York Tech Pvt. Ltd., New Delhi V. DCIT Circle-25(1), New Delhi

ITA 635/DEL/2021

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7339 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-08-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I2
• Assessment Year: 2016-2017
• Appeal Filed On: 31-05-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MEERA SRIVASTAVA
• Keywords: Revision of order; Transfer pricing; Additional evidence; Fair market value; Valuation report; Set aside
• Section: 263; 144; 92C; 92; 92B; 201; 144C; 143(2); 13; 22; 92CA; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH I-2 NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER & DR. B.R.R. KUMAR, ACCOUNTANT MEMBER I.T .A. NO. 635 /DEL/20 21 ASSESSMENT YEAR 2016-17 YORKN TECH PVT. LTD., 17, KEMKUNT COLONY, OPP. NEHRU PLACE, GREATER KAILASH, NEW DELHI. V. DCIT, CIRCLE-25(1), NEW DELHI. TAN/PAN: AABCO86061 (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI AJAY WADHWA, ADV. AND MS. RAGINI HANDA, CA RESPONDENT BY: MS. MEERA SRIVASTAVA, CIT-DR AND SHRI M. BARANWAL, SR.D.R. DATE OF HEARING: 27 07 2021 DATE OF PRONOUNCEMENT: 18 08 2021 O R D E R PER AMIT SHUKLA, JM:- THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSE E AGAINST THE IMPUGNED ORDER DATED 26.04.2021, PASSED U/S.143(3) R.W.S. 144C(13) R.W.S. 144B IN PURSUANCE OF DIRECTION GIVEN BY THE LD. DISPUTE RESOLUTION PANEL -2, NEW DELHI U/S.144C(5) VIDE ORDER DATED 09.03.2021 FOR T HE ASSESSMENT YEAR 2016-17. IN THE GROUNDS OF APPEAL, THE ASSESSEE HAS CHALLENGED THE ADJUSTMENT OF RS.6,93,89 ,490/- ON ACCOUNT OF SPECIFIED DOMESTIC TRANSACTION (HEREI NAFTER REFERRED TO AS SDT) PERTAINING TO PURCHASE OF OFFI CE SPACE AS INVENTORY BY THE ASSESSEE FROM ITS HOLDING COMPANY. IN THE I.T.A. NO.635/DEL/2021 2 GROUNDS OF APPEAL, THE ASSESSEE HAS CHALLENGED THE VALIDITY OF REFERENCE TO TPO FOR DOMESTIC TRANSFER PRICING ON T HE GROUND THAT, CLAUSE (I) OF SECTION 92BA HAS BEEN OMITTED BY THE FINANCE ACT, 2017, AND THEREFORE, ANY REFERENCE MAD E POST OMISSION OF THE PROVISION IS BAD IN LAW; AND SECOND LY, NO ADDITION ON ACCOUNT OF SDT CAN BE MADE. BESIDES THI S, ON MERITS ALSO VARIOUS GROUNDS HAVE BEEN CHALLENGED TH AT THE PURCHASE OF OFFICE SPACE WAS IN ACCORDANCE WITH VAL UATION REPORT SUBMITTED BY THE ASSESSEE. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS A SU BSIDIARY OF UPHILL FARMS PVT. LTD. (UPHILL) WHICH IS ENGAGED IN REAL ESTATE DEVELOPMENT AND IN THE BUSINESS OF CONSTRUCTION AND DEVELOPMENT OF REAL ESTATE PROJECTS IN INDIA. DURIN G THE YEAR UNDER CONSIDERATION, THE ASSESSEE HAS ACQUIRED A RE AL ESTATE BUSINESS LOCATED AT PLOT NO. B-36, SECTOR 132, NOID A -201301 (INCLUDING ITS ASSETS AND LIABILITIES AND OTHER OBL IGATIONS) FROM ITS HOLDING COMPANY, UPHILL BY WAY OF SLUMP SALE AS A GOING CONCERN, WITH EFFECT FROM 28TH MARCH 2016, FOR A LU MP SUM CONSIDERATION OF RS. 220,50,00,000. THE ASSESSEE HA S DISCHARGED THE PURCHASE CONSIDERATION PARTLY BY ISS UING 93,50,000 FULLY PAID UP EQUITY SHARES OF FACE VALUE OF RS. 10/- EACH AT A PREMIUM OF RS. 220/- PER EQUITY SHARE AND BALANCE OF RS. 5,45,00,000 IN CHEQUE (RS. 2,50,00,000 PAID ON 28.03.2016 AND BALANCE RS. 2,95,00,000 PAYABLE ON O R BEFORE 30.09.2016). THE SAME WAS DULY REPORTED IN FORM NO. 3CEB AS FOLLOWS: S. NO. NATURE OF TRANSACTIONS AMOUNT (RS. IN LAKHS) I.T.A. NO.635/DEL/2021 3 1. PURCHASE OF OFFICE SPACE AS INVENTORY 22,463.38 2. PURCHASE OF DIESEL 9.32 FOR THE PURPOSE OF BENCHMARKING THE TRANSACTION, TH E ASSESSEE HAS VALUED THE PROPERTY BY USING 'OTHER METHOD PRESCRIBED IN RULE 10AB OF THE INCOME-TAX R ULES, 1962 ('THE RULES] AND REPORTED AS UNDER: PURCHASE OF OFFICE SPACE AS INVENTORY PARTICULARS AMOUNT (RS. IN LAKHS) VALUE OF PROPERTY AS ON 28.03.16 AS PER REPORT DATED 13.09.16 OF THE GOVERNMENT APPROVED VALUER 22,176.24 ADD: COST OF INTERIOR EXPENSES INCURRED BY THE SELLER AS CERTIFIED BY MANAGEMENT 287.13 TOTAL 22,463.37 PARTICULARS AMOUNT (RS. IN LAKHS) VALUE OF PROPERTY AS ON 28.03.16 AS PER CIRCLE RATE OF NOIDA 20,215.18 ADD: COST OF INTERIOR EXPENSES INCURRED BY THE SELLER AS CERTIFIED BY MANAGEMENT 287.13 TOTAL 20,502.31 PARTICULARS AMOUNT (RS. IN LAKHS) MINIMUM VALUE OF PROPERTY AS PER RESALE RATE AVAILABLE ON 99ACRES.COM 26,498.92 MAXIMUM VALUE OF PROPERTY AS PER RESALE RATE AVAILABLE ON 99ACRES.COM 28,751.08 AVERAGE RESALE PRICE 27,625 I.T.A. NO.635/DEL/2021 4 THE ARITHMETIC MEAN OF THE ABOVE THREE IS RS. 23,53 0.23 LAKHS. THE ASSESSEE HAS ADOPTED RATE OF RS. 22,463. 38 LAKHS WHICH IS LESS THAN THE ARITHMETIC MEAN AND IS CLOSE TO THE SLUMP SALE PRICE. 3. THE RETURN OF INCOME WAS FILED ON 03.09.2016 DEC LARING INCOME OF RS.3,77,140/-. THE SAID RETURN WAS SELECT ED FOR LIMITED SCRUTINY ASSESSMENT UNDER THE E-ASSESSMENT SCHEME, 2019. ACCORDINGLY, NOTICE U/S. 143(2) WAS ISSUED ON 21.07.2017. THE LD. ASSESSING OFFICER NOTED THAT AS SESSEE HAD SHOWN PURCHASE OF OFFICE SPACE INVENTORY AT RS.222,46,33,839/-, WHEREAS AS PER THE BALANCE SHEE T THE VALUE OF INVENTORY WAS SHOWN AT RS.224,72,68,554/-. THE LD. ASSESSING OFFICER ASKED THE ASSESSEE TO FILE ALL TH E SUPPORTING DOCUMENTS IN RESPECT OF ACQUISITION OF REAL ESTATE PROJECT OF NOIDA FROM HOLDING COMPANY M/S. UPHILL FARMS P. LTD . IN PURSUANT TO SLUMP SALE AND COPIES OF ALL DOCUMENTS /CERTIFICATES, ETC. AS TO HOW THE VALUE OF THE REAL ESTATE PROJECT HAS BEEN ARRIVED AS A SLUMP SALE EXERCISE. SECONDLY , WHETHER VALUE OF SDT HAS BEEN CORRECTLY SHOWN IN FORM NO. 3 CEB IN THE RETURN OF INCOME? IN RESPONSE, THE ASSESSEE VID E REPLY DATED 16.11.2018 HAD FILED COPY OF BUSINESS TRANSF ER AGREEMENT DATED 28.03.2016 ALONG WITH ALL THE ANNE XURES AND COPY OF FORM NO.3CEB RELATING TO SDT, RETURN OF VALUATION OF IMMOVABLE PROPERTY AND COPY OF TRANSFE R PRICING REPORT. THE LD. ASSESSING OFFICER SENT A PROPOSAL T O THE PCIT, NEW DELHI TO ADDITIONAL CIT, RANGE-27 FOR SEEKING A PPROVAL OF I.T.A. NO.635/DEL/2021 5 MAKING REFERENCE TO THE TPO FOR DETERMINATION OF AR MS LENGTH PRICE AS PER THE PROVISION OF SECTION 92BA R .W.S. 92C IN RESPECT OF SDT WITH THE HOLDING COMPANY M/S. UPH ILL FARMS PVT. LTD. THE APPROVAL WAS GRANTED FOR MAKING REFERENCE TO THE TPO VIDE LETTER DATED 28.11.2018 B Y THE PR. CIT. THE TPO COMPUTED THE VALUE ADOPTING THE METHOD OF NOIDA AUTHORITY VIDE ORDER DATED 31 ST OCTOBER, 2019 PASSED U/S.92CA(3) AND PROPOSED AND ADJUSTMENT OF RS.38,70,19,094/- AFTER VALUING THE PROPERTY AT RS.166,80,68,357/-. THE REASONS GIVEN BY THE TPO FO R REJECTING THE VALUE ADOPTED BY THE ASSESSEE WERE AS UNDER: I. THE TPO REJECTED RATES OF 99ACRES.COM STATI NG THAT THE ASSESSEE HAD FURNISHED ONLY 4 LISTINGS WITH HUG ELY VARYING RATES FROM RS. 5,600-14,200 PER SQ FT. WHER EAS LD. TPO HAD STATED RATES AS PER MAGIC BRICKS WHICH WERE BETWEEN RS. 3,379- RS. 8,182 PER SQ. FT. II. HE ALSO REJECTED RATES OF 99ACRES.COM WRONGLY STATING THAT RATES ARE FOR THE FY 2019-20 AND NOT THE YEAR OF PURCHASE. III. THE TPO REJECTED RATE OF RS. 107,000 PER SQ. METER IN THE VALUATION REPORT STATING THAT THE BASIS OF A RRIVING AT THE RATE BY THE GOVERNMENT APPROVED VALUER WAS NOT GIVEN. IV. HE HAS STATED THAT THE ASSESSEE HAS ITSELF REQUESTED NOT TO TAKE THIS RATE FOR THE PURPOSE OF VERIFYING THE VALIDITY OF THE TRANSACTION. I.T.A. NO.635/DEL/2021 6 V. THE TPO HAS VALUED THE PROPERTY AS PER CIRCLE R ATE OF NOIDA AUTHORITY AND ADOPTED THE VALUE OF RS.1,85,89,18,945. THE DISPUTE IN THE VALUATION WAS MAINLY REGARDING THE AREA. THE TPO HAS CALCULATED T HE SUPER AREA BY JUST ADDING SERVICE AREA TO THE COVER ED AREA AND OMITTED TO CONSIDER THE ACTUAL AREA AS PER THE SALE DEEDS, THE CAR PARKING, THE MAINTENANCE RECEIPTS, MACHINERY AND EQUIPMENT AND THE COST OF INTERIORS. ALL THIS WAS OBJECTED BY THE ASSESSEE ON FACTS AND MATERIAL BROUGHT ON RECORD. VI. TPO HAS ALSO REJECTED THE SLUMP SALE VALUATIO N STATING THAT THE REQUIREMENTS AS PER SECTION 2(42C] OF THE ACT, REQUIRING THE VALUES NOT BEING ASSIGNED TO INDIVIDU AL ASSETS AND LIABILITIES IN SUCH SALES WAS NOT FULFIL LED IN THE PRESENT CASE. 9. THEREAFTER, THE LD. AO HAS PASSED DRAFT ASSESSM ENT ORDER ON 14.11.2019. 10. AGGRIEVED BY THE DRAFT ASSESSMENT ORDER DATED 14.11.19, THE ASSESSEE FILED OBJECTIONS BEFORE THE HON'BLE DRP AGAINST THE VARIATION PROPOSED TO BE MADE IN THE DR AFT ASSESSMENT ORDER. 11. THE ASSESSEE ALSO FILED ADDITIONAL EVIDENCE VI DE LETTER DATED 20.08.2020 BEFORE THE HONBLE DRP WHICH WERE ADMITTED BY THE HONBLE DRP AFTER CONSIDERING REMAN D REPORT DATED 10.12.2020 BY THE TPO. THE HON'BLE DRP VIDE DIRECTIONS DATED 9.03.2021 ISSUED UNDER SECTION 144 C(5) OF I.T.A. NO.635/DEL/2021 7 THE ACT HELD THE FAIR MARKET VALUE OF THE PROPERTY TO BE RS. 213,56,10,510/- AND RESTRICTED THE ADJUSTMENT TO RS . 6,93,89,490/-. THE FOLLOWING WERE THE REASONS GIVEN BY THE HONBLE DRP: I. DRP HELD THAT CLAUSE (I) OF SECTION 92BA OF THE ACT HAS BEEN OMITTED BY FINANCE ACT 2017 AND IS NOT APPLICABLE IN THE IMPUGNED AY. II. DRP REJECTED VALUE AS PER WEBSITE 99ACRES.COM III. DRP ALSO REJECTED RATE AS PER VALUATION REPOR T IV. DRP ACCEPTED THE SUPER AREA OF THE ASSESSEE. V. DRP ACCEPTED ONLY 289 CAR PARKING AND REJECTED 216 CAR PARKING. VI. DRP HAS NOT TAKEN INTO ACCOUNT THE COST OF MAINTENANCE EQUIPMENTS. VII. DRP HAS NOT TAKEN INTO ACCOUNT THE VALUE OF MAINTENANCE RECEIPTS VIII. DRP HAS NOT ALLOWED APPROPRIATE ADJUSTMENTS O F COST OF INTERIORS INCURRED BY HOLDING COMPANY ON TH E PROPERTY SOLD. 12. THE LD. TPO PASSED THE APPEAL EFFECT ORDER ON 16.04.2021 AND CONSEQUENTLY, THE LD. AO PASSED ORDE R DATED 26.04.2021 UNDER SECTION 143(3] READ WITH SEC TION 144C [13] AND 144B OF THE ACT GIVING EFFECT TO THE DIRECTIONS OF HONBLE DRP AND MADE ADDITION OF RS. 6,93,89,490/- AND RAISED DEMAND OF RS. 3,70,09,330/ - I.T.A. NO.635/DEL/2021 8 (INCLUDING INTEREST]. IN VIEW OF THE ABOVE, THE LD. AO COMPUTED THE INCOME OF THE ASSESSEE AS UNDER:- 14. BEFORE US, LD. COUNSEL FOR THE APPELLANT-ASSESS EE, MR. AJAY WADHWA SUBMITTED THAT SINCE CLAUSE ( I ) OF SECTION 92BA HAVE BEEN OMITTED BY THE STATUTE FROM THE FINANCE A CT, 2017 W.E.F. 01.04.2017, THEREFORE, IT IS DEEMED THAT THE SAID CLAUSE WAS NEVER PART OF THE ACT. THE PROCEEDINGS INITIATE D AFTER AN OMITTED SECTION CANNOT BE MADE UNLESS THERE IS SAVI NG CLAUSE PROVIDED IN THE ACT AT THE TIME OF OMISSION. HERE I N THIS CASE NOTICE U/S.143(2) FOR SELECTING THE CASE OF SCRUTIN Y WAS ISSUED ON 21.07.2017, I.E., AFTER THE OMISSION OF CLAUSE (I) OF SECTION 92BA AND REFERENCE TO THE TPO WAS ITSELF MADE ON 29.11.2018. THUS, THE EFFECT OF SUCH AN OMISSION IS THAT NO PROCEEDING UNDER THE OMITTED PROVISION CAN COMMENCE AFTER THE DATE OF THE OMISSION OF THE PROVISION AND, HENC E, DECISION TAKEN BY THE HONBLE DRP OR LD. TPO/ LD. AO UNDER C LAUSE (I) OF SECTION 92BA AND REFERENCE MADE TO THE LD. TPO U NDER SECTION 92CA WAS INVALID AND BAD IN LAW. 5. HE ALSO REFERRED TO SECTION 6 AND 6A OF GENERAL CLAUSES ACT AND SUBMITTED THAT THE FINANCE ACT 2017, WHILE DELETING CLAUSE (I) OF SECTION 92BA DID NOT SPECIFY WHETHER PROCEEDING RETURNED INCOME AS DECLARED BY THE ASSESSEE COMPANY RS. 3,77,140/- ADD: ADJUSTMENT ON ACCOUNT OF SPECIFIED DOMESTIC TRANSACTION AS DIRECTED BY DRP RS. 6,93,89,490/- TOTAL INCOME RS. 6,97,66,630/- I.T.A. NO.635/DEL/2021 9 INITIATED OR ACTION TAKEN ON THIS SECTION WILL CONT INUE OR NOT. SINCE THERE WAS NO EXPRESS SAVING CLAUSE OR PROVISI ON, STATING WHETHER THE PENDING PROCEEDINGS SHALL CONTINUE, IT IS DEEMED THAT THE SAID CLAUSE HAS BEEN DELETED SINCE ITS INC EPTION. ACCORDINGLY, ANY PENDING PROCEEDINGS ARE NULL AND V OID. IN THE INSTANT CASE, EVEN THE PROCEEDINGS WERE INITIAT ED AFTER THE DELETION OF CLAUSE FROM THE ACT. THE FIRST NOTICE W AS ISSUED UNDER SECTION 143(2] ON 21ST JULY 2017, WHEREAS THE CLAUSE HAS BEEN DELETED W.E.F 01.04.2017. RELIANCE WAS ALS O PLACED ON THE FOLLOWING CASE LAWS WHEREIN THE FOLLOWING WA S HELD: THE EFFECT OF OMISSION OF A PROVISION WITHOUT AN Y SAVING CLAUSE OF GENERAL CLAUSES ACT MEANS THAT THE SAID PROVISION WAS NOT IN EXISTENCE OR NEVER EXISTED IN THE STATUTE BOOK. IF A PROVISION OF A STATUTE IS UNCONDITIONALLY O MITTED WITHOUT A SAVING CLAUSE IN FAVOUR OF PENDING PROCEE DINGS, ALL ACTIONS MUST STOP WHERE THE OMISSION FINDS THEM , AND IF FINAL RELIEF HAS NOT BEEN GRANTED BEFORE THE OMI SSION GOES INTO EFFECT, IT CANNOT BE GRANTED AFTERWARDS. THE OMISSION IN CLAUSE (I) OF SECTION 92BA IS UNCONDITIONAL, THAT IS, IT DOES NOT SAY THAT PENDIN G PROCEEDINGS UNDER THE CLAUSE WOULD CONTINUE IN FUTU RE EVEN AFTER ITS OMISSION ON 01.04.2017. THEREFORE, I N THE ABSENCE OF SUCH CONDITION/ SAVING CLAUSE IT WOULD B E PRESUMED THAT CLAUSE [I] OF SECTION 92BA HAD OBLITE RATED FROM THE INCEPTION, THAT IS, IT WOULD BE PRESUMED T HAT CLAUSE [I] OF SECTION 92BA NEVER EXISTED IN THE STA TUTE BOOK, I.T.A. NO.635/DEL/2021 10 IT HAD NEVER BEEN PASSED AND TO BE CONSIDERED AS A LAW NEVER BEEN EXISTED. THE EFFECT OF REPEALING A STATUTE OR DELETING A PROVISION IS TO OBLITERATE IT FROM THE STATUTE-BOOK AS COMPLE TELY AS IF IT HAD NEVER BEEN PASSED, AND THE STATUTE MUST BE CONSIDERED AS A LAW THAT NEVER EXISTED. THE ONLY DECISION BY THE HONBLE HIGH COURT SQUAREL Y ON THE ISSUE IS AS UNDER: A. PRINCIPAL COMMISSIONER OF INCOME TAX -7 VS. TEXPORT OVERSEAS P. LTD. (2020) 114 TAXMANN.COM 568 (KARNATAKA) '5. HAVING HEARD LEARNED ADVOCATES APPEARING FOR PARTIES AND ON PERUSAL OF RECORDS IN GENERAL AND OR DER PASSED BY TRIBUNAL IN PARTICULAR IT IS CLEARLY NOTI CEABLE 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 WHETHER OMISSION WOULD SAVE THE ACTS IS AN ISSUE WHICH IS NO MORE RES INTIGRA IN THE LIGHT OF AUTHOR ITATIVE PRONOUNCEMENT OF HON'BLE APEX COURT IN THE MATTER O F KOLHAPUR CANESUGAR WORKS LTD. V. UNION OF INDIA AIR 2000 SC 811 WHERE UNDER APEX COURT HAS EXAMINED THE EFFECT OF REPEAL OF A STATUTE VIS-A-VIS DELETION/ADDITION OF A PROVISION IN AN ENACTMENT AN D ITS EFFECT THEREOF. THE IMPORT OF SECTION 6 OF GENE RAL CLAUSES ACT HAS ALSO BEEN EXAMINED AND IT CAME TO B E HELD: '37. THE POSITION IS WELL KNOWN THAT AT COMMON LAW, THE NORMAL EFFECT OF REPEALING A STATUTE OR DELETIN G A PROVISION 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 EXIS TED. TO THIS RULE, AN EXCEPTION IS ENGRAFTED BY THE PROV ISIONS OF SECTION 6(1). IF A PROVISION OF A STATUTE IS UNCONDITIONALLY OMITTED WITHOUT A SAVING CLAUSE IN FAVOUR OF PENDING PROCEEDINGS, ALL ACTIONS MUST STO P I.T.A. NO.635/DEL/2021 11 WHERE THE OMISSION FINDS THEM, AND IF FINAL RELIEF HAS NOT BEEN GRANTED BEFORE THE OMISSION GOES INTO EFFE CT, IT CANNOT BE GRANTED AFTERWARDS. SAVINGS OF THE NATURE CONTAINED IN SECTION 6 OR IN SPECIAL ACTS MAY MODIF Y THE POSITION. THUS THE OPERATION OF REPEAL OR DELETION AS TO THE FUTURE AND THE PAST LARGELY DEPENDS ON THE SAVI NGS APPLICABLE. IN A CASE WHERE A PARTICULAR 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 REASONABLY INFERRED THAT THE INTENTION OF THE LEGISLATURE IS THAT THE PENDING PROCEEDINGS SHALL NOT CONTINUE BUT FRESH PROCEEDING S FOR THE SAME PURPOSE MAY BE INITIATED UNDER THE NEW PROVISION.' 6... IN THE MATTER OF GENERAL FINANCE CO. V.ACIT, W HICH JUDGMENT HAS ALSO BEEN TAKEN NOTE OF BY THE TRIBUNA L WHILE REPELLING THE CONTENTION RAISED BY REVENUE WI TH 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 EFFECT IS THAT IT HAD NEVER BEEN PASSED AND TO BE CONSIDERED AS A LAW NEVER BEEN EXISTED. HENCE, DECISION TAKEN BY TH E ASSESSING OFFICER UNDER THE EFFECT OF SECTION 92BA AND REFERENCE MADE TO THE ORDER OF TRANSFER PRICING OFF ICER- TPO UNDER SECTION 92CA COULD BE INVALID AND BAD IN LAW.' B. M/S. BHARTIA-SMSIL (JV) V. ITO, ITA NO.117/GAU/2019 (ASSESSMENT YEAR 2014-15) '9. WE SEE NO REASONS TO TAKE ANY OTHER VIEW OF THE MATTER THAN THE VIEW SO TAKEN BY THE DIVISION BENCH OF THE TRIBUNAL IN THE CASE OF SWASTIK COAL CORPORATIO N PVT. LTD (SUPRA VIDE ORDER DATED 26.07.2019 IN THIS ORDER, THE TRIBUNAL HAS INTER ALIA OBSERVED AS FOLL OWS: '8. WE FIND THAT THE ABOVE VIEW OF THE LD. PR. CIT IS NOT CORRECT. IN VIEW OF THE AFORESAID DISCUSSION, MOREO VER, THE COORDINATE BENCH HAS ALSO EXAMINED THE ISSUE IN I.T.A. NO.635/DEL/2021 12 THE CASE OF TEXPORT OVERSEAS PVT. LTD. IN IT(TP)A N O.L 722/BANG/2017. ADMITTEDLY, IN THIS CASE, THE ORDER HAS BEEN REVISED PURELY ON THE BASIS THAT THE ASSESSING OFFICER HAS NOT REFERRED TO DETERMINE THE ARM'S LENGTH PRICE TO THE TPO. SINCE THE PROVISION ITSELF STOOD OMITTED AT THE TIME WHEN THE ORDER WAS PASSED HV THE LD. PR. CIT. UNDER THESE UNDISPUTED FACTS IN THE LIGHT OF T HE JUDGEMENT OF THE HON'BLE SUPREME COURT RENDERED IN THE CASE OF GENERAL FINANCE COMPANY (SUPRA) AS WELL AS THE ORDER OF THE COORDINATE BENCH RENDERED IN TH E CASE OF TEXPORT OVERSEAS PVT. LTD. [SUPRA]. THE IMPUGNED ORDER CANNOT BE SUSTAINED, HENCE IS HEREBY QUASHED. THE ORDER IMPUGNED IS THUS QUASHED AND THE GROUNDS RAISED IN THE APPEAL ARE ALLOWED.' 10. ON THE VERY IDENTICAL FACTS, THE COORDINATE BEN CH OF IT AT KOLKATA IN THE CASE OF M/S RAIPUR STEEL CASTI NG INDIA PVT LTD, IN 1TA NO.895/KOL/2019, FOR A.Y. 201 4- 15, ORDER DATED 10.06.2020 HELD AS FOLLOWS: '12... WE NOTE THAT ID PCIT ISSUED THE ABOVE SHOW CAUSE NOTICE U/S 263 IN RESPECT OF SPECIFIED DOMEST IC TRANSACTIONS REFERRED TO IN CLAUSE (I) OF SECTION 9 2BA OF THE ACT WHICH WAS OMITTED WITH EFFECT FROM 01.04.20 17 AND EFFECT OF SUCH 'OMISSION' OF CLAUSE (I) OF SECT ION 92BA MEANS THAT THIS PROVISION WAS NEVER EXISTED IN THE STATUTE BOOK, SINCE CLAUSE (I) OF SECTION 92 BA WAS NEVER EXISTED IN THE STATUTE BOOK THEREFORE, LD PCI T CANNOT EXERCISE HIS JURISDICTION UNDER SECTION 263 OF THE ACT IN RESPECT OF SPECIFIED DOMESTIC TRANSACTIONS REFERRED TO IN CLAUSE (I) OF SECTION 92BA OF THE AC T. IN OTHER WORDS, SINCE THE CLAUSE (I) OF SECTION 92BA W AS OMITTED WITH EFFECT FROM 01.04.2017 BY THE FINANCE ACT 2017. THEREFORE, IN THE ACT, CLAUSE (I) OF SECTION 92BA STOOD 'OMITTED' FROM THE ACT AS IF IT WAS NEVER IN THE STATUTE BOOK. THEREFORE, 'OMISSION' MEANS THE ABOVE PROVISIONS WAS NOT IN EXISTENCE OR NEVER EXISTED IN THE STATUTE BOOK. TO SUPPORT THIS, WE FIND USEFUL A THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE O F RAYALA CORPORATION (PI LTD (1970 AIR 494) WHEREIN T HE HON'BLE SUPREME COURT HAS DEFINED THE TERMINOLOGY I.T.A. NO.635/DEL/2021 13 'OMISSION' AND 'REPEAL' AND DISTINGUISHED THESE TERMINOLOGIES ALSO. THE RELEVANT PARA OF THE JUDGME NT IS REPRODUCED BELOW: 13 CASE BEFORE US IS THAT THE CLAUSE (I) OF SECTIO N 92BA IS UNCONDITIONALLY OMITTED WITHOUT A SAVING CLAUSE IN FAVOUR OF PENDING PROCEEDINGS THEREFORE ID PCIT CAN NOT EXERCISE THE JURISDICTION UNDER SECTION 263 OF THE ACT. 17.... HAVING GONE THROUGH THE CONCLUDING PARA, AS MENTIONED ABOVE, WE NOTE THAT HON'BLE SUPREME COURT IN THE CASE OF M/S. SHREE BHAGWATI STEEL ROLLING MI LLS [SUPRA], HAS NOT DECIDED THE ISSUE IN FAVOUR OF REV ENUE. THEREFORE, THE CONTENTION OF ID. D.R. THAT HON'BLE SUPREME COURT HAS INTERPRETED THE ISSUE IN FAVOUR O F REVENUE, IS NOT TENABLE. IN FACT, THE CONCLUDING PA RA NO. 44 OF THE SAID JUDGMENT CLEARLY SPEAKS THAT THE APPEALS FILED BY THE REVENUE ARE DISMISSED AND THE APPEALS FILED BY THE ASSESSEES ARE ALLOWED. THE SAI D JUDGMENT OF THE HON'BLE SUPREME COURT ALSO ADVOCATE S THAT OMITTED PROVISION BEING TREATED AS IF IT NEVER EXISTED AND AS SECTION 6 OF THE GENERAL CLAUSES ACT WOULD NOT THEN APPLY TO ALLOW THE PREVIOUS OPERATIO N OF THE PROVISION SO OMITTED OR ANYTHING DULY DONE OR SUFFERED THEREUNDER. NOR MAY A LEGAL PROCEEDING IN RESPECT OF ANY RIGHT OR LIABILITY BE INSTITUTED, CO NTINUED OR ENFORCED IN RESPECT OF RIGHTS AND LIABILITIES AC QUIRED OR INCURRED UNDER THE ENACTMENT SO OMITTED. THEREFO RE, CONSIDERING THE JUDGMENT OF THE HON'BLE SUPREME COU RT IN THE CASE OF M/S. SHREE BHAGWATI STEEL ROLLING MILLS(SUPRA), IT CAN BE PAGE / 12 M/S. BHARTIA-SMSI L (JV) ITA NO.LL7/GAU/2019 ASSESSMENT YEAR:2014-15 SAID THAT SINCE CLAUSE(I) OF SECTION 92BA WAS OMITT ED W.E.F. 01.04.2017 THEREFORE, IT WOULD BE TREATED TH AT SAID SINCE CLAUSE(I) OF SECTION 92BA WAS NEVER EXIS TED IN THE STATUTE BOOK.' LL. THEREFORE BASED ON THE ABOVE JUDGEMENTS OF THE COORDINATE BENCHES.[ IN THE CASE OF SWASTIK COAL CORPORATION PVT LTD AND IN THE CASE OF M/S RAIPUR S TEEL CASTING INDIA (P) LTD-SUPRA)] WE HOLD THAT SINCE CL AUSE (IL SECTION 92 A WAS OMITTED WITH EFFECT FROM 1ST A PRIL. 2017 AND THE EFFECT OF SUCH OMISSION IS THAT THE SA ID I.T.A. NO.635/DEL/2021 14 CLAUSE(I) WAS NEVER EXISTED IN THE STATUTE. HENCE. LD. PC1T CAN NOT EXERCISE THE JURISDICTION U/S 263 OF T HE ACT. C. M/S. RAIPUR STEEL CASTING INDIA FPL I.TD. V. P.C.I.T. ITA NO. 895/KOL/2019 AY 2014-15 AND M/S. SRINATH LI FURNISHING PVT. LIMITED V. P.C.I.T. ITA NO.L035/KOL/2019 '11 AS WE NOTICED THAT CLAUSE (I) OF SECTION 92BA H AS BEEN OMITTED WITH EFFECT FROM 01.04.2017. THE EFF ECT OF SUCH OMISSION WITHOUT ANY SAVING CLAUSE OF GENER AL CLAUSES ACT, MEANS THAT THE ABOVE PROVISION WAS NOT IN EXISTENCE OR NEVER EXISTED IN THE STATUTE HOOK. IF IT IS HELD THAT EFFECT O F SUCH 'OMISSION' OF CLAUSE (I) OF SECTION 92BA MEANS THAT THIS PROVISION WAS NEVER EXISTED IN THE STATUTE BOOK, THEN IN THAT SITUATION THE EXERCISE OF JURISDICTION BY THE ID PCIT [ IN RESPEC T OF ABOVE SAID CLAUSE (I) OF SECTION 92 BA] UNDER SECTI ON 26.1 OF THE ACT WOULD FAIL. 12. WE NOTE THAT ID PCIT ISSUED THE ABOVE SHOW CAU SE NOTICE U/S 263 IN RESPECT OF SPECIFIED DOMESTIC TRANSACTIONS REFERRED TO IN CLAUSE FI) OF SECTION 9 2BA OF THE ACT WHICH WAS OMITTED WITH EFFECT FROM 01.04.20 17 AND EFFECT OF SUCH 'OMISSION' OF CLAUSE (I1 OF SECT ION 92BA MEANS THAT THIS PROVISION WAS NEVER EXISTED IN THE STATUTE BOOK, SINCE CLAUSE FIT OF SECTION 92BA WAS NEVER EXISTED IN THE STATUTE BOOK THEREFORE. ID PCI T CANNOT EXERCISE HIS JURISDICTION UNDER SECTION 26.1 OF THE ACT IN RESPECT OF SPECIFIED DOMESTIC TRANSACTIO NS REFERRED TO IN CLAUSE (IL OF SECTION 92BA OF THE AC T. IN OTHER WORDS, SINCE THE CLAUSE FI) OF SECTION 92BA W AS OMITTED WITH EFFECT FROM 01.04.2017 BV THE FINANCE ACT 2017. THEREFORE, IN THE ACT, CLAUSE (I) OF SECTION 92BA STOOD 'OMITTED' FROM THE ACT AS IF IT WAS NEVER IN THE STATUTE BONK. THEREFORE, OMISSION' MEANS THE ABOVE PROVISIONS WAS NOT IN EXISTENCE OR NEVER EXISTED IN THE STATUTE BOOK.. .ARGUMENT ADVANCED BY SHRI VIIAV SHANKAR. (CIT-DR) . ON BEHALF OF THE REVENUE WAS THAT THE PROSECUTION I.T.A. NO.635/DEL/2021 15 /PENALTY IN RESPECT OF CLAUSE FI) OF SECTION 92BA O F THE ACT, WAS IN FORCE IN ASSESSMENT YEAR 2014-15 AND THEREFORE IT IS VALID EVEN AFTER 01.04.2017. [WHEN THE CLAUSE WAS OMITTED]. WE DO NOT AGREE WITH ID DR FOR THE REVENUE BECAUSE OMITTED CLAUSE (I) OF SECTION 92BA OF THE ACT, DOES NOT CONTAIN ANY CONDITION/ SAVING CLA USE TO THE EFFECT THAT A LEGAL PROCEEDING COULD BE INST ITUTED EVEN AFTER THE OMISSION OF CLAUSE (IL OF SECTION 92 BA OF THE ACT. IT IS CLEAR THAT WHEN CLAUSE (I1 O F SECTI ON 92BA WAS OMITTED, THE LEGISLATURE DID NOT MAKE ANY PROVISION THAT ANY PROSECUTION/PENALTY COMMITTED UNDER CLAUSE (I) OF SECTION 92BA OF THE ACT, WOULD CONTINUE TO REMAIN PUNISHABLE EVEN AFTER ITS OMISSI ON W.E.F. 01.04.2017. THEREFORE, IN THE ABSENCE OF SUC H CONDITION/SAVING CLAUSE IT WOULD BE PRESUMED THAT CLAUSE (IL OF SECTION 92BA HAD OBLITERATED FROM THE INCEPTION, THAT IS. IT WOULD BE PRESUMED THAT CLAUS E TILL OF SECTION 92BA WAS NEVER EXISTED IN THE STATUTE BO OK. 17.. FIRST, WE TAKE THE JUDGMENT OF HON'BLE SUPRE ME COURT IN THE CASE OF M/S SHREE BHAGWATI STEEL ROLLI NG MILLS VS. C.I.T. EXCISE & OTHERS - 2015(3261 ELT 209(S.C.L. THE RELEVANT PARAS OF THE SAID JUDGMENT ARE REPRODUCED BELOW: . ....THE SAID JUDGMENT OF THE HON'BLE SUPREME COURT ALSO ADVOCATES THAT OMITTED PROVISION BEING TREATED AS IF IT NEVER EXISTED AND AS SECTION 6 OF THE GENERAL CLAUSES ACT WOULD NOT THEN APPLY TO ALLOW THE PREVI OUS OPERATION OF THE PROVISION SO OMITTED OR ANYTHING D ULY DONE OR SUFFERED THEREUNDER. NOR MAY A LEGAL PROCEEDING IN RESPECT OF ANY RIGHT OR LIABILITY BE INSTITUTED, CONTINUED OR ENFORCED IN RESPECT OF RIG HTS AND LIABILITIES ACQUIRED OR INCURRED UNDER THE ENACTMENT, SO OMITTED. THEREFORE, CONSIDERING THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE O F M/S. SHREE BHAGWATI STEEL ROLLING MILLS SUPRA. IT C AN BE SAID THAT SINCE CLAUSE (I) OF SECTION 92BA WAS OMITTED W.E.F. 01.04.2017 THEREFORE, IT WOULD BE TR EATED THAT SAID SINCE CLAUSE (I) OF SECTION 92BA WAS NEVE R EXISTED IN THE STATUTE HOOK. I.T.A. NO.635/DEL/2021 16 20. WE ARE OF THE VIEW THAT AT THIS JUNCTURE IT IS NECESSARY TO EXAMINE, THE MEANING OF SAVING CLAUSE? AS PER THE LAW.COM LAW DICTIONARY & BLACK'S LAW DICTIONARY 2ND ED. THE SAVING CLAUSE HAS BEEN DEFIN ED AS FOLLOWS: 'A SAVING CLAUSE IN A STATUTE IS AN EXCEPTION OF A SPECIAL THING OUT OF THE GENERAL THINGS MENTIONED I N THE STATUTE; IT IS ORDINARILY A RESTRICTION IN A RE PEALING ACT WHICH IS INTENDED TO SAVE RIGHTS PENDING PROCEEDINGS PENALTIES ETC. FROM THE ANNIHILATION WH ICH WOULD RESULT FROM AN UNRESTRICTED REPEAL. IN CONTRA CTS IT IS A CLAUSE THAT STATES THAT AMBIGUITIES SHOULD NOT RENDER A CONTRACT VOID OR VOIDABLE BUT THE CONTRACT SHOULD BE ENFORCED IN ALL OTHER RESPECTS PROVIDED I T CAN STILL EXIST AS A VALID AND BINDING AGREEMENT.' THUS, THE SAVING CLAUSE MEANS A CLAUSE WHICH DENOTE S A RESERVATION OR EXCEPTION. AS PER FIND LAW LEGAL DICTIONARY, SAVING CLAUSE MEANS A CLAUSE IN A STATU TE EXEMPTING SOMETHING FROM STATUTES OPERATION. HAVING DISCUSSED THE MEANING OF SAVING CLAUSE, IT H AS BECOME QUITE CLEAR THAT AT THE TIME OF OMISSION OF CLAUSE (I) OF SECTION 92BA WITH EFFECT FROM 01.04.2 017 THE LEGISLATURE DID NOT MENTION ANY TERMS AND CONDITIONS TO THE EFFECT THAT AFTER OMISSION OF CLA USE [I] OF SECTION 92BA. PENDING PROCEEDINGS/PENALTIES ETC, TILL THE DATE OF OMISSION (01.04.20171 WILL SURVIVE. THA T IS. THE LEGISLATURE DID NOT INSERT NEW SECTION IN THE I NCOME TAX ACT TO THE EFFECT THAT PENDING PROCEEDINGS/PENALTIES ETC IN RELATION TO CLAUSE LI) OF SECTION 92BA WILL SURVIVE EVEN AFTER OMISSION. [THA T IS. AFTER 01.04.2017). HENCE, WE NOTE THAT THESE TERMS AND CONDITIONS, AS DISCUSSED ABOVE, ARE ABSENT IN CASE OF OMITTED CLAUSE [I] OF SECTION 92BA OF THE ACT, THER EFORE AS PER THE LAW LAID DOWN BY THE HONBLE SUPREME COU RT IN THE CASE OF RAYALA CORPORATION [SUPRA] AND KOHLA PUR CANE SUGAR [SUPRA], IT WILL BE PRESUMED THAT CLAUSE [I] OF SECTION 92BA NEVER EXISTED IN THE STATUTE BOOK, MEANING THEREBY IT IS OBLITERATED FROM THE VERY BEGINNING AND HENCE THE JURISDICTION EXERCISED BY T HE LD. PCIT U/S. 263 OF THE ACT INVOKING CLAUSE [I] OF I.T.A. NO.635/DEL/2021 17 SECTION 92BA, FOR REFERENCE BY A.O. TO TPO IS NULL IN THE EYE OF LAW, AS CLAUSE [I] OF SECTION 92 BA IS 'OMIT TED' AND NOT 'REPEATED' AND THERE IS NO PROVISION IN ANY OTHER SECTION OF THE INCOME TAX ACT SAVING THE PEND ING PROCEEDINGS INITIATED UNDER THE OMITTED PROVISION [ [CLAUSE [I] OF SEC, 92BA]] AS THE SAID CLAUSE [I] W AS OMITTED ON 01.04.2017, THEREFORE, SUBSEQUENT REVISI ON PROCEEDINGS BY ID. PCIT U/S. 263 ON DATED 08.03.201 9 WOULD BE INVALID.... 21. WE NOTE THAT THE COORDINATE BENCH OFLTAT INDORE IN THE CASE OF SWASTIK COAL CORPORATION PVT. LTD, IN I TA NO. 486/LND/2018, ORDER DATED 26.07.2011, HAS QUASHED THE ORDER OF ID PCIT UNDER SECTION 263 OF T HE ACT, ON THE IDENTICAL FACTS, AS NARRATED ABOVE. THE FINDINGS OF THE COORDINATE BENCH IS REPRODUCED BELO W: '8. WE FIND THAT THE ABOVE VIEW OF THE LD. PR. CIT IS NOT CORRECT. IN VIEW OF THE AFORESAID DISCUSSION, MOREO VER, THE COORDINATE BENCH HAS ALSO EXAMINED THE ISSUE IN THE CASE OFTEXPORT OVERSEAS PVT. LTD. IN IT[TP]A NO.L722/BANG/2017. ADMITTEDLY, IN THIS CASE, THE ORDER HAS BEEN REVISED PURELY ON THE BASIS THAT THE ASSESSING OFFICER HAS NOT REFERRED TO DETERMINE THE ARM'S LENGTH PRICE TO THE TPO. SINCE THE PROVISION ITSELF STOOD OMITTED AT THE TIME WHEN THE ORDER WAS PASSED BY THE LD. PR. CIT, UNDER THESE UNDISPUTED FACTS IN THE LIGHT OF THE JUDGEMENT OF THE HONBLE SUPREME COURT RENDERED IN THE CASE OF GENERAL FINANCE COMPANY [SUPRA] AS WELL AS THE ORDER OF THE COORDINATE BENC H RENDERED IN THE CASE OF TEXTPORT OVERSEAS PVT. LTD. [SUPRA], THE IMPUGNED ORDER CANNOT BE SUSTAINED, HE NCE IS HEREBY QUASHED. THE ORDER IMPUGNED IS THUS QUASHED AND THE GROUNDS RAISED IN THE APPEAL ARE ALLOWED.' 22. TO CONCLUDE: IF A PROVISION OF A STATUTE IS UNCONDITIONALLY OMITTED WITHOUT A SAVING CLAUSE IN FAVOUR OF PENDING PROCEEDINGS, ALL ACTIONS MUST STOP WHERE THE OMISSION FINDS THEM, AND IF FINAL RELIEF HAS NOT BEEN GRANTED BEFORE THE OMISSION GOES INTO EFFECT, IT CANNOT BE GRANTED AFTERWARDS. I.T.A. NO.635/DEL/2021 18 SAVINGS OF THE NATURE CONTAINED IN SECTION 6 OF GEN ERAL CLAUSES ACT OR IN SPECIAL ACTS MAY MODIFY THE POSIT ION. 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 PROVISI ON DEALING WITH THE SAME CONTINGENCY IS INTRODUCED WITHOUT A SAVING CLAUSE IN FAVOUR OF PENDING PROCEEDINGS THEN IT CAN BE REASONABLY INFERRED THAT THE INTENTION OF THE LEGISLATURE IS THAT THE PENDING PROCEEDING SHALL NOT CONTINUE BUT A FRESH PROCEEDIN G FOR THE SAME PURPOSE MAY BE INITIATED UNDER THE NEW PROVISION. IN THIS CASE. CLAUSE (IL OF SECTION 92BA WAS OMITTE D W.E.F 01.04.2017. AND AFTER ITS OMISSION THE ID. PC IT PASSED ORDER U/S. 263 ON 28.03.2019. SINCE CLAUSE ( IL OF SECTION 92BA WAS UNCONDITIONALLY OMITTED WITHOUT A SAVING CLAUSE IN FAVOUR OF PENDING PROCEEDINGS THEREFORE ID. PCIT OUGHT NOT TO HAVE PROCEEDED U/S. 263 OF THE ACT, SINCE THE OMISSION TOOK PLACE PRIOR TO 08.03.2019 AND SUCH OMISSION IN CLAUSE FIL OF SECTI ON 92BA IS UNCONDITIONAL, THAT IS. IT DOES NOT SAV THA T PENDING PROCEEDINGS UNDER CLAUSE (IL OF SECTION 92B A WOULD CONTINUE IN FUTURE, EVEN AFTER ITS OMISSION O N 01.04.2017. THEREFORE. ID. PCIT ERRED IN EXERCISING HIS JURISDICTION U/S. 263 OF THE ACT, SO FAR CLAUSE (IL OF SECTION 92 BA IS CONCERNED, REASON BEING, IN THE EY ES OF LAW AFTER OMISSION OF CLAUSE (IL OF SECTION 92BA. I T WOULD HE TREATED AS IF IT NEVER EXISTED IN THE STAT UTE BOOK. IN OTHER WORDS, CLAUSE FIL OF SECTION 92BA. W AS OMITTED W.E.F 1.4.2017 UNCONDITIONALLY AND WITHOUT A SAVING CLAUSE THEREFORE SECTION 6 OF THE GENERAL CLAUSES ACT HAS NO APPLICATION. WE NOTE THAT ID PCIT ISSUED THE ABOVE SHOW CAUSE NOTICE U/S 263 IN RESPECT OF SPECIFIED DOMESTIC TRANSACTIONS REFERRED TO IN CLAUSE (I) OF SECTION 9 2BA OF THE ACT WHICH WAS OMITTED WITH EFFECT FROM 01.04.20 17, AND EFFECT OF SUCH 'OMISSION' OF CLAUSE (I) OF SECT ION 92BA MEANS THAT THIS PROVISION NEVER EXISTED IN THE STATUTE BOOK, SINCE CLAUSE (I) OF SECTION 92BA NEVE R I.T.A. NO.635/DEL/2021 19 EXISTED IN THE STATUTE BOOK THEREFORE, ID PCIT CANN OT EXERCISE HIS JURISDICTION UNDER SECTION 263 OF THE ACT IN RESPECT OF SPECIFIED DOMESTIC TRANSACTIONS REFERRED TO IN CLAUSE (I) OF SECTION 92BA OF THE ACT. THEREFORE, T HE ACTION OF THE ASSESSING OFFICER CANNOT BE HELD TO B E ERRONEOUS AS WELL AS PREJUDICIAL TO THE INTEREST OF THE REVENUE, IN THE FACTS AND CIRCUMSTANCES AS NARRATED ABOVE. THUS, THE USURPATION OF JURISDICTION OF EXER CISING REVISIONAL JURISDICTION BY THE PRINCIPAL CIT IS 'NU LL' IN THE EYES OF LAW AND, THEREFORE, WE ARE INCLINED TO QUASH THE VERY ASSUMPTION OF JURISDICTION TO INVOKE REVIS IONAL JURISDICTION U/S 263 OF THE ACT BY THE PRINCIPAL CI T. THEREFORE, WE QUASH THE ORDER OF THE PRINCIPAL CIT DATED 08.03.2019 BEING AB INITIO VOID.' D. SWASTIK COAL CORPORATION PVT. LTD. V. PR. CIT-2 ITA NO.486/IND /2018 '8. WE FIND THAT THE ABOVE VIEW OF THE ID. PR. CIT IS NOT CORRECT. IN VIEW OF THE AFORESAID DISCUSSION, MOREO VER, THE COORDINATE BENCH HAS ALSO EXAMINED THE ISSUE IN THE CASE OF TEXPORT OVERSEAS PVT. LTD. IN IT(TP)A NO.L722/BANG/2017. ADMITTEDLY, IN THIS CASE, THE ORDER HAS BEEN REVISED PURELY ON THE BASIS THAT THE ASSESSING OFFICER HAS NOT REFERRED TO DETERMINE THE ARM'S LENGTH PRICE TO THE TPO. SINCE THE PROVISION ITSELF STOOD OMITTED AT THE TIME WHEN THE ORDER WAS PASSED BV THE LD. PR. CIT. UNDER THESE UNDISPUTED FACTS IN THE LIGHT OF THE LUDAEMENT OF THE HON'HLE SUPREME COURT RENDERED IN THE CASE OF GENERAL FINANCE COMPANY (SUPRA) AS WELL AS THE ORDER OF THE COORDINATE BENC H RENDERED IN THE CASE OFTEXPORT OVERSEAS PVT. LTD. (SUPRA), THE IMPUGNED ORDER CANNOT BE SUSTAINED, HENCE IS HEREBY QUASHED. THE ORDER IMPUGNED IS THUS QUASHED AND THE GROUNDS RAISED IN THE APPEAL ARE ALLOWED.' 8. RELIANCE HAS BEEN PLACED ON THE FOLLOWING JUDGEMENTS OF THE HON'BLE APEX COURT WHEREIN THE FOLLOWING WAS HELD: REPEAL CAN BE BY WAY OF AN EXPRESS OMISSION I.T.A. NO.635/DEL/2021 20 IF A PART OF A STATUTE IS DELETED, SECTION 6 OF GENERAL CLAUSES ACT WOULD NONETHELESS APPLY 'OMISSION IS NOTHING BUT A PARTICULAR FORM OF W ORDS EVINCING AN INTENTION TO ABROGATE AN ENACTMENT OR PORTION THEREOF 'DELETE AND 'OMIT ARE USED INTERCHANGEABLY, SO THAT WHEN THE EXPRESSION 'REPEAL REFERS TO 'DELETE IT WOULD NECESSARILY TAKE WITHIN ITS KIN AN OMISSION A S WELL. BOTH DELETE AND REPEAL LEAD TO THE SAME RESULT, NAMELY, THAT AN 'OMISSION BEING TANTAMOUNT TO A 'DELETION IS A FORM OF REPEAL E. SHREE BHAGWATI STEEL ROLLING V. COMMISSIONER OF CENTRAL EXCISE. F20161 3 SCC 643 ''12. FROM THIS IT IS CLEAR THAT WHEN SECTION 6 OF THE GENERAL CLAUSES ACT SPEAKS OF THE REPEAL OF ANY ENACTMENT, IT REFERS NOT MERELY TO THE ENACTMENT AS A WHOLE BUT ALSO TO ANY PROVISION CONTAINED IN ANY AC T. THUS, IT IS CLEAR THAT IF A PART OF A STATUTE IS DE LETED. SECTION 6 WOULD NONETHELESS APPLY. SECONDLY, IT IS CLEAR, AS HAS BEEN STATED BY REFERRING TO A PASSAGE IN HALSBURY'S LAWS OF ENGLAND IN FIBRE BOARD JUDGMENT, THAT THE EXPRESSION 'OMISSION IS NOTHING BUT A PARTICULAR FORM OF WORDS EVINCING AN INTENTION TO ABROGATE AN ENACTMENT OR PORTION THEREOF. THIS IS M ADE FURTHER CLEAR BY THE LEGAL THESAURUS (DELUXE EDITIO N) BY WILLIAM C. BURTON, 1979 EDITION. THE EXPRESSION 'DELETE' IS DEFINED BY THE THESAURUS AS FOLLOWS: ' DELETE:- BLOT OUT, CANCEL, CENSOR, CROSS OFF, CROSS OUT, CUT, CUT OUT, DELE, DISCARD, DO AWAY WITH DROP EDIT OUT, EFFACE, ELIDE, ELIMINATE, ERADICATE, ERAS E, EXCISE, EXPEL, EXPUNGE, EXTIRPATE, GET RID OF. LEAV E OUT, MODIFY BV EXCISIONS, OBLITERATE, OMIT, REMOVE, RUB OUT, RULE OUT, SCRATCH OUT, STRIKE OFF, TAKE OU T, WEED, WIPE OUT.' AND THE EXPRESSION 'REPEAL' IS DEFINED AS FOLLOWS: 'REPEAL:- ABOLISH, ABROAARE. ABROGATE, ANNUL, AVOID , CANCEL, COUNTERMAND, DECLARE NULL AND VOID, DELETE, I.T.A. NO.635/DEL/2021 21 ELIMINATE, FORMALLY WITHDRAW, INVALIDATE, MAKE VOID , NEGATE, NULLIFY, OBLITERATE, OFFICIALLY WITHDRAW. OVERRIDE, OVERRULE, QUASH, RECALL, RENDER INVALID, RESCIND, RESCINDERE. RETRACT, REVERSE, REVOKE, SET ASIDE, VACATE, VOID, WITHDRAW.' 13. ON A CONJOINT READING OF THE THREE EXPRESSIONS 'DELETE', 'OMIT', AND 'REPEAL', IT BECOMES CLEAR TH AT 'DELETE' AND OMIT' ARE USED INTERCHANGEABLY, SO TH AT WHEN THE EXPRESSION 'REPEAL' REFERS TO 'DELETE' IT WOULD NECESSARILY TAKE WITHIN ITS KEN AN OMISSION AS WELL . THIS BEING THE CASE, WE DO NOT FIND ANV SUBSTANCE I N THE ARGUMENT THAT A REPEAL' AMOUNTS TO AN OBLITERA TION FROM THE VERY BEGINNING, WHEREAS AN 'OMISSION' IS O NLY IN FUTURO. IF THE EXPRESSION 'DELETE' WOULD AMOUNT TO A 'REPEAL', WHICH THE APPELLANTS COUNSEL DOES NOT DE NY, IT IS CLEAR THAT A CONJOINT READING OF HALSBURV'S L AWS OF ENGLAND AND THE LEGAL THESAURUS CITED HEREINABVOVE BOTH LEAD TO THE SAME RESULT, NAMELY, THAT AN 'OMISSION' BEING TANTAMOUNT TO A 'DELETION' IS A FO RM OF REPEAL. 18. WE ALSO FIND THAT SECTION 6 COULD NOT POSSIBLY APPLY TO THE FACTS IN RAYALA CORPORATIONS CASE FOR YET ANOTHER REASON. CLAUSE 2 OF THE AMENDMENT RULES WHICH WAS REFERRED TO IN PARAGRAPH 14 OF THE JUDGME NT IN RAYALA CORPORATION READS AS FOLLOWS:- 'IN THE DEFENCE OF INDIA RULES, 1962, RULE 132A (RELATING TO PROHIBITION OF DEALINGS IN FOREIGN EXC HANGE) SHALL BE OMITTED EXCEPT AS RESPECTS THINGS DONE OR OMITTED TO BE DONE UNDER THAT RULE.' 19. A CURSORY READING OF CLAUSE 2 SHOWS THAT AFTER OMITTING RULE 132A OF THE DEFENCE OF INDIA RULES, 1 962, THE PROVISION CONTAINS ITS OWN SAVING CLAUSE. THIS BEING THE CASE, SECTION 6 CAN IN ANY CASE HAVE NO APPLICA TION AS SECTION 6 ONLY APPLIES TO A CENTRAL ACT OR REGUL ATION 'UNLESS A DIFFERENT INTENTION APPEARS'. A DIFFERENT INTENTION CLEARLY APPEARS ON A READING OF CLAUSE 2 AS ONLY A VERY LIMITED SAVINGS CLAUSE IS INCORPORATED THEREIN. IN FACT, THIS ASPECT IS NOTICED BY THE I.T.A. NO.635/DEL/2021 22 CONSTITUTION BENCH IN PARAGRAPH 18 OF ITS JUDGMENT, IN WHICH THE CONSTITUTION BENCH STATES:- 'AS WE HAVE INDICATED EARLIER, THE NOTIFICATION OF THE MINISTRY OF HOME AFFAIRS OMITTING RULE 132-A OF THE D.I.RS. DID NOT MAKE ANY SUCH PROVISION SIMILAR TO THAT CONTAINED IN SECTION 6 OF THE GENERAL CLAUSES ACT.' 20. IT WAS THEN URGED BEFORE US THAT SECTION 31 OF THE PREVENTION OF CORRUPTION ACT, 1988 WOULD ALSO L EAD TO THE CONCLUSION THAT PARLIAMENT ITSELF IS COGNIZA NT OF THE FACT THAT AN OMISSION CANNOT AMOUNT TO A REPEAL . SECTION 31 OF THE PREVENTION OF CORRUPTION ACT, 198 8, STATES AS FOLLOWS:- 'SECTION 31 - OMISSION OF CERTAIN SECTIONS OF ACT 4 5 OF 1860 SECTIONS 161 TO 165A (BOTH INCLUSIVE) OF THE INDIAN PENAL CODE, 1860 (45 OF 1860) SHALL BE OMITT ED, AND SECTION 6 OF THE GENERAL CLAUSES ACT, 1897 (10 OF1897), SHALL APPLY TO SUCH OMISSION AS IF THE SAI D SECTIONS HAD BEEN REPEALED BY A CENTRAL ACT. 21. IT IS SETTLED LAW THAT PARLIAMENT IS PRESUMED TO KNOW THE LAW WHEN IT ENACTS A PARTICULAR PIECE OF LEGISLATION. THE PREVENTION OF CORRUPTION ACT WAS PASSED IN THE YEAR 1988, THAT IS LONG AFTER 1969 WH EN THE CONSTITUTION BENCH DECISION IN RAYALA CORPORATI ON HAD BEEN DELIVERED. IT IS, THEREFORE, PRESUMED THAT PARLIAMENT ENACTED SECTION 31 KNOWING THAT THE DECISION IN RAYALA CORPORATION HAD STATED THAT AN OMISSION WOULD NOT AMOUNT TO A REPEAL AND IT IS FOR THIS REASON THAT SECTION 31 WAS ENACTED. THIS AGAIN DOES NOT TAKE US FURTHER AS THIS STATEMENT OF THE LAW IN RAYALA CORPORATION IS NO LONGER THE LAW DECLARED BY THE SUPREME COURT AFTER THE DECISION IN THE FIBRE BOARD'S CASE. THIS REASON THEREFORE AGAIN CANNOT AV AIL THE APPELLANT. 23. FIBRE BOARD CASE IS A RECENT JUDGMENT WHICH, AS HAS CORRECTLY BEEN ARGUED BY SHRI RADHAKRISHNAN, LEARNED SENIOR COUNSEL ON BEHALF OF THE REVENUE, CLARIFIES THE LAW IN HOLDING THAT AN OMISSION WOULD AMOUNT TO A REPEAL. THE CONVERSE VIEW OF THE LAW HA S LED TO AN OMITTED PROVISION BEING TREATED AS IF IT NEVER I.T.A. NO.635/DEL/2021 23 EXISTED, AS SECTION 6 OF THE GENERAL CLAUSES ACT WO ULD NOT THEN APPLY TO ALLOW THE PREVIOUS OPERATION OF T HE PROVISION SO OMITTED OR ANYTHING DULY DONE OR SUFFE RED THEREUNDER. NOR MAY A LEGAL PROCEEDING IN RESPECT O F ANY RIGHT OR LIABILITY BE INSTITUTED, CONTINUED OR ENFORCED IN RESPECT OF RIGHTS AND LIABILITIES ACQUIRED OR IN CURRED UNDER THE ENACTMENT SO OMITTED. IN THE VAST MAJORIT Y OF CASES, THIS WOULD CAUSE GREAT PUBLIC MISCHIEF, AND THE DECISION OF FIBRE BOARD CASE IS THEREFORE CLEARLY DELIVERED BY THIS COURT FOR THE PUBLIC GOOD, BEING, AT THE VERY LEAST A REASONABLY POSSIBLE VIEW. ALSO, NO ASP ECT OF THE QUESTION AT HAND HAS REMAINED UNNOTICED. FOR THIS REASON ALSO WE DECLINE TO ACCEPT SHRI AGGARWAL 'S PERSUASIVE PLEA TO RECONSIDER THE JUDGMENT IN FIBRE BOARD CASE. THIS BEING THE CASE, IT IS CLEAR THAT O N POINT ONE THE PRESENT APPEAL WOULD HAVE TO BE DISMISSED A S BEING CONCLUDED BY THE DECISION IN FIBRE BOARD CASE .' 34. SHRI RADHAKRISHNAN, LEARNED SENIOR ADVOCATE APPEARING ON BEHALF OF THE REVENUE FOUND IT EXTREME LY DIFFICULT TO ARGUE THAT THE AFORESAID JUDGMENT WAS WRONG. HE THEREFORE ASKED US TO LIMIT THE EFFECT OF THE JUDGMENT WHEN IT FURTHER HELD THAT AFTER OMISSION O F THE AFORESAID RULES WITH EFFECT FROM 1.3.2001 NO PROCEEDINGS COULD HAVE BEEN INITIATED THEREUNDER. I N THIS SUBMISSION HE IS CORRECT FOR THE SIMPLE REASON THAT THE GUJARAT HIGH COURT FOLLOWED RAYALA CORPORATION IN HOLDING THAT 'OMISSIONS' WOULD NOT AMOUNT TO 'REPEA LS', WHICH THIS COURT HAS NOW CLARIFIED IS NOT THE CORRE CT LEGAL POSITION.' F- FIBRE BOARDS (PI LTD.. BANGALORE V. COMMISSIONER OF INCOME TAX. BANGALORE. F20151 10 SCC .333: 31. FIR ST AND FOREMOST, IT WILL BE NOTICED THAT TWO REASONS W ERE GIVEN IN RAYALA CORPORATION (P) LTD. FOR DISTINGUIS HING THE MADHYA PRADESH HIGH COURT JUDGMENT. ORDINARILY, BOTH REASONS WOULD FORM THE RATIO DECIDENDI FOR THE SAID DECISION AND BOTH REASONS WOULD BE BINDING UPO N US. BUT WE FIND THAT ONCE IT IS HELD THAT SECTION 6 OF THE GENERAL CLAUSES ACT WOULD ITSELF NOT APPLY TO A RUL E WHICH IS SUBORDINATE LEGISLATION AS IT APPLIES ONLY TO A CENTRAL ACT OR REGULATION, IT WOULD BE WHOLLY I.T.A. NO.635/DEL/2021 24 UNNECESSARY TO STATE THAT ON A CONSTRUCTION OF THE WORD 'REPEAL' IN SECTION 6 OF THE GENERAL CLAUSES ACT, 'OMISSIONS' MADE BY THE LEGISLATURE WOULD NOT BE INCLUDED. ASSUME, ON THE OTHER HAND, THAT THE CONSTITUTION BENCH HAD GIVEN TWO REASONS FOR THE NO N- APPLICABILITY OF SECTION 6 OF THE GENERAL CLAUSES A CT. IN SUCH A SITUATION, OBVIOUSLY BOTH REASONS WOULD BE R ATIO DECIDENDI AND WOULD BE BINDING UPON A SUBSEQUENT BENCH. HOWEVER, ONCE IT IS FOUND THAT SECTION 6 ITSELF WOULD NOT APPLY, IT WOULD BE WHOLLY SUPERFLUOUS TO FURTHER STATE THAT ON AN INTERPRETATION OF THE WORD 'REPEAL', AN 'OMISSION' WOULD NOT HE INCLUDED. WE A RE, THEREFORE, OF THE VIEW THAT THE SECOND SOCALLED RAT IO OF THE CONSTITUTION BENCH IN RAVALA CORPORATION (PI LT D. CANNOT BE SAID TO HE A RATIO DECIDENDI AT ALL AND I S REALLY IN THE NATURE OF OBITER DICTA. 32. SECONDLY, WE FIND NO REFERENCE TO SECTION 6A O F THE GENERAL CLAUSES ACT IN EITHER OF THESE CONSTITU TION BENCH JUDGMENTS. SECTION 6A READS AS FOLLOWS: '6A. REPEAL OF ACT MAKING TEXTUAL AMENDMENT IN ACT OR REGULATION - WHERE ANY CENTRAL ACT OR REGULATION MA DE AFTER THE COMMENCEMENT OF THIS ACT REPEALS ANY ENACTMENT BY WHICH THE TEXT OF ANY CENTRAL ACT OR REGULATION WAS AMENDED BY THE EXPRESS OMISSION, INSERTION OR SUBSTITUTION OF ANY MATTER, THEN, UNLE SS A DIFFERENT INTENTION APPEARS, THE REPEAL SHALL NOT A FFECT THE CONTINUANCE OF ANY SUCH AMENDMENT MADE BY THE ENACTMENT SO REPEALED AND IN OPERATION AT THE TIME OF SUCH REPEAL.' 33. A READING OF THIS SECTION WOULD SHOW THAT A REPEAL BY AN AMENDING ACT CAN BE BY WAY OF AN EXPRESS OMISSION. THIS BEING THE CASE, OBVIOUSLY TH E WORD ''REPEAL' IN BOTH SECTION 6 AND SECTION 24 WOU LD, THEREFORE, INCLUDE REPEALS BV EXPRESS OMISSION. THE ABSENCE OF ANY REFERENCE TO SECTION 6A, THEREFORE, AGAIN UNDOES THE BINDING EFFECT OF THESE TWO JUDGMENTS ON AN APPLICATION OF THE 'PER INCURIAM PRINCIPLE. 34. THIRDLY, AN EARLIER CONSTITUTION BENCH JUDGMENT REFERRED TO EARLIER IN THIS JUDGMENT, NAME LY, I.T.A. NO.635/DEL/2021 25 STATE OF ORISSA V. M.A. TULLOCH & CO., [1964) 4 SCR 461 HAS ALSO BEEN MISSED. THE COURT THERE STATED: '....NOW, IF THE LEGISLATIVE INTENT TO SUPERSEDE TH E EARLIER LAW IS THE BASIS UPON WHICH THE DOCTRINE OF IMPLIED REPEAL IS FOUNDED COULD THERE BE ANY INCONGRUITY IN ATTRIBUTING TO THE LATER LEGISLATION THE SAME INTEN T WHICH SECTION 6 PRESUMES WHERE THE WORD 'REPEAL' IS EXPRESSLY USED. SO FAR AS STATUTORY CONSTRUCTION IS CONCERNED, IT IS ONE OF THE CARDINAL PRINCIPLES OF THE LAW THAT THERE IS NO DISTINCTION OR DIFFERENCE BETWEEN AN EXPRESS PROVISION AND A PROVISION WHICH IS NECESSAR ILY IMPLIED, FOR IT IS ONLY THE FORM THAT DIFFERS IN TH E TWO CASES AND THERE IS NO DIFFERENCE IN INTENTION OR IN SUBSTANCE. A REPEAL MAY BE BROUGHT ABOUT BY REPUGNANT LEGISLATION, WITHOUT EVEN ANY REFERENCE T O THE ACT INTENDED TO BE REPEALED, FOR ONCE LEGISLATIVE COMPETENCE TO EFFECT A REPEAL IS POSITED, IT MATTER S LITTLE WHETHER THIS IS DONE EXPRESSLY OR INFERENTIALLY OR BY THE ENACTMENT OF REPUGNANT LEGISLATION. IF SUCH IS THE BASIS UPON WHICH REPEALS AND IMPLIED REPEALS ARE BROUGHT ABOUT IT APPEARS TO US TO BE BOTH LOGICAL AS WELL A S IN ACCORDANCE WITH THE PRINCIPLES UPON WHICH THE RULE AS TO IMPLIED REPEAL RESTS TO ATTRIBUTE TO THAT LEGISL ATURE WHICH EFFECTS A REPEAL BY NECESSARY IMPLICATION THE SAME INTENTION AS THAT WHICH WOULD ATTEND THE CASE OF AN EXPRESS REPEAL. WHERE AN INTENTION TO EFFECT A R EPEAL IS ATTRIBUTED TO A LEGISLATURE THEN THE SAME WOULD, IN OUR OPINION, ATTRACT THE INCIDENT OF THE SAVING FOU ND IN SECTION 6 FOR THE RULES OF CONSTRUCTION EMBODIED IN THE GENERAL CLAUSES ACT ARE, SO TO SPEAK, THE BASIC ASSUMPTIONS ON WHICH STATUTES ARE DRAFTED ' (AT PAG E 484) 35. THE TWO LATER CONSTITUTION BENCH JUDGMENTS ALSO DID NOT HAVE THE BENEFIT OF THE AFORESAID EXPO SITION OF THE LAW. IT IS CLEAR THAT EVEN AN IMPLIED REPEAL OF A STATUTE WOULD FALL WITHIN THE EXPRESSION 'REPEAL' IN SECTION 6 OF THE GENERAL CLAUSES ACT. THIS IS FOR T HE REASON GIVEN BY THE CONSTITUTION BENCH IN M.A. TUII OCH & CO. THAT ONLY THE FORM OF REPEAL DIFFERS BUT THER E IS NO DIFFERENCE IN INTENT OR SUBSTANCE. IF EVEN AN IMPLI ED REPEAL IS COVERED BY THE EXPRESSION 'REPEAL, IT IS CLEAR THAT REPEALS MAY TAKE ANY FORM AND SO LONG AS A I.T.A. NO.635/DEL/2021 26 STATUTE OR PART OF IT IS OBLITERATED, SUCH OBLITERA TION WOULD BE COVERED BY THE EXPRESSION 'REPEAL' IN SECT ION 6 OF THE GENERAL CLAUSES ACT. 6. ON THE OTHER HAND, LD. CIT-DR STRONGLY RELIED UP ON THE ORDER OF THE DRP AND SUBMITTED THAT THE PROVISION O F SECTION 92BA SUB-CLAUSE (I) HAS BEEN OMITTED BY THE FINANCE ACT, 2017 W.E.F. 01.04.2017, I.E., FOR THE ASSESSMENT YE AR 2017- 18. HERE THE TRANSACTION PERTAINS TO ASSESSMENT YEA R 2016- 17 AND DURING THAT PERIOD THE PROVISION OF SECTION 92BA SUB- CLAUSE (1) WAS THERE IN THE STATUTE. IF THE PROVISI ON HAS BEEN OMITTED FROM A PARTICULAR DATE THEN IT APPLIES PROS PECTIVE AND NOT RETROSPECTIVE. IN SUPPORT, SHE RELIED UPON THE JUDGMENT OF SOBHA CITY VS. ACIT IN ITA NO.2936/BANG/2018 IN WHICH THE CASE WAS RESTORED TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO EXAMINE THE CLAIM OF EXPENDITURE I N ACCORDANCE WITH THE PROVISION OF SECTION 40A(2) OF THE IT ACT. SHE ALSO PLACED RELIANCE UPON THE DECISION RENDERED BY THE MUMBAI BENCH OF TRIBUNAL IN THE CASE OF FIREMENICH AROMATICS INDIA PVT. LTD. VS. ACIT IN ITA NO. 348/MUM/2014 DATED 15.07.2020 IN WHICH THE DECISION RENDERED BY THE HONBLE APEX COURT IN THE CASE OF F IBER BORES PVT. LTD. (2015) 52 TAXMANN.COM 135. FURTHER, SHE P LACED RELIANCE IN THE CASE OF M/S. SHREE BHAGWATI STEEL ROLLING MILLS LTD. (CA NO.4280/2007 DATED 24.11.2015 WHICH WERE NOT CONSIDERED BY THE TRIBUNAL AS WELL AS THE BY HO NBLE HIGH COURT IN THE CASE OF TEXPORT OVERSEAS PVT. LTD. IN ITA NO.392/2018 DATED 12.21.2019. I.T.A. NO.635/DEL/2021 27 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO PER USED THE RELEVANT FACTS ARISING OUT FROM THE RECORDS ON THE LEGAL ISSUE RAISED BY THE LD. COUNSEL. IT IS AN UNDISPUTE D FACT THAT THE SDT FOR PURCHASE OF OFFICE SPACE AS INVENTORY W AS BY WAY OF SLUMP SALE OF A GOING CONCERN W.E.F. 28 TH MARCH, 2016. THE ASSESSEES CASE WAS SELECTED FOR SCRUTINY ON 21.07. 2017 AND REFERENCE TO THE TPO WAS MADE FOR DETERMINATION OF ARMS LENGTH PRICE OF SDT AFTER SEEKING APPROVAL OF PCIT ON 29.11.2018. THE CORE ARGUMENT OF THE LD. COUNSEL IS THAT, ONCE THE REFERENCE WHICH HAS BEEN MADE UNDER CLAUSE (I) OF SECTION 92BA, ITSELF HAS BEEN OMITTED FROM THE STAT UTE, THEREFORE, IT IS DEEMED THAT THE SAID CLAUSE WAS NE VER PART OF THE ACT AND ANY PROCEEDINGS COMMENCED UNDER THE OMI TTED PROVISION CANNOT BE ENFORCED OR ACTION CAN BE TAKEN THEREAFTER. IN SUPPORT, THE JUDGMENT OF HONBLE KARN ATAKA HIGH COURT HAS BEEN RELIED UPON IN THE CASE OF PCIT VS. TEXTPORT OVERSEAS PVT. LTD., REPORTED IN (2020) 114 TAXMANN.COM 568 (KARNATAKA) AND CATENA OF ITAT JUDGMENTS CITED SUPRA, THE RELEVANT TEXT OF WHICH H AVE ALREADY BEEN INCORPORATED ABOVE. THE FINANCE ACT 20 17 HAS OMITTED SDT WHEREBY ANY EXPENDITURE IN RESPECT OF W HICH PAYMENT HAS BEEN MADE OR HAS TO BE MADE TO A PERSON REFERRED TO IN CLAUSE (B) OF SUB-SECTION (II) OF SE CTION 40. IT HAS BEEN OMITTED W.E.F. 01.04.2017. THIS PRECISE ISSUE HAD COME UP FOR CONSIDERATION BEFORE THE HONBLE KARNATAKA H IGH COURT WHEREIN THE HONBLE HIGH COURT HAVE HELD THAT WHEN CLAUSE (I) OF SECTION 92BA HAVE BEEN OMITTED BY THE FINANCE AC T, 2017 I.T.A. NO.635/DEL/2021 28 W.E.F. 01.04.2017 FROM THE STATUTE, THE RESULTANT E FFECT IS THAT, IT HAD NEVER BEEN PASSED AND TO BE CONSIDERED AS A LAW NEVER BEEN EXISTED AND THEREFORE ORDER OF TPO U/S.92BA CO ULD BE INVALID AND BAD IN LAW, WHILE COMING TO THIS CONCLU SION THE HONBLE HIGH COURT HAS REFERRED AND RELIED UPON THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF KOLHAPUR CANESUGAR WORKS LTD. & ANR. V. UNION OF INDIA & ORS ., (2000) 2 SCC 536. 8. THOUGH, THIS JUDGMENT OF PCIT VS. TEXTPORT OVERSEAS PVT. LTD (SUPRA) CLEARLY CLINCHES THE ISSUE IN FAVOUR OF TH E ASSESSEE AND WILL APPLY MUTATIS MUTANDIS IN THE PRE SENT APPEAL ALSO. HOWEVER, WE DEEM FIT TO DEAL WITH THE RELEVANT LAW ON THIS POINT. THE AMENDMENT MADE IN THE ACT WH ICH HAS THE EFFECT OF OMITTING A CLAUSE FROM THE STATUTE HA S TO BE READ IN LIGHT WITH SECTION 6 OF THE GENERAL CLAUSES ACT. AS PER SECTION 6 OF THE GENERAL CLAUSES ACT, IF AN AMENDME NT FOR OMISSION HAS A PROVISION THEREIN THAT PENDING PROCE EDINGS SHALL CONTINUE THEN SUCH A PROCEEDING WILL CONTINUE . HOWEVER, IN THE ABSENCE OF ANY SUCH PROVISION IN THE STATUE OR IN THE RULE, THE PENDING PROCEEDING WILL LAPSE. SECTION 6 AND 6A OF THE GENERAL CLAUSES ACT FOR SAKE OF READY REFERENCE ARE REPRODUCED HEREIN BELOW:- '6 EFFECT OF REPEAL. WHERE THIS ACT, OR ANY [CENTRA L ACT] OR REGULATION MADE AFTER THE COMMENCEMENT OF THIS ACT, REPEALS ANY ENACTMENT HITHERTO MADE OR HEREAFTER TO BE MADE, THEN, UNLESS A DIFFERENT INTENTION APPEARS, T HE REPEAL SHALL NOT (A) REVIVE ANYTHING NOT IN FORCE OR EXISTING AT THE TI ME AT I.T.A. NO.635/DEL/2021 29 WHICH THE REPEAL TAKES EFFECT; OR (B) AFFECT THE PREVIOUS OPERATION OF ANY ENACTMENT SO REPEALED OR ANYTHING DULY DONE OR SUFFERED THEREUND ER; OR (C) AFFECT ANY RIGHT, PRIVILEGE, OBLIGATION OR LIABILI TY ACQUIRED, ACCRUED OR INCURRED UNDER ANY ENACTMENT SO REPEALED ; OR (D) AFFECT ANY PENALTY, FORFEITURE OR PUNISHMENT INCUR RED IN RESPECT OF ANY OFFENCE COMMITTED AGAINST ANY ENACTM ENT SO REPEALED; OR (E) AFFECT ANY INVESTIGATION, LEGAL PROCEEDING OR REME DY IN RESPECT OF ANY SUCH RIGHT, PRIVILEGE, OBLIGATION, L IABILITY, PENALTY, FORFEITURE OR PUNISHMENT AS AFORESAID, AND ANY SUCH INVESTIGATION, LEGAL PROCEEDING OR REM EDY 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. [6A. REPEAL OF ACT MAKING TEXTUAL AMENDMENT IN ACT OR REGULATION.WHERE ANY [CENTRAL ACT] OR REGULATION M ADE AFTER THE COMMENCEMENT OF THIS ACT REPEALS ANY ENAC TMENT BY WHICH THE TEXT OF ANY [CENTRAL ACT] OR REGULATIO N WAS AMENDED BY THE EXPRESS OMISSION, INSERTION OR SUBST ITUTION OF ANY MATTER, THEN, UNLESS A DIFFERENT INTENTION A PPEARS, THE REPEAL SHALL NOT AFFECT THE CONTINUANCE OF ANY SUCH AMENDMENT MADE BY THE ENACTMENT SO REPEALED AND IN OPERATION AT THE TIME OF SUCH REPEAL. 9. ERGO, FOR THE PURPOSE OF PRESENT ISSUE INVOLVED, CLAUSE (A) OF SECTION 6 OF THE GENERAL CLAUSES ACT IS APPL ICABLE WHICH PROVIDES THAT THE EFFECT OF THE REPEAL SHALL NOT RE VIVE ANYTHING NOT IN FORCE OR EXISTING AT THE TIME OF REPEAL TAKE S EFFECT. SECTION 6A PROVIDES THAT WHERE ANY ACT OR REGULATIO N REPEALS ANY ENACTMENT BY WHICH THE TEXT OF ANY ACT OR REGUL ATION IS I.T.A. NO.635/DEL/2021 30 AMENDED BY EXPRESS OMISSION AND UNLESS A DIFFERENT INTENTION APPEARS, THE REPEAL SHALL NOT AFFECT THE CONTINUANC E OF ANY SUCH AMENDMENT MADE BY THE ENACTMENT SO REPEALED AN D IN OPERATION AT THE TIME OF SUCH REPEAL. THERE IS ABSO LUTELY NO SAVING CLAUSE WHILE OMITTING (I) OF SECTION 92BA BY THE FINANCE ACT, 2017. THE CONSTITUTIONAL BENCH OF HONBLE SUPREME COURT IN THE CASE OF KOLHAPUR CANESUGAR WOR KS LTD. & ANR. V. UNION OF INDIA & ORS., (2000) 2 SCC 536 HAS OBSERVED AND HELD AS UNDER: 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 NE VER BEEN PASSED, AND THE STATUTE MUST BE CONSIDERED AS A LAW THAT NE VER EXISTED. TO THIS RULE, AN EXCEPTION IS ENGRAFTED BY THE PROVISI ONS OF SECTION 6(1). IF A PROVISION OF A STATUTE IS UNCONDITIONALLY OMIT TED WITHOUT A SAVING CLAUSE IN FAVOUR OF PENDING PROCEEDINGS, ALL ACTIONS MUST STOP WHERE THE OMISSION GOES INTO EFFECT, IT CANNOT BE GRANTED AFTERWARDS. SAVINGS OF THE NATURE CONTAINED IN SECT ION 6 OR IN SPECIAL ACTS MAY MODIFY THE POSITION. THUS THE OPER ATION OR REPEAL OR DELETION OR TO THE FUTURE AND THE PAST LARGELY D EPENDS ON THE SAVINGS APPLICABLE. IN A CASE WHERE A PARTICULAR PR OVISION 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 ABLE 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. 10. THUS, IF A PROVISION OR STATUTE IS UNCONDITIONA LLY OMITTED WITHOUT ANY SAVING CLAUSE IN FAVOUR OF THE PENDING PROCEEDINGS, ALL ACTIONS MUST STOP WHERE SUCH AN OM ISSION IS I.T.A. NO.635/DEL/2021 31 FOUND, ESPECIALLY WHEN ACTION HAS BEEN TAKEN AFTER THE PROVISION HAS BEEN OMITTED. DURING THE COURSE OF AR GUMENT A REFERENCE WAS MADE TO THE JUDGMENT OF HONBLE SUPREM E COURT IN THE CASE OF FIBER BOARDS (P) LTD., BANGALORE V. COMMISSIIONER OF INCOME TAX, BANGALORE, (2015) 10 S CC 333 AND SHREE BHAGWATI STEEL ROLLING V. COMMISSIONER OF CENTRAL EXCISE (2016) 3 SCC 643 TO CONVASS THE POINT THAT THE EARLIER JUDGMENTS OF CONSTITUTIONAL BENCH IN TH E CASE OF RAYALA CORPORATION PVT. LTD., 1970 SCR 1 (69) AND KOHLAPUR CANE SUGAR [SUPRA] HAVE BEEN NOT FOLLOWED OR HAVE BEEN OVERRULED. FIRST OF ALL, NOWHERE THE HONBLE A PEX COURT IN BOTH THE JUDGMENTS HAVE OVERRULED EARLIER TWO JUD GMENT OF THE CONSTITUTIONAL BENCH OF THE HONBLE APEX COURT RATHER THEY HAVE EXPLAINED IT IN DETAIL AND WENT ON TO HEL D THAT THE WORD REPEALED IN BOTH SECTION OF 6A AND SECTION 24 OF GENERAL CLAUSES ACT WOULD INCLUDE REPEALS BY EXPRESSION OM ISSION AND THE EXPRESSION DELETE AND OMISSION ARE USED INTERCHANGEABLY. 11. HOWEVER, IT WOULD BE APPOSITE TO UNDERSTAND THE JUDGMENTS RELIED UPON IN TERMS OF THEIR FACTS AND RA TIO AND THEREAFTER APPLY THE SAME TO THE FACTS OF THE APPEL LANT. IN THE CASE OF FIBRE BOARDS (P) LTD. BANGALORE V. COMMISSI ONER OF INCOME TAX, BANGALORE, (SUPRA) THE APPELLANT HAD AN INDUSTRIAL UNIT AT THANE WHICH WAS A NOTIFIED URBAN AREA. WITH A VIEW TO SHIFT ITS INDUSTRIAL UNDERTAKING FRO M AN URBAN AREA TO A NON-URBAN AREA, IT SOLD ITS LAND, BUILDIN G AND PLANT AND MACHINERY SITUATED AT THANE AND EARNED CAPITAL GAIN AND I.T.A. NO.635/DEL/2021 32 CLAIMED EXEMPTION UNDER SECTION 54G. CHAPTER XXII-B OF THE INCOME TAX ACT, PRIOR TO 1.4.1988, CONTAINED SECTIO N 280ZA WHICH WHEN READ WITH THE DEFINITION OF URBAN AREA IN SECTION 280Y(D) AND NOTIFICATION DATED 22.9.1967 ISSUED UND ER SECTION 280Y(D) BY WHICH THANE HAD BEEN DECLARED TO BE AN URBAN AREA FOR THE PURPOSE OF CHAPTER XXII- B, GAVE TO A PERSON WHO SHIFTED FROM AN URBAN AREA TO ANOTHER AR EA, A TAX CREDIT CERTIFICATE WITH REFERENCE TO THE TAX PAYABL E BY THE COMPANY ON INCOME-TAX CHARGEABLE UNDER CAPITAL GAIN S AND WOULD BE GIVEN RELIEF ACCORDINGLY. THE APPELLANT CO NTENDED THAT SECTION 54G WAS INSERTED ON 1.4.1988 AND AT TH E SAME TIME SECTION 280ZA WAS OMITTED AND THAT THEREFORE S ECTION 24 OF THE GENERAL CLAUSES ACT WOULD BE ATTRACTED TO TH E NOTIFICATION DATED 22.09.1967. THAT NOTIFICATION WO ULD INURE TO THE BENEFIT OF THE APPELLANT FOR THE PURPOSE OF CLAIMING EXEMPTION UNDER SECTION 54G. SECTION 280Y (D) WHICH WAS OMITTED WITH EFFECT FROM 1990, HAD BEEN SO OMITTED BECAUSE IT HAD BEEN RENDERED REDUNDANT WITH THE OMISSION OF SE CTION 280ZA. THE REVENUE RELIED UPON RAYALA CORPORATION ( P) LTD. 1970 SCR (1) 639 AND M.R. PRATAP V. DIRECTOR OF ENF ORCEMENT, NEW DELHI, (1969) 2 SCC 412 WHICH WAS FOLLOWED IN K OLHAPUR CANESUGAR WORKS LTD. & ANR. V. UNION OF INDIA & ORS ., (2000) 2 SCC 536 AND ARGUED THAT AN OMISSION WOULD NOT A MOUNT TO REPEAL AND THAT SINCE THE PRESENT CASE WAS CON CERNED WITH THE OMISSION OF SECTION 280ZA, SECTION 24 OF G ENERAL CLAUSES ACT WOULD HAVE NO APPLICATION AS IT ONLY AP PLIED TO `REPEALS AND NOT OMISSIONS, AND ALSO THAT IT SAV ED RIGHTS THAT I.T.A. NO.635/DEL/2021 33 WERE GIVEN BY SUBORDINATE LEGISLATION, AND AS THE N OTIFICATION DATED 22.9.1967 DID NOT BY ITSELF CONFER ANY RIGHT ON THE APPELLANT, SECTION 24 OF THE GENERAL CLAUSES ACT WO ULD NOT BE ATTRACTED. 11.1 THE APEX COURT IN THE CASE OF FIBRE BOARDS (SU PRA) WAS OF THE VIEW THAT THERE IS NO NEED FOR THE LATER ENA CTMENT TO STATE IN EXPRESS TERMS THAT AN EARLIER ENACTMENT HA S BEEN REPEALED BY USING ANY PARTICULAR SET OF WORDS OR FO RM OF DRAFTING BUT THAT IF THE LEGISLATIVE INTENT TO SUPE RSEDE THE EARLIER LAW IS MANIFESTED BY THE ENACTMENT OF PROVI SIONS AS TO EFFECT SUCH SUPERSESSION, THEN THERE IS IN LAW A RE PEAL NOTWITHSTANDING THE ABSENCE OF THE WORD REPEAL IN THE LATER STATUTE. REPEALS MAY TAKE ANY FORM AND SO LONG AS A STATUTE OR PART OF IT IS OBLITERATED, SUCH OBLITERATION WOU LD BE COVERED BY THE EXPRESSION REPEAL IN SECTION 6 OF THE GENE RAL CLAUSES ACT. ALL THAT IS REQUIRED IS THAT AN INTENTION TO A BROGATE THE ENACTMENT OR PORTION IN QUESTION SHOULD BE CLEARLY SHOWN. 11.2 THE APEX COURT HELD THAT THE IDEA OF OMITTIN G SECTION 280ZA AND INTRODUCING SECTION 54G ON THE SAME DATE WAS TO DO AWAY WITH THE TAX CREDIT CERTIFICATE SCHEME TOGE THER WITH THE PRIOR APPROVAL REQUIRED BY THE BOARD AND TO SUB STITUTE THE REPEALED PROVISION WITH THE NEW SCHEME CONTAINED IN SECTION 54G.ONCE SECTION 280ZA IS OMITTED FROM THE STATUTE BOOK, SECTION 280Y (D) HAVING NO INDEPENDENT EXISTENCE WO ULD FOR ALL PRACTICAL PURPOSES ALSO BE DEAD. ON THIS REAS ONING, THE APEX COURT DECIDED IN FAVOUR OF THE APPELLANT BY HO LDING THAT OMISSION OF SECTION 280ZA AND ITS RE-ENACTMENT WITH I.T.A. NO.635/DEL/2021 34 MODIFICATION IN SECTION 54G, SECTION 24 OF THE GENE RAL CLAUSES ACT WOULD APPLY, AND THE NOTIFICATION DATED 22.9.19 67 WOULD BE CONTINUED UNDER AND FOR THE PURPOSES OF SECTION 54G. 11.3 THE APEX COURT WHILE RENDERING ITS DECISION IN THE AFORESAID CASE HELD THAT IN RAYALA CORPORATION, WHA T FELL FOR DECISION WAS WHETHER PROCEEDINGS COULD BE VALIDLY C ONTINUED ON A COMPLAINT IN RESPECT OF A CHARGE MADE UNDER RU LE 132A OF THE DEFENCE OF INDIA RULES, WHICH CEASED TO BE I N EXISTENCE BEFORE THE ACCUSED WERE CONVICTED IN RESPECT OF THE CHARGE MADE UNDER THE SAID RULE. IT STATED THAT ONCE IT IS HELD BY THE CONSTITUTION BENCH IN RAYALA THAT SECTION 6 ITSELF WOULD NOT APPLY, IT WOULD BE WHOLLY SUPERFLUOUS TO FURTHER ST ATE THAT ON AN INTERPRETATION OF THE WORD REPEAL, AN OMISSIO N WOULD NOT BE INCLUDED AND THEREFORE THE SECOND SO- CALLED RATIO OF THE CONSTITUTION BENCH IN RAYALA CORPORATION CANNOT BE SAID TO BE A RATIO DECIDENDI AT ALL AND IS REALLY IN THE NATURE OF OBITER DICTA. THE APEX COURT WAS OF THE OPINION THA T THE WORD REPEAL IN BOTH SECTION 6 AND SECTION 24 WOULD INC LUDE REPEALS BY EXPRESS OMISSION. AN IMPLIED REPEAL IS C OVERED BY THE EXPRESSION REPEAL AND REPEALS MAY TAKE ANY FO RM AND SO LONG AS A STATUTE OR PART OF IT IS OBLITERATED, SUC H OBLITERATION WOULD BE COVERED BY THE EXPRESSION REPEAL IN SECT ION 6 OF THE GENERAL CLAUSES ACT. THE APEX COURT ALSO STATED THA T THERE IS NO REFERENCE TO SECTION 6A OF THE GENERAL CLAUSES A CT IN EITHER OF THESE CONSTITUTION BENCH JUDGMENTS (RAYALA CORP (SUPRA) AND KOLHAPUR CANESUGAR WORKS LTD. (SUPRA)) AND THE ABSENCE OF ANY REFERENCE TO SECTION 6A, THEREFORE, AGAIN I.T.A. NO.635/DEL/2021 35 UNDOES THE BINDING EFFECT OF THESE TWO JUDGMENTS ON AN APPLICATION OF THE PER INCURIAM PRINCIPLE. 12. SAME VIEW HAS BEEN REITERATED BY THE HONBLE SU PREME COURT IN THE CASE OF SHREE BHAGWATI STEEL ROLLING V. COMMISSIONER OF CENTRAL EXCISE, (2016) 3 SCC 643 . IN THIS CASE, THE APPELLANT TOOK A ROLLING MILL ON LEASE FR OM 1997 TO 2000 AND MANUFACTURED REROLLED NON-ALLOYED STEEL PR ODUCTS. ON 1.9.1997 THE COMPOUNDED LEVY SCHEME WAS INTRODUC ED BY INSERTION OF SECTION 3A OF THE CENTRAL EXCISE ACT. THE APPELLANT OPTED FOR THE AFORESAID SCHEME UNDER RULE 96ZP OF THE CENTRAL EXCISE RULES. WHEN THE LEASE EXPIRED, T HE APPELLANT SURRENDERED ITS REGISTRATION CERTIFICATE ON 1.6.2000. SECTION 3A WAS OMITTED IN 2001. ON 19.8.2005 NOTICE WAS ISSUED TO THE APPELLANT DEMANDING INTEREST FOR DELA YED PAYMENT OF CENTRAL EXCISE DUTY UNDER SECTION 3A OF THE CENTRAL EXCISE ACT FOR THE PERIOD 1997 TO 2000. 12.1 THE QUESTION FRAMED BEFORE THE HONBLE HIGH COURT WAS WHETHER OMISSION OF THE COMPOUNDED LEVY SCHEME IN 2001 WIPES OUT THE LIABILITY OF THE ASSESSEE FOR THE PER IOD DURING WHICH THE SCHEME WAS IN OPERATION. THE HONBLE HIGH COURT HELD THAT ON OMISSION OF SECTION 3A, THE LIABILITY OF THE ASSESSEE WAS NOT WIPED OUT. 12.2 THE APPELLANT CONTENDED THAT THERE IS A FUND AMENTAL DISTINCTION BETWEEN REPEAL AND AN OMISSION, IN THE CASE OF A REPEAL THE STATUTE IS OBLITERATED FROM THE V ERY BEGINNING WHEREAS IN THE CASE OF AN OMISSION WHAT GETS I.T.A. NO.635/DEL/2021 36 OMITTED IS ONLY FROM THE DATE OF OMISSION AND NOT BEFORE. THIS BEING THE CASE, IT IS CLEAR THAT THINGS ALREAD Y DONE IN THE CASE OF AN OMISSION WOULD BE SAVED. HOWEVER, A REPEAL WITHOUT A SAVINGS CLAUSE LIKE SECTION 6 OF THE GENERAL CLAUSES ACT WOULD NOT SO SAVE THINGS ALREAD Y DONE UNDER THE REPEALED STATUTE. HE FURTHER ARGUED THAT REPEAL IS NORMALLY USED WHEN AN ENTIRE STATUTE IS DONE AWA Y WITH, AS OPPOSED TO AN OMISSION WHICH IS APPLIED ONLY W HEN PART OF THE STATUTE IS DELETED. THE APPELLANT FURTH ER CONTENDED THAT SECTION 6A WHICH WAS RELIED UPON IN FIBRE BOARDS CASE DID NOT STATE THAT AN OMISSION WOULD BE INCLUDED WITHIN THE EXPRESSION REPEAL, BUT THAT I F SECTION 6A WERE CAREFULLY READ, AN OMISSION WOULD ONLY BE INCLUDED IN AN AMENDMENT WHICH, UNDER THE SECTION , CAN BE BY WAY OF OMISSION, INSERTION OR SUBSTITUTION. T HEREFORE, IT IS FALLACIOUS TO STATE THAT SECTION 6A WOULD LEA D TO THE CONCLUSION THAT OMISSIONS ARE INCLUDED IN REPEAL S AND FOR VARIOUS REASONS FIBRE BOARDS REQUIRES A RELOOK AND OUGHT TO BE REFERRED TO A LARGER BENCH OF THREE JUD GES. THE APPELLANT FURTHER CONTENDED THAT THE TRUE RATIO DECIDENDI OF THE CONSTITUTION BENCH DECISION IN RAYALA CORPORATI ON IS THAT AN OMISSION CANNOT AMOUNT TO A REPEAL. 12.3 THE REVENUE SUPPORTED THE JUDGMENT IN THE FIBRE BOARDS CASE. 12.4 THE APEX COURT HELD THAT WHEN SECTION 6 OF T HE GENERAL CLAUSES ACT SPEAKS OF THE REPEAL OF ANY ENA CTMENT, IT REFERS NOT MERELY TO THE ENACTMENT AS A WHOLE BU T ALSO TO I.T.A. NO.635/DEL/2021 37 ANY PROVISION CONTAINED IN ANY ACT AND IF A PART OF A STATUTE IS DELETED, SECTION 6 WOULD NONETHELESS APPLY. THE APEX COURT REFERRED TO FIBRE BOARD (SUPRA) WHEREIN IT IS STATED THAT THE EXPRESSION OMISSION IS NOTHING BUT A PAR TICULAR FORM OF WORDS EVINCING AN INTENTION TO ABROGATE AN ENACTMENT OR PORTION THEREOF. I WAS HELD THAT THE E XPRESSION DELETE AND OMIT ARE USED INTERCHANGEABLY, SO TH AT WHEN THE EXPRESSION REPEAL REFERS TO DELETE IT WOULD NECESSARILY TAKE WITHIN ITS KIN AN OMISSION AS WELL . IT WAS FURTHER HELD THAT THERE IS NO SUBSTANCE IN THE ARGU MENT THAT REPEAL AMOUNTS TO AN OBLITERATION FROM THE V ERY BEGINNING, WHEREAS AN OMISSION IS ONLY IN FUTURO. 12.5 THE APEX COURT WAS OF THE VIEW THAT WHEN THE COURT REFERRED TO SECTION 6A IN FIBRE BOARDS CASE AND HE LD THAT SECTION 6A SHOWS THAT A REPEAL CAN BE BY WAY OF AN EXPRESS OMISSION, OBVIOUSLY WHAT WAS MEANT WAS THAT AN AMENDMENT WHICH REPEALED A PROVISION COULD DO SO BY WAY OF AN EXPRESS OMISSION. HENCE SECTION 6A UNDISPUTED LY LEADS TO THE CONCLUSION THAT REPEAL WOULD INCLUDE R EPEAL BY WAY OF AN EXPRESS OMISSION. THE APEX COURT ARRIVED AT THE CONCLUSION THAT AN OMISSION WOULD AMOUNT TO A RE PEAL FOR THE PURPOSE OF SECTION 24 OF THE GENERAL CLAUSE S ACT. SINCE THE SAME EXPRESSION, NAMELY, REPEAL IS USED BOTH IN SECTION 6 AND SECTION 24 OF THE GENERAL CLAUSES ACT , THE CONSTRUCTION OF THE SAID EXPRESSION IN BOTH SECTION S WOULD, THEREFORE, INCLUDE WITHIN IT OMISSIONS MADE BY TH E LEGISLATURE. I.T.A. NO.635/DEL/2021 38 12.6 THE COURT WAS ALSO OF THE VIEW THAT MERELY B ECAUSE THE CONSTITUTION BENCH IN CASE OF RAYALA CORPORATIO N REFERRED TO A REPEAL NOT AMOUNTING TO AN OMISSION T HIS WOULD NOT UNDO THE EFFECT OF DECISION IN FIBRE BOAR DS CASE AND THE STATEMENT OF THE LAW IN RAYALA CORPORATION IS NO LONGER THE LAW DECLARED BY THE HONBLE SUPREME COUR T AFTER THE DECISION IN THE FIBRE BOARDS CASE. FIBRE BOARD (SUPRA) IS A RECENT JUDGMENT WHICH CLARIFIES THE LAW IN HOLD ING THAT AN OMISSION WOULD AMOUNT TO A REPEAL. 13. THE CONVERSE VIEW OF THE LAW LED TO AN OMITTE D PROVISION BEING TREATED AS IF IT NEVER EXISTED, AS SECTION 6 OF THE GENERAL CLAUSES ACT WOULD NOT THEN APPLY TO ALLOW THE PREVI OUS OPERATION OF THE PROVISION SO OMITTED OR ANYTHING D ULY DONE OR SUFFERED THEREUNDER. NOR MAY A LEGAL PROCEEDING IN RESPECT OF ANY RIGHT OR LIABILITY BE INSTITUTED, CONTINUED OR ENFORCED IN RESPECT OF RIGHTS AND LIABILITIES ACQUIRED OR INCUR RED UNDER THE ENACTMENT SO OMITTED. HENCE, SECTION 6 WOULD APPLY TO OMISSION OF SECTION 3A. 14. FURTHER, IT IS A VERY WELL RECOGNIZED RULE OF INTERPRETATION OF STATUTES THAT WHERE A PROVISION O F AN ACT IS OMITTED BY AN ACT AND THE SAID ACT SIMULTANEOUSLY R E-ENACTS A NEW PROVISION WHICH SUBSTANTIALLY COVERS THE FIELD OCCUPIED BY THE REPEALED PROVISION WITH CERTAIN MODIFICATION, I N THAT EVENT SUCH RE-ENACTMENT IS REGARDED HAVING FORCE CONTINUO USLY AND THE MODIFICATION OR CHANGES ARE TREATED AS AMENDMEN T I.T.A. NO.635/DEL/2021 39 COMING INTO FORCE WITH EFFECT FROM THE DATE ENFORCE MENT OF THE RE-ENACTED PROVISION. 15. THE ISSUE FOR CONSIDERATION BEFORE US IS CLAUSE ( I ) OF SECTION 92BA WHICH HAS BEEN OMITTED FROM 01.04.2017 AND THERE IS NO RE-ENACTMENT WITH MODIFICATION OR ANY S AVING CLAUSE IN ANY OTHER SECTIONS OF THE ACT. THUS, WITH OUT ANY SAVING CLAUSE OR SIMILAR ENACTMENT, THEN IT HAS TO BE HELD THAT CLAUSE (I) OF SECTION 92BA DID NOT COME INTO O PERATION WHENEVER ANY ACTION HAS BEEN TAKEN ESPECIALLY AFTER SUCH OMISSION. ACCORDINGLY, WE HOLD THAT NO TRANSFER PRI CING ADJUSTMENT CAN BE MADE ON A DOMESTIC TRANSACTION WH ICH HAS BEEN REFERRED TO BY THE ASSESSING OFFICER AFTER THE OMISSION OF THE SAID CLAUSE BY THE FINANCE ACT, 201 7 EVEN THOUGH TRANSACTION HAS UNDERTAKEN IN THE ASSESSMENT YEAR 2016-17. 16. FURTHER, OUR DECISION IS EQUALLY FORTIFIED BY T HE JUDGMENT OF ITAT KOLKATA BENCH IN THE CASE OF M/S. RAIPUR ST EEL CASTING INDIA (P) LTD. VS. PCIT WHICH PERTAINED TO THE ASSESSMENT YEAR 2014-15, AND CATENA OF OTHER JUDGMEN TS AS RELIED UPON BY THE LD. COUNSEL OF THE ASSESSEE CITE D EXTENSO IN THE FOREGOING PARAGRAPHS. 17. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLO WED. ORDER PRONOUNCED IN THE OPEN COURT ON 18 TH AUGUST, 2021. SD/ - SD/ - [DR. B.R.R. KUMAR] [AMIT SHUKLA] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 18 TH AUGUST, 2021 PKK: