TaxTMI 
TaxTMI 
2023 (8) TMI 271
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....0.05.2013 itself for want of a valid reference u/s. 92CA of the Act as under : 4. The Revenue vehemently objected the assessee's foregoing additional ground that such a course of action could not be accepted at this belated stage. We hardly see any merit in the Revenue's instant technical objections as this tribunal's Special Bench decision in All Cargo Global Logistics Ltd. vs. DCIT [2012] 137 ITD 287 (Mum.) (S.B.); after considering hon'ble apex court's landmark judgment in National Thermal Power Co. Ltd. vs. CIT [1998] 229 ITR 383 (SC), holds that we could very well entertain such a pure legal question going to root of the matter in order to determine correct tax liability of an assessee provided all the relevant facts are already on record. These Revenue's technical objection stand declined accordingly. 5. Next come the basic relevant facts so far as the assessee's foregoing legal ground challenging validity of the impugned assessment itself is concerned. This assessee is a company manufacturing, selling passenger cars and power trains [engine and gear box]. It had e-filed it's return on 25.09.2009 disclosing loss of Rs. 12,32,99,26,796/-. This followed it's revised retur....
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....e us the CIT(A)-13, Pune's order dated 24.12.2014 for preceding assessment year 2008-2009 quashing the corresponding assessment for this precise reason alone which is stated to have been attained finality. Mr. Pardiwala lasted invited our attention to hon'ble jurisdictional high court's decision dated 16.10.2012 in assessee's writ petition no.8657/2012 deciding the very issue of transfer of jurisdiction dated 22.11.2011 [reported [2012] 27 taxmann.com 37 (Bom.) ] in it's favour as follows : "2. This writ petition is filed to challenge the notice dated 30.03.2012 issued by the Assistant Commissioner of Income Tax-10(1) Mumbai under Section 14 8 of the Income Tax Act, 1961 ('the Act'). 3. The basic argument of the Petitioner is that once the CIT- 10 Mumbai in exercise of the powers vested in him under Section 127(2) of the Act has transferred the power to assess the Petitioner on 22.11.2011 from ACIT-10(1) Mumbai to DCIT, Circle-1(2) Pune, then the ACIT-10(1) would have no jurisdiction to issue the impugned notice dated 30.03.2012 and therefore, the said notice dated 30.03.2012 is liable to be quashed and set aside. 4. The relevant facts are that on....
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.... that before passing the corrigendum any notice was issued to the petitioner nor it is the case of the revenue that the corrigendum order was passed after hearing the petitioner. 9. Although in the affidavit in reply the revenue claims to have annexed a copy of the corrigendum order dated 27.03.2012 no such order was in fact annexed to the affidavit-in-reply. It is only during the course of hearing the Counsel for the revenue admitted the lapse and tendered a copy of the letter dated 20.03.2012 addressed by ACIT-10(1) Mumbai to CIT-10 Mumbai as well as the corrigendum order dated 27.03.2012 to the Court as also to the Counsel for the Petitioner. 10. The letter dated 20/3/2012 addressed by the ACIT-10(1) to CIT-(10) Mumbai reads thus:- To The Commissioner of Income Tax-10, Mumbai. (Through Proper Channel) Sir, Sub : Order u/s 127(2) in the case of Fiat India Automobiles Ltd. Ref: No. C.I.T.-10/Juris.1237/Transfer/2011-12 dated 22.11.2011 - reg. Kindly refer to the above, 2. Ord....
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.... Mumbai from ACIT-10(1) Mumbai to DCIT Circle-1(2) Pune by order dated 22.11.2011 it was totally improper on the part of ACIT-10(1) Mumbai to request the CIT-10, Mumbai to pass a corrigendum order with a view to circumvent the jurisdictional issue. Making such a request on the part of ACIT- 10(1) Mumbai to the CIT-10 Mumbai in our opinion, was in gross abuse of the process of law. If there was any time barring issue, the ACIT-10(1) Mumbai ought to have asked his counterpart at Pune to whom the jurisdiction was transferred to take appropriate steps in the matter instead of taking steps to circumvent the jurisdictional issue. It does not befit ACIT- 10(1) Mumbai to indulge in circumventing the provisions of law and we strongly condemn the conduct of ACIT-10(1) Mumbai in that behalf. Instead of bringing to book the persons who circumvent the provisions of law, the ACIT-10(1) Mumbai has himself indulged in circumventing the provisions of law which is totally disgraceful. 15. In any event, the CIT-10 Mumbai ought not to have succumbed to the unjust demands of ACIT-10(1) and instead ought to have admonished the ACIT-10(1) for making such unjust request. The CIT-10 Mumbai ought t....
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....osts quantified at Rs. 10,000/- to be paid by the revenue to the petitioner within a period of eight weeks from today. It is brought to our notice that the CCIT- VI Mumbai agrees that the impugned actions of CIT- 10 Mumbai and ACIT-10(1) Mumbai are patently unjustified and not as per law but has expressed his helplessness in the matter. We expect that CCIT-VI takes immediate remedial steps so that no such incidents occur in the future. We make it clear that it will be open to the revenue to collect the costs of Rs. 10,000/- from the respondent Nos. 1 and 2 which is required to be paid by the revenue to the petitioner under this order. The Registry is directed to forward a copy of this order to the CCIT- VI, Mumbai and also to the CBDT, New Delhi." 6.1. Mr. Pardiwala made it clear before us as an abundant caution that their lordships subsequent order dated 02.03.2013 in Revenue's civil application No.236 of 2013 in writ petition no.8657 of 2012 has deleted some of the observations from the above extracted detailed judgment dated 16.10.2012 [regarding the corresponding observations and directions in para-14 page-9, para-17 page-12 and para-18 pages 12 to 13] to certain limited ext....
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.... statutory limitation u/s. 153(4) of the Act which is extendable by twelve months therefore. We order accordingly. All other rival pleadings on merits in both these cross-appeals stand rendered academic. 9. To sum-up, the Revenue's instant appeal ITA.No.1483/PUN./2015 is dismissed and assessee's cross- appeal ITA.No.1497/PUN./2015 succeeds in above terms therefore. A copy of this common order be placed in the respective case files. Pronounced on 13^th March, 2023. ============= Document 1 1. The order of the Ld. Commissioner of Income-tax (Appeals) is contrary to law and to the facts and circumstances of the case. 2. The Ld. Commissioner of Income-tax (Appeals) grossly erred in giving the decision to treat the items of miscellaneous income except for the insurance and penalty income as operating in nature, however, the same is non-operating income. 3. The Ld. Commissioner of Income-tax (Appeals) grossly erred in giving the decision to exclude the amount of foreign exchange loss from computing PLI, however, the same should be included in computing the PLI. 4. The Ld. CIT(A) grossly erred in holding that no income or benefit arises which ca....
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....ty level TNMM analysis based on comparables of previous year without performing a methodical search process. 2.1.4 incorrect and erroneous selection of Mahindra & Mahindra Limited as a comparable company despite functional and economic differences with the Appellant. 2.1.5 rejecting the Appellant's use of CPLM as most appropriate method, wherein the Appellant determined arm's length price of the products/services provided by the foreign associated enterprise ('AE'), taking AE as tested party. Document 3 2.2 Computing the Profit Level Indicator (PLI) of the Appellant for entity level TNMM analysis 2.2.1 considering certain items of income that are intrinsically related to the Appellant's business operations as non-operating income for calculating the net profit margin (operating profit) of the Appellant. 2.2.2 treating 'loss on obsolescence' as an operating expense which is an extraordinary item of expense 2.3 Denying the economic adjustments in order to reduce the difference between the Appellant and the so called comparable companies selected by the Ld. TPO 2.3.1 inappropriately calculating the capacity underutilisation adjustment ....