M/s. Cauvery Aqua Private Limited, Bengaluru V. The Deputy Commissioner Of Income Tax, Circle- 2(1)(1), Bengaluru

ITA 2021/BANG/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 2006 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-02-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 21-01-2021
• Assessment Year: 2015-2016
• Appeal Filed On: 18-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Transfer pricing; Opportunity of being heard; Question of law; Set aside
• Section: 6; 143(3); 10B; 13; 92CA

Judgement Text

IT(TP)A NO.2021/BANG/2019 M/S. CAUVERY AQUA PVT. LTD., BANGALORE IN THE INCOME TAX APPELLATE TRIBUNAL ABENCH: BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI B.R. BASKARAN, ACCOUNTANT MEMBER IT(TP)A NO.2021/BANG/2019 ASSESSMENT YEAR: 2015-16 M/S. CAUVERY AQUA PRIVATE LIMITED NO.5/3, 1 ST MAIN ROAD JAYAMAHAL EXTENSION BENGALURU-560 046 PAN NO :AAACC7357B VS. DEPUTY COMMISSIONER OF INCOME-TAX CIRCLE-2(1)(1) BENGALURU APPELLANT RESPONDENT APPELLANT BY : SHRI SURESH MUTHUKRISHNAN, A.R. RESPONDENT BY : MS. NEERA MALHOTRA, D.R. DATE OF HEARING : 21.01.2021 DATE OF PRONOUNCEMENT : 17.02.2021 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ASSESSMENT ORDER DATED 29.7.2019 PASSED BY THE ASSESSING OFFIC ER FOR ASSESSMENT YEAR 2015-16 U/S 143(3) R.W.S. 144C(13) OF THE INCOME- TAX ACT,1961 ['THE ACT' FOR SHORT] IN PURSUANCE OF DIRECTIONS GIVEN BY LD. DISPUTE RESOLUTION PANEL (DRP). THE ONLY ISSUE URGED IN THIS APPEAL RELATES TO TRANSFER PRICING ADJUSTMENT MADE IN RESPECT OF SPECIFIED DOMESTIC TRANSACTIONS. 2. THE ASSESSEE COMPANY IS ENGAGED IN MANUFACTURE A ND SUPPLY OF ANIMAL FEED SUPPLEMENT TO M/S. VIRBAC GROUP IN I NDIA. THE IT(TP)A NO.2021/BANG/2019 M/S. CAUVERY AQUA PVT. LTD., BANGALORE PAGE 2 OF 15 ASSESSEE HAD ENTERED INTO SPECIFIED DOMESTIC TRANSA CTIONS AS DEFINED IN SECTION 92BA OF THE ACT AS DETAILED BELO W:- PARTICULARS AMOUNT METHOD PURCHASE OF HDPE BOTTLES & JARS 14,56,04,154 TNMM PURCHASE OF ANIMAL FEEDS SUPPLEMENT 3,01,97,210 TNMM RENT 3,93,092 TNMM DIRECTOR REMUNERATION 3,64,800 TNMM TOTAL 17,65,59,256 3. THE TRANSFER PRICING OFFICER (TPO) MADE TRANSFER PRICING ADJUSTMENT OF RS.2.23 CRORES AND THE SAME WAS AFFIR MED BY LD. D.R.P. ACCORDINGLY, THE A.O. PASSED THE FINAL ASSE SSMENT ORDER BY MAKING ADDITION OF RS.2.23 CRORES BY WAY OF TRANSFE R PRICING ADJUSTMENT U/S 92CA OF THE ACT. AGGRIEVED, THE ASS ESSEE HAS FILED THIS APPEAL BEFORE US. 4. AT THE OUTSET, THE LD. A.R. SUBMITTED THAT THE S PECIFIED DOMESTIC TRANSACTIONS MENTIONED ABOVE WAS ORIGINALL Y INCLUDED IN CLAUSE (I) OF SECTION 92BA OF THE ACT. HENCE, THE A SSESSEE HAS FILED TRANSFER PRICING STUDY BEFORE THE TAX AUTHORITIES A ND THE TPO HAS ALSO PASSED THE IMPUGNED ORDER BY MAKING TP ADJUSTM ENT. HOWEVER, THE ABOVE SAID CLAUSE (I) HAS BEEN OMITTED BY THE FINANCE ACT, 2017 W.E.F. 1.4.2017. THE LD. A.R. SUBMITTED THAT THE LEGAL EFFECT OF OMISSION OF CLAUSE (I) OF SECTION 92BA WA S EXAMINED BY THE COORDINATE BENCH IN THE CASE OF TEXPORT OVERSEAS PV T.LTD. VS. DEPUTY COMMISSIONER OF INCOME-TAX IN IT(TP)A NO.1722/BANG/2017 DATED 22.12.2017 AND THE COORDINA TE BENCH HELD AS UNDER:- 7. HAVING CAREFULLY EXAMINED THE ORDERS OF AUTHOR ITIES BELOW IN THE LIGHT OF RIVAL SUBMISSIONS AND RELEVANT PROVISIONS AND VARIOUS JUDICIAL PRONOUNCEMENTS, WE FIND THAT BY VIRTUE OF THE INSER TION OF SECTION 92BA ON THE STATUTE AS PER CLAUSE (I), ANY EXPENDITURE I N RESPECT OF WHICH IT(TP)A NO.2021/BANG/2019 M/S. CAUVERY AQUA PVT. LTD., BANGALORE PAGE 3 OF 15 PAYMENT HAS BEEN MADE OR IS TO BE MADE TO PERSON RE FERRED TO IN CLAUSE (B) OF SUB SECTION 2 OF SECTION 40A EXCEEDS THE PRE SCRIBED LIMIT, IT WOULD BE A SPECIFIED DOMESTIC TRANSACTION FOR WHICH AO IS REQUIRED TO MAKE A REFERENCE TO TPO UNDER SECTION 92CA OF THE ACT FOR DETERMINATION OF THE ALP. IN THE INSTANT CASE, SINCE THE TRANSACTION EXC EEDS THE PRESCRIBED LIMIT IT BECOMES THE SPECIFIED DOMESTIC TRANSACTION FOR WHICH REFERENCE WAS MADE BY THE AO TO THE TPO UNDER SECTION 92CA FO R DETERMINATION OF THE ALP. CONSEQUENTLY, THE TPO SUBMITTED A REPOR T WHICH WAS OBJECTED TO BY THE LEARNED COUNSEL FOR THE ASSESSEE AND FILED A OBJECTION BEFORE THE ORP. HAVING ADJUDICATED THE OBJECTIONS, THE DRP HAS ISSUED CERTAIN DIRECTIONS AND CONSEQUENTLY THE AO PASSED A N ORDER. SUBSEQUENTLY, BY FINANCE ACT, 2017 W.E.F. 01.04.201 7, CLAUSE (I) OF SECTION 92BA WAS OMITTED FROM THE STATUTE. NOW THE QUESTION ARISES AS TO WHETHER ON ACCOUNT OF OMISSION OF CLAUSE (I) FRO M THE STATUTE, THE PROCEEDINGS ALREADY INITIATED OR ACTION TAKEN UNDER CLAUSE (I) BECOMES REDUNDANT OR OTIOSE. IN THIS REGARD, OUR ATTENTION WAS INVITED TO JUDGMENT OF THE APEX COURT IN THE CASE OF KOLHAPUR CANESUGAR WORKS LTD., (SUPRA) IN WHICH THE IMPACT OF OMISSION OF OL D RULE 10 AND 10A WAS EXAMINED. HAVING CAREFULLY EXAMINED THE ISSUE IN TH E LIGHT OF PROVISIONS OF SECTION 6 OF THE GENERAL CLAUSES ACT, THEIR LORD SHIP HAS OBSERVED 'THAT IN SUCH A CASE, THE COURT IS TO LOOK TO THE P ROVISIONS IN THE RULE WHICH HAS BEEN INTRODUCED AFTER OMISSION OF THE PRE VIOUS RULE TO DETERMINE WHETHER A PENDING PROCEEDING WILL CONTINU E OR LAPSE. IF THERE IS A PROVISION THEREIN THAT PENDING PROCEEDINGS SHA LL CONTINUE AND BE DISPOSED OF UNDER THE OLD RULE AS IF THE RULE HAS N OT BEEN DELETED OR OMITTED THEN SUCH A PROCEEDING WILL CONTINUE. IF TH E CASE IS COVERED BY SECTION 6 OF THE GENERAL CLAUSES ACT OR THERE IS A PARI-MATERIA PROVISION IN THE STATUTE UNDER WHICH THE RULE HAS BEEN FRAMED IN THAT CASE ALSO THE PENDING PROCEEDING WILL NOT BE AFFECTED BY OMISSION OF THE RULE. IN THE ABSENCE OF ANY SUCH PROVISIONS IN THE STATUTE OR IN THE RULE, THE PENDING PROCEEDING WILL LAPSE UNDER RULE UNDER WHICH THE NO TICE WAS ISSUED OR PROCEEDING BEING OMITTED OR DELETED'. 8. IN THE CASE OF GENERAL FINANCE CO., VS. ACIT, T HEIR LORDSHIP OF THE APEX COURT HAS AGAIN EXAMINED THE ISSUE AND HEL D THAT THE PRINCIPLE UNDERLYING SECTION 6 AS SAVING THE RIGHT TO INITIAT E PROCEEDINGS FOR LIABILITIES INCURRED DURING THE CURRENCY OF THE ACT WILL NOT APPLY TO OMISSION OF A PROVISION IN AN ACT BUT ONLY TO REPEA L, OMISSION BEING DIFFERENT FROM REPEAL AS HELD IN DIFFERENT CASES. F OLLOWING THE AFORESAID JUDGMENTS, THE JURISDICTIONAL HIGH COURT HAS ALSO E XPRESSED THE SAME VIEW IN THE CASE OF CIT VS. GE THERMOMETRICS INDIA PVT. LTD. THE RELEVANT OBSERVATION OF THE JURISDICTIONAL HIGH COU RT IS EXTRACTED HEREUNDER: 8. ADMITTEDLY, IN THE INSTANT CASE, THERE IS NO SA VING CLAUSE OR PROVISION INTRODUCED BY WAY OF AN AMENDMENT WHILE O MITTING SUB-SECTION (9) OF SECTION 10B. THEREFORE, ONCE THE AFORESAID SECTION IS OMITTED FROM THE STATUTE BOOK, THE RESUL T IS IT HAD NEVER BEEN PASSED AND BE CONSIDERED AS A LAW THAT NEVER E XISTS AND IT(TP)A NO.2021/BANG/2019 M/S. CAUVERY AQUA PVT. LTD., BANGALORE PAGE 4 OF 15 THEREFORE, WHEN THE ASSESSMENT ORDERS WERE PASSED I N 2006, THE AO WAS NOT JUSTIFIED IN TAKING NOTE OF A PROVISION WHICH WAS NOT IN THE STATUTE BOOK AND DENYING BENEFIT TO THE ASSE SSEE. THE WHOLE OBJECT OF SUCH OMISSION IS TO EXTEND THE BENE FIT UNDER SECTION 10B OF THE ACT IRRESPECTIVE OF THE FACT WHE THER DURING TH$ PERIOD TO WHICH THEY ARE ENTITLED TO THE BENEFIT, T HE OWNERSHIP CONTINUES WITH THE ORIGINAL ASSESSEE OR IT IS TRANS FERRED TO ANOTHER PERSON. BENEFIT IS TO THE UNDERTAKING AND N OT TO THE PERSON WHO IS RUNNING THE BUSINESS. WE DO NOT SEE A NY MERIT IN THESE APPEALS. THE SUBSTANTIAL QUESTION OF LAW IS A NSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. ACC ORDINGLY, THE APPEALS ARE DISMISSED. 9. FROM THE AFORESAID JUDGMENTS, IT HAS BECOME ABU NDANTLY CLEAR THAT ONCE A PARTICULAR PROVISION OF SECTION IS OMIT TED FROM THE STATUTE, IT SHALL BE DEEMED TO BE OMITTED FROM ITS INCEPTION UN LESS AND UNTIL THERE IS SOME SAVING CLAUSE OR PROVISION TO MAKE IT CLEAR TH AT ACTION TAKEN OR PROCEEDING INITIATED UNDER THAT PROVISION OR SECTIO N WOULD CONTINUE AND WOULD NOT BE LEFT ON ACCOUNT OF OMISSION. 10. IN THE INSTANT CASE, UNDISPUTEDLY, BY THE FINANCE A CT, 2017, CLAUSE (I) OF SECTION 92BA HAS BEEN OMITTED W.E.F. 01.04.2017. ONCE THIS CLAUSE IS OMITTED BY SUBSEQUENT AMENDMENT, IT WOULD BE DEEMED THAT CLAUSE (I) WAS NEVER BEEN ON THE STATUTE . WHILE OMITTING THE CLAUSE (I) OF SECTION 928A, NOTHING WAS SPECIFIED WHETHER THE PROCEEDING INITIATED OR ACTION TAKEN ON THIS CONTINUE. THEREFO RE, THE PROCEEDING INITIATED OR ACTION TAKEN UNDER THAT CLAUSE WOULD N OT SURVIVE AT ALL. IN THIS LEGAL POSITION, THE COGNIZANCE TAKEN BY THE AO UNDER SECTION 92B(I) AND REFERENCE MADE TO TPO UNDER SECTION 92CA IS INV ALID AND BAD IN LAW. THEREFORE, THE CONSEQUENTIAL ORDER PASSED BY T HE TPO AND DRP IS ALSO NOT SUSTAINABLE IN THE EYES OF LAW. 11. UNDER THESE CIRCUMSTANCES. WHERE THIS CLAUSE ( I) IS OMITTED FROM THE STATUTE SINCE ITS INCEPTION, THE AO OUGHT HAVE REQUIRED TO FRAME THE ASSESSMENT IN NORMAL COURSE AFTER MAKING NECESSARY ENQUIRIES OF PARTICULAR CLAIM OF EXPENDITURE IN ACCORDANCE WITH LAW. BUT THIS EXERCISE COULD NOT HAVE BEEN DONE ON ACCOUNT OF PROVISIONS O F SECTION 92BA CLAUSE (I) OF THE ACT. NOW WHEN THIS CLAUSE (I) HAS BEEN OMITTED FROM THE STATUTE BY VIRTUE OF THE AFORESAID AMENDMENTS, THE AO IS REQUIRED TO ADJUDICATE THE ISSUE OF CLAIM OF EXPENDITURES IN AC CORDANCE WITH LAW AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE A SSESSEE. WE THEREFORE SET ASIDE THE ORDERS OF THE AO AND THE DRP AND RESTORE THE MATTER TO THE AO WITH THE DIRECTION TO RE-ADJUDICATE THE ISSUE OF CLAIM OF EXPENDITURE INCURRED IN RESPECT OF WHICH PAYMENT HAS BEEN MADE OR IS TO BE MADE TO PERSON REFERRED TO IN CLAUSE (B) OF SUB SECTION 2 OF SECTION 40A OF THE ACT. ACCORDINGLY, SINCE WE HAVE RESTORED THE MATTER TO THE AO, WE FIND NO JUSTIFICATION TO DEAL WITH THE OTHER ISSUES ON M ERIT. ACCORDINGLY, APPEAL OF THE ASSESSEE STAND ALLOWED FOR STATISTICA L PURPOSES. IT(TP)A NO.2021/BANG/2019 M/S. CAUVERY AQUA PVT. LTD., BANGALORE PAGE 5 OF 15 5. THE LD. A.R. SUBMITTED THAT THE ABOVE SAID DECIS ION RENDERED BY COORDINATE BENCH HAS SINCE BEEN UPHELD BY THE HI GH COURT OF KARNATAKA IN THE VERY SAME CASE OF TEXPORT OVERSEAS PVT. LTD. IN ITA NO.392/2018 DATED 12.12.2019. ACCORDINGLY, THE LD. A.R. SUBMITTED THAT THE TRANSFER PRICING ADJUSTMENT IS L IABLE TO BE DELETED. WHEN IT WAS POINTED OUT THAT THE COORDINA TE BENCH HAS RESTORED THE ISSUE TO THE FILE OF THE A.O. FOR EXAM INING THE PAYMENTS IN TERMS OF SECTION 40A(2) OF THE ACT, THE LD. A.R. SUBMITTED THAT THIS ISSUE MAY BE RESTORED TO THE FILE OF THE A.O. FOR EXAMINING IT IN ACCORDANCE WITH THE PROVISIONS OF SECTION 40A(2) OF THE ACT. 6. THE LD. D.R., ON THE CONTRARY, PLACED HER RELIAN CE ON THE DECISION RENDERED BY THE MUMBAI BENCH OF TRIBUNAL I N THE CASE OF FIREMENICH AROMATICS INDIA PVT. LTD. VS. ACIT IN IT A NO.348/MUM/2014 DATED 15.7.2020. THE LD. D.R. SUBM ITTED THAT THE MUMBAI BENCH OF TRIBUNAL HAS EXPRESSED THE VIEW THAT THE DECISION RENDERED BY HONBLE APEX COURT IN THE CASE OF FIBER BORES PVT. LTD. (2015) 52 TAXMANN.COM 135 AND IN THE CASE OF M/S. SHREE BHAGAWATI STEEL ROLLING MILLS LTD. (CA NO.4280/2007 DATED 24.11.2015) SHALL PREVAIL IN THE CASE OF OMISSION O F THE PROVISION IN THE INCOME TAX ACT. AS A RESULT, THE PROVISIONS OF SECTION 6 OF THE GENERAL CLAUSES ACT WOULD APPLY TO SAVE OPERATION O F THE PREVIOUS PROVISION SO OMITTED OR ANYTHING DULY DONE OR SUFFE RED THEREUNDER. THE LD. D.R. FURTHER SUBMITTED THAT THE ABOVE SAID TWO DECISIONS OF HONBLE SUPREME COURT WERE NOT CONSIDERED BY THE TR IBUNAL AS WELL AS HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF T EXPORT OVERSEAS PVT. LTD. (SUPRA), RELIED UPON BY THE LD. A.R. THE LD. D.R. PLACED HEAVILY ON THE DECISION RENDERED BY THE MUMBAI BENC H OF TRIBUNAL, PARTICULARLY PARAGRAPH 13 TO 21 OF THE ORDER, WHICH READS AS UNDER: IT(TP)A NO.2021/BANG/2019 M/S. CAUVERY AQUA PVT. LTD., BANGALORE PAGE 6 OF 15 13. WE HAVE HEARD THE SUBMISSIONS OF THE LEARNED A UTHORISED REPRESENTATIVE (LD AR) FOR THE ASSESSEE AND THE LEA RNED DEPARTMENTAL REPRESENTATIVE (LD. DR) FOR THE REVENUE AND DELIBER ATED ON THE CASE LAWS RELIED ON BEHALF OF THE ASSESSEE. IT IS AN ADMITTED POSITION THAT THE ASSESSEE HAS NEITHER FILED CROSS OBJECTION FOR OBJECTING THE MAINTAINABILITY OF THE APPEAL FILED BY THE REVENUE. HOWEVER, THE LD. AR FO R THE ASSESSEE HAS RAISED LEGAL OBJECTION, WHICH GOES TO THE ROOT OF AMENABIL ITY OF THE APPEAL FILED BY THE REVENUE. THEREFORE, WE ADMIT THE OBJECTION OF T HE ASSESSEE ON THE MAINTAINABILITY OF REVENUES APPEAL. FOR APPRECIATI ON OF VARIOUS LEGAL ASPECTS AND EFFECT OF REPEAL OR OMISSION, WE HA VE GONE THROUGH THE VARIOUS SECTIONS 6, 6A AND 24 OF GENERAL CLAUSES AC T. THE SECTION(S) 6, 6A AND 24 OF GENERAL CLAUSES ACT ARE READ AS UNDER; 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, TH EN, UNLESS A DIFFERENT INTENTION APPEARS, THE REPEAL SHALL NOT- (A) REVIVE ANYTHING NOT IN FORCE OR EXISTING AT THE TIME AT 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 LIAB ILITY ACQUIRED, ACCRUED OR INCURRED UNDER ANY ENACTMENT SO REPEALED ; OR (D) AFFECT ANY PENALTY, FORFEITURE OR PUNISHMENT IN CURRED IN RESPECT OF ANY OFFENCE COMMITTED AGAINST ANY ENACTMENT SO R EPEALED; OR (E) AFFECT ANY INVESTIGATION, LEGAL PROCEEDING OR R EMEDY IN RESPECT OF ANY SUCH RIGHT, PRIVILEGE, OBLIGATION, LIABILITY , PENALTY, FORFEITURE OR PUNISHMENT AS AFORESAID, AND ANY SUCH INVESTIGAT ION, LEGAL PROCEEDING OR REMEDY MAY BE INSTITUTED, CONTINUED O R ENFORCED, AND ANY SUCH PENALTY, FORFEITURE OR PUNISHMENT MAY BE I MPOSED AS IF THE REPEALING ACT OR REGULATION HAD NOT BEEN PASSED. IT(TP)A NO.2021/BANG/2019 M/S. CAUVERY AQUA PVT. LTD., BANGALORE PAGE 7 OF 15 6-A. REPEAL OF ACT MAKING TEXTUAL AMENDMENT IN ACT OR REGULATION : WHERE ANY [CENTRAL ACT] OR REGULATION MADE AFTER TH E COMMENCEMENT OF THIS ACT REPEALS ANY ENACTMENT BY W HICH THE TEXT OF ANY [CENTRAL ACT] OR REGULATION WAS AMENDED BY T HE EXPRESS OMISSION, INSERTION OR SUBSTITUTION OF ANY MATTER, THEN, UNLESS A DIFFERENT INTENTION APPEARS, THE REPEAL SHALL NOT A FFECT THE CONTINUANCE OF ANY SUCH AMENDMENT MADE BY THE ENACT MENT SO REPEALED AND IN OPERATION AT THE TIME OF SUCH REPEA L. 24. CONTINUATION OF ORDERS, ETC., ISSUED UNDER ENAC TMENTS REPEALED AND REENACTED, . WHERE ANY (CENTRAL ACT) OR REGULATION, IS, AFTER TH E COMMENCEMENT OF THIS ACT, REPEALED AND RE-ENACTED WITH OR WITHOU T MODIFICATION, THEN, UNLESS IT IS OTHERWISE EXPRESSLY PROVIDED ANY (APPOINTMENT NOTIFICATION,) ORDER, SCHEME, RULE, FORM OR BYE-LAW , (MADE OR) ISSUED UNDER THE REPEALED ACT OR REGULATION, SHALL, SO FAR AS IT IS NOT INCONSISTENT WITH THE PROVISIONS REENACTED, CONTINU E IN FORCE AND BE DEEMED TO HAVE BEEN (MADE OR) ISSUED UNDER THE PROV ISIONS SO RE- ENACTED, UNLESS AND UNTIL IT IS SUPERSEDED BY ANY ( APPOINTMENT, NOTIFICATION,) ORDER, SCHEME, RULE, FORM OR BYE-LAW , (MADE OR) ISSUED UNDER THE PROVISIONS SO RE-ENACTED (AND WHEN ANY (C ENTRAL ACT) OR REGULATION, WHICH, BY A NOTIFICATION UNDER SECTION 5 OR 5A OF THE SCHEDULED DISTRICTS ACT, 1874, (14 OF 1874) OR ANY LIKE LAW, HAS BEEN EXTENDED TO ANY LOCAL AREA, HAS, BY A SUBSEQUE NT NOTIFICATION, BEEN WITHDRAWN FORM THE RE-EXTENDED TO SUCH AREA OR ANY PART THEREOF THE PROVISIONS OF SUCH ACT OR REGULATIONS S HALL BE DEEMED TO HAVE BEEN REPEALED AND RE-ENACTED IN SUCH AREA OR P ART WITHIN THE MEANING OF THIS SECTION). 14. A CAREFUL READING OF SECTION 6 OF GENERAL CLAUS ES ACT (THIS ACT) MAKES IT CLEAR THAT MADE AFTER THE COMMENCEMENT OF GENERA L CLAUSES ACT, ANY CENTRAL ACT OR REGULATION REPEALS ANY ENACTMENT HIT HERTO MADE OR HEREAFTER TO BE MADE, THEN, UNLESS A DIFFERENT INTE NTION APPEARS, THE REPEAL IT(TP)A NO.2021/BANG/2019 M/S. CAUVERY AQUA PVT. LTD., BANGALORE PAGE 8 OF 15 SHALL NOT EFFECT AFFECT ANY INVESTIGATION, LEGAL PR OCEEDING OR REMEDY IN RESPECT OF ANY SUCH RIGHT, PRIVILEGE, OBLIGATION, L IABILITY, PENALTY, FORFEITURE OR PUNISHMENT AS AFORESAID, AND ANY SUCH INVESTIGAT ION, LEGAL PROCEEDING OR REMEDY MAY BE INSTITUTED, CONTINUED OR ENFORCED, AND ANY SUCH PENALTY, FORFEITURE OR PUNISHMENT MAY BE IMPOSED AS IF THE R EPEALING ACT OR REGULATION HAD NOT BEEN PASSED. 15.FURTHER A CAREFUL READING OF SECTION 6A THIS ACT MAKE IT CLEAR THAT WHERE ANY CENTRAL ACT OR REGULATION MADE AFTER THE COMMEN CEMENT OF THIS ACT REPEALS ANY ENACTMENT BY WHICH THE TEXT OF ANY CENT RAL ACT OR REGULATION WAS AMENDED BY THE EXPRESS OMISSION, INSERTION OR S UBSTITUTION OF ANY MATTER, THEN, UNLESS A DIFFERENT INTENTION APPEARS, THE REPEAL SHALL NOT AFFECT THE CONTINUANCE OF ANY SUCH AMENDMENT MADE BY THE E NACTMENT SO REPEALED AND IN OPERATION AT THE TIME OF SUCH REPEAL. 16. THE HONBLE SUPREME COURT IN BHAGAT RAM SHARMA VS UNION OF INDIA (AIR 1988 SC 740) HELD THAT IT IS A MATTER OF LEGIS LATIVE PRACTICE TO PROVIDE WHILE ENACTING AN AMENDING LAW THAT AN EXISTING PRO VISION SHALL BE DELETED AND A NEW PROVISION SUBSTITUTED. SUCH DELETION HAS THE EFFECT OF REPEAL OF THE EXISTING PROVISION. SUCH A LAW MAY ALSO PROVIDE FOR THE INTRODUCTION OF A NEW PROVISION. THERE IS NO REAL DISTINCTION BETWE EN 'REPEAL' AND AN 'AMENDMENT'. AS PER THE COMMENTARY ON PRINCIPLES OF STATUTORY INTERPRETATION BY JUSTICE G.P. SINGH, THE LEGISLAT IVE PRACTICE IN INDIA SHOWS THAT OMISSION OF A PROVISION IS TREATED AS AMENDMENT. (PAGE 675, CHAPTER; EXPRESS REPEAL). FURTHER HONBLE SUPREME COURT IN EKAMBRARAPPA VS EPTO (AIR 1967 1541), HELD THAT AME NDING ACT WHICH LIMITS THE AREA OF OPERATION OF EXISTING ACT BY MOD IFYING THE EXTENT CLAUSE, RESULT IN PARTIAL REPEAL OF THE ACT IN RESPECT OF T HE AREA WHICH ITS OPERATION IS EXCLUDED ( EMPHASIS AND UNDER LINES ARE ADDED BY US). 17. FURTHER, THE HONBLE SUPREME COURT IN THE MATTE R OF FIBRE BOARDS P. LTD DATED 11.08.2015 REPORTED VIDE [(2015) 52 TAXMA NN.COM 135] /(2015) 10 SCC 333, AS WELL AS IN THE MATTER OF M/S. SHREE BHAGWATI STEEL ROLLING MILLS [CA NO.4280 OF 2007, DT.24.11.2015], REPORTED VIDE (2016) 3 SCC 643, WHEREIN THE HONBLE SUPREME COURT IN THESE TWO CASES ELABORATELY DISCUSSED THE ISSUE OF REPEAL /OMISSION/ AMENDMENT ETC, AND HELD THAT IT(TP)A NO.2021/BANG/2019 M/S. CAUVERY AQUA PVT. LTD., BANGALORE PAGE 9 OF 15 OMISSION WOULD AMOUNT TO REPEAL. IT IS ALSO HEL D THAT THERE IS NO REAL DISTINCTION BETWEEN AN AMENDMENT AND THAT AMENDMEN T IS IN FACT A WIDER TERM WHICH INCLUDES DELETION OF THE PROVISION IN AN EXISTING STATUE. 18. THE HONBLE COURT IN M/S. SHREE BHAGWATI STEEL ROLLING MILLS (SUPRA) IN A LATER DECISION, WHILE REFERRING ITS ORDER IN F IBRE BOARD PRIVATE LTD (SUPRA) HELD THAT OMISSION WOULD AMOUNT TO REPEAL. ON THE ARGUMENT OF THE CONTESTING PARTIES THAT THE OMITTED PROVISION B EING TREATED AS IT NEVER EXISTED AS PER SECTION 6 OF GENERAL CLAUSES ACT WOU LD NOT APPLY TO ALLOW THE PREVIOUS OPERATION OF THE PROVISIONS IS OMITTED OR ANYTHING DONE OR SUFFERED THEREUNDER. NOR MAY A LEGAL PROCEEDING IN RESPECT O F ANY RIGHTS AND LIABILITY ACQUIRED OR INCURRED UNDER THE ENACTMENT SO OMITTED. THE HONBLE APEX COURT TOOK A VIEW THAT IN MAJORITY OF THE CASES, THIS WOULD CAUSE GREAT PUBLIC MISCHIEF, AND THAT THE DECISION IN FIBRE BOARD CASE WAS THEREFORE CLEARLY DELIVERED BY THEIR LORDSHIP FOR T HE PUBLIC GOOD, BEING, AT THE LEAST REASONABLY POSSIBLE VIEW AND THAT NO ASPE CT OF THE QUESTION AT THEIR HAND WAS REMAINED UNNOTICED IN FIBRE BOARD CA SE.(EMPHASIS ADDED BY US) 19. WITH THE AFORESAID LEGAL BACK GROUND AND WITH U TMOST REGARD TO THE DECISION OF COORDINATE BENCH THE COORDINATE BENCH R ELIED BY LD AR FOR THE ASSESSEE IN TEXPORT OVERSEAS (SUPRA), WE HAVE NOTED THAT THE BENCH WAS NOT HAVING THE BENEFIT OF THE LATEST JUDGMENT OF THE HO NBLE SUPREME COURT IN THE MATTER OF FIBRE BOARDS P. LTD [(2015) 52 TAXMAN N.COM 135] AS WELL AS IN THE MATTER OF M/S. SHREE BHAGWATI STEEL ROLLING MILLS [CA NO.4280 OF 2007, DT.24.11.2015] WHICH WERE NOT BROUGHT TO THE NOTICE OF THE BENCH BY EITHER OF THE PARTIES. 20. THE HONBLE SUPREME COURT IN THESE TWO MATTERS HAD ELABORATELY DISCUSSED THE ISSUE OF REPEAL /OMISSION AND AFTER R ELYING UPON THE DECISION OF THE COORDINATE BENCH HAD DECIDED THE ISSUE THAT OMISSION WILL ALSO BE REPEALED AND THEREFORE BY VIRTUE OF SECTION 6 AND 6 A THE ACTION TAKEN PURSUANT TO THE VALID LEGISLATION DURING ITS LIFE T IME BEFORE OMISSION WILL BE SAVED AND WILL NOT COME TO END. THE DECISION IN THE CASE OF TEXPORT OVERSEAS PRIVATE LTD (SUPRA) WAS RENDERED WITHOUT C ONSIDERING THE DECISIONS OF THE HONBLE APEX COURT IN THE CASES OF (I) M/S. FIBRE BOARDS IT(TP)A NO.2021/BANG/2019 M/S. CAUVERY AQUA PVT. LTD., BANGALORE PAGE 10 OF 15 PVT. LTD AND (II) M/S SHREE BHAGWATI STEEL ROLLING VS. COMMISSIONER OF CENTRAL EXCISE & ANOTHER AND ALSO THE STATUTORY PRO VISION CONTAINED IN SECTION 6A OF GENERAL CLAUSES ACT AND HENCE, LACKS ANY BINDING OR PERSUASIVE VALUE. 16. THE HON'BLE APEX COURT IN THE CASE OF FIBRE BOA RDS PVT. LTD AND M/S. SHREE BHAGWATI STEEL ROLLING HAS DOUBTED AND DISAPP ROVED ITS EARLIER DECISIONS RENDERED IN THE CASE OF RAYALA CORPORATIO N (P) LTD VS ENFORCEMENT (1969) 2 SCR 412 AND KOLHAPUR CANE SUGA R WORKS LTD VS UNION OF INDIA (2000) 2SCC536 AND IN THE CASE OF GE NERAL FINANCE COMPANY VS CIT (2002) 7 SCC 1. FURTHER, THE HON'BLE SUPREME COURT IN THE CASE OF FIBRE BOARDS (I) LTD, AFTER REFERRING T O THE PROVISIONS OF SECTION 6A OF THE GENERAL CLAUSES ACT HELD THAT 'A REPEAL C AN BE BY WAY OF AN EXPRESS OMISSION' AND THAT EVEN AN IMPLIED REPEAL OF A STATUTE WOULD FALL WITHIN THE EXPRESSION 'REPEAL' IN SECTION 6 OF THE GENERAL CLAUSES ACT. 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 GENERAL CLAUSES ACT. CONSIDERING TH E LATEST DECISION OF HONBLE SUPREME COURT IN FIBRE BOARD AND BHAGWATI S TEEL, THE EARLIER DECISIONS RENDERED BY THE CONSTITUTION BENCH IN RAY ALA CORPORATION (P) LTD AND KOLHAPUR CANSUGAR WORKS CANNOT BE SAID TO H AVE LAID DOWN ANY RATIO DECIDENDI ON AN INTERPRETATION OF THE WORD 'R EPEAL' AN 'OMISSION' WOULD NOT BE INCLUDED. THEIR OBSERVATIONS ARE IN TH E NATURE OF OBITER DICTA AS HELD BY THE SUPREME COURT IN FIBRE BOARDS. IT IS ALSO HELD THAT THE EARLIER DECISIONS HAVE NOT REFERRED TO SECTION 6A O F THE GENERAL CLAUSES ACT AND THEY LOSE THEIR BINDING EFFECT ON AN APPLICATIO N OF THE 'PER INCURIAM PRINCIPLE, AS HELD BY THE SUPREME COURT IN THE CASE OF FIBRE BOARDS PRIVATE LIMITED. THUS, IN OUR VIEW THE DECISION RENDERED IN ROYALA CORPORATION PVT. LTD LACKS BINDING VALUE FOR THE REASONS DISCUS SED BY THE APEX COURT IN FIBRE BOARDS PVT. LTD, THE DECISION RENDERED IN THE CASE OF KOLHAPUR CANE SUGAR WORKS LTD AS ALSO IN THE CASE OF GENERAL FINA NCE COMPANY FOLLOWING THE DECISION IN ROYALA CORPORATION LTD, L OSES ITS BINDING VALUE. 17. AS WE HAVE ALREADY NOTED THAT THE HON'BLE SUPRE ME COURT IN THE CASE OF SHREE BHAGWATI STEEL ROLLING MILLS AGAIN REITERATED THAT REPEAL WOULD IT(TP)A NO.2021/BANG/2019 M/S. CAUVERY AQUA PVT. LTD., BANGALORE PAGE 11 OF 15 INCLUDE REPEAL BY WAY OF AN EXPRESS OMISSION. THE S UPREME COURT FURTHER HELD THAT THE DECISION IN FIBRE BOARDS PRIVATE LIMI TED CLARIFIES THE LAW IN HOLDING THAN AN OMISSION WOULD AMOUNT TO REPEAL. AS A RESULT, THE PROVISIONS OF SEC. 6 OF THE GENERAL CLAUSES ACT WOU LD APPLY TO ALLOW THE PREVIOUS OPERATION OF THE PROVISION SO OMITTED OR A NYTHING DULY DONE OR SUFFERED THEREUNDER, AND SUCH A VIEW IS REASONABLE AND FOR THE PUBLIC GOOD. 18. AT THE COAST OF REPETITION WE MAY NOTE THAT THE HONBLE SUPREME COURT IN THE MATTER OF FIBRE BOARD (SUPRA) AND BHAGWATI S TEEL ROLLING (SUPRA) HAD ELABORATELY REPRODUCED THE PARAGRAPHS OF GENERA L FINANCE CO., (SUPRA) AND ALSO THE EARLIER TWO JUDGMENTS RELIED I N GENERAL FINANCE CO., (SUPRA), NAMELY RAYALA CORPORATION P. LTD AND KOLHA PUR CANE SUGAR WORKS LTD, AND OBSERVED THAT EVEN THE COURT HAS NOT REFERRED THE MATTER TO THE LARGER BENCH. THE HONBLE SUPREME COURT IN FIBR E BOARD (SUPRA) AND BHAGWATI STEEL ROLLING (SUPRA) HAD ALSO DISCUSSED T HE PROVISION OF LAW INCLUDING THE GENERAL CLAUSES ACT, SECTION 6A AND 2 4 AND THEREAFTER HELD THAT THE REPEAL, OMISSION AND DELETION ARE INTERCHA NGEABLE AND THEREAFTER HAD HELD THAT OMISSION WILL HAVE AN EFFECT OF RE PEAL AND REPEAL WILL HAVE AN EFFECT OF OMISSION. THE DISTINCTION CARVE D OUT IN RAYALA CORPORATION (SUPRA) WAS NOT CORRECT AND FURTHER THE REFERENCE TO THE CONSTITUTION BENCH HAS NOT CONSIDERED IN VIEW OF A BINDING JUDGMENT OF THE CONSTITUTION BENCH IN THE MATTER OF M.A.TULLOCH& CO AS WELL AS THE PROVISIONS OF SECTION 6A OF THE GENERAL CLAUSES ACT AND THEREAFTER THE COURT HAD HELD THAT THE DECISION, IN THE MATTER OF RAYALA CORPORATION (SUPRA) WAS PER INCURIUM. 19. IN OUR HUMBLE VIEW THE HONBLE SUPREME COURT IN FIBRE BOARD (SUPRA) AND BHAGWATI STEEL ROLLING (SUPRA) HAVE DECLARED TH AT THE LAW IN RAYALA CORPORATION IS PER IN CURIUM, ON THE BASIS OF WHICH GENERAL FINANCE CO., (SUPRA) WAS PASSED. THUS, THE LATER JUDGMENTS IN FI BRE BOARD (SUPRA) AND BHAGWATI STEEL ROLLING (SUPRA) SHALL HAVE A BINDING PRECEDENT ON ALL COURTS IN INDIA INCLUDING THIS TRIBUNAL. 20. WE MAY MENTION THAT THE DECISION OF THE HONBLE APEX COURT IS DECLARATION OF LAW AS PER ARTICLE 141 OF THE CONSTI TUTION OF INDIA. THE LAW DECLARED BY HONBLE APEX COURT IN FIBRE BOARDS (P) LTD (SUPRA) DATED IT(TP)A NO.2021/BANG/2019 M/S. CAUVERY AQUA PVT. LTD., BANGALORE PAGE 12 OF 15 11.08.2015, WAS AVAILABLE WHEN THE DECISIONS WAS RE NDERED BY BANGALORE TRIBUNAL TEXTPORT OVERSEAS PVT LIMITED VS DCIT (SUP RA), HOWEVER, THE SAME WAS NOT BROUGHT TO THE NOTICE OF THE BENCH. TH E COORDINATE BENCH WHILE RENDERING THE DECISION RELIED ON THE DECISION OF HONBLE APEX COURT IN GENERAL FINANCE CO. VS ACIT (SUPRA), WHICH WAS A LREADY DECLARED AS PER-IN CURIUM. SIMILARLY, THE DECISION IN GENERAL F INANCE CO (SUPRA) IS BASED ON RAYALA CORPORATION P. LTD VS DIRECTOR OF E NFORCEMENT (SUPRA) AND KOLHAPUR CANESUGAR WORKS LTD VS UNION OF INDIA (SUPRA). CONSIDERING THE AFORESAID LEGAL POSITION AND THE DA TES OF VARIOUS JUDGMENTS OF THE HONBLE APEX COURT, WE ARE OF THE VIEW THAT LD. AR FOR THE ASSESSEE HAS REFERRED AND RELIED ON THE DECISIONS OF GENERAL FINANCE COMPANY VS ACIT (SUPRA) WHICH HAVE BEEN DECLARED AS PER-IN CUR IUM BY HONBLE APEX COURT. 21. WE ARE CONSCIOUS OF THE FACTS THAT THE LATEST L AW DECLARED BY HONBLE APEX COURT IN VARIOUS CASES (SUPRA) WAS NOT CONFRON TED WITH THE LD. AR FOR THE ASSESSEE; HOWEVER, IT IS ALWAYS PRESUMED THAT T HE LAW DECLARED BY THE COURT IS IN THE KNOWLEDGE OF THE LEGAL PRACTITIONER . WE INSTEAD OF GOING IN FURTHER DISCUSSIONS ARE OF THE VIEW THAT IN VIEW OF THE DECISION OF HONBLE APEX COURT IN FIBRE BOARDS (P) LTD (SUPRA), THE WOR D REPEAL INCLUDES OMISSION. THUS, WE DO NOT FIND ANY MERIT IN THE O BJECTION RAISED BY THE LD. AR FOR THE ASSESSEE WHICH WE ARE REJECTING, BEING W ITHOUT ANY MERIT AND HELD THAT APPEAL FILED BY THE REVENUE WITH IN CURRE NCY OF THE SUB-SECTION 2A OF SECTION 253 OF THE ACT, IS VALID. 7. WE HEARD THE RIVAL CONTENTIONS AND PERUSED THE R ECORD. WE NOTICE THAT THE DECISION RENDERED BY THE COORDINATE BENCH OF BENGALURU TRIBUNAL IN THE CASE OF TEXPORT OVERSEAS PVT. LTD. (SUPRA) HAS SINCE BEEN UPHELD BY THE HIGH COURT OF KARNATAK A WITH THE FOLLOWING OBSERVATIONS:- 5. HAVING HEARD LEARNED ADVOCATES APPEARING FOR PA RTIES AND ON PERUSAL OF RECORDS IN GENERAL AND ORDER PASSED BY T RIBUNAL IN PARTICULAR IT IS CLEARLY NOTICEABLE THAT CLAUSE (I) OF SECTION 92BA OF THE ACT CAME TO IT(TP)A NO.2021/BANG/2019 M/S. CAUVERY AQUA PVT. LTD., BANGALORE PAGE 13 OF 15 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 N O MORE RES-INTIGRA IN THE LIGHT OF AUTHORITATIVE PRONOUNEENIENT OF HON'BL E APEX COURT IN THE MATTER OF KOBLAPUR CANESUGAR WORKS LTD. V. UNION OF INDIA REPORTED IN AIR 2000 SC 811 WHEREUNDER APEX COURT HAS EXAMINED THE EFFECT OF REPEAL OF A STATUTE VISA-VIS DELETION/ADDITION OF A PROVISION IN AN ENACTMENT AND ITS EFFECT THEREOF. T HE IMPORT OF SECTION 6 OF GENERAL CLAUSES ACT HAS ALSO BEEN EXAMINED AND I T CAME TO BE HELD: 37. THE POSITION IS WELL KNOWN THAT AT COMMON LAW , THE NORMAL EFFECT OF REPEALING A STATUTE OR DELETING A PROVISI ON 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 UNCOND ITIONALLY OMITTED WITHOUT A SAVING CLAUSE IN FAVOUR OF PENDING PROCEE DINGS, ALL ACTIONS MUST STOP WHERE THE OMISSION FINDS THEM, AN D IF FINAL RELIEF HAS NOT BEEN GRANTED BEFORE THE OMISSION GOES INTO EFFECT, IT CANNOT BE GRANTED AFTERWARDS. SAVINGS OF THE. NATURE CONTA INED 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 LA RGELY DEPENDS ON THE SAVINGS APPLICABLE. IN A CASE WHERE A PARTICULA R PROVISION IN A STATUTE IS OMITTED AND IN ITS PLACE ANOTHER PROVISI ON DEALING WITH THE SAME CONTINGENCY IS INTRODUCED WITHOUT A SAVING CLAUSE IN FAVOUR OF PENDING PROCEEDINGS THEN IT CAN BE REASON ABLY INFERRED THAT THE INTENTION OF THE LEGISLATURE IS THAT THE P ENDING PROCEEDINGS SHALL NOT CONTINUE BUT FRESH PROCEEDINGS FOR THE SA ME PURPOSE MAY BE INITIATED UNDER THE NEW PROVISION.' 6. IN FACT COORDINATE BENCH UNDER SIMILAR CIRCUMS TANCES 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 IT(TP)A NO.2021/BANG/2019 M/S. CAUVERY AQUA PVT. LTD., BANGALORE PAGE 14 OF 15 SAVING CLAUSE OR PROVISION INTRODUCED BY WAY OF AME NDMENT BY OMITTING SUB-SECTION (9) OF SECTION 10B. IN THE MAT TER OF GENERAL FINANCE CO. VS. ACIT, WHICH JUDGMENT HAS ALSO BEEN TAKEN NOTE OF BY THE TRIBUNAL WHILE REPELLING THE CONTENTION RAIS ED BY REVENUE WITH REGARD TO RETROSPECTIVITY OF SECTION 92BA(I) OF THE ACT. THUS, WHEN CLAUSE (I) OF SECTION 92BA HAVING BEEN OMITTED BY T HE 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 CONSIDER ED AS A LAW NEVER BEEN EXISTED. HENCE, DECISION TAKEN BY THE ASSESSIN G OFFICER UNDER THE EFFECT OF SECTION 92BI AND REFERENCE MADE TO THE OR DER OF TRANSFER PRICING OFFICER-TOP UNDER SECTION 92CA COULD BE INV ALID AND BAD IN LAW. 7. IT IS FOR THIS PRECISE REASON, TRIBUNAL HAS RI GHTLY 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 EN UNCIATED BY THE HON'BLE SUPREME COURT IN KOLHAPUR CANOSUGAR WORKS LTD REFERRED TO HEREIN SUPRA WHICH HAS BEEN FOLLOWED BY CO-ORDINATE BENCH OF THI S 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 COUL D NOT ARISE FOR CONSIDERATION PARTICULARLY WHEN THE SAID ISSUE BEIN G NO MORE RES INTEGRA. 8. SINCE THE DECISION RENDERED BY THE HONBLE HIGH COURT OF KARNATAKA IS BINDING ON THIS BENCH OF TRIBUNAL SITT ING IN BENGALURU, WE FOLLOW THE SAME. ACCORDINGLY, WE HOL D THAT THE REFERENCE TO THE TPO IN RESPECT OF SPECIFIED DOMEST IC TRANSACTIONS MENTIONED IN CLAUSE (I) OF SEC.92BA IS NOT VALID, A S THE SAID PROVISION HAS BEEN OMITTED. ACCORDINGLY, WE DIRECT THE AO TO DELETE THE ADDITION RELATING TO SPECIFIED DOMESTIC TRANSAC TIONS MADE U/S 92CA OF THE ACT. IT(TP)A NO.2021/BANG/2019 M/S. CAUVERY AQUA PVT. LTD., BANGALORE PAGE 15 OF 15 9. WE NOTICE THAT THE CO-ORDINATE BENCH HAS RES TORED THE MATTER TO THE FILE OF THE A.O. WITH THE DIRECTION TO EXAMI NE THE CLAIM OF EXPENDITURE IN ACCORDANCE WITH THE PROVISIONS OF SE CTION 40A(2) OF THE ACT. FOLLOWING THE SAME, WE RESTORE THIS ISSUE TO THE FILE OF THE AO WITH THE DIRECTION TO EXAMINE THE CLAIM OF EXPEN DITURE MENTIONED ABOVE IN TERMS OF THE PROVISIONS OF SECTI ON 40A(2) OF THE ACT. 10. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH FEB, 2021. SD/- (N.V. VASUDEVAN) VICE PRESIDENT SD/- (B.R. BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED 17 TH FEB, 2021. VG/SPS COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE.