M/s. Panem Coal Mines Ltd., , Kolkata V. ACIT, Central Circle - 3(1), Kolkata , Kolkata

ITA 2432/KOL/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 6898 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 08-12-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DR P K SRIHARI
• Keywords: Opportunity of being heard; Question of law; Set aside
• Section: 143(3); 10B; 6; 92

Judgement Text

1 ITA NO. 2430/KOL/2017 DVC EMTA COIAL MINES LTD., AY 2013-14, ITA NO. 2431/KOL/2017 BENGAL EMTA COAL MINES LTD., AY 2013-14 & ITA NO.2432/KOL/2017 PANEM COAL MINES LTD., AY 2013-14 , C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA ( ) . . , . ' # $% % , '( ) [BEFORE SHRI A. T. VARKEY, JM & DR. A. L. SAINI, A M] I.T.A. NO. 2430/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. DVC EMTA COAL MINES LTD. (PAN: AACCD3075F) VS. ASSISTANT COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE-3(1), KOLKATA. APPELLANT RESPONDENT & I.T.A. NO. 2431/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. BENGAL EMTA COAL MINES LTD. (PAN: AABCB2949R) VS. ASSISTANT COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE-3(1), KOLKATA. APPELLANT RESPONDENT & I.T.A. NO. 2432/KOL/2017 ASSESSMENT YEAR: 2013-14 M/S. PANEM COAL MINES LTD. (PAN: AACCP6935E) VS. ASSISTANT COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE-3(1), KOLKATA. APPELLANT RESPONDENT DATE OF HEARING 11.02.2019 DATE OF PRONOUNCEMENT 01.05.2019 FOR THE APPELLANT SHRI MANISH MALIK, ADVOCATE FOR THE RESPONDENT DR. P. K. SRIHARI, CIT, DR ORDER PER SHRI A. T. VARKEY, JM: 2 ITA NO. 2430/KOL/2017 DVC EMTA COIAL MINES LTD., AY 2013-14, ITA NO. 2431/KOL/2017 BENGAL EMTA COAL MINES LTD., AY 2013-14 & ITA NO.2432/KOL/2017 PANEM COAL MINES LTD., AY 2013-14 ALL THESE APPEALS FILED BY DIFFERENT ASSESSEES ARE AGAINST THE SEPARATE ORDERS OF ACIT, CENTRAL CIRCLE-3(1), KOLKATA DATED 27.09.2017 IN R ESPECT OF DVC EMTA COAL MINES LTD. AND BENGAL EMTA COAL MINES AND DATED 25.09.2017 IN RESP ECT OF PANEM COAL MINES LTD. PASSED CONSEQUENT TO THE DIRECTION OF LD. DRP-2, NEW DELHI ALL DATED 18.08.2017 FOR AYS 2013- 14. SINCE FACTS ARE IDENTICAL AND GROUNDS ARE COMMO N, WE DISPOSE OF ALL THESE APPEALS BY THIS CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE . 2. WE TAKE UP THE CASE OF ITA NO. 2430/KOL/2017 AS THE LEAD CASE AND THE RESULT OF WHICH WILL BE FOLLOWED IN OTHER TWO APPEALS ALSO. 3. AT THE OUTSET ITSELF, THE LD. COUNSEL DREW OUR A TTENTION TO THE GROUNDS OF APPEAL WHEREIN THE LEGAL ISSUE HAS BEEN RAISED, WHICH IS A S UNDER: A. GROUNDS OF APPEAL ARISING OUT OF LEGAL/JURISDIC TIONAL VIEW; READ WITH CHAPTER X OF INCOME TAX ACT, 1961. 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER (AO) PURSUANT TO THE DIRECTIO NS OF HONBLE DISPUTE RESOLUTION PANEL (DRP) IS BAD IN LAW AND INVALID. 2. SINCE FINANCE ACT 2017 OMITTED SECTION 92BA( 1) THE IMPUGNED TRANSACTIONS ARE OUTSIDE THE DEFINITION OF SPECIFIED DOMESTIC TRANSACTION, THERE FORE THE ORDER PASSED BY HON'BLE ASSESSING OFFICER BE ANNULLED. 2.1. THAT THE FACTS AND CIRCUMSTANCES OF THE CASE A ND THE LAW THE ASSESSING OFFICER/ TPO AS WELL AS DRP ERRED IN NOT APPRECIATING THE FACT THAT THE TRANSACTIONS WERE SINCE RESTRICTED AND SUBJECTED TO SUPERVISION BY STATE GOVERNMENT NOMINA TED DIRECTORS, THEREFORE THERE WAS NO SCOPE OF TAX ARBITRAGE BEING ENJOYED BY AE AND HENC E OUTSIDE THE PREVIEW OF SECTION 92BA OF THE ACT. 3. THAT ON THE FACTS OF THE CASE AND IN LAW THE L D. A.O. ERRED IN PASSING ASSESSMENT ORDER DATED 27.09.2017 UNDER SECTION 143(3) READ WITH SEC TION 92CA(3) AND 144C(5) OF INCOME TAX ACT, 1961, AS SUCH THE ORDER SO PASSED SUBSEQUE NT TO LIMITATION UNDER SECTION 144C(4) IS WITHOUT JURISDICTION, ILLEGAL, BAD IN LAW AND TH EREFORE BE ANNULLED. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD. TPO/THE LD. AO/ AND THE HON'BLE DRP HAVE ERRED ON FACTS AND IN LAW IN ENHAN CING THE INCOME OF THE APPELLANT BY RS. 13,52,49,494/-. 4. THE LD. COUNSEL FIRST OF ALL BROUGHT TO OUR NOTI CE THAT THE AFORESAID LEGAL ISSUE THAT HAS BEEN RAISED IS NO LONGER RES INTEGRA AND HAS B EEN ADJUDICATED BY COORDINATE BENCH OF THIS TRIBUNAL BANGALORE BENCH IN THE CASE OF IT(TP )A NO. 1722/BANG/2017 IN TEXPORT 3 ITA NO. 2430/KOL/2017 DVC EMTA COIAL MINES LTD., AY 2013-14, ITA NO. 2431/KOL/2017 BENGAL EMTA COAL MINES LTD., AY 2013-14 & ITA NO.2432/KOL/2017 PANEM COAL MINES LTD., AY 2013-14 OVERSEAS PRIVATE LIMITED VS. DCIT FOR AY 2013-14 VI DE ORDER DATED 22.12.2017 AND SUBMITTED THAT THE MATTER MAY BE REMANDED BACK TO T HE AO WITH THE DIRECTION GIVEN IN THE SAID ORDER. WE NOTE THAT THE LEGAL ISSUE RAISED BY THE ASSESSEE GOES TO THE ROOT OF THE MATTER AND WE NOTE THAT THE AO HAS MADE A REFERENCE U/S. 9 2 LD. CIT(A) HAVING OBSERVED THAT THE ASSESSEE HAS ENTERED INTO SPECIFIED DOMESTIC TRANSA CTIONS SINCE THIS CASE WAS COVERED U/S. 92BA OF THE ACT BUT LATER ON THERE WAS AN AMENDMENT IN SEC. 92BA BY FINANCE ACT, 2019 W.E.F. 01.04.2017 WHEREBY CLAUSE (II) OF SEC. 92BA RELATING TO ANY EXPENDITURE IN RESPECT OF WHICH PAYMENT HAVE BEEN MADE OR IS TO BE MADE TO A PERSON REFERRED TO CLAUSE (B) OF SUB- SECTION (2) OF SECTION 40A OF THE ACT WAS OMITTED AND, ACCORDING TO LD. AR, ON ACCOUNT OF ITS OMISSION, THE IMPUGNED TRANSACTION WOULD NOT FA LL WITHIN THE DEFINITION OF SPECIFIED DOMESTIC TRANSACTION AND REFERRED TO THE JUDGMENT O F HONBLE SUPREME COURT IN THE CASE OF CIT VS. GENERAL FINANCE CO. VS. ACIT 257 ITR 338 (S C) IN WHICH THE APEX COURT HAS HELD THAT THE PRINCIPLE UNDERLYING SECTION 6 OF GEN ERAL CLAUSES ACT AS SAVING THE RIGHT TO INITIATE PROCEEDINGS FOR LIABILITIES INCURRED DURIN G THE CURRENCY OF THE ACT WILL NOT APPLY TO OMISSION OF A PROVISION IN AN ACT BUT ONLY TO REPEA L OF THE PROVISION OF THE ACT. THE LD. AR ALSO REFERRED TO THE DECISION OF THE HONBLE SUPREM E COURT IN THE CASE OF KOLHAPUR CANESUGAR WORKS LTD. VS. UNION OF INDIA IN APPEAL ( CIVIL) 2132 OF 1994 BY JUDGMENT DATED 01.02.2000 IN WHICH THE CONSTITUTION BENCH HA S HELD THAT SECTION 6 OF GENERAL CLAUSES ACT ONLY APPLIES TO REPEALS AND NOT TO OMI SSIONS, AND APPLIES WHEN THE REPEAL IS OF A CENTRAL ACT OR REGULATION AND NOT AS A RULE. IT WAS FURTHER CLARIFIED BY THE HONBLE APEX COURT THAT IN SUCH A CASE, THE COURT IS TO LOOK INT O THE PROVISION IN THE RULE WHICH HAS BEEN INTRODUCED AFTER OMISSION OF THE PREVIOUS RULE TO D ETERMINE WHETHER A PENDING PROCEEDING WILL CONTINUE OR LAPSE. IF THERE IS A PROVISION THE REIN THAT PENDING PROCEEDINGS SHALL CONTINUE AND BE DISPOSED OF UNDER THE OLD RULE AS I F THE RULE HAS NOT BEEN DELETED OR OMITTED THEN SUCH A PROCEEDING WILL CONTINUE. IF THE CASE I S COVERED BY SECTION 6 OF THE GENERAL CLAUSES ACT OR THERE IS A PARI MATERIAL PROVISION I N THE STATUTE UNDER WHICH THE RULE HAS BEEN FRAMED IN THAT CASE ALSO THE PENDING PROCEEDING WIL L NOT BE AFFECTED BY OMISSION OF THE RULE. WE NOTE THAT THIS ISSUE HAS BEEN ADJUDICATED BY THE TRIBUNAL VIDE ORDER DATED 22.12.2017 WHEREIN THE TRIBUNAL HAS HELD AS UNDER: 4 ITA NO. 2430/KOL/2017 DVC EMTA COIAL MINES LTD., AY 2013-14, ITA NO. 2431/KOL/2017 BENGAL EMTA COAL MINES LTD., AY 2013-14 & ITA NO.2432/KOL/2017 PANEM COAL MINES LTD., AY 2013-14 2. DURING THE COURSE OF HEARING, THE LEARNED COUNS EL FOR THE ASSESSEE HAS MOVED AN APPLICATION FOR THE ADMISSION OF THE ADDITIONAL GRO UNDS WITH A REQUEST THAT SINCE THE ADDITIONAL GROUNDS GOES TO THE ROOT OF THE CASE IT SHOULD BE ADMITTED AND BE DISPOSED OFF AT THE THRESHOLD. THE ADMISSION OF THE ADDITIONAL GROUNDS WERE STRONGLY OBJECTED BY THE LEARNED DR ON THE PREMISE THAT THESE GROUNDS WERE NEVER RAISED BEFORE THE DRP NOR WERE THEY RAISED IN THE ORIGINAL GROUNDS OF APPEAL. THEREFORE, IT CANNO T BE ADMITTED. 3. THE LEARNED COUNSEL FOR THE ASSESSEE HAS FURTHER CONTENDED THAT AO HAS MADE A REFERENCE UNDER SECTION 92CA, HAVING OBSERVED THAT THE ASSESS EE HAS ENTERED INTO SPECIFIED DOMESTIC TRANSACTION AS THIS CASE IS COVERED UNDER SECTION 9 28A OF THE IT ACT BUT LATER ON THERE WAS AMENDMENT IN SECTION 92BA BY THE FINANCE ACT, 2017 W.E.F. 01.04.2017 WHEREBY CLAUSE (II) OF SECTION 92BA RELATING TO ANY EXPENDITURE IN RESPECT OF WHICH PAYMENT HAS BEEN MADE OR IS TO BE MADE TO A PERSON REFERRED TO CLAUSE (B) OF SUB S ECTION 2 OF SECTION 40A WAS OMITTED AND ON ACCOUNT OF ITS OMISSION, THE IMPUGNED TRANSACTION W OULD NOT FALL WITHIN THE DEFINITION OF SPECIFIED DOMESTIC TRANSACTION. THEREFORE, IT HAS B ECOME NECESSARY FOR THE ASSESSEE TO RAISE THIS ADDITIONAL GROUND BEFORE THE TRIBUNAL. 4. THE LEARNED COUNSEL FOR THE ASSESSEE HAS FURTHE R INVITED BUR ATTENTION THAT PROVISION OF SECTION 928A WAS BROUGHT ON STATUTE BY THE FINANCE ACT, 2012 W.E.F. 01.04.2013 RELEVANT TO ASSESSMENT YEAR 2013-14. THEREFORE, IT IS THE FIRST YEAR WHEN THE TRANSACTIONS ARE TO BE EXAMINED IN THE LIGHT OF PROVISION OF SECTION 928A OF THE ACT. SINCE THE TRANSACTIONS UNDER CLAUSE (I) EXCEEDED THE PRESCRIBED LIMIT, THE AO CO NSIDERED IT TO BE SPECIFIED DOMESTIC TRANSACTION AND MADE A REFERENCE TO TPO FOR COMPUTA TION OF ALP. ACCORDINGLY, TPO HAS COMPUTED THE ALP WHICH WAS OBJECTED TO BY THE ASSES SES BEFORE THE DRP AND DRP DISPOSED OFF THE OBJECTIONS WITH CERTAIN FINDINGS/DIRECTIONS . 5. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER CON TENDED THAT SUB CLAUSE (I) OF SECTION 92BA UNDER WHICH ASSESSEE HAS UNDERTAKEN THE TRANSACTION S WHICH HAS EXCEEDED THE PRESCRIBED LIMIT, WAS OMITTED BY THE FINANCE ACT, 2017 W.E.F. 01.04.2017. SINCE CLAUSE (I) HAS BEEN OMITTED FROM THE STATUTE BY VIRTUE OF THE, AMENDMEN T, THIS PARTICULAR SUB CLAUSE SHALL BE DEEMED NOT TO BE ON THE STATUTE SINCE THE BEGINNING . IN SUPPORT OF HIS CONTENTION, THE LEARNED COUNSEL FOR THE ASSESSEE HAS PLACED A HEAVY RELIANC E UPON THE JUDGMENT OF THE APEX COURT IN THE CASE OF KOLHAPUR CANESUGAR WORKS LTD., VS. UNIO N OF INDIA IN APPEAL (CIVIL) 2132 OF 1994 VIDE JUDGMENT DATED 01.02.2000 IN WHICH THE CO NSTITUTION BENCH HAS HELD THAT SECTION 6 ONLY APPLIES TO REPEALS AND NOT TO OMISSIONS, AND A PPLIES WHEN THE REPEAL IS OF A CENTRAL ACT OR REGULATION AND NOT AS A RULE. IT WAS FURTHER CLA RIFIED BY THE APEX COURT THAT IN SUCH A CASE THE COURT IS TO LOOK TO THE PROVISIONS IN THE RULE WHICH HAS BEEN INTRODUCED AFTER OMISSION. OF THE PREVIOUS RULE TO DETERMINE WHETHER A PENDING PR OCEEDING WILL CONTINUE OR LAPSE. IF THERE IS A PROVISION THEREIN THAT PENDING PROCEEDINGS SHALL CONTINUE AND BE DISPOSED OF UNDER THE OLD RULE AS IF THE RULE HAS NOT BEEN DELETED OR OMITTED THEN SUCH A PROCEEDING WILL CONTINUE. IF THE 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. A FURTHER RELIANCE WAS ALSO PLACED UPON THE JUDGMENT OF THE APEX COURT IN THE CASE OF GENERAL FINANCE CO . VS. ASSISTANT COMMISSIONER OF INCOME- TAX 257 ITR 338 (SC) IN WHICH THE APEX COURT HAS HE LD THAT THE PRINCIPLE UNDERLYING SECTION 6 AS SAVING THE RIGHT TO INITIATE PROCEEDINGS FOR LIA BILITIES INCURRED DURING THE CURRENCY OF THE ACT WILL NOT APPLY TO OMISSION OF A PROVISION IN AN ACT BUT ONLY TO REPEAL, OMISSION BEING DIFFERENT FROM REPEAL AS HELD IN THE AFORESAID DECI SIONS. RELIANCE WAS ALSO PLACED UPON THE ORDER OF THE TRIBUNAL IN LT(TP)A NO. L 722/BANG/201 7 PAGE 4 OF7 THE CASE OF CIT VS. GE THERMOMETRICS INDIA PVT. LTD., IN ITA NO. 876/2008 IN WHICH WHILE DEALING THE OMISSION SUB- SECTION (9) OF SECTION 1 OB THE HON'BLE HIGH COURT HAS HELD THAT ONCE THE SECTION IS OMITTED 5 ITA NO. 2430/KOL/2017 DVC EMTA COIAL MINES LTD., AY 2013-14, ITA NO. 2431/KOL/2017 BENGAL EMTA COAL MINES LTD., AY 2013-14 & ITA NO.2432/KOL/2017 PANEM COAL MINES LTD., AY 2013-14 FROM THE STATUTE BOOK, THE RESULT IS IT HAD NEVER B EEN PASSED AND BE CONSIDERED AS A LAW THAT NEVER EXISTS AND THEREFORE, WHEN THE ASSESSMENT ORD ERS WERE PASSED, THE AO WAS NOT JUSTIFIED IN TAKING NOTE OF A PROVISION WHICH WAS NOT IN THE STATUTE BOOK AND DENYING BENEFIT TO THE ASSESSEE. THEREFORE, IN THE LIGHT OF THESE JUDICIAL PRONOUNCEMENTS, SUB-SECTION (I) OF SECTION 928A SHALL BE DEEMED TO BE NOT ON THE STATUTE SINCE BEGINNING. 6. THE LEARNED DR ON THE OTHER-HAND HAS CONTENDED THAT EVEN IF IT IS HELD THAT THE CLAUSE (I) OF SECTION 928A RELATING TO EXPENDITURES IN RESPECT OF WHICH PAYMENT HAS BEEN MADE OR IS TO BE MADE TO PERSON REFERRED TO IN CLAUSE (B) OF SUB SEC TION 2 OF SECTION 40A OF THE ACT IS NOT ON THE STATUTE SINCE BEGINNING IN VIEW OF THE AMENDMENT AN D IN THE LIGHT OF VARIOUS JUDICIAL PRONOUNCEMENTS THE REFERENCE MADE BY AO TO TPO IS B AD IN LAW, THE AO IS REQUIRED TO EXAMINE THE CLAIM OF THE ASSESSEE IN THE LIGHT OF O THER PROVISIONS OF THE ACT. 7. HAVING CAREFULLY EXAMINED THE ORDERS OF AUTHORIT IES BELOW IN THE LIGHT OF RIVAL SUBMISSIONS AND RELEVANT PROVISIONS AND VARIOUS JUDICIAL PRONOU NCEMENTS, WE FIND THAT BY VIRTUE OF THE INSERTION OF SECTION 92BA ON THE STATUTE AS PER CLA USE (I), ANY EXPENDITURE IN RESPECT OF WHICH 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 PRESCRIBED LIMIT, IT WOULD BE A SPECIFIED DOMESTIC TRANSACTION FOR WHICH AO IS REQUIRED TO MAKE A REFERENCE TO TPO UND ER SECTION 92CA OF THE ACT FOR DETERMINATION OF THE ALP. IN THE INSTANT CASE, SINC E THE TRANSACTION EXCEEDS THE PRESCRIBED LIMIT IT BECOMES THE SPECIFIED DOMESTIC TRANSACTION FOR WHICH REFERENCE WAS MADE BY THE AO TO THE TPO UNDER SECTION 92CA FOR DETERMINATION OF THE ALP. CONSEQUENTLY, THE TPO SUBMITTED A REPORT WHICH WAS OBJECTED TO BY THE LEARNED COUNS EL FOR THE ASSESSEE AND FILED A OBJECTION BEFORE THE ORP. HAVING ADJUDICATED THE OBJECTIONS T HE ORP HAS ISSUED CERTAIN DIRECTIONS AND CONSEQUENTLY THE AO PASSED AN ORDER. SUBSEQUENTLY, BY FINANCE ACT, 2017 W.E.F. 01.04.2017, CLAUSE (I) OF SECTION 92BA WAS OMITTED FROM THE STA TUTE. NOW THE QUESTION ARISES AS TO WHETHER ON ACCOUNT OF OMISSION OF CLAUSE (I) FROM THE STATU TE, 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 O F KOLHAPUR CANESUGAR WORKS LTD., (SUPRA) IN WHICH THE IMPACT OF OMISSION OF OLD RULE 10 AND 1 OA WAS EXAMINED. HAVING CAREFULLY EXAMINED THE ISSUE IN THE LIGHT OF PROVISIONS OF SECTION 6 OF THE GENERAL CLAUSES ACT, THEIR LORDSHIP HAS OBSERVED 'THAT IN S UCH A CASE, THE COURT IS TO LOOK TO THE PROVISIONS IN THE RULE WHICH HAS BEEN INTRODUCED AF TER OMISSION OF THE PREVIOUS RULE TO DETERMINE WHETHER A PENDING PROCEEDING WILL CONTINU E OR LAPSE. IF THERE IS A PROVISION THEREIN THAT PENDING PROCEEDINGS SHALL CONTINUE AND BE DISP OSED OF UNDER THE OLD RULE AS IF THE RULE HAS NOT BEEN DELETED OR OMITTED THEN SUCH A PROCEED ING WILL CONTINUE. IF THE 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 TH E 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 WHIC H THE NOTICE WAS ISSUED OR PROCEEDING BEING OMITTED OR DELETED'. 8. IN THE CASE OF GENERAL FINANCE CO., VS. ACIT, TH EIR LORDSHIP OF THE APEX COURT HAS AGAIN EXAMINED THE ISSUE AND HELD THAT THE PRINCIPLE UNDE RLYING SECTION 6 AS SAVING THE RIGHT TO INITIATE PROCEEDINGS FOR LIABILITIES INCURRED DURIN G 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. FOLLOWING THE AFORESAID JU DGMENTS, THE JURISDICTIONAL HIGH COURT HAS ALSO EXPRESSED 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 OMITTING SUB-SECTION ( 9) OF SECTION 10B. THEREFORE, 6 ITA NO. 2430/KOL/2017 DVC EMTA COIAL MINES LTD., AY 2013-14, ITA NO. 2431/KOL/2017 BENGAL EMTA COAL MINES LTD., AY 2013-14 & ITA NO.2432/KOL/2017 PANEM COAL MINES LTD., AY 2013-14 ONCE THE AFORESAID SECTION IS OMITTED FROM THE STAT UTE BOOK, THE RESULT IS IT HAD NEVER BEEN PASSED AND BE CONSIDERED AS A LAW THAT NEVER E XISTS AND THEREFORE, WHEN THE ASSESSMENT ORDERS WERE PASSED IN 2006, THE AO WAS N OT JUSTIFIED IN TAKING NOTE OF A PROVISION WHICH WAS NOT IN THE STATUTE BOOK AND DEN YING BENEFIT TO THE ASSESSEE. THE WHOLE OBJECT OF SUCH OMISSION IS TO EXTEND THE BENE FIT UNDER SECTION 10B OF THE ACT IRRESPECTIVE OF THE FACT WHETHER DURING THE PERIOD TO WHICH THEY ARE ENTITLED TO THE BENEFIT, THE OWNERSHIP CONTINUES WITH THE ORIGINAL ASSESSEE OR IT IS TRANSFERRED TO ANOTHER PERSON. BENEFIT IS TO THE UNDERTAKING AND N OT TO THE PERSON WHO IS RUNNING THE BUSINESS. WE DO NOT SEE ANY MERIT IN THESE APPEALS. THE SUBSTANTIAL QUESTION OF LAW IS ANSWERED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE. ACCORDINGLY, THE APPEALS ARE DISMISSED.' 9. FROM THE AFORESAID JUDGMENTS, IT HAS BECOME ABUN DANTLY CLEAR THAT ONCE A PARTICULAR PROVISION OF SECTION IS OMITTED FROM THE STATUTE, I T SHALL BE DEEMED TO BE OMITTED FROM ITS INCEPTION UNLESS AND UNTIL THERE IS SOME SAVING CLA USE OR PROVISION TO MAKE IT CLEAR THAT ACTION TAKEN OR PROCEEDING INITIATED UNDER THAT PROVISION OR SECTION WOULD CONTINUE AND WOULD NOT BE LEFT ON ACCOUNT OF OMISSION. 10. IN THE INSTANT CASE, UNDISPUTEDLY, BY THE FINAN CE ACT, 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 T HE STATUTE. WHILE OMITTING THE CLAUSE (I) OF SECTION 92BA, NOTHING WAS SPECIFIED WHETHER THE PRO CEEDING INITIATED OR ACTION TAKEN ON THIS CONTINUE. THEREFORE, THE PROCEEDING INITIATED OR AC TION TAKEN UNDER THAT CLAUSE WOULD NOT SURVIVE AT ALL. IN THIS LEGAL POSITION, THE COGNIZA NCE TAKEN BY THE AO UNDER SECTION 92B(I) AND REFERENCE MADE TO TPO UNDER SECTION 92CA IS INVALID AND BAD IN LAW. THEREFORE, THE CONSEQUENTIAL ORDER PASSED BY THE TPO AND DRP IS AL SO 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 EXPENDIT URE IN ACCORDANCE WITH LAW. BUT THIS EXERCISE COULD NOT HAVE BEEN DONE ON ACCOUNT OF PRO VISIONS OF 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 IS SUE OF CLAIM OF EXPENDITURES IN ACCORDANCE WITH LAW AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE THEREFORE SET ASIDE THE ORDERS OF THE AO AND THE DRP AND REST ORE THE MATTER TO THE AO WITH THE DIRECTION TO READJUDICATE THE ISSUE OF CLAIM OF EXPENDITURE I NCURRED 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 MERIT. ACCORDINGLY , APPEAL OF THE ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES. 5. RESPECTFULLY FOLLOWING THE AFORESAID ORDER OF TH E TRIBUNAL, WE NOTE THAT IN THE INSTANT CASE, BY THE FINANCE ACT, 2017, CLAUSE (I) OF SECTION 92BA HAS BEEN OMITTED W.E.F. 01.04.2017. THE LEGAL EFFECT OF A PROVISION BEING OMITTED BY SUBSEQUENT AMENDMENT, THEN IT WOULD BE DEEMED THAT CLAUSE (I) WAS NEVER BEEN ON THE STATUTE BOOK. WHILE OMITTING THE CLAUSE (I) OF SECTION 92BA , WE NOTE THAT NOTHING WAS 7 ITA NO. 2430/KOL/2017 DVC EMTA COIAL MINES LTD., AY 2013-14, ITA NO. 2431/KOL/2017 BENGAL EMTA COAL MINES LTD., AY 2013-14 & ITA NO.2432/KOL/2017 PANEM COAL MINES LTD., AY 2013-14 SPECIFIED WHETHER THE PROCEEDING INITIATED OR ACTIO N TAKEN ON THIS CONTINUE. THEREFORE, THE PROCEEDING INITIATED OR ACTION TAKEN UNDER THAT CLAUSE WOULD NOT SURVIVE AT ALL. IN THE LIGHT OF THIS LEGAL POSITION, THE COGNIZANCE TA KEN BY THE AO UNDER SECTION 92BA(I) AND REFERENCE MADE TO TPO UNDER SECTION 92CA IS INV ALID AND BAD IN LAW. THEREFORE, THE CONSEQUENTIAL ORDER PASSED BY THE TPO AND DRP I S ALSO NOT SUSTAINABLE IN THE EYES OF LAW. THEREFORE, THE LEGAL EFFECT IS WHEN THIS C LAUSE (I) IS OMITTED FROM THE STATUTE IT HAS TO BE TAKEN AS THOUGH THERE IS NO CLAUSE (I) SI NCE ITS INCEPTION. AND WHEN LOOKED FROM THAT ANGLE, THE AO SHOULD HAVE FRAMED THE ASSE SSMENT AS IN NORMAL COURSE AFTER MAKING NECESSARY ENQUIRIES OF PARTICULAR CLAIM OF E XPENDITURE IN ACCORDANCE WITH LAW. BUT THIS EXERCISE COULD NOT HAPPEN ON ACCOUNT OF PR OVISIONS OF SECTION 92BA CLAUSE (I) OF THE ACT. THEREFORE, SINCE THIS CLAUSE (I) HAS B EEN OMITTED FROM THE STATUTE BY VIRTUE OF THE AFORESAID AMENDMENTS, THE AO IS REQUIRED TO ADJUDICATE THE ISSUE OF CLAIM OF EXPENDITURES IN ACCORDANCE WITH LAW AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE THEREFORE SET ASIDE THE ORDERS OF THE AO AND THE DRP AND RESTORE THE MATTER BACK TO THE AO WITH THE DIRECTION TO READJUD ICATE THE ISSUE OF CLAIM OF EXPENDITURE INCURRED IN RESPECT OF WHICH PAYMENT HA S BEEN MADE OR IS TO BE MADE TO PERSON REFERRED TO IN CLAUSE (B) OF SUB SECTION 2 O F SECTION 40A OF THE ACT. ACCORDINGLY, SINCE WE HAVE RESTORED THE MATTER TO T HE AO, WE FIND NO JUSTIFICATION TO DEAL WITH THE OTHER ISSUES ON MERIT. ACCORDINGLY, A PPEAL OF THE ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES. THEREFORE, ALL THE APPEA LS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, ALL THE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST MAY, 2019 SD/- SD/- (DR. A. L. SAINI) (A. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 1ST MAY, 2019 JD.(SR.P.S.) 8 ITA NO. 2430/KOL/2017 DVC EMTA COIAL MINES LTD., AY 2013-14, ITA NO. 2431/KOL/2017 BENGAL EMTA COAL MINES LTD., AY 2013-14 & ITA NO.2432/KOL/2017 PANEM COAL MINES LTD., AY 2013-14 COPY OF THE ORDER FORWARDED TO: 1 APPELLANT M/S. DVC EMTA COAL MINES LTD., M/S. BENG AL EMTA COAL MINES LTD. & M/S. PANEM COAL MINES LTD. 5B, NANDALAL BASU SARANI , KOLKATA -700 071.. 2 RESPONDENT ACIT, CENTRAL CIRCLE-3(1), KOLKATA. 3 4 5 DRP-2, NEW DELHI (SENT THROUGH E-MAIL) CIT , DR, KOLKATA BENCHES, KOLKATA (SENT THROUGH E-MAIL) / TRUE COPY, BY ORDER, ASSISTANT REGISTRAR