M/s Sobha City , Bangalore V. Assistant Commissioner of Income Tax Circle-1(2)(2), Bangalore

ITA 2936/BANG/2018

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 6179 (ITAT-BANGALORE)
• Duration Of Justice: 2 year(s) 5 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-04-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 30-03-2021
• Assessment Year: 2014-2015
• Appeal Filed On: 26-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Transfer pricing; Opportunity of being heard; Question of law; Set aside
• Section: 143(3); 10B; 13; 22; 92CA; 6

Judgement Text

ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: BANGALORE BEFORE SHRI GEORGE GEORGE K., JUDICIAL MEMBER AND SHRI B.R. BASKARAN, ACCOUNTANT MEMBER ITA NO.2936/BANG/2018 ASSESSMENT YEAR : 2014-15 M/S. SOBHA CITY E-106, SUNRISE CHAMBERS 22, ULSOOR ROAD ULSOOR BANGALORE 560 042. PAN NO : ABIFS9913P VS. ACIT CIRCLE 1(2)(2) BANGALORE APPELLANT RESPONDENT APPELLANT BY : SHRI NAGESHWAR RAO, A.R. RESPONDENT BY : MS. NEERA MALHOTRA, D.R. DATE OF HEARING : 30.03.2021 DATE OF PRONOUNCEMENT : 22.04.2021 O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THIS APPEAL CHALLENGING THE ASSESSMENT ORDER DATED 28-08-2018 PASSED BY THE ASSESSING OFFI CER 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 RESOLUT ION PANEL (DRP). THE SOLITARY ISSUE CONTESTED IN THIS APPEAL RELATE TO THE TRANSFER PRICING ADJUSTMENT IN RESPECT OF SPECIFIED DOMESTIC TRANSACTIONS (SDT). ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE PAGE 2 OF 16 2. THE ASSESSEE HEREIN IS A PARTNERSHIP FIRM AN D IS ENGAGED IN REAL ESTATE DEVELOPMENT BUSINESS. IT HAS ENTERED INTO S PECIFIED DOMESTIC TRANSACTIONS DURING THE YEAR. HENCE THE SDT TRANSA CTIONS WERE REFERRED TO THE TRANSFER PRICING OFFICER (TPO), WHO MADE TRANSFER PRICING ADJUSTMENTS TO THE TUNE OF RS.14.26 CRORES. THE LD DRP ALSO CONFIRMED THE ADJUSTMENT MADE BY TPO AND HENCE THE AO COMPLETED THE ASSESSMENT BY MAKING ADDITION OF RS.14.26 CRORE S TOWARDS TRANSFER PRICING ADJUSTMENT. 3. BEFORE US, THE ASSESSEE HAS RAISED A LEGAL IS SUE, THE GROUND RELATED THERETO READS AS UNDER:- 2. LD AO/TPO/DRP HAS ERRED IN LAW AND IN FACTS BY DETERMINING AN ADJUSTMENT TO SPECIFIED DOMESTIC TRA NSACTIONS (SDT) BY APPLYING PROVISIONS OMITTED FROM STATUTE B OOK. THE LD A.R FIRST ADDRESSED ON THE ABOVE SAID LEGAL ISSUE. HE SUBMITTED THAT THE TRANSFER PRICING ADJUSTMENT HAS BEEN MADE IN PURSUANCE OF PROVISIONS OF CLAUSE (I) OF SEC. 92BA OF THE ACT, WHICH READ AS UNDER:- (I) ANY EXPENDITURE IN RESPECT OF WHICH PAYMENT HA S BEEN MADE OR IS TO BE MADE TO A PERSON REFERRED TO IN CL AUSE (B) OF SUB-SECTION (2) OF SECTION 40A HE SUBMITTED THAT SECTION 92BA WAS INSERTED BY FINA NCE ACT 2012 W.E.F. 1.4.2013. HOWEVER CLAUSE (I) REFERRED ABOVE WAS OMITTED BY THE FINANCE ACT 2017 W.E.F. 1.4.2017. THE LD A.R SUBMI TTED THAT THE CO- ORDINATE BENCH HAS EXAMINED THE LEGAL EFFECT OF OMI SSION OF CLAUSE (I) OF SECTION 92BA WAS EXAMINED BY THE COORDINATE BENC H IN THE CASE OF TEXPORT OVERSEAS PVT. LTD. VS. DEPUTY COMMISSIONER OF INCOME-TAX IN IT(TP)A NO.1722/BANG/2017 DATED 22.12.2017 AND H ELD THAT IT WOULD BE DEEMED THAT CLAUSE (I) WAS NEVER BEEN ON T HE STATUTE. HE SUBMITTED THAT THE VIEW SO EXPRESSED BY THE TRIBUNA L HAS SINCE BEEN UPHELD BY HONBLE HIGH COURT OF KARNATAKA IN THE VE RY SAME CASE IN ITA NO.392/2018 DATED 12-12-2019. ACCORDINGLY HE S UBMITTED THAT ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE PAGE 3 OF 16 THE TRANSFER PRICING ADJUSTMENT MADE IN THE INSTANT CASE IS LIABLE TO BE DELETED, SINCE CLAUSE (I) OF SEC.92BA SHALL BE D EEMED TO BE NEVER EXISTED IN THE STATUTE. 4. THE LD D.R, HOWEVER, SUBMITTED THAT THE TRIBU NAL IN THE CASE OF EXPORT OVERSEAS P LTD (SUPRA) HAS HELD THAT THE PAY MENTS COVERED BY CLAUSE (I) OF SEC.92BA ARE REQUIRED TO BE EXAMINED IN TERMS OF SEC.40A(2)(B) OF THE ACT. ACCORDINGLY, THE LD D.R SUBMITTED THAT THE MATTER MAY BE RESTORED TO THE FILE OF THE AO FOR EX AMINING THE SAME IN ACCORDANCE WITH THE PROVISIONS OF SEC. 40A(2)(B) OF THE ACT. 5. WE HEARD THE PARTIES AND PERUSED THE RECORD . WE NOTICE THAT AN IDENTICAL ISSUE WAS EXAMINED BY THE CO-ORDINATE BENCH IN THE CASE OF M/S CAUVERY AQUA PRIVATE LIMITED (IT(TP)A NO.202 1/BANG/2019 DATED 17-02-2021), WHEREIN THE DECISIONS RENDERED B Y THE CO- ORDINATE BENCH AND THE HONBLE HIGH COURT OF KARNAT AKA IN THE CASE OF TEXPORT OVERSEAS PVT LTD WERE FOLLOWED. FOR THE SAKE OF CONVENIENCE, WE EXTRACT BELOW THE DECISION RENDERED IN THE CASE OF CAUVERY AQUA PRIVATE LTD (SUPRA) BY THE CO-ORDINATE BENCH:- THE LD. A.R. SUBMITTED THAT THE LEGAL EFFECT OF OM ISSION OF CLAUSE (I) OF SECTION 92BA WAS EXAMINED BY THE COORDINATE BENCH IN THE CASE OF TEXPORT OVERSEAS PVT. LTD. VS. DEPUTY COMMI SSIONER OF INCOME-TAX IN IT(TP)A NO.1722/BANG/2017 DATED 22.12 .2017 AND THE COORDINATE 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 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 W HICH REFERENCE WAS MADE BY THE AO TO THE TPO UNDER SECTION 92CA FOR DE TERMINATION OF THE ALP. CONSEQUENTLY, THE TPO SUBMITTED A REPORT WHICH WAS OBJECTED TO BY ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE PAGE 4 OF 16 THE LEARNED COUNSEL FOR THE ASSESSEE AND FILED A OB JECTION BEFORE THE ORP. HAVING ADJUDICATED THE OBJECTIONS, THE DRP HAS ISSU ED 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 STATUTE. NOW THE QUESTION ARISES AS TO WHETHER ON A CCOUNT OF OMISSION OF CLAUSE (I) FROM THE STATUTE, THE PROCEEDINGS ALR EADY INITIATED OR ACTION TAKEN UNDER CLAUSE (I) BECOMES REDUNDANT OR OTIOSE. IN THIS REGARD, OUR ATTENTION WAS INVITED TOJUDGMENT OF THE APEX COURT IN THE CASE OF KOLHAPUR CANESUGAR WORKS LTD., (SUPRA) IN WHICH THE IMPACT OF OMISSION OF OLD RULE 10 AND 10A WAS EXAMINED. HAVING CAREFUL LY EXAMINED THE ISSUE IN THE LIGHT OF PROVISIONS OF SECTION 6 OF THE GENE RAL CLAUSES ACT, THEIR LORDSHIP HAS OBSERVED 'THAT IN SUCH A CASE, THE COU RT 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 PROCEE DING WILL CONTINUE OR LAPSE. IF THERE IS A PROVISION THEREIN 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 CONT INUE. 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 B EEN 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 STATUT E 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, 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 COURT IS EXT RACTED 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 AFO RESAID SECTION IS OMITTED FROM THE STATUTE BOOK, THE RESULT IS IT HAD NEVER BEEN PASSED AND BE CONSIDERED AS A LAW THAT NEVER EXISTS AND THEREFORE, WHEN THE ASSESSMENT ORDERS WERE PASSED IN 2006, THE AO WAS NOT JUSTIFIED IN TAKING NOTE OF A PROVISION WHICH WAS N OT IN THE STATUTE BOOK AND DENYING BENEFIT TO THE ASSESSEE. THE WHOLE OBJECT OF SUCH OMISSION IS TO EXTEND THE BENEFIT UNDER SECTION 10B OF THE ACT IRRESPECTIVE OF THE FACT WHETHER DURING TH$ PERIOD TO WHICH THEY ARE ENTITLED TO THE BENEFIT, THE OWNERSHIP CONTINUE S WITH THE ORIGINAL ASSESSEE OR IT IS TRANSFERRED TO ANOTHER P ERSON. BENEFIT IS TO THE UNDERTAKING AND NOT TO THE PERSON WHO IS RUN NING THE BUSINESS. WE DO NOT SEE ANY MERIT IN THESE APPEALS. THE SUBSTANTIAL ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE PAGE 5 OF 16 QUESTION OF LAW IS ANSWERED IN FAVOUR OF THE ASSESS EE AND AGAINST THE REVENUE. ACCORDINGLY, 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 PRO CEEDING INITIATED OR ACTION TAKEN ON THIS CONTINUE. THEREFORE, THE PROCE EDING INITIATED OR ACTION TAKEN UNDER THAT CLAUSE WOULD NOT SURVIVE AT ALL. IN THIS LEGAL POSITION, THE COGNIZANCE TAKEN BY THE AO UNDER SECT ION 92B(I) AND REFERENCE MADE TO TPO UNDER SECTION 92CA IS INVALID AND BAD IN LAW. THEREFORE, THE CONSEQUENTIAL ORDER PASSED BY THE TP O 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 O MITTED FROM THE STATUTE BY VIRTUE OF THE AFORESAID AMENDMENTS, THE AO IS RE QUIRED TO ADJUDICATE THE ISSUE OF CLAIM OF EXPENDITURES IN ACCORDANCE WI TH LAW AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE THER EFORE 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 EX PENDITURE 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 SECTI ON 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 MERI T. ACCORDINGLY, APPEAL OF THE ASSESSEE STAND ALLOWED FOR STATISTICAL PURPOSES . 5. THE LD. A.R. SUBMITTED THAT THE ABOVE SAID DECIS ION RENDERED BY COORDINATE BENCH HAS SINCE BEEN UPHELD BY THE HIGH COURT OF KARNATAKA IN THE VERY SAME CASE OF TE XPORT OVERSEAS PVT. LTD. IN ITA NO.392/2018 DATED 12.12.2 019. ACCORDINGLY, THE LD. A.R. SUBMITTED THAT THE TRANSF ER PRICING ADJUSTMENT IS LIABLE TO BE DELETED. WHEN IT WAS PO INTED OUT THAT ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE PAGE 6 OF 16 THE COORDINATE BENCH HAS RESTORED THE ISSUE TO THE FILE OF THE A.O. FOR EXAMINING THE PAYMENTS IN TERMS OF SECTION 40A( 2) OF THE ACT, THE LD. A.R. SUBMITTED THAT THIS ISSUE MAY BE RESTO RED 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 ITA 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 TH E 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 OF 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 OF THE PREVIOUS PROVISION SO OMIT TED OR ANYTHING DULY DONE OR SUFFERED THERE UNDER. THE LD . D.R. FURTHER SUBMITTED THAT THE ABOVE SAID TWO DECISIONS OF HON BLE SUPREME COURT WERE NOT CONSIDERED BY THE TRIBUNAL AS WELL A S HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF TEXPORT OVER SEAS 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 OR DER, WHICH READS AS UNDER: 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 ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE PAGE 7 OF 16 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 THERE UNDER; 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 REPE ALED; OR (E) AFFECT ANY INVESTIGATION, LEGAL PROCEEDING OR R EMEDY IN RESPECT OF ANY SUCH RIGHT, PRIVILEGE, OBLIGATION, LIABILITY, P ENALTY, FORFEITURE OR PUNISHMENT AS AFORESAID, AND ANY SUCH INVESTIGATION , 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. 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 THE 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. ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE PAGE 8 OF 16 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 SUBSEQUENT NO TIFICATION, BEEN WITHDRAWN FORM THE RE-EXTENDED TO SUCH AREA OR ANY PART THEREOF THE PROVISIONS OF SUCH ACT OR REGULATIONS SHALL BE DEEM ED TO HAVE BEEN REPEALED AND RE-ENACTED IN SUCH AREA OR PART 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 GENERAL C LAUSES ACT, ANY CENTRAL ACT OR REGULATION REPEALS ANY ENACTMENT HITHERTO MA DE OR HEREAFTER TO BE MADE, THEN, UNLESS A DIFFERENT INTENTION APPEARS, T HE REPEAL SHALL NOT EFFECT AFFECT ANY INVESTIGATION, LEGAL PROCEEDING OR REMED Y IN RESPECT OF ANY SUCH RIGHT, PRIVILEGE, OBLIGATION, LIABILITY, PENALTY, F ORFEITURE OR PUNISHMENT AS AFORESAID, AND ANY SUCH INVESTIGATION, LEGAL PROCEE DING OR REMEDY MAY BE INSTITUTED, CONTINUED OR ENFORCED, AND ANY SUCH PEN ALTY, FORFEITURE OR PUNISHMENT MAY BE IMPOSED AS IF THE REPEALING ACT O R 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, ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE PAGE 9 OF 16 THEN, UNLESS A DIFFERENT INTENTION APPEARS, THE REP EAL SHALL NOT AFFECT THE CONTINUANCE OF ANY SUCH AMENDMENT MADE BY THE ENACT MENT 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 BETWEEN 'RE PEAL' AND AN 'AMENDMENT'. AS PER THE COMMENTARY ON PRINCIPLES OF STATUTORY IN TERPRETATION BY JUSTICE G.P. SINGH, THE LEGISLATIVE PRACTICE IN INDIA SHOW S THAT OMISSION OF A PROVISION IS TREATED AS AMENDMENT. (PAGE 675, CHA PTER; EXPRESS REPEAL). FURTHER HONBLE SUPREME COURT IN EKAMBRAR APPA VS EPTO (AIR 1967 1541), HELD THAT AMENDING ACT WHICH LIMITS THE AREA OF OPERATION OF EXISTING ACT BY MODIFYING THE EXTENT CLAUSE, RESULT IN PARTIAL REPEAL OF THE ACT IN RESPECT OF THE AREA WHICH ITS OPERATION IS EXCLU DED ( 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 TAXMANN.C OM 135] /(2015) 10 SCC 333, AS WELL AS IN THE MATTER OF M/S. SHREE BHA GWATI 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 CASE S ELABORATELY DISCUSSED THE ISSUE OF REPEAL /OMISSION/ AMENDMENT ETC, AND H ELD THAT OMISSION WOULD AMOUNT TO REPEAL. IT IS ALSO HELD THAT THERE IS N O REAL DISTINCTION BETWEEN AN AMENDMENT AND THAT AMENDMENT IS IN FACT A WIDER T ERM 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 FIBR E BOARD PRIVATE LTD (SUPRA) HELD THAT OMISSION WOULD AMOUNT TO REPEAL. ON THE ARGUMENT OF THE CONTESTING PARTIES THAT THE OMITTED PROVISION BEING TREATED AS IT NEVER EXISTED AS PER SECTION 6 OF GENERAL CLAUSES ACT WOULD NOT A PPLY 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 ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE PAGE 10 OF 16 ACQUIRED OR INCURRED UNDER THE ENACTMENT SO OMITTED . THE HONBLE APEX COURT TOOK A VIEW THAT IN MAJORITY OF THE CASES, TH IS WOULD CAUSE GREAT PUBLIC MISCHIEF, AND THAT THE DECISION IN FIBRE BOARD CASE WAS THEREFORE CLEARLY DELIVERED BY THEIR LORDSHIP FOR THE PUBLIC GOOD, BE ING, AT THE LEAST REASONABLY POSSIBLE VIEW AND THAT NO ASPECT OF THE QUESTION AT THEIR HAND WAS REMAINED UNNOTICED IN FIBRE BOARD CASE.(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 TAXMANN.CO M 135] AS WELL AS IN THE MATTER OF M/S. SHREE BHAGWATI STEEL ROLLING MIL LS [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 OMI SSION 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 CONSIDERIN G THE DECISIONS OF THE HONBLE APEX COURT IN THE CASES OF (I) M/S. FIBRE B OARDS PVT. LTD AND (II) M/S SHREE BHAGWATI STEEL ROLLING VS. COMMISSIONER O F CENTRAL EXCISE & ANOTHER AND ALSO THE STATUTORY PROVISION CONTAINED IN SECTION 6A OF GENERAL CLAUSES ACT AND HENCE, LACKS ANY BINDING OR PERSUAS IVE 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 ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE PAGE 11 OF 16 OMISSION' AND THAT EVEN AN IMPLIED REPEAL OF A STA TUTE WOULD FALL WITHIN THE EXPRESSION 'REPEAL' IN SECTION 6 OF THE GENERAL CLA USES 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 SECT ION 6 OF GENERAL CLAUSES ACT. CONSIDERING THE LATEST DECISION OF HONBLE SUP REME COURT IN FIBRE BOARD AND BHAGWATI STEEL, THE EARLIER DECISIONS REN DERED BY THE CONSTITUTION BENCH IN RAYALA CORPORATION (P) LTD AND KOLHAPUR CA NSUGAR WORKS CANNOT BE SAID TO HAVE LAID DOWN ANY RATIO DECIDENDI ON AN INTERPRETATION OF THE WORD 'REPEAL' AN 'OMISSION' WOULD NOT BE INCLUDED. THEIR OBSERVATIONS ARE IN THE NATURE OF OBITER DICTA AS HELD BY THE SUPREM E COURT IN FIBRE BOARDS. IT IS ALSO HELD THAT THE EARLIER DECISIONS HAVE NOT REFERRED TO SECTION 6A OF THE GENERAL CLAUSES ACT AND THEY LOSE THEIR BINDING EFF ECT ON AN APPLICATION OF THE 'PER INCURIAM PRINCIPLE, AS HELD BY THE SUPREM E 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 DISCUSSED BY THE APEX COURT IN FIBRE BOARDS PVT. LTD, THE DEC ISION RENDERED IN THE CASE OF KOLHAPUR CANE SUGAR WORKS LTD AS ALSO IN THE CAS E OF GENERAL FINANCE COMPANY FOLLOWING THE DECISION IN ROYALA CORPORATIO N LTD, LOSES ITS BINDING VALUE. 17. AS WE HAVE ALREADY NOTED THAT THE HON'BL E SUPREME COURT IN THE CASE OF SHREE BHAGWATI STEEL ROLLING MILLS AGAIN RE ITERATED THAT REPEAL WOULD INCLUDE REPEAL BY WAY OF AN EXPRESS OMISSION. THE SUPREME COURT FURTHER HELD THAT THE DECISION IN FIBRE BOARDS PRIV ATE LIMITED CLARIFIES THE LAW IN HOLDING THAN AN OMISSION WOULD AMOUNT TO REP EAL. 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 THERE UNDER, 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 GENERAL FI NANCE CO., (SUPRA) AND ALSO THE EARLIER TWO JUDGMENTS RELIED IN GENERAL FI NANCE CO., (SUPRA), NAMELY RAYALA CORPORATION P. LTD AND KOLHAPUR CANE SUGAR WORKS LTD, AND OBSERVED THAT EVEN THE COURT HAS NOT REFERRED T HE MATTER TO THE LARGER BENCH. THE HONBLE SUPREME COURT IN FIBRE BOARD (SU PRA) AND BHAGWATI ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE PAGE 12 OF 16 STEEL ROLLING (SUPRA) HAD ALSO DISCUSSED THE PROVIS ION OF LAW INCLUDING THE GENERAL CLAUSES ACT, SECTION 6A AND 24 AND THEREAFT ER HELD THAT THE REPEAL, OMISSION AND DELETION ARE INTERCHANGEABLE AND THERE AFTER HAD HELD THAT OMISSION WILL HAVE AN EFFECT OF REPEAL AND REP EAL WILL HAVE AN EFFECT OF OMISSION. THE DISTINCTION CARVED OUT IN RAYALA CO RPORATION (SUPRA) WAS NOT CORRECT AND FURTHER THE REFERENCE TO THE CONSTI TUTION BENCH HAS NOT CONSIDERED IN VIEW OF A BINDING JUDGMENT OF THE CON STITUTION 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 HE LD THAT THE DECISION, IN THE MATTER OF RAYALA CORPORATION (SUPRA) WAS PER IN CURIUM. 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 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. THE COO RDINATE BENCH WHILE RENDERING THE DECISION RELIED ON THE DECISION OF HO NBLE APEX COURT IN GENERAL FINANCE CO. VS ACIT (SUPRA), WHICH WAS ALRE ADY DECLARED AS PER- IN CURIUM. SIMILARLY, THE DECISION IN GENERAL FINAN CE CO (SUPRA) IS BASED ON RAYALA CORPORATION P. LTD VS DIRECTOR OF ENFORCEMEN T (SUPRA) AND KOLHAPUR CANESUGAR WORKS LTD VS UNION OF INDIA (SUP RA). CONSIDERING THE AFORESAID LEGAL POSITION AND THE DATES OF VARIOUS J UDGMENTS 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 CURIUM 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 ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE PAGE 13 OF 16 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 CURRENCY O F 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 COORDIN ATE BENCH OF BENGALURU TRIBUNAL IN THE CASE OF TEXPORT OVERSEAS PVT. LTD. (SUPRA) HAS SINCE BEEN UPHELD BY THE HIGH COURT OF KARNATAKA 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 BE OMITTED W.E.F. 01.04,2019 BY FINANCE ACT, 2014. AS TO WHETH ER OMISSION WOULD SAVE THE ACTS IS AN ISSUE WHICH IS NO MORE RES-INTIGRA I N THE LIGHT OF AUTHORITATIVE PRONOUNEENIENT OF HON'BLE 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 RE PEAL OF A STATUTE VISA-VIS DELETION/ADDITION OF A PROVISION IN AN ENA CTMENT 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 T O OBLITERATE IT FROM THE STATUTE-BOOK AS COMPLETELY AS IF IT HAD NEVER B EEN PASSED, AND THE STATUTE MUST BE CONSIDERED AS A LAW THAT NEVER EXIS TED. 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 S AVING CLAUSE IN FAVOUR OF PENDING PROCEEDINGS, ALL ACTIONS MUST STO P WHERE THE ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE PAGE 14 OF 16 OMISSION FINDS THEM, AND IF FINAL RELIEF HAS NOT BE EN GRANTED BEFORE THE OMISSION GOES INTO EFFECT, IT CANNOT BE GRANTED AFT ERWARDS. SAVINGS OF THE. NATURE CONTAINED IN SECTION 6 OR IN SPECIAL AC TS 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 INTR ODUCED WITHOUT A SAVING CLAUSE IN FAVOUR OF PENDING PROCEEDINGS THEN IT CAN BE REASONABLY INFERRED THAT THE INTENTION OF THE LEGIS LATURE IS THAT THE PENDING PROCEEDINGS SHALL NOT CONTINUE BUT FRESH PR OCEEDINGS FOR THE SAME PURPOSE MAY BE INITIATED UNDER THE NEW PROVISI ON.' 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 SAVING CLAUSE OR PROVISION INTRODUCED BY WAY OF AME NDMENT BY OMITTING SUB-SECTION (9) OF SECTION 10B. IN THE MATTER OF GENERAL FINANCE CO. VS. ACIT, WHICH JUDGMENT HAS ALSO BEEN TAKEN NOTE OF BY THE TRIBUNAL WHILE REPELLING THE CONTENTION RAISED BY R EVENUE 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 EFFE CT IS THAT IT HAD NEVER BEEN PASSED AND TO BE CONSIDERED AS A LAW NEVER BEE N EXISTED. HENCE, DECISION TAKEN BY THE ASSESSING OFFICER UNDER THE E FFECT OF SECTION 92BI AND REFERENCE MADE TO THE ORDER OF TRANSFER PRICING OFFICER-TOP UNDER SECTION 92CA COULD BE INVALID 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 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 SUBSTANTIA L QUESTION OF LAW RAISED IN THE APPEAL BY THE REVENUE IN RESPECTIVE APPEAL M EMORANDUM COULD NOT ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE PAGE 15 OF 16 ARISE FOR CONSIDERATION PARTICULARLY WHEN THE SAID ISSUE BEING 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 TRANSACTIONS MADE U/S 92CA OF THE ACT. 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 TOTHE 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. 6. ACCORDINGLY, FOLLOWING THE BINDING DECISION RE NDERED BY HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF TEXPORT OVER SEAS P LTD (SUPRA), WE HOLD THAT THE REFERENCE TO THE TPO IN R ESPECT OF SPECIFIED DOMESTIC TRANSACTIONS MENTIONED IN CLAUSE (I) OF SE C.92BA IS NOT VALID, AS THE SAID PROVISION HAS BEEN OMITTED. ACC ORDINGLY, WE DIRECT THE AO TO DELETE THE ADDITION RELATING TO SPECIFIED DOMESTIC TRANSACTIONS MADE U/S 92CA OF THE ACT. 7. HOWEVER, AS POINTED OUT BY LD D.R, THE CO-OR DINATE BENCH, IN THE CASE OF TEXPORT OVERSEAS P LTD, HAS RESTORED TH E MATTER TO THE FILE OF THE A.O. WITH THE DIRECTION TO EXAMINE THE CLAIM OF EXPENDITURE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 40A(2) OF THE ACT. FOLLOWING THE SAME, WE RESTORE THIS ISSUE TO THE FILE OF THE AO WITH THE DIRECTION ITA NO.2936/BANG/20180 M/S. SOBHA CITY, BANGALORE PAGE 16 OF 16 TO EXAMINE THE CLAIM OF EXPENDITURE MENTIONED ABOVE IN TERMS OF THE PROVISIONS OF SECTION 40A(2) OF THE ACT. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND APR, 2021 SD/- (GEORGE GEORGE K. ) JUDICIAL MEMBER SD/- (B.R. BASKARAN) ACCOUNTANT MEMBER BANGALORE, DATED 22 ND APR, 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.