TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 403
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....sions on the issue are not accepted without stating as to how such submissions cannot be accepted. b) The CIT(A) ought to have seen that Duty Entitlement Pass Book (DEPB)/Focus Products Scheme (FPS) benefits are given to exporters to compensate them in view of the fact that selling prices in international market are lower than domestic prices and therefore such benefits are to be considered for comparing the selling prices of Ferro Alloys to its AE with the prices quoted in Asian Metal Exchange since prices quoted in Asian Metal Exchange are for domestic sales only. Hence ignoring DEPB/FPS benefits while comparing the prices of Ferro Alloys is not justified. 3. For all of the above and such other grounds as may be urged at the time of hearing it is most respectfully prayed that this Hon'ble Tribunal may be pleased to allow the appeal and direct the respondent herein to delete the adjustment of Rs. 5,18,12,581/- made on account of transfer pricing in the assessment order." 3. We next note that the instant issue regarding inclusion of assessee's Duty Entitlement Pass Book (DEPB) and Focus Products Scheme (FPS) on export of Ferro Alloys; as an adjustment in computing Arm&....
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.... a transaction between persons other than associated enterprises in un-controlled conditions'. Learned counsel is fair enough in highlighting the issue before us as to whether the DPEB benefits derived from the corresponding scheme ought to be considered for adjustment or not under rule 10B(1)(a)(iii) being in the nature of a "difference materially affecting the price in open market". Hon'ble apex court's latest Full Bench decision in Commissioner of Customs Vs. Dilip Kumar (2018) 9 SCC 1 (FB)(SC) holds that taxing and an exemption provisions have to be strictly construed and benefit of doubt in such an instance goes to the assessee and Revenue; respectively. We are unable to loose sight of the fact that chapter-X is 'special' as against all other general provisions including Section(s) 10, 10A, 10AA and 10B etc; as the case may be. We cite legal maxim 'Generalia Speialibus Non-Derogant' meaning that a general provision does not apply at the cost of the special one or the former of them must make way for the latter; respectively; and, are of the opinion that the assessee's arguments go against arm's length price defined as "a price which is app....
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....d, (iii) when it is inconsistent with the earlier decisions of the same rank, (iv) when it is sub silentio, and (v) when it is rendered per incuriam. 39. In paragraph 578 at page 297 of Halsbury's Laws of England, Fourth Edition, the rule of per incuriam is stated as follows: "A decision is given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co-ordinate jurisdiction which covered the case before it, in which case it must decided which case to follow; or when it has acted in ignorance of a House of Lords decision, in which case it must follow that decision; or when the decision is given in ignorance of the terms of a statute or rule having statutory force." 40. In Punjab Land Development and Reclamation Corporation Ltd. v. Presiding Officer, Labour Court, the Supreme Court explained the expression "per incuriam" thus (at page 36 of 77 FJR): "The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when the Supreme Court has acted in ignorance of a pervious decision of its own or when a High Court has acted in ignorance of a decision of the Supreme ....
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....or a Division Bench doubts the correctness of an otherwise binding precedent, the appropriate course would be to refer the case to a Division Bench or Full Bench, as the case may be, for an authoritative pronouncement on the question involved as indicated above. The above-said two questions are answered as indicated above. 46. In the result, the questions referred to us are answered accordingly". We conclude in this factual and legal backdrop that the assessee's argument seeking to include DEPB as an adjustment for "ALP" computation because it is in the nature of an operating income, ought not be accepted as it tends to have an overriding effect on application of chapter-X of the Act as per stricter interpretation rule. We therefore accept the Revenue's instant former substantive grievance. 9.1. Next comes latter issue of corporate guarantee adjustment of Rs. 3,51,06,335/- deleted in the CIT(A)'s detailed discussion as under: "5.1 With regard to adjustment on amount of shortfall in corporate guarantee commission of Rs. 3,51,06,335/-, after considering the submissions of the appellant company and also by following earlier order in the appellant's own case for the....