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No area 263 proceedings for linked birthday celebration transaction excluded from definition of detailed domestic transaction | ES0-005 actual Questions and braindumps

facts- Assessee declared the overall salary below ROI as INR 33,ninety eight,080. although, AO passed the evaluation order and decided the taxable profits as INR 57,75,980. The Commissioner discovered that one of the specific domestic transaction became undervalued and therefore he referred the identical to TPO and issued a note beneath section 263.

Conclusion- On the records of the latest case, when the Commissioner issued a demonstrate trigger be aware beneath part 263 and ultimately passed impugned order; with the aid of that point the alleged domestic transaction of buy from connected birthday celebration became now not required to be regarded as a certain domestic transaction beneath part 92BA of the Act. It has been neglected, and therefore, no lawsuits below part 263 may still had been undertaken by the ld. Commissioner.

FULL text OF THE ORDER OF ITAT AHMEDABAD

existing appeal is directed at the illustration of the assessee in opposition t order of the ld. Pr. Commissioner, Ahmedabad dated eleven.03.2019 handed under area 263 of the income Tax Act, 1961 for the Asstt.year 2014-one hundred twenty five.

2. Sole grievance of the assessee is that the ld. Commissioner has erred in taking attention under part 263 of the profits Tax Act and surroundings apart the evaluation order dated 17.11.2016 and directing the AO to circulate clean evaluation order.

No section 263 Proceedings for related party transaction excluded from definition of specified domestic transaction

3 quick facts of the case are that the assessee is someone and operating proprietorship subject within the name and charm of “G.P. Textiles”. He has filed his return of income for the Asstt.12 months 2014-15 on 11.eleven.2014 declaring complete salary at Rs.33,98,080/-. This return turned into selected for scrutiny assessment and eventually, the ld.AO has handed assessment order beneath area 143(three) of the Act on 17.eleven.2016. The ld.AO has determined taxable earnings of the assessee at Rs.57,seventy five,980/-. He made the following additions to the full profits of the assessee:

i) Disallowance of fee Rs.13,eighty one,400-prices

ii) Disallowance of pastime expenses Rs.5,80,490/-

iii) Disallowance usa14A Rs.32,386/-

iv) Disallowance of labour expenses Rs.3,83,630/-

four. The ld.Commissioner whereas going throughout the evaluation order formed an opinion that in kind No.3CEB the assessee has proven a domestic transaction of Rs.19,44,64,576/-. in keeping with him, it is a distinctive home transaction and its value is more than Rs.5 crores. hence, this transaction should still have been referred to the TPO by means of the AO for settling on arm’s length rate, and best thereafter the assessment order should still have been framed. This motion of the AO is faulty which has caused prejudice to the pastime of the revenue. thus, he issued a word below part 263 of the Act.

5. in keeping with the observe, the assessee has filed detailed submission vide letter dated 22.eleven.2018. reproduction of this letter has been positioned on web page no.1 to 11 of the paper book. broadly the assessee raised 4 fold of submissions. He contended that all over path of the evaluation proceedings, he has defined that the alleged particular home transaction to the AO vide letter dated 3.eight.2016 and 10.eight.2016. Copies of these letters have also been positioned on paper ebook on page no.20 to 26; (b) the AO gone through these transactions and arrived at a conclusion that no reference to the TPO is required beneath section 92BA. This area offers definition of “targeted domestic transaction”. on the most in the case of the assessee most effective definition offered beneath sub-clause (1) can be attracted, and this clause has been deleted w.e.f 1-four-2017, for this reason, the ld.Commissioner can't take attention under section 263 of the Act on the energy of ignored provision of law. The assessee has relied upon the judgment of Hon’ble Supreme courtroom within the case of normal Finance business Vs.ITO, 257 ITR 338 (SC); within the case of Kolhapur cane Sugar Works Ltd. UOI as well as orders of ITAT, Bangalore and the judgments of Hon’ble Karnataka high Courts. The ld.Commissioner was no longer satisfied with the contentions of the assessee and set apart the evaluation order. The ld.guidance for the assessee whereas impugning the order of the CIT has positioned before us the bifurcation of the transaction, which may well be required to be referred to the TPO at the most. Such bifurcation red as under:

Sr. No. Date particularsvolume feedback1 AY 2014-15 Transactions entered with connected events is as below: Transaction with linked parties are duly disclosed   in kind 3CEB particularsNature 1. global business (Prop. Ashish S Shah HUF) Purcha se 19,36,86,462/- 2. Amiben P Shah interest2,063/- 3. Diptiben D Shah interest3,095/- four.SwatibenSShah interestthree,095/- 5. Neenben Kshah attentionthree,095/- 6. Subhodchandra okay Shah attentionfour,03,135/- 7. Subhochandra okay Shah HUF interest3,63,631/-

6. He thereafter reiterated submissions as have been raised before the ld.CIT. having said that, the ld.CIT-DR relied upon the order of the ld.Commissioner.

7. we've duly regarded rival submissions and gone throughout the listing carefully. area 263 of the revenue Tax Act has direct referring to the controversy, therefore, it's pertinent to keep in mind of this part. It reads as beneath:

“263(1) The Commissioner may also demand and investigate the list of any continuing beneath this Act, and if he considers that any order passed therein by the Assessing Officer is misguided in to date as it is prejudicial to the pastime of the income, he might also, after giving the assessee a chance of being heard and after making or causing to be made such inquiry as he deems necessary, flow such order thereon as the circumstances of the case justify, including an order improving or enhancing the assessment, or cancelling the evaluation and directing a sparkling evaluation.

[explanation.- For the elimination of doubts, it's hereby declared that, for the functions of this sub-part,-

(a) an order passed on or earlier than or after the 1st day of June, 1988 by means of the Assessing Officer shall consist of-

(i) an order of assessment made via the Assistant Commissioner or Deputy Commissioner or the revenue-tax Officer on the groundwork of the directions issued by way of the Joint Commissioner under section 144A;

(ii) an order made via the Joint Commissioner in undertaking of the powers or in the efficiency of the capabilities of an Assessing Officer conferred on, or assigned to, him beneath the orders or instructions issued with the aid of the Board or via the chief Commissioner or Director regular or Commissioner authorized by using the Board during this behalf under area a hundred and twenty;

(b) “listing shall consist of and shall be deemed all the time to have included all data relating to any continuing beneath this Act available at the time of examination by means of the Commissioner;

(c) the place any order stated during this sub-part and handed by using the Assessing Officer had been the area rely of any appeal filed on or earlier than or after the first day of June, 1988, the powers of the Commissioner beneath this sub-area shall extend and will be deemed all the time to have prolonged to such matters as had no longer been regarded and decided in such enchantment.

(2) No order will be made below sub-area (1) after the expiry of two years from the conclusion of the monetary 12 months wherein the order sought to be revised became passed.

(three) however anything else contained in sub-area (2), an order in revision under this part may well be passed at any time in the case of an order which has been handed consequently of, or to provide effect to, any finding or route contained in an order of the Appellate Tribunal, countrywide Tax Tribunal, the excessive courtroom or the Supreme courtroom.

clarification.- In computing the length of quandary for the functions of sub-area (2), the time taken in giving an opportunity to the assessee to be reheard beneath the proviso to area 129 and any length all the way through which any continuing beneath this section is stayed by way of an order or injunction of any court docket will probably be excluded.”

eight. On a bare perusal of the sub section-1 would reveal that powers of revision granted by area 263 to the discovered Commissioner have four cubicles. in the first vicinity, the realized Commissioner may additionally demand and determine the data of any proceedings below this Act. For calling of the list and examination, the discovered Commissioner changed into no longer required to reveal any rationale. it's a part of his administrative manage to demand the records and verify them. The 2d function would come when he will judge an order passed by using an Assessing Officer on culmination of any court cases or all the way through the pendency of these proceedings. On an analysis of the checklist and of the order passed by means of the Assessing Officer, he formed an opinion that such an order is misguided in to this point because it is prejudicial to the pursuits of the earnings. by way of this stage the learned Commissioner became no longer required the suggestions of the assessee. Thereafter the third stage would come. The learned Commissioner would concern a exhibit trigger word declaring the reasons for the formation of his belief that action u.s.263 is required on a selected order of the Assessing Officer. At this stage the probability to the assessee would receive. The discovered Commissioner has to habits an inquiry as he may additionally deem fit. After hearing the assessee, he will move the order. here is the 4th compartment of this area. The realized Commissioner may additionally annul the order of the Assessing Officer. He might also enhance the assessed income by way of modifying the order. At this stage, earlier than seeing that the multi-fold contentions of the ld. Representatives, they deem it pertinent to consider of the fundamental exams propounded in numerous judgments imperative for judging the action of the CIT taken united states of america263. The ITAT in the case of Mrs. Khatiza S. Oomerbhoy Vs. ITO, Mumbai, 101 TTJ 1095, analyzed in aspect a considerable number of authoritative pronouncements together with the determination of Hon’ble Supreme courtroom within the case of Malabar Industries 243 ITR eighty three and has propounded here broader principle to decide the motion of CIT taken under area 263.

(i) The CIT have to checklist pride that the order of the AO is inaccurate and prejudicial to the hobby of the earnings. each the situations must be fulfilled.

(ii) Sec. 263 can not be invoked to correct each and all kinds of mistake or error committed by using the AO and it was only when an order is inaccurate that the section should be attracted.

(iii) An unsuitable assumption of facts or an mistaken application of law will suffice the requirement of order being erroneous.

(iv) If the order is passed devoid of application of mind, such order will fall below the category of inaccurate order.

(v) each loss of earnings cannot be handled as prejudicial to the hobbies of the income and if the AO has adopted one of the classes permissible under legislations or where two views are viable and the AO has taken one view with which the CIT does not agree. If cannot be treated as an inaccurate order, unless the view taken through the AO is unsustainable under law

(vi) If while making the assessment, the AO examines the accounts, makes enquiries, applies his mind to the information and cases of the case and check the income, the CIT, while exercising his energy beneath s 263 isn't authorised to replace his estimate of revenue in place of the income estimated by the AO.

(vii) The AO workouts quasi-judicial vigor vested in his and if he workout routines such power in accordance with legislation and arrive at a conclusion, such conclusion cannot be termed to be erroneous conveniently since the CIT does not charge stratified with the conclusion.

(viii) The CIT, before exercising his jurisdiction under s. 263 need to have material on record to arrive at a satisfaction.

(ix) If the AO has made enquiries during the route of assessment complaints on the relevant concerns and the assessee has given exact explanation by means of a letter in writing and the AO permits the declare on being satisfied with the clarification of the assessee, the decision of the AO can't be held to be misguided effectively because in his order he does not make an difficult discussion in that regard.

9. in the light of the above, let us verify the records of the existing case. A perusal of the transactions entered with the related parties whose price at the most may well be decided at arm’s size, are the transactions with linked parties. they now have seen the ruin-up of such transactions (supra) and at the can charge of repetition, they take this transaction once more below:

Sr. No. Date detailsquantity comments1 AY 2014-15 Transactions entered with linked events is as under: Transaction with related events are duly

disclosed   in form 3CEB

particularsNature 1. global enterprise (Prop. Ashish S Shah HUF) Purcha se 19,36,86,462/- 2. Amiben P Shah interest2,063/- three. Diptiben D Shah attention3,095/- four.SwatibenSShah interestthree,095/- 5. Neenben KShah attention3,095/- 6. Subhodchandra k Shah interestfour,03,a hundred thirty five/- 7. Subhochandra k Shah HUF interest3,sixty three,631/-

10. At this stage, they might want to take into accout of the definition of expression “certain domestic transaction” supplied beneath area 92BA, which reads as under:

92BA. For the applications of this section and sections 92, 92C, 92D and 92E, “targeted home transaction” in case of an assessee ability any of here transactions, no longer being a world transaction, particularly:—

(i) any expenditure in appreciate of which price has been made or is to be made to a person stated in clause (b) of sub­section (2) of area 40A;

(ii) any transaction talked about in section 80A;

(iii) any transfer of goods or capabilities noted in sub-area (8) of part 80-IA;

(iv) any enterprise transacted between the assessee and different person as referred to in sub-part (10) of section eighty-IA;

(v) any transaction, talked about in any other part below Chapter VI-A or section 10AA, to which provisions of sub­section (eight) or sub-area (10) of section eighty-IA are relevant; or

(vi) any other transaction as could be prescribed, and the place the aggregate of such transactions entered into via the assessee within the previous year exceeds a sum of 5 crore rupees.]

11. Sub-clause (i) of the above provision has been overlooked from the Act w.e.f. 1.4.2017. If this clause is taken out, then the closing clauses are clause (ii) to (vi). let us consider the transaction which at the most should be referred to TPO for resolution of arm’s size expense within the existing case. we've taken be aware of bifurcation of the transaction, and out of all seven transactions simplest transaction no.1 i.e. purchase from international agencies at the most may well be referred for choice of ALP below sub-clause (i) of area 92BA. This point has been long past into with the aid of the ld.AO and the assessee has explained qua this transaction. The principal part of the same reads as under:

“Re.: Your observe united states142(1) dtd. thirtieth June, 2016

as regards to above and on behalf of and upon request from aforesaid assessee, they might want to state that your note dtd. above has been bought by assessee on 8th July 2016 handiest and hence, they could get very little time to put together documents required through you.

we now have however, attempted to prepare and post as lots details and now we're submitting these as under:

1. factor no.1 of note

It appears that scrutiny is attracted due to following 3 huge facets on which you sought to file

a. massive fee expense and low internet profit

Kindly observe that assessee offers in knitted fabrics and a whole lot of the earnings is finished via commission brokers and brokers and therefore, fee fees is discovered to be excessive.

For the sake of comfort, they attempt to supply comparative record of past 2 years also so they can make clear that right through the year below evaluation, commission as % of sales has reduced but earnings is a good deal stylish upon fee agents.

fiscal yr commission prices (quantity Rs.) revenue as per Audit file (quantity Rs.) web profit as per Audit file(quantity Rs.) fee as a % of earnings 2013-14 23,46,917/- 22,34,96,914/- 32,forty three,340/- 1.05% 2012-13 26,21,040/- 16,64,70,249/- 26,24,854/- 1.fifty seven% 2011-12 18,35,747/- eleven,70,ninety one,114/- 22,15,512/- 1.57%

b. Justification of tremendous specified home transaction (kind 3CEB)

in this connection, they might want to short you about historical past of business which is central to explain this element.

earlier in 1996 when the assessee begun the company in the identify of G.N. Textiles of trading in knitted fabric, it used to supply capable fabrics from Ludhiana and Tirupur. Thereafter, slowly he realized that it's a good idea to get the textile manufactured and promote it. therefore, new unit viz. global business in proprietorship of HUF of assessee was began in 2006 with its department found at Ludhiana. It began to purchase yarn there, get it processed like dyeing, knitting, finishing and many others. at premises of jobworkers and sell equipped material to G.N. Textiles. world commercial enterprise has its own office cum godown at Ludhiana and has also staff strength there to care for activities there. M/s. G.N. Textiles traditionally sources lots of the cloth from global commercial enterprise handiest seeing that long. this is to reduce average cost of the product procured.

We hereby make an try to publish purchases made via assessee from world business for final 3 assessment years to show that this practice is adopted by way of assessee in view that lengthy now not to shop taxes however to cut charges and get good margins.

Asst. year Purchases from international commercial enterprise in Rs. total purchases ofassessee % of purchase from world enterprise tototal acquire2014-15 19,85,73,366 21,42,00,058 ninety two.70 2013-14 13,55,31,646 15,19,70,944 89.18 2012-13 9,seventy two,eighty four,771 10,ninety one,forty seven,309 89.13 2011-12 7,47,94,066 8,50,09,432 87.ninety eight

further there is no attempt to reduce taxes however simply to earn good margins through self accomplishing the same line rather than paying for material at once from outdoor events. this is further finished in the name of affiliate problem to differentiate identification of each the gadgets in Ludhiana local market so that satisfactory merits of lowest purchase fees and lowest processing charges can also be loved.

it's also essential to word that the assessee has got transfer pricing audit for the yr and is getting it performed given that added. The copy of kind no.3CEB duly uploaded within time has been submitted to you all over their past submission dtd.twenty third October 2015.

***                           ****                       ****                        ***

almost about the above they would want to put up here details regarding ongoing scrutiny as required with the aid of you.

1. Working of domestic Arm length transaction along with reproduction of purchase invoices:

in regards to their principal purchase from connected party viz. global enterprise, you have got requested to justify buy expenses with these of alternative unrelated suppliers. in this regard, please locate herewith enclosed detailed working of buy cost evaluation in respect of cloth bought from international enterprise with other unrelated birthday party both on identical day or nearby date together with few sample purchase expenses of global commercial enterprise i.e. linked party in addition to of alternative unrelated events.

list of unrelated suppliers of which copies of invoice are produced:

a) Dewan Knitwear

b) Sweety fabrics Pvt. Ltd

c) Amit business

Kindly be aware that there is difference in costs as a consequence of different material additionally.”

12. On the basis of the explanation given by using the assessee all the way through the course of scrutiny assessment, the ld.AO didn't refer this transaction to the TPO for resolution of ALP. Now reverting again to area 92BA, it exhibits that transaction outlined at Sr.No.2 to 6 are not attracted within the case of the assessee; because he has no longer undertaken any of the transaction mentioned in serial nos.2 to 6. most effective transaction, which may be fallen in the definition of certain domestic transaction is transaction mentioned at Serial no.1, and within the case of the assessee, that transaction could be purchase from the related events. Now on the time of assessment complaints, the ld.AO did not make reference to the TPO, however by the time, the ld.Commissioner took awareness of the checklist for re-initiation of assessment order by way of exercising vigour beneath area 263. This clause has been neglected from the statute publication. hence, the query before us is, whether within the absence of sub-clause (i) of part 92BA in the provision can nevertheless be transaction of the assessee related to purchase made from the related party deserves to be noted the TPO. Reply to this question has been given via the Hon’ble Karnataka high court docket in the judgment of Pr.CIT Vs. Texport distant places P.Ltd. 114 taxmann.com 568. The data before the Hon’ble Karnataka excessive courtroom become that there became a home transaction which fall within the definition of “precise domestic transaction” with help of part 92BA(i). A reference was made to the TPO and objections have been filed before the DRP additionally. but in the end when the evaluation order changed into passed under section a hundred and forty four(three) of the Act, examine with area 143(three) of the Act, this clause has been omitted from the Act. In other phrases, the assessment order was handed on 30.6.2017, and this clause, on the energy of which this reference become made to the TPO, stand disregarded w.e.f. 1.four.2017. The case of the assessee became that after April, 2017 this proceeding would lapse, which turned into now not approved via the AO in addition to TPO, but the Tribunal authorised the stand of the assessee. branch took the be counted in appeal earlier than the Hon’ble Karnataka high court docket, and the Hon’ble high courtroom answered the question in favour of the assessee, and towards the earnings. The discussion made with the aid of the Hon’ble high courtroom reads as under:

“5. Having heard realized Advocates performing for events and on perusal of data in ordinary and order passed by tribunal in particular it is obviously great that Clause (i) of area 92BA of the Act came to be not noted w.e.f. 01.04.2019 with the aid of Finance Act, 2014. As as to whether omission would keep the acts is an issue which isn't any extra res intigra within the mild of authoritative pronouncement of Hon’ble Apex courtroom in the remember of Kolhapur Canesugar Works Ltd. v. Union of India AIR 2000 SC 811 whereunder Apex courtroom has examined the impact of repeal of a statute vis-a-vis deletion/addition of a provision in an enactment and its impact thereof. The import of part 6 of usual Clauses Act has also been examined and it came to be held:

“37. The place is smartly universal that at regular law, the typical effect of repealing a statute or deleting a provision is to obliterate it from the statute-ebook as completely as if it had in no way been handed, and the statute need to be regarded as a law that certainly not existed. To this rule, an exception is engrafted by means of the provisions of section 6(1). If a provision of a statute is unconditionally neglected and not using a saving clause in favour of pending complaints, all movements need to cease where the omission finds them, and if final aid has no longer been granted earlier than the omission goes into effect, it can not be granted afterwards. rate reductions of the character contained in area 6 or in particular Acts may additionally adjust the place. therefore the operation of repeal or deletion as to the long run and the previous mostly depends upon the reductions relevant. In a case the place a particular provision in a statute is disregarded and in its region one more provision dealing with the equal contingency is delivered with no saving clause in favour of pending complaints then it can also be reasonably inferred that the intention of the legislature is that the pending complaints shall no longer continue but clean lawsuits for a similar purpose could be initiated under the new provision.”

6. in fact, Co-ordinate Bench beneath similar circumstances had examined the impact of omission of sub-area (9) to part 10B of the Act w.e.f. 01.04.2004 by way of Finance Act, 2003 and held that there changed into no saving clause or provision added by the use of change by omitting sub-part (9) of area 10B. in the rely of time-honored Finance Co. v. ACIT, which judgment has also been taken be aware of by using the tribunal whereas repelling the rivalry raised by way of profits in regards to retrospectivity of section 92BA(i) of the Act. for that reason, when clause (i) of section 92BA having been omitted through the Finance Act, 2017, with effect from 01.07.2017 from the Statute the consequent impact is that it had under no circumstances been passed and to be considered as a legislation certainly not been existed. hence, decision taken by using the Assessing Officer beneath the effect of section 92BI and reference made to the order of switch Pricing Officer-TPO beneath section 92CA may well be invalid and dangerous in legislation.

7. it is for this precise cause, tribunal has rightly held that order passed by the TPO and DRP is unsustainable in the eyes of legislation. The pointed out discovering is based on the authoritative ideas enunciated by using the Hon’ble Supreme court in Kolhapur Canesugar Works Ltd. stated herein supra which has been adopted by means of Co-ordinate Bench of this court within the count number of M/s. GE Thermometrias India inner most Ltd., stated supra. As such we're of the considered view that first substantial question of law raised within the enchantment by the earnings in respective enchantment memorandum could not come up for consideration chiefly when the referred to difficulty being no greater res integra.

8. Insofar as query No. 2 is involved, they locate from the order of the Tribunal that problem relating to the deletion of disallowance made by way of the Assessing Officer has been remitted lower back to the Assessing Officer which finding is according to factual aspects which would not demand interference via us, that too, by way of formulating mammoth query of legislations. The Assessing Officer has to undertake the activity of factual decision. As such, with out expressing any opinion on deserves with reference to question No. 2 formulated with the aid of the earnings in the respective appeals, they proceed to circulate the following…”

13. The above discussion is certainly applicable on the information of the current case, when the ld.Commissioner issued a show cause be aware beneath area 263 and in the end handed impugned order; by that point the alleged home transaction of buy from linked birthday celebration turned into now not required to be regarded as a certain home transaction below section 92BA of the Act. It has been not noted, and hence, no complaints below section 263 may still were undertaken by means of the ld. Commissioner.

14. In view of the above dialogue, they enable this enchantment, and quash the impugned order.

15. in the outcome, enchantment of the assessee is allowed. Order reported in the court on 16th July, 2021.




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