M/s. Swastik Coal Corporation Pvt. Ltd., Indore V. THE ACIT, 5(1), Indore

ITA 486/Ind/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7514 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2014-2015
• Appeal Filed On: 25-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: GIRISH AGRAWAL; VIJAY BANSAL A RS
• Keywords: Transfer pricing; Principle of natural justice; International transaction; Prejudicial to interest
• Section: 27; 263; 143(3); 92D

Judgement Text

[ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] , , IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.486/IND/2018 ASSESSMENT YEAR: 2014-15 SWASTIK COAL CORPORAT ION PVT. LTD. 21/3, RATLAM KOTHI INDORE / VS. PR. CIT - 2 INDORE ( APPELLANT ) ( REVENUE ) P.A. NO. AABCJ3196N APPELLANT BY SHRI GIRISH AGRAWAL & SHRI VIJAY BANSAL, A.RS RESPONDENT BY SMT. ASHIMA GUPTA, D.R. DATE OF HEARING: 13.06.2019 DATE OF PRONOUNCEMENT: 26.07.2019 / O R D E R PER KUL BHARAT, J.M: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ORDER O F THE LD. PR. COMMISSIONER OF INCOME TAX-2, INDORE DAT ED [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 2 22.3.2018 PERTAINING TO THE ASSESSMENT YEAR 2014-15. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. PR. CIT-2, INDORE ERRED IN INVOKING THE PROVISIONS OF SECTION 263 OF THE ACT AND PASSING THE ORDER THEREIN BY HOLDING THAT ORDER PAS SED BY LD. ASSESSING OFFICER UNDER SECTION 143(3) OF THE ACT I S ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, WHICH I S ILLEGAL, BAD IN LAW AND DEVOID OF ANY MERIT. 2. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. PR. CIT-2, INDORE ERRED IN INVOKING THE PROCEEDINGS UNDER SECT ION 263 BY HOLDING THAT LD. ASSESSING OFFICER DID NOT REFER TH E CASE TO TRANSFER PRICING OFFICER (TPO) TO VERIFY WHETHER THE SPECIFI ED DOMESTIC TRANSACTIONS WERE AT ARMS LENGTH PRICE OR NOT. 3. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. PR. CIT-2, INDORE ERRED IN OBSERVING FOR THE PURPOSE OF PASSIN G ORDER UNDER SECTION 263 OF THE ACT THE ASSESSMENT ORDER HAS BEE N PASSED WITHOUT MAKING NECESSARY ENQUIRIES AND INVESTIGATIO NS. 4. IN THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. PR. CIT-2, INDORE ERRED IN SETTING ASIDE THE ORDER TO THE FILE OF LD. ASSESSING OFFICER WITH A DIRECTION TO THE LD. ASSESSING OFFIC ER TO REFER THE LARGE SPECIFIED DOMESTIC TRANSACTIONS MENTIONED IN FORM 3 CEB TO THE TPO AND PASS A FRESH ASSESSMENT ORDER THOUGH LIMITING I T TO THE ISSUE OF LARGE SPECIFIED DOMESTIC TRANSACTIONS ONLY. 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND, ALTER OR OTHERWISE RAISE ANY OTHER GROUND OF APPEAL. 2. BRIEFLY STATED FACTS ARE THAT THE ASSESSMENT U/S 143( 3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER CALLED AS TH E ACT) WAS FRAMED VIDE ORDER DATED 29.9.2016 ASSESSING THE TO TAL INCOME AT RS.17,47,35,360/-. SUBSEQUENTLY, THE LD. P R. CIT FROM THE RECORDS OBSERVED THAT THE ASSESSEE HAD MAD E [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 3 SPECIFIC DOMESTIC TRANSACTIONS AS IT HAD MADE PURCHASES FROM THE PARTIES COVERED U/S 40A(2)(B) OF THE ACT. IT WAS OBSERVED THAT THE A.O. DID NOT REFER THE CASE TO THE TRANSFER PRICING OFFICER TO VERIFY WHETHER THE TRANSACTIONS WE RE AT ARMS LENGTH PRICE OR NOT. HENCE, THE LD. PR. CIT AFTER EXAMINING THE RECORDS WAS OF THE VIEW THAT THE ASSESSM ENT ORDER WAS ERRONEOUS IN SO FAR AS IT WAS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE LD. PR. CIT THEREFORE , ISSUED A SHOW CAUSE NOTICE U/S 263 OF THE ACT CALLING UPON TH E ASSESSEE AS TO WHY THE ASSESSMENT ORDER SHOULD NOT BE REVISED. IN RESPONSE TO THE SAME, THE ASSESSEE FILED A DETAILED SUBMISSION, WHICH WAS NOT FOUND ACCEPTABLE BY THE LD. PR. CIT. THEREFORE, THE LD. PR. CIT SET ASI DE THE ASSESSMENT ORDER AND DIRECTED THE A.O. TO MAKE FRESH ASSESSMENT ORDER IN ACCORDANCE WITH LAW. 3. AGGRIEVED BY THIS, THE ASSESSEE IS IN PRESENT APPE AL BEFORE THIS TRIBUNAL. LD. COUNSEL FOR THE ASSESSEE [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 4 REITERATED THE SUBMISSIONS AS MADE IN THE WRITTEN SUBMISSIONS. THE SUBMISSIONS OF THE ASSESSEE ARE AS UNDER: SUBMISSION : A. PROVISIONS OF SECTION 263 CAN BE INVOKED ONLY WHEN THE TWIN CONDITIONS ARE SATISFIED I.E. ORDER SHOULD BE BOTH ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. 1. PROVISIONS OF SECTION 263 READS (1) THE PRINCIPAL COMMISSIONER OR COMMISSIONER MAY CALL FOR AND EXAMINE THE RECORD OF ANY PROCEEDING UNDER THIS ACT , AND IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE ASSESSING OFFI CER IS ERRONEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE RE VENUE ................ 2. IN THE INSTANT CASE, LD. PR. CIT -2, INDORE DIRECTE D LD. AO TO REFER THE LARGE SPECIFIED DOMESTIC TRANSACTIONS CARRIED OUT BY THE ASSESSEE COMPANY WITH ITS ASSOCIATED CONCERNS MENTIONED IN FORM 3CEB TO TPO AFTER FOLLOWING PROPER PROCEDURE AND PASS THE FRESH ASSESSMENT ORDER AFTER GETTING THE ISSUE EXAMINED. 3. THE SPECIFIED DOMESTIC TRANSACTIONS CARRIED OUT BY ASSESSEE COMPANY WITH PARTIES COVERED U/S 40A(2)(B) ARE A. ARKA CARBON FUELS PRIVATE LIMITED: MAJOR TRANSACTION HAS BEEN CARRIED OUT WITH THIS ASSOCIATE ENTERPRISE. THIS CO MPANY HAS BEEN SUBJECT TO ASSESSMENT BY JURISDICTIONAL TRANSFER PRIC ING OFFICER AT AHMEDABAD. FORM 3CEB WAS SUBMITTED. LD. TPO WAS SAT ISFIED WITH THE TRANSACTIONS UNDERTAKEN BY ARKA CARBON FULES PR IVATE LIMITED. A NO ADJUSTMENT REQUIRED IN ARMS LENGTH PRICE ORDER WAS PASSED. [PB 44-46] B. SHREE GANPATLAL ONKARLAL AGRAWAL AND COMPANY: IT IS A PARTNERSHIP FIRM. ON REFERENCE TO THE RETURN FILED FOR THE IMPUGNED [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 5 YEAR IT IS EVIDENT THAT IT IS TAXABLE AT MAXIMUM RA TE OF 30%. THERE IS NO TAX ARBITRAGE. [PB 22-24] C. VISHNU PRASAD BINDAL: ASSESSEE IS AN INDIVIDUAL. ON REFERENCE TO THE RETURN FILED FOR THE IMPUGNED YEAR IT IS EVIDEN T THAT HE IS TAXABLE AT MAXIMUM RATE OF 30%. THERE IS NO TAX ARB ITRAGE. [PB 25-28] D. NARAYAN BINDAL: ASSESSEE IS AN INDIVIDUAL TAXABLE AT MAXIMUM RATE OF 30%. THERE IS NO TAX ARBITRAGE. E. HITESH BINDAL: ASSESSEE IS AN INDIVIDUAL. ON REFERENCE TO THE RET URN FILED FOR THE IMPUGNED YEAR IT IS EVIDENT THAT HE I S TAXABLE AT MAXIMUM RATE OF 30%. THERE IS NO TAX ARBITRAGE. [PB 29-32] F. GEETA DEVI BINDAL: ASSESSEE IS AN INDIVIDUAL. ON REFERENCE TO THE RETURN FILED FOR THE IMPUGNED YEAR IT IS EVIDENT TH AT SHE IS TAXABLE AT MAXIMUM RATE OF 30%. THERE IS NO TAX ARBITRAGE. [PB 33-36] G. ARPITA BINDAL: ASSESSEE IS AN INDIVIDUAL TAXABLE AT MAXIMUM RATE OF 30%. THERE IS NO TAX ARBITRAGE. 4. THE TRANSACTION ENTERED WITH ARKA CARBON FUELS PRIVATE LIMITED HAS ALREADY BEEN ASSESSED AND NO UPWARD ADJUSTMENT HAS BEEN MADE BY LD. TPO . FOR THE TRANSACTIONS ENTERED WITH ALL THE OTHER P ARTIES ALSO THERE IS NO LOSS OF REVENUE TO THE DEPARTMENT AS ALL HAVE BEEN TAXED AT THE MAXIMUM RATE OF 30%. THERE IS NO TAX ARBITRAGE. 5. ONE OF THE TWIN CONDITIONS FOR INVOKING THE PROVISI ONS OF SECTION 263 I.E. PREJUDICIAL TO THE INTEREST OF REVENUE IS NOT SATIS FIED . THUS, PROVISIONS OF SECTION 263 CANNOT BE INVOKED. ORDER PASSED BY LD. PR. CIT -2, INDORE U/S 263 HAS NO LEGAL SANCTITY. 6. IT IS A WELL SETTLED LAW THAT TO INVOKE THE PROVISI ONS OF SECTION 263 BOTH THE CONDITIONS THAT THE ORDER MUST BE ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE MUST BE SATISFIED. RELIANCE IS PLACED ON THE FOLLOWING JUDICIAL PRECEDENTS [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 6 A. HONBLE JURISDICTIONAL HIGH COURT OF MADHYA PRADESH IN THE CASE OF H.H. MAHARAJA RAJA PAWER DEWAS [1983] 15 TAXMAN 363 ORDER PRONOUNCED ON 13.11.1981 PARA 10 HOWEVER, THE FIRST ARGUMENT, VIZ., THAT AN ASSESSMENT ORDER WITHOUT CO MPLIANCE WITH THE PROCEDURE LAID DOWN IN SECTION 144B IS ERRONEOU S BUT NOT PREJUDICIAL TO THE INTERESTS OF THE REVENUE CONFERRI NG REVISIONAL JURISDICTION ON THE COMMISSIONER UNDER SECTION 263(1 ), HAS FORCE. UNDER SECTION 263(1) TWO PRE-REQUISITES MUST BE PRE SENT BEFORE THE COMMISSIONER CAN EXERCISE THE REVISIONAL JURISDICTI ON CONFERRED ON HIM. FIRST IS THAT THE ORDER PASSED BY THE ITO MUST BE ERRONEOUS. SECOND IS THAT THE ERROR MUST BE SUCH THAT IT IS PR EJUDICIAL TO THE INTERESTS OF THE REVENUE. IF THE ORDER IS ERRONEOUS BUT IT IS NOT PREJUDICIAL TO THE INTERESTS OF THE REVENUE, THE CO MMISSIONER CAN NOT EXERCISE THE REVISIONAL JURISDICTION UNDER SECT ION 263(1) .. THERE CANNOT BE ANY PREJUDICE TO THE REVENUE ON ACCOUNT OF THE ITO'S FAILURE TO FOLLOW THE PROCEDUR E PRESCRIBED UNDER SECTION 144B, AND UNLESS THE PREJUDICE TO THE INTERESTS OF THE REVENUE IS SHOWN, THE JURISDICTION UNDER SECTION 26 3(1) CANNOT BE EXERCISED BY THE COMMISSIONER, EVEN THOUGH THE ORDE R IS ERRONEOUS. THE ARGUMENT THAT SUCH AN ORDER MAY POSSIBLY BE CHA LLENGED IN APPEAL BY THE ASSESSEE, AND FOR THIS REASON IT IS P REJUDICIAL TO THE INTERESTS OF THE REVENUE, HAS NO MERIT. SECTION 263(1) CLEARLY CONTEMPLATES THAT THE ORDER OF ASSESSMENT ITSELF SH OULD BE PREJUDICIAL TO THE INTERESTS OF THE REVENUE AND THI S PREJUDICE HAS TO BE PROVED BY REFERENCE TO THE ASSESSMENT ORDER ONLY . IT CANNOT BE ARGUED THAT THERE IS SOME POSSIBILITY OF THE ASSESS MENT ORDER BEING CHALLENGED OR REVISED IN APPEAL AND, THEREFORE, ON ACCOUNT OF THIS CONTINGENCY, THE ORDER BECOMES PREJUDICIAL TO THE I NTERESTS OF THE REVENUE. [EMPHASIS SUPPLIED] B. HONBLE APEX COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. [2000] 243 ITR 83 ORDER PRONOUNCED ON 10.02.2000 HEAD NOTE 'SECTION 263 OF THE INCOME-TAX ACT, 1961 - REVISION - OF ORDERS PREJUDICIAL TO INTERESTS OF REVENUE - ASSESSMENT YEA R 1983-84 - WHETHER IN ORDER TO INVOKE SECTION 263 ASSESSING OF FICER'S ORDER MUST BE ERRONEOUS AND ALSO PREJUDICIAL TO REVENUE AND IF ONE OF THEM IS ABSENT, I.E., IF ORDER OF INCOME-TAX OFFICER IS ERRONEOUS BUT IS NOT [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 7 PREJUDICIAL TO REVENUE OR IF IT IS NOT ERRONEOUS BU T IS PREJUDICIAL TO REVENUE, RECOURSE CANNOT BE HAD TO SECTION 263(1) - HELD, YES - WHETHER IF DUE TO AN ERRONEOUS ORDER OF ITO, REVENU E IS LOSING TAX LAWFULLY PAYABLE BY A PERSON, IT WILL CERTAINLY BE PREJUDICIAL TO INTERESTS OF REVENUE - HELD, YES - ASSESSEE-COMPANY ENTERED INTO AGREEMENT FOR SALE OF ESTATE OF RUBBER PLANTATION - AS PURCHASER COULD NOT PAY INSTALMENTS AS SCHEDULED IN AGREEMENT, EXTE NSION OF TIME FOR PAYMENT OF INSTALMENTS WAS GIVEN ON CONDITION OF VE NDEE PAYING DAMAGES FOR LOSS OF AGRICULTURAL INCOME AND ASSESSE E PASSED RESOLUTION TO THAT EFFECT - ASSESSEE SHOWED THIS RE CEIPT AS AGRICULTURAL INCOME - RESOLUTION PASSED BY ASSESSEE WAS NOT PLAC ED BEFORE ASSESSING OFFICER - ASSESSING OFFICER ACCEPTED ENTR Y IN STATEMENT OF ACCOUNT FILED BY ASSESSEE AND ACCEPTED SAME - COMMI SSIONER UNDER SECTION 263 HELD THAT SAID AMOUNT WAS NOT CONNECTED WITH AGRICULTURAL ACTIVITIES AND WAS LIABLE TO BE TAXED UNDER HEAD 'INCOME FROM OTHER SOURCES' - WHETHER, WHERE ASSESSING OFFI CER HAD ACCEPTED ENTRY IN STATEMENT OF ACCOUNT FILED BY ASSESSEE, IN ABSENCE OF ANY SUPPORTING MATERIAL WITHOUT MAKING ANY ENQUIRY, EXE RCISE OF JURISDICTION BY COMMISSIONER UNDER SECTION 263(1) WA S JUSTIFIED - HELD, YES C. HONBLE GUJARAT HIGH COURT IN THE CASE OF SMT. MINALBEN S. PARIKH [1995] 215 ITR 81 ORDER PRONOUNCED ON 17.10.1994 PARA 12 FROM THE AFORESAID, IT CAN WELL BE SAID THAT THE W ELL-SETTLED PRINCIPLE IN CONSIDERING THE QUESTION AS TO WHETHER AN ORDER IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE OR NOT IS TO ADDRESS O NESELF TO THE QUESTION WHETHER THE LEGITIMATE REVENUE DUE TO THE EXCHEQUER HAS BEEN REALISED OR NOT OR CAN BE REALISED OR NOT IF H IS ORDERS UNDER CONSIDERATION ARE ALLOWED TO STAND. FOR ARRIVING AT THIS CONCLUSION, IT BECOMES NECESSARY AND RELEVANT TO CONSIDER WHETHER THE INCOME IN RESPECT OF WHICH TAX IS TO BE REALISED, HAS BEEN SU BJECTED TO TAX OR NOT OR IF IT IS SUBJECTED TO TAX, WHETHER IT HAS BE EN SUBJECTED TO TAX AT A RATE AT WHICH IT COULD YIELD THE MAXIMUM REVEN UE IN ACCORDANCE WITH LAW OR NOT. IF INCOME IN QUESTION HAS BEEN TAXED AND LEGITIMATE REVENUE DUE IN RESPECT OF THAT INCOM E HAD BEEN REALISED, THOUGH AS A RESULT OF ERRONEOUS ORDER HAV ING BEEN MADE IN THAT RESPECT, IN OUR OPINION, THE COMMISSIONER CANN OT EXERCISE [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 8 POWERS FOR REVISING THE ORDER UNDER SECTION 263 MER ELY ON THE BASIS THAT THE ORDER UNDER CONSIDERATION IS ERRONEOUS. IF THE MATERIAL IN THAT REGARD IS AVAILABLE ON THE RECORD OF THE ASSES SEE CONCERNED, THE COMMISSIONER CANNOT EXERCISE HIS POWERS BY IGNORING THAT MATERIAL WHICH LINKS THE INCOME CONCERNED WITH THE TAX REALI ZATION MADE THEREON. THE TWO QUESTIONS ARE INTER-LINKED AND THE AUTHORITY EXERCISING POWERS UNDER SECTION 263 IS UNDER AN OBL IGATION TO CONSIDER THE ENTIRE MATERIAL ABOUT THE EXISTENCE OF INCOME AND THE TAX WHICH IS REALIZABLE IN ACCORDANCE WITH LAW AND FURTHER WHAT TAX HAS IN FACT BEEN REALISED UNDER THE ALLEGED ASSESSM ENT ORDERS.[EMPHASIS SUPPLIED] D. HONBLE KARNATAKA HIGH COURT IN THE CASE OF V. G. KRISHNAMURTHY [1985] 20 TAXMAN 65 ORDER PRONOUNCED ON 19.03.1984 PARA 10 SECTION 263 CAN BE INVOKED BY THE COMMISSIONER ONLY WHEN HE PRIMA FACIE FINDS THAT THE ORDER MADE BY THE ITO WAS ERRONEOUS AND WAS PREJUDICIAL TO THE INTERESTS OF THE REVENUE . BOTH THESE FACTORS MUST SIMULTANEOUSLY EXIST. AN ORDER THAT IS ERRONEOUS MUST ALSO HAVE RESULTED IN LOSS OF REVENUE OR PREJUDICIA L TO THE INTERESTS OF THE REVENUE. UNLESS BOTH THESE FACTORS CO-EXIST OR EXIST SIMULTANEOUSLY, THE COMMISSIONER CANNOT INVOKE OR R ESORT TO SECTION 263. IT CANNOT BE EXERCISED TO CORRECT EVERY CONCEIVABL E ERROR COMMITTED BY AN ITO. BEFORE THE SUO MOTO POWER OF REVISION CAN BE EXERCISED, THE COMMISSIONER MUST AT LEAST PRIMA FAC IE FIND BOTH THE REQUIREMENTS OF SECTION 263, NAMELY, THAT THE ORDER SOUGHT TO BE REVISED IS PRIMA FACIEERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THE OTHER FACTOR WAS ABSENT, THE COMMISSIONER CANNOT EXERCISE THE SUO MOTO POWER OF REVISION UNDER SECTION 263. [EMPHASIS SUPPLIED] 7. IN THE INSTANT CASE THOUGH THE ASSESSMENT ORDER AT BEST MAY BE CONSIDERED ERRONEOUS BUT IT IS NOT PREJUDICIAL TO T HE INTEREST OF THE REVENUE. SINCE THE TWIN CONDITIONS ARE NOT SATISFIE D THE IMPUGNED ORDER IS OUGHT TO BE QUASHED. [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 9 B. OMISSION OF A PROVISION FROM THE INCOME TAX ACT, 19 61. 8. PROVISIONS OF SECTION 92BA READ FOR THE PURPOSES OF THIS SECTION AND SECTIONS 92, 92C, 92D AND 92E, SPECIFIED DOMESTIC TRANSACTION IN CASE OF AN ASSESSEE MEANS ANY OF THE FOLLOWING TRANSACTIONS, NOT BEING AN INTERNA TIONAL TRANSACTION, NAMELY: - (I) OMITTED BY THE FINANCE ACT, 2017, W.E.F. 01-04- 2017. (PRIOR TO THE OMISSION CLAUSE READ AS ANY EXP ENDITURE IN RESPECT OF WHICH PAYMENT HAS BEEN MADE OR IS TO BE MADE TO A PERSON REFERRED TO IN CLAUSE (B) OF SUB-SECTION (2) OF SECTION 40A) ..................... IN THE INSTANT CASE, ASSESSEE COMPANY HAD ENTERED I NTO SPECIFIED DOMESTIC TRANSACTION ONLY. NO INTERNATIONAL TRANSAC TIONS WERE ENTERED INTO. ASSESSEE COMPANY WAS GOVERNED BY PROVISIONS O F SECTION 92BA(I) ONLY. 9. PROVISIONS OF SECTION 92BA(I) HAS BEEN OMITTED W.E. F. 01.04.2017. IT IS SETTLED PRINCIPLE THAT WHERE A PROVISION IS OMITTED IT SHOULD BE DEEMED TO HAVE NEVER BEEN PART OF THE STATUTE AT ANY POINT OF TIME. EFFECT OF OMISSION IS DIFFERENT FROM REPEAL . RELIANCE IS PLACED ON THE DECISION OF HONBLE APEX COURT IN THE CASE OF GENERAL FINANCE CO. [2002] 124 TAXMAN 432 ORDER PRONOUNCED ON 04.09.2002 HEAD NOTE SECTION 276DD OF THE INCOME-TAX ACT, 1961, READ WITH ARTICLE 227 OF THE CONSTITUTION OF INDIA - OFFENCE AND PROSECUTION - FAILURE TO COMPLY WITH PR OVISIONS OF SECTION 269SS - ASSESSMENT YEAR 1986-87 - APPELLANT RECEIVE D DEPOSITS FROM CERTAIN PERSONS IN YEAR 1985 IN VIOLATION OF PROVIS IONS OF SECTION 269SS - DEPARTMENT INITIATED PROCEEDINGS AGAINST ASSESSEE B Y FILING A COMPLAINT UNDER SECTION 276DD ON 31-3-1989 - APPELLANT SOUGHT QUASHING OF PROSECUTION PROCEEDINGS CONTENDING THAT PROSECUTION COULD NOT BE CONTINUED NOR COULD PUNISHMENT BE IMPOSED UNDER SEC TION 276DD AFTER IT WAS OMITTED ON AND FROM 1-4-1989 AND THAT SECTIO N 6 OF GENERAL CLAUSES ACT, 1897 WAS INAPPLICABLE - WHETHER PRINCIPLE UNDERLYING SECTION 6 OF GENERAL CLAUSES ACT AS SAVING RIGHT TO INITIATE PROCEEDINGS FOR LIABILITIES INCURRED DURING CURRENCY OF ACT WOU LD NOT APPLY TO [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 10 OMISSION OF A PROVISION IN AN ACT BUT ONLY TO REPEA L, OMISSION BEING DIFFERENT FROM REPEAL - HELD, YES - WHETHER SINCE S ECTION 276DD STOOD OMITTED FROM ACT BUT NOT REPEALED, A PROSECUTION CO ULD NOT HAVE BEEN LAUNCHED OR CONTINUED BY INVOKING SECTION 6 OF GENE RAL CLAUSES ACT AFTER SAID OMISSION AND, THEREFORE, PROCEEDINGS AGA INST APPELLANT HAD TO BE QUASHED - HELD, YES 10. RELIANCE IS ALSO PLACED ON THE DECISION OF HONBLE BANGALORE BENCH OF ITAT IN THE CASE OF TEXPORT OVERSEAS PRIVATE LIMITED IT(TP)A NO. 1722/BANG/2017 ORDER PRONOUNCED ON 22.12.2017 PARA 9 FROM THE AFORESAID JUDGMENTS, IT HAS BECOME ABUNDANTLY CL EAR THAT ONCE A PARTICULAR PROVISION OF SECTION IS OMITTED FROM THE STATUTE, IT SHALL BE DEEMED TO BE OMITTED FROM ITS INCEPTION UNLESS AND UNTIL THERE IS SOME SAVING CLAUSE OR PROVISION TO MAKE IT CLEAR THAT AC TION TAKEN OR PROCEEDING INITIATED UNDER THAT PROVISION OR SECTIO N WOULD CONTINUE AND WOULD NOT BE LEFT ON ACCOUNT OF OMISSION. '. [EMPHASIS SUPPLIED] CONSIDERING THE ABOVE FACTS, CIRCUMSTANCES OF THE C ASE, SUBMISSIONS MADE, DOCUMENTS ON RECORD AND JUDICIAL PRECEDENCE, APPEAL OF THE ASSESSEE BE ALLOWED. 4. LD. D.R. OPPOSED THE SUBMISSIONS AND SUPPORTED TH E ORDER OF THE LD. PR. CIT. LD. CIT (DR) SUBMITTED T HAT EX- FACIE THE ASSESSING OFFICER DID NOT COMPLY WITH THE REQUIREMENT OF LAW. LD. CIT(DR) DREW OUR ATTENTION T O THE ASSESSMENT ORDER TO BUTTRESS THE CONTENTION THAT THE ASSESSMENT HAS BEEN FRAMED IN A CASUAL AND MECHANICAL MANNER WITHOUT MAKING ENQUIRIES. THE INCOME DECLARED B Y THE ASSESSEE WAS ACCEPTED IN A MECHANICAL MANNER. [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 11 LD. CIT(DR) FURTHER SUBMITTED THAT THERE IS NO WHISP ER IN THE ORDER THAT THE A.O. HAS MADE ANY EFFORT TO FIND OUT ABOUT THE ARMS LENGTH PRICE AND THE TRANSACTIONS BETWEE N THE ASSESSEE AND THE PERSONS COVERED U/S 40A(2)(B) O F THE ACT. LD. CIT(DR) FURTHER SUBMITTED THAT NON-ADHERENC E TO THE MANDATE OF LAW WOULD CERTAINLY MAKE THE ORDER OF T HE A.O. ERRONEOUS AND ALSO PREJUDICIAL TO THE INTEREST OF THE REVENUE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDER S OF THE AUTHORITIES BELOW. THE BASIS OF EXERCISING OF REVISIONARY JURISDICTION U/S 263 OF THE ACT AS PER LD . PR. CIT IS THAT TRANSFER PRICING RELATED ISSUES WERE NOT EXAMINED BY THE A.O. SINCE THE TRANSACTION CARRIED OUT BY THE ASSESSEE ARE COVERED UNDER SPECIFIC DOMESTIC TRANSACTIONS. THE CONTENTION OF THE ASSESSEE IS THAT L D. PR. CIT OUGHT NOT TO HAVE INVOKED THE PROVISIONS OF SECT ION 263 [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 12 OF THE ACT AS IN THE PRESENT CASE, MAJOR TRANSACTIONS WERE CARRIED OUT WITH M/S. ARKA CARBON FULES PVT. LTD. (ASSOCIATE ENTERPRISE). THIS COMPANY HAD ALREADY BEEN ASSESSED AND TRANSFER PRICING OFFICER (IN SHORT TPO) PASSED AN ORDER OF NO ADJUSTMENT REQUIRED IN THE ARMS LENGTH PRICE. THEREFORE, NO PREJUDICE IS CAUSED TO THE RE VENUE. IT IS VEHEMENTLY ARGUED ON BEHALF OF THE ASSESSEE THAT NO EVASION OF TAX AT ALL HAPPENED AS ALL THE PERSONS COVERED U/S 40A(2)(B) OF THE ACT WITH WHOM TRANSACTIONS WERE EXECUTED ARE SUBJECTED TO THE HIGHEST RATE OF TAX. I T IS FURTHER CONTENDED THAT LAW IS WELL SETTLED FOR INVOK ING THE PROVISIONS OF SECTION 263 OF THE ACT, TWO INGREDIEN TS ARE REQUIRED TO BE SATISFIED I.E. ORDER SHOULD BE ERRONEO US AND SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REV ENUE. THERE IS NO AMBIGUITY SO FAR LAW IS CONCERNED, IT HAS BEEN HELD IN CATENA OF JUDGEMENTS THAT WHAT ARE THE CONDITION S WHEN THE ASSESSMENT ORDER CAN BE TERMED AS ERRONEOUS [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 13 AND ALSO PREJUDICIAL TO THE INTEREST OF THE JUSTICE. THE WORD ERRONEOUS AND PREJUDICIAL HAS BEEN EXHAUSTIVELY EXAMIN ED BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. MALABAR INDUSTRIAL CO. LTD. (2000) 243 ITR 83. THE HON 'BLE COURT HAS HELD AS UNDER: A BARE READING OF THIS PROVISION MAKES IT CLEAR THA T THE PREREQUISITE TO EXERCISE OF JURISDICTION BY THE COMMISSIONER SUO MOTO UNDER IT, IS THAT THE ORDER OF THE INCOME-TAX OFFICER IS ERRONEOUS IN SOFAR AS IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. THE COMMISSIONER H AS TO BE SATISFIED OF TWIN CONDITIONS, NAMELY, (I). THE ORDER OF THE ASSESSING OFFICER SOUGHT TO BE REVISED IS ERRONEOUS; AND (II) IT IS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. IF ONE OF THEM IS ABSENT -- IF THE ORDER OF THE INC OME-TAX OFFICER IS ERRONEOUS BUT IS NOT PREJUDICIAL TO THE REVENUE OR IF IT IS NOT ERRONEOUS BUT IS PREJUDICIAL TO THE REVENUE-- RECOURSE CANNOT BE HAD TO SECTION 263(1) OF THE ACT. THERE CAN BE NO DOUBT THAT THE PROVISION CANNOT BE INVOKED TO CORRECT EACH AND EVERY TYPE OF MISTAKE OR ERROR COM MITTED BY THE ASSESSING OFFICER; IT IS ONLY WHEN AN ORDER IS ERRONEOUS THAT THE SECTION WILL BE ATTRACTED. AN INCORRECT ASSUMPTION OF FACTS OR AN I NCORRECT APPLICATION OF LAW WILL SATISFY THE REQUIREMENT OF THE ORDER BEING ERRONEOUS. IN THE SAME CATEGORY FALL ORDERS PASSED WITHOUT APPLYING THE PR INCIPLES OF NATURAL JUSTICE OR WITHOUT APPLICATION OF MIND. THE PHRASE PREJUDICIAL TO THE INTERESTS OF THE REV ENUE IS NOT AN EXPRESSION OF ART AND IS NOT DEFINED IN THE ACT. UN DERSTOOD IN ITS ORDINARY MEANING IT IS OF WIDE IMPORT AND IS NOT CONFINED TO LOSS OF TAX. THE HIGH COURT OF CALCUTTA IN DAWJEE DADABHOY & CO. VS. S.P. JAIN AND ANOTHER [31 ITR 872], THE HIGH COURT OF KARNATAKA IN COMMIS SIONER OF INCOME- TAX, MYSORE VS. T. NARAYANA PAI [98 ITR 422], THE H IGH COURT OF BOMBAY IN COMMISSIONER OF INCOME-TAX VS. GABRIEL INDIA LTD . [203 ITR 108] AND THE HIGH COURT OF GUJARAT IN COMMISSIONER OF INCOME -TAX VS. SMT. MINALBEN S. PARIKH [215 ITR 81] TREATED LOSS OF TAX AS PREJUDICIAL TO THE INTERESTS OF THE REVENUE. [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 14 MR. ABARAHAM RELIED ON THE JUDGMENT OF THE DIVISION BENCH OF THE HIGH COURT OF MADRAS IN VENKATAKRISHNA RICE COMPANY VS. COMMISSIONER OF INCOME-TAX [163 ITR 129] INTERPRETING PREJUDICIA L TO THE INTERESTS OF THE REVENUE. THE HIGH COURT HELD, IN THIS CONTEXT, IT M UST BE REGARDED AS INVOLVING A CONCEPTION OF ACTS OR ORDERS WHICH ARE SUBVERSIVE OF THE ADMINISTRATION OF REVENUE. THERE MUST BE SOME GRIEV OUS ERROR IN THE ORDER PASSED BY THE INCOME-TAX OFFICER, WHICH MIGHT SET A BAD TREND OR PATTERN FOR SIMILAR ASSESSMENTS, WHICH ON A BROAD RECKONING , THE COMMISSIONER MIGHT THINK TO BE PREJUDICIAL TO THE INTERESTS OF R EVENUE ADMINISTRATION. IN OUR VIEW THIS INTERPRETATION IS TOO NARROW TO MERIT ACCEPTANCE. THE SCHEME OF THE ACT IS TO LEVY AND COLLECT TAX IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND THIS TASK IS ENTRUSTED TO THE REVENUE. IF D UE TO AN ERRONEOUS ORDER OF THE INCOME-TAX OFFICER, THE REVENUE IS LOSING TA X LAWFULLY PAYABLE BY A PERSON, IT WILL CERTAINLY BE PREJUDICIAL TO THE INT ERESTS OF THE REVENUE. THE PHRASE PREJUDICIAL TO THE INTERESTS OF THE REVENUE HAS TO BE READ IN CONJUNCTION WITH AN ERRONEOUS ORDER PASSED BY THE A SSESSING OFFICER. EVERY LOSS OF REVENUE AS A CONSEQUENCE OF AN ORDER OF ASS ESSING OFFICER CANNOT BE TREATED AS PREJUDICIAL TO THE INTERESTS OF THE REVE NUE, FOR EXAMPLE, WHEN AN INCOME-TAX OFFICER ADOPTED ONE OF THE COURSES PERMI SSIBLE IN LAW AND IT HAS RESULTED IN LOSS OF REVENUE; OR WHERE TWO VIEWS ARE POSSIBLE AND THE INCOME-TAX OFFICER HAS TAKEN ONE VIEW WITH WHICH TH E COMMISSIONER DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORD ER PREJUDICIAL TO THE INTERESTS OF THE REVENUE UNLESS THE VIEW TAKEN BY T HE INCOME-TAX OFFICER IS UNSUSTAINABLE IN LAW. IT HAS BEEN HELD BY THIS COUR T THAT WHERE A SUM NOT EARNED BY A PERSON IS ASSESSED AS INCOME IN HIS HAN DS ON HIS SO OFFERING, THE ORDER PASSED BY THE ASSESSING OFFICER ACCEPTING THE SAME AS SUCH WILL BE ERRONEOUS AND PREJUDICIAL TO THE INTERESTS OF TH E REVENUE. RAMPYARI DEVI SARAOGI VS. COMMISSIONER OF INCOME-TAX [67 ITR 84] AND IN SMT. TARA DEVI AGGARWAL VS. COMMISSIONER OF INCOME-TAX, WEST BENGAL [88 ITR 323] (SC). 6. IF WE APPLY THE RATIO HELD DOWN BY THE HON'BLE APE X COURT IN THE CASE OF MALABAR INDUSTRIAL CO. LTD. (SUPRA) ON THE FACTS OF THE PRESENT CASE THERE WOULD NOT BE ANY INFIRMITY INTO THE ORDER OF LD. CIT(A) IN HOLDING T HAT ASSESSMENT ORDER IS ERRONEOUS IF IT IS FOUND THAT THE A.O. [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 15 HAS NOT FOLLOWED THE MANDATE OF LAW. IT IS ALSO TO BE EXAMINED WHAT PREJUDICE WOULD BE CAUSED IF SUCH MANDATE OF LAW WAS NOT FOLLOWED BY THE A.O. THERE IS NO DIS PUTE WITH REGARD TO THE FACT THAT TRANSACTION IN QUESTION FALL UNDER THE CATEGORY OF SPECIFIED DOMESTIC TRANSACTION . IN TERMS OF SECTION 40A(2)(B) OF THE ACT IT HAS TO BE E XAMINED WHETHER SUCH TRANSACTIONS ARE WITHIN THE ARMS LENGTH PRICE (IN SHORT ALP). THE MOOT QUESTION IS WHETHE R THE A.O. IS AUTHORISED BY LAW TO EXAMINE AND COMPUTE ARMS LENGTH PRICE RELATED TO SPECIFIED DOMESTIC TRANSACTIO NS. LET US EXAMINE THE LAW ON THIS POINT. THE LD. PR. C IT IS OF THE VIEW THAT THE A.O. IS UNDER OBLIGATION TO REFER T HE ISSUE TO THE TRANSFER PRICING OFFICER (IN SHORT TPO) FOR COMPUTING THE ALP. IN THE ABSENCE OF THE ALP COMPUTED BY THE TPO, THE A.O. COULD NOT HAVE ADJUDICATED THE ISSUE. THERE I S NO AMBIGUITY SO FAR PROVISION OF LAW ARE CONCERNED WHERE THERE IS SPECIFIED TRANSACTION, THE A.O. IS UNDER STATUTORY [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 16 OBLIGATION UNDER PROVISO TO SECTION 92CA(1) OF THE A CT AND RULE FRAMED THERE UNDER, THE ISSUE WAS REQUIRED TO BE REFERRED TO THE TPO. NOW THE QUESTION WOULD ARISE WH ETHER THE A.O. IS DUTY BOUND TO ACCEPT THE ADJUSTMENT, IF ANY MADE BY THE TPO OR OTHERWISE HE HAS SOME DISCRETION UNDER LAW WHETHER TO ACCEPT OR NOT THE ADJUSTMENT PROPOSED BY THE TPO. THE LD. PR. CIT HAS REFERRED T HE CBDT INSTRUCTIONS NO.3 OF 2016 DATED 10.3.2016 AND EXPLANATION NO.2 TO SECTION 263 OF THE ACT TO ANSWER T HIS QUESTION. THERE IS ALSO ANOTHER ASPECT OF THE MATTER TH AT THE TRANSACTION OF SALE AND PURCHASE HAS TWO LIMBS NAMELY SALE AND PURCHASE. THE SALE OF ONE PARTY WOULD BE PURCHASE OF ANOTHER OR VICE VERSA. THE UNDERLINED FAC T REMAINS IN SUCH TRANSACTION IS THAT IT IS BETWEEN THE T WO RELATED OR ASSOCIATED PARTIES. HENCE, THE TRANSACTION IS NOT FREE. IT IS UNDER SOME INFLUENCE OR CONTROL. IF T HE TRANSACTION IS NOT ATTACHED WITH ANY OTHER MOTIVE OR IS NOT [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 17 USED AS A DEVICE TO AVOID TAXABILITY OF PROFIT OR GAIN, THEN THERE WOULD HAVE BEEN NO NEED TO FIND OUT THE ARMS LENGTH PRICE OF SUCH TRANSACTION. BUT WHERE IT IS USED AS A TOOL TO AVOID THE TAXABILITY, THEN CERTAINLY IN DEPTH EXAMINATI ON OF THE ALP WOULD BE NEEDED. IF IN A GIVEN CASE SALE IS F OUND TO BE WITHIN THE ALP DETERMINED BY THE TPO, UNDER SUCH SITUATION WHETHER STILL THERE WOULD BE NEED TO EXAMIN E THE ALP OF PURCHASES? THIS QUESTION HAS TO BE DECIDED O N THE BASIS OF THE FACTUAL ASPECT OF THE MATTER. WE FIND NO FINDING ON THIS ISSUE. WE ARE OF THE VIEW THAT THIS ASPECT IN THE PRESENT CASE SHOULD HAVE BEEN EXAMINED. IT IS CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE THAT ASSESSEE HAD ENTERED INTO SPECIFIED DOMESTIC TRANSACTI ONS BUT NOT IN INTERNATIONAL TRANSACTIONS. THUS, THE TRANSACTION WOULD BE GOVERNED BY THE PROVISIONS OF SE CTION 92BA(1) OF THE ACT. IT IS FURTHER POINTED OUT THAT THE PROVISIONS OF SECTION 92BA(1) OF THE ACT HAS BEEN OM ITTED [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 18 W.E.F. 1.4.2017. IT IS VEHEMENTLY ARGUED THAT THE IM PACT OF OMISSION OF THIS PROVISION WOULD BE THAT IT HAS TO BE CONSTRUED THAT SUCH PROVISION WAS NEVER ON THE STATUTE BOOK. HE CONTENDED THAT IT IS A SETTLED PRINCIPLE TH AT WHERE PROVISION IS OMITTED, IT SHOULD BE DEEMED TO HAVE N EVER BEEN PART OF THE STATUTE AT ANY POINT OF TIME. THE REL IANCE IS PLACED ON THE DECISION OF THE HON'BLE APEX COURT RENDERED IN THE CASE OF GENERAL FINANCE COMPANY VS. AC IT (2002) 124 TAXMAN 432 (SC). THERE IS MERIT INTO THI S CONTENTION AS THE HON'BLE APEX COURT HAS REFERRED TO THE JUDGEMENTS BY THE HON'BLE CONSTITUTIONAL BENCH OF TH E SUPREME COURT RENDERED IN THE CASE OF KOLHAPUR CANE SUGAR WORKS LIMITED VS. UOI (2000) (2) SCC 536. THE HON'BLE APEX COURT IN GENERAL FINANCE COMPANY VS. ACI T (SUPRA) AFTER CONSIDERING THE SUBMISSIONS OF THE LD. COUNSEL FOR THE REVENUE IN THAT CASE HELD AS UNDER: [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 19 8. THOUGH WE FIND THE SUBMISSIONS OF THE LEARNED C OUNSEL TO BE FORCEFUL, WE ARE CONSTRAINED TO FOLLOW THE TWO DECI SIONS OF THE CONSTITUTION BENCHES OF THIS COURT IN RAYALA CORPN. (P) LTD.S CASE (SUPRA) AND KOLHAPUR CANESUGAR WORKS LTD.S CASE (S UPRA). THIS VIEW HAS HELD THAT FIELD FOR OVER THREE DECADES AND REITERATED EVEN AS LATE AS TWO YEARS AGO. NON-COMPLIANCE WITH SECT ION 269SS ATTRACTED PROSECUTION AS WELL AS PENALTY. OMISSION OF THE PROVISION REGARDING PROSECUTION WILL NOT AFFECT THE LEVY OF P ENALTY. THE ADVANTAGE ARISING OUT OF APPLICATION OF THE RATIO O F THE TWO DECISIONS RESULTING IN PROSECUTION IN CASES OF NON-COMPLIANCE WITH SECTION 269SS IS ONLY TRANSACTIONAL AFFECTING A FEW CASES A RISING PRIOR TO 1.4.1989. SUCH CASES MAY BE FEW AND FAR BETWEEN. HENCE, WE FIND THIS IS NOT AN APPROPRIATE CASE FOR REFERENCE TO TH E LARGER BENCH. 9. NET RESULT OF THIS DISCUSSION IS THAT THE VIEW T AKEN BY THE HIGH COURT IS NOT CONSISTENT WITH WHAT HAS BEEN STATED B Y THIS COURT IN THE TWO DECISIONS AFORESAID AND THE PRINCIPLE UNDER LYING SECTION WAS SAVING THE RIGHT TO INITIATE PROCEEDINGS FOR LIABIL ITIES 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 FR OM REPEAL AS HELD IN THE AFORESAID DECISIONS. IN THE ACT, SECTION 27 6DD STOOD OMITTED FROM THE ACT BUT NOT REPEALED AND, HENCE, A PROSECU TION COULD NOT HAVE BEEN LAUNCHED OR CONTINUED BY INVOKING SECTION 6 AFTER ITS OMISSION. 7. THIS SUBMISSION WAS ALSO MADE BEFORE THE LD. PR. C IT BY THE ASSESSEE. HOWEVER, THE LD. CIT REJECTED THE SUBMISSIONS BY OBSERVING AS UNDER:- [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 20 [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 21 8. WE FIND THAT THE ABOVE VIEW OF THE LD. PR. CIT IS NOT CORRECT. IN VIEW OF THE AFORESAID DISCUSSION, MOREOV ER, THE COORDINATE BENCH HAS ALSO EXAMINED THE ISSUE IN THE CASE OF TEXPORT OVERSEAS PVT. LTD. IN IT(TP)A NO.1722/BANG/2017. ADMITTEDLY, IN THIS CASE, THE ORD ER HAS BEEN REVISED PURELY ON THE BASIS THAT THE ASSESSING OFFICER HAS NOT REFERRED TO DETERMINE THE ARMS LENGT H PRICE TO THE TPO. SINCE THE PROVISION ITSELF STOOD OMITT ED AT THE TIME WHEN THE ORDER WAS PASSED BY THE LD. PR. CIT, UN DER THESE UNDISPUTED FACTS IN THE LIGHT OF THE JUDGEMENT OF THE HON'BLE SUPREME COURT RENDERED IN THE CASE OF GENER AL FINANCE COMPANY (SUPRA) AS WELL AS THE ORDER OF THE COORDINATE BENCH RENDERED IN THE CASE OF TEXPORT OVER SEAS PVT. LTD. (SUPRA), THE IMPUGNED ORDER CANNOT BE SUSTAI NED, HENCE IS HEREBY QUASHED. THE ORDER IMPUGNED IS THUS QUASHED AND THE GROUNDS RAISED IN THE APPEAL ARE ALLOWED. [ITA 486/IND/2018] [SWASTIK COAL CORPORATION PVT. LTD., INDORE] 22 9. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO.486/IND/2018 FOR THE A.Y. 2014-15 IS ALLOWED. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 26. 07.2019. SD/- (MANISH BORAD) SD/- (KUL BHARAT) A CCOUNTANT MEMBER JUDICIALMEMBER INDORE; DATED : 26/07/2019 VG/SPS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUAR D FILE. BY ORDER ASSISTANT REGISTRAR, INDORE