DVC Emta Coal Mines Ltd. Vs ACIT (ITAT Kolkata)
The appeals were filed by DVC Emta Coal Mines Ltd., Bengal Emta Coal Mines and Panem Coal Mines against separate orders of the ACIT, Central Circle-3(1), Kolkata for A.Y. 2013-14, passed pursuant to directions of the DRP-2, New Delhi. Since the facts and grounds were stated to be identical, the Tribunal disposed of the appeals through a consolidated order, taking ITA No. 2430/Kol/2017 as the lead case.
The assessee raised a legal challenge concerning the effect of the omission of clause (i) of section 92BA by the Finance Act, 2017 with effect from 01.04.2017. It contended that the impugned transactions were consequently outside the definition of specified domestic transaction and that the assessment order passed pursuant to the DRP directions was bad in law. The assessee also challenged the assessment under sections 143(3), 92CA(3) and 144C(5), including an enhancement of income of Rs. 13,52,49,494/-.
The assessee relied upon the ITAT Bangalore decision in Texport Overseas Private Limited Vs. DCIT, along with decisions of other Tribunal Benches and Supreme Court judgments concerning the effect of omission of statutory provisions.
The Tribunal reproduced the reasoning in Texport Overseas, under which omission of clause (i) of section 92BA without a saving provision meant that the clause was deemed never to have been on the statute book. The Tribunal held that proceedings initiated or action taken under the omitted clause did not survive. It therefore held that the cognizance taken by the AO under section 92BA(i) and reference to the TPO under section 92CA were invalid and bad in law, and that the consequential orders of the TPO and DRP were not sustainable.
