TaxTMI 
TaxTMI 
2022 (1) TMI 1191
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....tion 263 is illegal and bad in law. 2. Whether the ld. Pr. CIT was justified in setting aside the assessment order, specifically referring to provision of the Section 92BA(1), which has been omitted by the Finance Act, 2017. 3. Whether the ld. Pr. CIT erred in stating that it is mandatory for assessing officer to refer the specified domestic transaction to the Transfer Price officer as per Section 92CA of the Income Tax Act, 1961 which he failed to do so, in spite of the fact that the Section 92CA of the Income Tax Act, 1961 is very clear about the discretionary power given to assessing officer, if he consider it necessary or expedient so do to, he may refer the matter to Transfer pricing Officer. 4. Whether the r....
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..... In case of present appeal, the period of limitation falls within the aforementioned period. Therefore, the appeal filed by the Appellant are not barred by limitation. I humbly request your kindness to accept our appeal. For this act of kindness we shall always remain obliged." 3. On the other hand, the ld. CIT-DR opposed the prayer but could not rebut the facts submitted by the assessee before us for seeking condonation of delay. 4. We have heard the rival contentions and pursued the material available on record. There is no dispute and is an admitted fact that there has been a delay in filing the present appeal by 72 days. It is also an undisputed fact that the Hon'ble Supreme Court vide the order dat....
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....e would be decided on merits after hearing the parties. Another principle laid down by the Hon'ble Supreme Court is that when substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. It was also held by the Hon'ble Supreme Court that there is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of male fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. In the instant case, applying the same principles, we find that there is no culpable neglige....
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.... of income. Thereafter, the ld. Pr. CIT initiated the proceedings U/s. 263 of the Act on the ground that the A.O. has passed the assessment without referring the domestic transaction to the TPO despite the fact that the value of transactions was Rs. 79,78,74,049/- and it was mandated in the reasons for selection of the case for scrutiny. The assessment order was also in contradiction to the CBDT Instruction No. 3/2016 dated 10/03/2019 and the assessment order passed by the A.O. is erroneous and prejudicial to the interest of revenue. Finally, the ld. Pr. CIT has passed the impugned order U/s. 263 of the Act by holding that the said assessment order passed by the AO is set aside to the A.O. and directed to reassess the income of the assessee....
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....n reference to the TPO is not prejudicial to the interest of the revenue. In this regard, we draw strength from the decision of Coordinate Bench of this Tribunal in the case of M/s. S.B. Cotgin Pvt. Ltd. Vs. PCIT-2, Nagpur ITA 88/2020 order dated 05/07/2021 wherein identical issue has been decided by the Bench by holding as under: "17. In this case, Section 92BA(i) of the Act was omitted w.e.f. 01.04.2017 and after its omission, the Ld. Pr. Commissioner of Income Tax passed order u/s. 263 dated 28.02.2020. Since Section 92BA(i) of the Act was unconditionally omitted without a saving clause in favour of pending proceedings, therefore, the Ld. Pr. Commissioner of Income Tax ought not to have proceeded u/s. 263 of the Act. Since such ....