AI Drafter 
Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter. 
TaxTMI 
TaxTMI 
2019 (12) TMI 1153
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Section 92 can be invoked in a situation in which income of the assessee is eligible for tax exemption or tax holiday and thus not actually chargeable to tax in India, or in a situation in which there cannot be any motive in manipulating the prices at which international transactions have been entered into?" The subject matter of the above question is emanating in almost all the appeals under consideration. Therefore, for the sake of convenience, we are taking up the facts involved in the issue for the previous year 2005-06 relevant to the assessment year 2006-07, which is the first year under reference. 3. Briefly stated facts of the case are that the assessee is a private limited company and engaged in the activity of business process outsourcing (BPO) services in the field related to accounting & taxation such as book-keeping, VAT returns, payroll, management accounting, and audit. The major shareholder in the company is Mr. Dhiren Doshi, who is also the sole proprietor of the firm M/s Doshi & Co. based in the United Kingdom. The Assessee is providing these services to the firm, which is an AE of the assessee within the meaning of Section 92A of the Act. The assessee p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d that given the facts and circumstances, TNMM is the most appropriate method as in the case of TNMM a high degree of similarity of product/services is not necessary. 3.7 Thus, the TPO employed certain filters in prowess database to adopt more accurate comparables, wherein the process he picked up a set of four such comparables to work out the operating profit/ operating cost as PLI and show caused the assessee for application of TNMM 3.8 In reciprocation, the assessee objected to TNMM as the most appropriate method. However, the assessee at the same time without prejudice also submitted that except one, all the comparables selected by the TPO are involved in different kind of services and business segment. The assessee further filed two comparables and contended that finally, these three comparables should be considered where the average margin would come to 6.82%, and therefore, no adjustment is warranted. 3.9 However, the TPO disregarded the contention of the assessee and calculated the average margin of the comparables which was worked out by him as 33.10% whereas in the case of the assessee it was 7.97% only. Accordingly, the TPO made the upward adjustment of Rs. 1,48....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nating the efforts of avoidance of taxes, but can provision in this chapter be implemented without construing the true import of the provision. Accordingly to him, the special provisions relating to avoidance of tax in chapter X be construed in harmonious way and not be impleaded according to thumb rule. He further submitted that in order to bring his point at home, he has divided his arguments in V compartments viz: (a) purposive of interpretation of Tranfer Pricing provisions ...... ... (b) purpose of introducing Transfer Pricing provisions....... (c) why Aztec Software & Technology Services Ltd. v. Asstt. CIT , 107 ITD 141 (Banglore-Special Bench) is no more good law ..... (d) Income is sine qua non to apply the provisions of Chapter X ..... and (e) other arguments in support of this interpretation. 6.2. As far as submissions under first two folds are concerned, they are just two sides of same coin and in a way inter-connected with each other. The ld.counsel for the assessee appriased us purpose and objects required to be achieved by introducing TP regulations in Chapter X of the Income Tax Act. In his stride, he contended th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on underline with new TP regulation is to prevent shifting out of profit by manipulating prices charged or paid in international transactions. He also drew or attention towards decision of Hon'ble Supreme Court in the case of Morgan Stanley & Co. 292 ITR 416 in order to contend that object of the TP provisions is to protect India's tax base. 6.3 On the strength of the above, he emphases that fundamental object of these provisions is to ensure that India's tax base should not erode or profits taxable in India should not be shifted to other tax jurisdiction. If in a given situation, there is no motive or object to shift the taxability of profit then there should not be any determination of arm's length price for international transactions because the very object would frustrate. Once it is demonstrated that there is no chance of avoiding payment of taxes, then this Chapter should not have been applied on such international transactions. 6.4. The ld.counsel for the assessee further contended that assessee is entitled for exemption under section 10A on its eligible profit at the rate of hundred percent. This factor is required to be kept in mind while construing or interpreting T....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt of marketing services of Rs. 9.32 crores and on site software development services of Rs. 28.32 crores. While determining ALP of both these transactions, the ld.TPO has recommended upward adjustment of Rs. 18.18 crores. This was added in the income of the assessee. Dissatisfied with the adjustment in the assessment order, the assessee went in appeal before the ld.CIT(A). It took various grounds viz. "(a)There is no finding anywhere before or after reference in the communication under section 92CA that transactions were entered into in a manipulative manner so as to avoid the tax payment in India as mentioned in Circular No. 12 of 2001 issued by :-; Board. In this case no such possibility exists as the entire income from the new industrial undertaking is eligible for deduction under section 10A, hence the very assumption of jurisdiction for ALP determination is erroneous and unsustainable in law. (b)The reference made to the TPO is without jurisdiction as reasons for such reference has not been furnished to the assessee. (c)The TPO ought to have insisted from Assessing Officer the material in his possession which would conclusively establish that the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....his way has assigned broadly six reasons which were considered by the ITAT. Under these circumstances, the ITAT has formulated the following questions require to be considered by the Special Bench: Whether is this a legal requirement under the provisions contained in Chapter X of the Income Tax Act, 1961 that the AO should prima facie demonstrate that there is a tax avoidance before invoking relevant provision ? 6.7 This question has been replied in favour of the Revenue and against the assessee by Five Members of the Special Bench of ITAT, Bangalore. Anticipating the stand of the Revenue, on the strength of this order, the ld.counsel for the assessee has submitted as to how ratio laid down in this case is no more a good law. He contended that an identical question was considered by the Hon'ble Bombay High Court in the case of Vodafone India Services P.Ltd., 361 ITR 531. The question before Hon'ble Bombay high Court was - Whether the existence of a potentially taxable income or an expenditure (capital or revenue) that impacts computation of taxable is a sine qua non for the invocation of jurisdiction under Chapter X ? 6.8 This question has been answere....
X X X X Extracts X X X X
X X X X Extracts X X X X
....). Thereafter, he compiled twenty orders at the end of Hon'ble Bombay high Court, Karnataka High Court as well as of ITAT. Copies of these decisions have been placed in the paper book started from page no.7 upto 371. Apart from these decisions of Hon'ble Bombay High Court in the case of Vodafone Services P.Ltd. and Karnataka High Court decision in the case of Phillips Software, he drew or attention towards order of the ITAT, Mumbai in the case of Tata Consultancy Services. He pointed out that subsequent to the decisions of Hon'ble High Courts, even CBDT has issued circular recognising that this procedure required to be followed. The AO ought to have not made reference blindly to the TPO for determination of ALP of international transaction. He has to first prima facie look into whether any element of income or loss is involved in such transaction or not. He drew our attention towards circular nos.15 of 2015 and 3 of 2016 which are placed on page no.185 and 181 of case law compilation. Anticipating interdiction provided in sub-clause (4) of section 92C along with its provisions, he contended that no doubt this clause provides that in case of any adjustment was being recommende....
X X X X Extracts X X X X
X X X X Extracts X X X X
....on of the AO the computation of profits and gain of eligible business in the manner provided in the Act presents exceptional difficulty then the AO may compute such profits and gain as reasonable basis as deemed fit. Similarly, upto Asstt.Year 2012-13, expression "market value" used in section (8) has been explained by way of an explanation. According to this explanation, the expression "market value" in relation to any goods and services means the price that such goods or services would ordinarily fetch in the market. After Asstt.Year 2013-14, the scope of expression "market value" used in sub-section(8) has been enhanced and it has been provided that it should be at an arm's length price as defined in clause (ii) of section 92F where the transfer of such goods or services is a specified domestic transaction referred to in section 92BA. He further pointed out that in sub-section (10) of section 80IA which is applicable on the computation admissible under section 10A, it has been provided that if the assessee owing to onerous connection between him and any other person arranged, in such a manner which result more than the ordinary profit, then the AO has been empowered to comput....
X X X X Extracts X X X X
X X X X Extracts X X X X
....th, s.10(7) and TP Provisions become applicable to re-determine the profits and transaction price respectively. There is no clarity as to whether the adjustment made by the AO or TPO will prevail. 6.11 He further contended that since none of the provisions starts with non-obstante clause exhibiting the overriding effect given to any of the provisions, then section 10A being substantive provisions provide incentive from taxation and also a machinery provisions providing the mode of computation, it should be given preference over the TP provisions. Therefore, once it is held that the assessee is entitled for hundred percent exemption of its profit under section 10A, then TP provision ought not to be applied. He relied upon the decision of Hon'ble Karnataka High Court in the case of CIT V. Hewlett Packard Global Soft Ltd., 403 ITR 453. He also relied upon the decision of Hon'ble Bombay High Court in the case of Vodafone India P.Ltd. (supra) as well as made reference to the decision of Hon'ble Supreme Court in the case of Bajaj Tempo Ltd., 196 ITR 188. On the strength of Hon'ble Supreme Court decision, he submitted that section 10A of the Act being a provision intended to promote fo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d, Shri Vinod Talwani, Ld. Sr. DR objected to the language of question formulated for reference to the Special Bench and before us submitted that there are two limbs of the question referred to the Special Bench. The first limb is the phrase used 'chargeable to tax' which denotes liable to tax. Thus the person enjoying tax exemption is chargeable to tax though the person may not be actually taxed upon the fulfillment of certain conditions. 7.1 Similarly, the second limb deals with the motive of tax avoidance before invoking the computation machinery, which is an incorrect onus on the Revenue. 7.2 Accordingly, the ld. DR claimed that the question referred to the special bench is not proper, i.e., chargeable to tax means liable to tax, and accordingly, he suggested the questions as under : Whether or not the provisions of section 92 can be invoked in a situation in which the assessee is eligible for tax exemption or tax holiday and thus actually not taxed in India? Whether or not the provisions of section 92 can be invoked in a situation in which the Assessing Officer cannot demonstrate that there is tax avoidance or possible tax avoidance? 7.3 The ld....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... (Bombay) (Vodafone-III) are different from the case on hand as there was no income or potential impact on income before referring the matter to the TPO. But the international transaction in the case on hand is relating to sales and chargeable to tax under the Act as per section 2(24) of the Act. Accordingly, the case of Vodafone will not impact the invocation of Chapter X of the Act in the instant case. 7.11 The ld. DR also claimed that the assessee could not be given the benefit of the undue advantage on account of the non-discrimination clause in the DTAA between the UK and India. The ld. DR also submitted that the general clause in the DTAA could not be given wider meaning than the specific provisions of section 92 of the Act. 7.12 The Ld. DR vehemently argued based on findings culled by the AO and subsequently upheld by the ld. DRP in their respective orders. 8. The Ld. AR in his rejoinder objected on the change of the question either in form or in substance amidst the proceedings. Accordingly, the ld. AR claimed that the assessee is not "chargeable" to tax by virtue of 100% tax holiday u/s 10A of the Act. 8.1 In the case on hand, the AO is not necessitated by the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uous then plain and natural meaning of those words should be applied to the language and resort to any rule of interpretation to unfold intentions is permissible where the language is ambiguous. The Special Bench of ITAT in Aztec (supra) made reference to the following decision: "The Hon'ble Supreme Court, in the case of Smt. Tarulata Shyam v. CIT 108 ITR 345 SC, approved the observations in the case of Cape Brandy Syndicate v. Inland Revenue Commission (1921) 1 KB 64 by observing as under: To us, there appears no justification to depart from the normal rule of construction according to which the intention of the Legislature is primarily to be gathered from the words used in the statute. It will be well to recall the words of Rowlatt, J. in Cape Brandy Syndicate v. Inland Revenue Commissioners (1921) 1 KB 64 (KB) at page 71, that : ...in the taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. Once it is shown that the case of the asse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing to absurdity." 9.4 Similarly in the case of Prakash Nath Khanna and Anr. v. CIT and Anr. 266 ITR 1 (S.C), their Lordships have observed as under: "It is well settled principle in law that the court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the Legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed, not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them. **** **** **** While interpreting a provision the court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the Legislature to amend, modify or repeal it, if deemed necessary. (see Rishabh Agro Industries Ltd. v. P.N.B. Capital Services Ltd. ). The legislative causus omissus ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of classification. 26. Principles of interpretation are applied to ascertain the intention of the Legislature and though they are considered to be good servants, they are bad masters. Intention of Legislature is best understood from the language used, which is the golden rule of interpretation. Only when there is ambiguity or absurdity, external aids may be pressed into service. Statement of objects and reasons or the speech of the Finance Minister may be referred to, to ascertain the history and object, but cannot control meaning of a provision when language is clear and free from ambiguity. xxxxxxx 44. There is, thus, no departure from the settled principle that primary rule of construction is the language used and in case of ambiguity or absurdity, meaning consistent with object and purpose of a statute has to be assigned without doing violence to the statute. Statement of objects can be referred to find out the history and object of the statute and does not control the interpretation when language is clear. We are unable to read the judgments relied upon to the contrary." 9.7 The above judgment makes it vivid and beyond any reasonable do....
X X X X Extracts X X X X
X X X X Extracts X X X X
....erformed by such persons or such other relevant factors as the Board may prescribe36, namely :- (a) comparable uncontrolled price method; (b) resale price method; (c) cost plus method; (d) profit split method; (e) transactional net margin method; (f) such other method as may be prescribed36 by the Board. (2) The most appropriate method referred to in sub-section (1) shall be applied, for determination of arm's length price, in the manner as may be prescribed36 : Provided that where more than one price is determined by the most appropriate method, the arm's length price shall be taken to be the arithmetical mean of such prices: Provided further that if the variation between the arm's length price so determined and price at which the international transaction or specified domestic transaction has actually been undertaken does not exceed such percentage not exceeding three per cent of the latter, as may be notified by the Central Government in the Official Gazette in this behalf, the price at which the international transaction or specified domestic transaction has actually been undertaken sha....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... furnish, within the specified time, any information or document which he was required to furnish by a notice issued under sub-section (3) of section 92D, the Assessing Officer may proceed to determine the arm's length price in relation to the said international transaction or specified domestic transaction in accordance with sub-sections (1) and (2), on the basis of such material or information or document available with him: Provided that an opportunity shall be given by the Assessing Officer by serving a notice calling upon the assessee to show cause, on a date and time to be specified in the notice, why the arm's length price should not be so determined on the basis of material or information or document in the possession of the Assessing Officer. (4) Where an arm's length price is determined by the Assessing Officer under sub-section (3), the Assessing Officer may compute the total income of the assessee having regard to the arm's length price so determined : Provided that no deduction under section 10A or section 10AA or section 10B or under Chapter VI-A shall be allowed in respect of the amount of income by which the total ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....r section 147 or pass an order enhancing the assessment or reducing a refund already made or otherwise increasing the liability of the assessee under section 154, for any assessment year, proceedings for which have been completed before the 1st day of July, 2012. (3) On the date specified in the notice under sub-section (2), or as soon thereafter as may be, after hearing such evidence as the assessee may produce, including any information or documents referred to in sub-section (3) of section 92D and after considering such evidence as the Transfer Pricing Officer may require on any specified points and after taking into account all relevant materials which he has gathered, the Transfer Pricing Officer shall, by order in writing, determine the arm's length price in relation to the international transaction or specified domestic transaction in accordance with sub-section (3) of section 92C and send a copy of his order to the Assessing Officer and to the assessee. (3A) Where a reference was made under sub-section (1) before the 1st day of June, 2007 but the order under sub-section (3) has not been made by the Transfer Pricing Officer before the said date, or a re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....AE, irrespective of the fact that the income of the assessee was eligible for exemption. 9.10 Further, there is no express provision under the Act restricting the application of section 92C of the Act for determining the income at arm's length where such income is eligible for deduction u/s 10A of the Act. On the contrary, there is a proviso to section 92C(4) of the Act which prohibits the deduction u/s 10A of the Act on the income to the extent enhanced as an effect of a determination of ALP. The relevant proviso to section 92C(4) of the Act reads as under: "Provided that no deduction under section 10A34[or section 10AA] or section 10B or under Chapter VI-A shall be allowed in respect of the amount of income by which the total income of the assessee is enhanced after computation of income under this sub-section :" 9.11 Thus, the proviso itself vividly reflects the intent of lawmakers that the provisions of chapter X of the Act shall prevail in all the cases of international transactions falling under the umbrella of section 92 of the Act including the income-qualified for exemption under section 10A of the Act. In other words, it can be said that the intention of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... where the legislature has used plain and unambiguous language. It is when the language is equivocal only then, help can be taken from the circulars, marginal notes or the Finance Minister speech or memorandum explaining the provisions to interpret the provision of the Act. In holding so, we draw support from the judgment of the Supreme Court in the case of Anandji Haridas & Co. Pvt. Ltd vs. Engineering Mazdoor Sangh & Anr (Civil Appeal No. 2053 of 1971) wherein it was held as under: "We are afraid what the Finance Minister said in his speech cannot be imported into this case and used for the construction of Clause (e) of Section 7. The language of that provision is manifestly clear and unequivocal. It has to be construed as it stands, according to its plain grammatical sense without addition or deletion of any words. As a general principle of interpretation, where the words of a statute are plain, precise and unambiguous, the intention of the Legislature is to be gathered from the language of the statute itself and no external evidence such as Parliamentary Debates, Reports of the Committees of the Legislature or even the statement made by the Minister on the introduction....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the Act in the given facts and circumstances, then in our considered view, the same interpretation should also be extended in the context of the provision of section 10A of the Act. It is because we cannot see the provision of chapter X in isolation as the issue on hand has direct nexus with the provision of section 10A of the Act. Thus it becomes pertinent to refer to the purpose of introducing section 10A of the Act. In this regard, the Memorandum explaining the provision of Finance Bill, 1988 reads as under: INCENTIVES FOR EARNING FOREIGN EXCHANGE Clarificatory amendment to extend tax holidy to the units in free trae zones engaged in devevelping software as also in processing or assembling. 24. Under the existing provisions of section 10A of the Income-tax Act, any profits and gains of an industrial undertaking engaged in the manufacture or production of articles or things in a free trade zone are exempt from tax for a certain number of years. With a view to providing further incentives for earning foreign exchange, it is proposed to clarify that manufacture for the above purposes will include the activities of processing and assembling. It will further i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tted to its Offshore AE within the manipulated transaction price which otherwise, would have been distributed as dividend. This also might be the reason for inserting a proviso to section 92C(4) of the Act as the lawmakers were very much aware of the possibility of manipulating the prices as discussed above. 11. Now coming towards the issue dealt by the Hon'ble Special Bench in ASTSL (supra) we note that the question before it was dissimilar from the one in the present case. As such, the Hon'ble Special Bench in ASTSL case has given its observation only in response to the argument placed by the ld. Counsel for the assessee regarding the invocation of chapter X with respect to the assessee enjoying 100% tax exemption under section 10A of the Act. Accordingly, no specific question, for invoking the provision of section 92 of the Act, was raised before the ITAT with respect to the assessee claiming the deduction/exemption under section 10A of the Act. Therefore, the observations/findings given in this regard by the Hon'ble special bench are "obiter dicta" and hence hold no binding value. 11.1 In this regard, we note that the relevant finding of the ITAT in the case of ASTSL (sup....
X X X X Extracts X X X X
X X X X Extracts X X X X
....al of an income arising and/or being affected on determination of an ALP before he proceeds further in determining the ALP or referring the issue to the TPO to determine the ALP. In this case, we find that the petitioner has from the very beginning been challenging the jurisdiction to apply Chapter X on the ground that no income arises and/or is affected or potentially arises and/or is affected on account of issue of its shares to its holding company. The Assessing officer does not deal with this objection/issue before referring the matter to the TPO. The TPO does not deal with the above objection on the ground that in terms of Section 92CA, his mandate is only to compute the ALP in relation to the International Transaction. The TPO in the impugned order dated 28 January 2012 meets the petitioner's objection by stating that the same would be dealt with by the Assessing Officer. However, when the same objection was raised before the Assessing Officer post the order of the TPO, the Assessing Officer does not consider the same in the impugned draft assessment order dated 22 March 2013 on the ground that in view of Section 92 CA (4) , the Assessing Officer is obliged to pa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....der section 10A of the Act, it still fits in the definition of 'income' given under section 2(24) of the Act. Since the word 'income' is used under section 92(1) of the Act, we are of the view that the basic requirement of chapter X is fulfilled and it shall correspondingly apply in the case of the assessee. 13. In respect of opportunity ought to have been given by the AO in terms of the instruction No. 15/2015 and instruction No. 3/2016 which replaced the earlier one, to the assessee before referring to TPO owing to the fact that the assessee was covered by section 10A of the Act and also objected to the applicability of chapter-X of the Act. In this regard, we note that the auditor of the assessee company did not make any qualifying remarks that the impugned international transactions do not impact its income as required in the instruction above. Thus in the absence of such remarks by the auditor in his report u/s 92E of the Act, we are not inclined to uphold the contention of the Ld. AR regarding the instructions issued by the CBDT. 13.1 The Ld. AR has in his rejoinder counter-argued the allegation put forth by the Ld. DR that no objection was posed by the assessee before ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he Assessing Officer to hear the assessee, consider his objections and only thereafter make a reference to the TPO to compute the arm's length price. As already observed, it is true that the question of reference to the TPO would arise only in the case where there has been an international transaction between the assessee and the associated person. Such a question in a given case may also be highly disputed question. However, we do not find that under the scheme of the provision contained in Chapter-X of the Act, the Assessing Officer is obliged to grant hearing to the assessee, invite and consider the objections with respect to the question whether during the previous year relevant to the assessment year under consideration, there had been any international transaction between the assessee and the associated enterprise before making a reference to the TPO. Such opinion the Assessing Officer would have to form on the basis of available material on record and such opinion would be having ad-hoc finality in the sense that for the purpose of reference to the TPO and till the stage that the TPO passes an order under subsection (3) of Section 92CA of the At, such issue would be clos....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w, the tax laws enacted in India cannot be contingent upon the tax laws of the foreign country. The article 265 of the Constitution of India reads as under: "265. Taxes not to be imposed save by authority of law No tax shall be levied or collected except by authority of law." 14.2 In this regard, we also find it relevant to refer the OECD guidelines which provide as under: 1.8 There are several reasons why OECD member countries and other countries have adopted the arm's length principle. A major reason is that the arm's length principle provides broad parity of tax treatment for members of MNE groups and independent enterprises. Because the arm's length principle puts associated and independent enterprises on a more equal footing for tax purposes, it avoids the creation of tax advantages or disadvantages that would otherwise distort the relative competitive positions of either type of entity. In so removing these tax considerations from economic decisions, the arm's length principle promotes the growth of international trade and investment. 14.3 As a consequence, in consonance with the aforementioned article and OECD extracts, it is manifestl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....0-A viz-a-viz Chapter-X of the Act which operates in different domains and has different objects. As such, none of the provision has neither been made subject to each other nor superseded by each other. Therefore we are of the view that the question of two views about the interpretation to section 10-A viz a viz chapter-X in the given facts and circumstances does not arise. But these provisions co-exits and their concordance are facilitated by the proviso to section 92C(4) of the Act. As such, there is a direct provision under chapter X of the Act restricting the deduction/ exemption to the assessee in this particular case, which will prevail in the given facts & circumstances. 17. At one point of hearing the Ld. DR also argued to reframe the question as discussed above; we note that the question framed referred to the special bench was approved by the order of the ITAT dated 15-4-2016. The relevant extract of the order is reproduced as under: Whether or not the provisions of Section 92 can be invoked in a situation in which income of the assessee is eligible for tax exemption or tax holiday and thus not actually chargeable to tax in India, or in a situation in which th....