associated enterprises. However, the learned TPO conducted inquiries with regard to transaction at serial number 1. Therefore, the transfer pricing officer‟s order under section 92CA (3) dated 27/1/2021 passed for the impugned assessment year was found to be erroneous insofar as it is prejudicial to the interest of the revenue within the meaning of section 263 of the act as it was passed without taking into cognizance of order making any inquiries with regard to international transaction as per reference dated 30/12/2019. Consequently, notice under section 263 of the act was issued on 24/2/2023. Page | 8 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. 012. In response to the above notice assessee submitted a letter on 1/3/2023 stating that i. During the course of the transfer pricing assessment the assessee has submitted all the information and documents called for to the best of its knowledge believing it to be true. ii. The learned transfer-pricing officer was fairly informed of the transaction being undertaken and reference being made in this regard. iii. Therefore it is believed by the assessee that the learned transfer pricing officer has passed the order after making inquiries and due consideration of the information available as the order of the learned transfer pricing officer is without making any adjustment to the arm‟s- length price of the international transaction. 013. The learned CIT found that no details were ever called for by the learned transfer pricing officer with regard to the transaction at serial number 2, 3 and 4 stated in the above table except for the transaction Page | 9 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. at serial number 1. The learned transfer pricing officer despite having information on record with him, including findings emanating from evidences gathered during survey, failed to take cognizance of all findings emanating therefrom and also failing to enquire into all the transactions stated therein except the transaction at serial number I. Therefore, the learned transfer-pricing officer did not carry out any enquiry and hence there was a non-application of mind by the learned transfer-pricing officer. He further referred to the provisions of section 263 of the income tax act and held that the impugned order of the learned transfer-pricing officer is erroneous insofar as it is prejudicial to the interest of the revenue. He directed the learned transfer-pricing officer to make fresh order under section 92CA (3) after conducting inquiries into the international transaction undertaken by the assessee for assessment year 2012 – 13. The learned TPO was also directed to include the issues and findings already considered and decided by the TPO for assessment year 12 – 13 without disturbing them. Page | 10 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. Consequently, order under section 263 of the income tax act was passed on 30/3/2023. 014. Assessee is aggrieved with that order and is in appeal before us. 015. The learned authorized representative referred to the provisions of section 263 of the income tax act and submitted that any order passed by the learned transfer-pricing officer is subject to revision under section 263 of the income tax act with effect from 1/4/2022. Therefore, any order passed after that date could only be revised by the learned principal chief Commissioner or chief Commissioner or principal Commissioner or Commissioner under section 263 of the income tax act. Therefore any order passed under section 92CA (3) of the act by the transfer pricing officer prior to 1/4/2022 is not subject to the revision proceedings. Thus, the impugned revisionary order revising the TP Assessment Order passed u/s 92CA (3) of the Act prior to that, date [prior to 1/4/2022] is invalid. Page | 11 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. 016. For this proposition, he referred to the several judicial precedents, which were with respect to the applicability of explanation 2 introduced in section 263 of the income tax act with effect from 1/6/2015 wherein it has been held that the above explanation does not apply retrospectively. He further stated that in explanation 2 also the order of the transfer-pricing officer is introduced with effect from 1/4/2022. As there is an introduction of the order passed by the learned transfer pricing officer under section 263 (1) as well as in explanation 2 of that section with effect from 1/4/2022, the order passed by the learned transfer pricing officer prior to that date cannot be made subject to revision by the respective revisionary authorities. 017. He referred to the decision of the coordinate bench in case of i. ITA number 2895/M/2014 for assessment year 2009 – 10 in case of Metacaps Engineering and Mahindra construction company (JV) versus the Commissioner of income tax – 18, Mumbai Page | 12 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. dated 11/9/2017 specifically referred to paragraph number four wherein it has been held that the explanation 2 of section 263 should be considered as prospective in nature. ii. He further referred to the coordinate bench decision in case of Narayan Tatu Rane (ITA number 2690/M/2016 dated 6/5/2016) referring to paragraph number 19 wherein it has been also held that the said explanation does not apply retrospectively. iii. He further referred to the decision of the coordinate bench in case of ITA number 3125/M/2017 in case of Indus best hospitality and Realtors private limited (ITA number 3125/M/2017 dated 19/1/2018) wherein in paragraph number 23 referring to the several judicial precedents including referred to above it was held that the above explanation 2 to section 263 of the act is prospective in nature. iv. He further relied upon the decision of the Reliance Money Infrastructure Ltd versus Page | 13 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. principal Commissioner of income tax (ITA number 3259/M/2017 dated 6/10/2017 wherein in paragraph number 26 also reference was made that the amendment to section 263 is also prospective. v. Reference was also made to the decision of the coordinate bench in case of ITA number 3469/M/2010 dated 6/11/2015 in case of A V industries wherein in paragraph number 11 it was stated that when the revisionary order was passed on 25/3/2010 and it was held that the amendment did not apply to this case. vi. The learned authorized representative further relied upon the decision of ITA number 1056/PU when/2016 dated 27/6/2019 in case of Shruti Rahul Mane wherein the revisionary order dated 10/3/2016 was held to be not covered by the above amendment. vii. Further reference was made to ITA number 932/PU when/2016 dated 7/3/2019 in case of Mr. Sunil C Bhaybhang wherein in paragraph Page | 14 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. number eight it was held that the amendment with effect from 1/4/2014 by introduction of explanation 2 would not apply retrospectively. viii. He further referred to the decision of the coordinate bench in case of ITA number 3391/del/2018 dated 8/1/2019 in case of Arun Kumar Garg HUF l wherein following the above- referred decision it was held that the revisionary powers invoked under section 263 of the act are not rightly invoked. ix. Reference was made to the decision of the coordinate bench in case of ITA number 4341 and 4342/del/2019 dated 18/12/2019 in case of Brahma Centre development private limited wherein in paragraph number 13 the same reference was made and following the earlier judgments referred it was held that the provisions of section explanation 2 of section 263 of the income tax act does not apply retrospectively. Page | 15 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. 018. Assessee did not want to submit anything on the merits of the case. 019. The learned departmental representative vehemently submitted that i. Decision of the honourable madras High Court in case of CIT versus N Sasikala (2023) 146 taxmann.com 149 (Madras) specifically covers the issue in favour of the revenue where the learned CIT invoked revisionary powers under section 263 of the income tax act issuing notice dated 18/1/2002 to revise the assessment order dated 20/3/2000 wherein it was held that the assessment order was erroneous and prejudicial to the interest of the revenue and in that case the decision of the coordinate bench was reversed. ii. He further submitted that the power of revision has been granted to the authority under section 263 of the income tax act as and when the records are examined. Therefore, there is no Page | 16 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. relevance of the date of transfer-pricing officer‟s order or the assessment year. iii. He submitted that the provision does not speak that transfer pricing assessment order passed only after 1/4/ 2022 would be subject to revision. iv. He further stated that the decisions relied upon by the learned authorized representative does not have any relevance to the case before the bench. He specifically referred to the facts of the case and stated that the learned transfer- pricing officer has failed to look into the details available and therefore it is merely a case of failure to make any enquiry. v. He further submitted that the learned revisionary authority has not invoked the explanation 2 of section 263 of the income tax act and therefore not all these decisions apply to the facts of the case. Page | 17 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. vi. The case of the assessee is a completely of absence of any enquiry by the learned transfer pricing officer and therefore there is no need to go to the deeming fiction provided in explanation 2 of section 263 of the act. vii. He further submitted that it is to be seen as on the date of examination of the records by the respective revisionary authority and not the dates of the order, which is subject to revision. viii. In the result, it was submitted that there is no merit in the appeal of the assessee as assessee does not want to state anything on the facts and merits of the case. Nothing is also submitted before the learned CIT. 020. We have carefully considered the rival contention and perused the orders of the lower authorities. As per provisions of section 263 of the income tax act several authorities are authorized to „call for and examine‟ the „record of any proceedings‟ under the income tax act and if they consider that any order passed therein by the respective authorities including Page | 18 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. the learned transfer pricing officer is erroneous insofar as it is prejudicial to the interest of the revenue, such authority may after giving the assessee an opportunity of being heard and after making or causing to be made such enquiry as deems necessary, passed such order thereon as the circumstances of the case justify. Such order can also be of the order enhancing, modifying the assessment order cancelling the assessment order directing a fresh assessment. With respect to the transfer pricing order, it can be an order modifying the order under section 92CA order or cancelling the order under section 92CA and directing a fresh order under the said section. Therefore if at the time of the examination of the record by the revisionary authority of any proceedings under this act, if transfer pricing officer‟s order is also found therein which is erroneous and prejudicial to the interest of the revenue, it can be modified or it can be cancelled and directing a fresh order under that section by the revisionary authority. Page | 19 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. 021. In this case as per the order of the learned transfer pricing officer under section 92CA (3) of the act dated 27/1/2021 says that reference under section 92C (1) was received from the learned assessing officer on 31/12/2019. In paragraph number 4, the learned TPO held that:- “4. Considering the facts and circumstances of the case, the assessee submission and documents furnished electronically, the value of the international transaction (IT) with a in regard to ALP, are not been disturbed.” 022. Thereafter the learned transfer-pricing officer noted that assessee has not submitted form number 3CEB for the year under consideration. There was no reference that how transactions of export sales, import were benchmarked by the assessee by adopting which method, and how ALP of such transactions was determined. 023. Thus, it is correctly held by the learned principal Commissioner of income tax that the TPO has passed the order without taking any cognizance of making Page | 20 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. any inquiries with respect to transaction of export and import. Therefore, such an order is erroneous and prejudicial to the interest of revenue. 024. It is also the fact that the learned CIT (TP) did not invoke the provisions of explanation 2 of section 263 of The Income Tax Act because of the reason that the order passed is without making any enquiry and therefore such an order is erroneous and prejudicial to the interest of revenue as there was no case to consider it under the deeming fiction of explanation 2 of that section. It is a case complete absence of inquiry in any manner. Therefore, it is erroneous and prejudicial to the interest of revenue u/s 263(1) itself. 025. Coming to the various judicial precedents cited by the learned authorized representative those are merely on the issue whether the explanation 2 introduced under section 263 of the income tax act applies prospectively or retrospectively. Before us that are not the issue, therefore, those judgments do not help the case of the assessee. Page | 21 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. 026. It is not the case of the assessee that a. the date on which the revisionary authority examined the record, the order of the transfer pricing officer was not forming the part of such record or b. The show cause notice is issued to the assessee prior to 1/4/ 2022, when revisionary authority was not authorized to revise the order of the learned transfer-pricing officer. 027. Further explanation 1 (a) to section 263 of the Act is also amended with effect from 1/4/2022 wherein the order passed by the learned transfer pricing officer is also included and in sub clause (iii) the order under section 92CA by the transfer pricing officer is included. Therefore, even if such order is passed by the transfer pricing Officer prior to 1/4/2022, but is available before the assessing officer passing the draft assessment order or final assessment order and same is also part of the record at the time of examination by the learned CIT (TP), Page | 22 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. he is empowered to invoke the provisions of section 263 of the income tax act by revising or directing the learned TPO to pass the order under section 92CA (3) afresh. 028. The judicial precedents cited are discussed and considered as under:- i. In Metacaps Engineering and Mahindra construction (ITA number 2895/M/2014 dated 11/9/2017) the assessment order was passed on 29/11/2011 for assessment year 2009 – 10. The revisionary order was passed under section 263 of the income tax act on 28/2/2014, which was prior to insertion of explanation 2 of section 263, which was introduced with effect from 1/6/2015. Therefore, in that case the revisionary order was passed prior to the amendment and still during the course of hearing, the learned departmental representative was supporting the revisionary order by invoking the explanation 2 which was not there on the statute book. Page | 23 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. ii. Further in case of Narayan Rane (ITA number 2690/M/2016 dated 6/5/2016 the revisionary order was passed on 29/3/2016 which was also prior to the insertion of explanation 2 to section 263 of the act. iii. The decision of the coordinate bench in case of Indus Best hospitality and Realtors private limited is also with respect to that for assessment year 2012 – 13, the introduced explanation 2 is prospective in nature and therefore would not apply. Introduction of explanation 2 and its invocation is not an issue before us. iv. All other decisions cited before us are also on similar line. 029. Further when the proposed amendment was made to the provisions of section 263 of the income tax act in the „Notes On Clauses‟ it is mentioned that :- Page | 24 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. “Clause 72 seeks to amend section 263 of the Income-tax Act relating to revision of orders prejudicial to revenue. Sub-section (1) in the said section provides that the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner may call for and examine the record of any proceedings under the Act, and if he considers that any order passed by the Assessing Officer under the Act is erroneous in so far as it is prejudicial to the interests of revenue, he may 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, after making or causing to be made any such inquiry as he deems necessary. It is proposed to provide that in addition to the existing provision, the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner may call Page | 25 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. for and examine the record of any proceedings under the Act, and if he considers that any order passed by the Transfer Pricing Officer under the Act is erroneous in so far as it is prejudicial to the interests of revenue, he may pass such order thereon as the circumstances of the case justify, including an order modifying the order under section 92CA or cancelling the order under section 92CA and directing a fresh order under section 92CA, after making or causing to be made any such inquiry as he deems necessary. Such order shall be passed only after giving the assessee an opportunity of being heard. It is further proposed to amend clause (a) of Explanation 1 to the said sub-section also to include an order under section 92CA by the Transfer Pricing Officer for the purposes of the said section. It is also proposed that the clause (c) of the Explanation 1 to the sub-section (1) of the said section shall provide that where any order referred Page | 26 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. to in the said sub-section and passed by the Assessing Officer or the Transfer Pricing Officer, as the case may be, had been the subject matter of any appeal filed on or before or after the 1st day of June, 1988, the powers of the Principal Commissioner or 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. It is also proposed to amend the Explanation 2 to the sub-section (1) to make it applicable to an order passed by the Transfer Pricing Officer also. It is also proposed to insert Explanation 3 in the sub- section (1) of the said section to define the expression “Transfer Pricing Officer”. These amendments will take effect from lst April, 2022.” 030. On reading the notes on clauses also, it is apparent that the income tax act authorizes the authority to revise the order if at the time of examination, such orders are on record. Thus, the date of passing of Page | 27 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. the order, which is subject to revision, is irrelevant but what is relevant is the date of examination of such record. If on the date of examination of such record. The revisionary authority is vested with powers to revise such orders [i.e. after 1/4/2022]; the date on which such order subject to revision is passed is immaterial. 031. Further if we take a view as canvassed by the learned authorized representative that any order passed by the learned transfer pricing officer on or after 1/4/2022 only can be revised, perhaps it will tantamount to putting the powers given to the revisionary authority in abeyance till that time. If we agree to such a view than, we are putting the powers of the revisionary authority in abeyance for further, at least 11 months. Therefore, such a view deserves to be rejected at threshold. 032. As no pleadings are made on the merits of the case, we do not have any hesitation in holding that the learned PCIT (TP) is correct in holding that the order of the learned transfer pricing officer passed on Page | 28 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. 27/1/2021 is erroneous and prejudicial to the interest of the revenue as it was made without making any enquiry with respect to the export sales and import purchases from associated enterprises qua their arm‟s-length price. 033. Accordingly, ITA number 2002/MUM/2023 filed by the assessee for assessment year 2012 – 13 against the revisionary order passed under section 263 of the income tax act is dismissed. 034. In ITA number 2003/MUM/2023 assessee is challenging the revision order passed by the learned Commissioner of income tax (TP) – 4, Mumbai dated 29/3/2023 wherein it has been held that the transfer pricing assessment order passed under section 92CA (3) for that assessment year on 27/1/2021 without examination of the arm‟s-length price of the international transaction of export sales and import purchases is erroneous and prejudicial to the interest of revenue. 035. In ITA number 2004/MUM/2023 the assessee has challenged the order under section 263 of the Page | 29 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. income tax act passed for assessment year 2018 – 19 on 31/3/2023 wherein it is held that the order under section 92CA (3) dated 22/7/2021 is erroneous and prejudicial to the interest of revenue as it was passed without examining arm‟s-length price of the international transaction of export sales and import purchases. 036. ITA number 2005/MUM/2023 for assessment year 2019 – 20 is preferred by the assessee challenging the correctness of the revisionary order passed under section 263 of the income tax act on 31/3/2023 wherein it has been held that the transfer pricing assessment order passed under section 92CA (3) on 18/1/2022 is erroneous and prejudicial to the interest of the revenue as the learned transfer pricing officer failed to examine the arm‟s-length price of international transaction of export sales. 037. Facts and circumstances of all these above three appeals are identical to ITA number 2002/M/2023. The arguments of both the parties also remain the Page | 30 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. same. There is no argument on the merits of the case by the assessee. 038. In view of our decision in ITA number 2002/M/2023, we have categorically held that the learned CIT (TP) has correctly invoked the powers under section 263 of the income tax act and the order passed by him for revision of the transfer pricing assessment order does not suffer from any infirmity. Therefore, for the same reasons given by us in that appeal, we also confirm the order of the learned CIT TP passed under section 263 of the income tax act for all these three assessment years. Accordingly, appeals of the assessee for assessment year 2017 – 18, 2018 – 19 and 2019 – 20 are also dismissed. 039. In the result all the four appeals filed by the assessee are dismissed. Order pronounced in the open court on 29.11.2023. Sd/- Sd/- (SANDEEP SINGH KARHAIL) (PRASHANT MAHARISHI) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) Mumbai, Dated: 29.11.2023 Dragon Page | 31 ITA No. 2002-05/Mum/2023 A.Y. 2012-13, 17-18, 18-19, 19-20 ZENZI PHARMECEUTICAL INDUSTRIES PVT. Ltd. Copy of the Order forwarded to: BY ORDER, 1. The Appellant 2. The Respondent 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. Sr. Private Secretary/ Asst. Registrar Income Tax Appellate Tribunal, Mumbai