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2022 (5) TMI 1634 - CALCUTTA HIGH COURT
Revision u/s 263 - period of limitation - HELD THAT:- Tribunal has not ventured to consider the facts of the assessees’ case; more importantly, when they have challenged the order passed by the PCIT u/s 263 of the Act firstly on the ground that it is barred by limitation. That apart, the appellants had approached this Court and filed a writ petition against the order passed u/s 263 and in the said writ petition the appellants were granted liberty to pursue their remedies against the order dated March 29, 2015 by reckoning the date of receipt of such order as on February 29, 2016. Therefore, the issue would be whether the proceedings are barred by limitation.
Thus, the appellants ought to have been granted liberty to canvass the issue before the learned Tribunal. More particularly when they have specifically raised the same as one of the grounds in the appeal memorandum filed before the learned Tribunal.
The learned Advocate appearing for the appellants would submit that on merits also the appellants have got an excellent case. However, since the learned Tribunal has not touched upon the merits of the appellants’ case, we are not inclined to go into the said aspect.
As observed by us, since we are not going into the merits of the impugned order nor the correctness of the said order of the learned Tribunal, we leave it to the Department to canvass all points at the appropriate stage. Thus, we are of the considered view that the matter has to be sent back to Tribunal to take a decision on merits and in accordance with law, specifically with regard to the grounds canvassed by the appellants before it.
The appeal is allowed and the stay application stands closed and the order passed by the learned Tribunal is set aside.
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2022 (5) TMI 1633 - ITAT PUNE
Nature of receipt - subsidy received from Government of Maharashtra under Package Scheme of Incentives of 2007 ("PSI 2007") - Applicability of Amended Provision of Section 2(24)(xviii) of the Income Tax Act - whether the said subsidy is capital receipt or a revenue receipt? - HELD THAT:- The whole purpose and the grant of subsidy under PSI 2007 by Government of Maharashtra was to promote industrial growth in the less developed areas of the State and also to provide employment in the area. Once this purpose is established the subsidy has to be a capital receipt. However, the position has changed w.e.f. 01.04.2016 relevant to A.Y. 2017-18 onwards with the amended provision of sub-clause (xviii) to sec. 2(24) of the Act. However, at present, we are concerned with A.Y. 2011-12 to 2015-16. Therefore, the amended provision of sec. 2(24) sub-clause (xviii) is not applicable to the years under consideration and thus as a natural consequence the subsidy received by the assessee would therefore, not form part of its total income. Subsidy received by the assessee was capital in nature and not chargeable to tax. Decided against revenue.
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2022 (5) TMI 1632 - ALLAHABAD HIGH COURT
Seeking grant of bail (second bail application) - principles of parity - smuggling of ganja - whether the applicant is entitled to be released on bail only on the ground of parity of bail orders of co-accused which have been passed by the Coordinate Bench without considering the mandatory provisions of Section 37 of the N.D.P.S. Act and without giving reasons? - violation of principles of natural justice - HELD THAT:- Before granting bail for the offence under N.D.P.S. Act, twin conditions as provided under Section 37(1)(b)(i) and (ii) have to be satisfied, which is in addition to Section 439 of Cr.P.C. and mandatory in nature.
Having examined the bail orders of co-accused in its entirety, it is found there are substance in the submission of learned A.G.A. that co-accused Sonoo Shukla and Praveen Maurya @ Puneet Maurya have been granted bail by the Coordinate Bench of this Court without taking into account the effect and rigour of Section 37 of the N.D.P.S. Act and ignoring the settled law laid down by the Apex Court regarding application of Section 37 of the N.D.P.S. Act, whereas recovered quantity is undisputedly is commercial quantity. In the conspectus of the facts of the case, Section 50 of the N.D.P.S. Act is also not applicable as the recovery of ‘Ganja’ was from the dicky of vehicles.
There are no reason on merit of the case has been recorded for granting bail to them - considering the recovery of huge quantity of Ganja as mentioned above, coupled with the fact that the applicant was apprehended at the spot and was having conscious and constructive possession over the recovered Ganja, there are no reasonable ground in terms of Section 37 of the N.D.P.S. Act to hold that the applicant is not guilty of an offence and he is not likely to commit any offence while on bail.
There are no good ground for enlarging the applicant on bail - The second bail application of the applicant is accordingly rejected.
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2022 (5) TMI 1631 - DELHI HIGH COURT
Investigation into the affairs of Educomp Solutions Limited (ESL) through Serious Fraud Investigation Office (SFIO)/respondent No.2 - seeking to set aside investigations as being passed in public interest though no public interest is involved in this case - impugned order not issued in public interest as per Section 212 (1) (c) of the Companies Act, 2013, rather it was passed on the basis of a complaint of the rival group - HELD THAT:- In Parmeshwar Das Aggarwal vs Additional Director [2016 (11) TMI 29 - BOMBAY HIGH COURT], the Bombay High Court held 'We are in complete agreement with Mr.Godbole that this is an investigation directed at the instance of the rival groups and though Mr.Agarwal tries to persuade us into holding that the Central Government has not been influenced by or is never interested in family matters or disputes, we find that to be essential basis on which the whole action is initiated. It being so initiated at the threshold itself it is vitiated. The law does not permit entering into all such controversies as are essentially factual and existing between groups or shareholders of a private company locked in litigation and which litigation has not reached finality.'
Notice issued - List on 28.09.2022.
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2022 (5) TMI 1630 - SC ORDER
Seeking to withdraw present special leave petition with liberty to approach afresh - Seeking grant of Regular Bail - funds from the Term loan were diverted to 25 non-contracting parties - Proceeds of crime - misappropriation or diversion of funds - siphoning off of funds - constitutional validity of Section 45 of PMLA - HELD THAT:- The special leave petition is dismissed as withdrawn with liberty as sought.
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2022 (5) TMI 1629 - SC ORDER
Issuance of look-out circular - HELD THAT:- The petitioner-Bank and the respondent Immigration Authorities shall ensure that the petitioner is not prevented from travelling abroad to pursue her studies by reason of the Look Out Circular.
The respondent No. 1 shall give an undertaking to this Court not to dispose of her assets, if any. The respondent No. 1 shall also keep the Bureau of Immigration informed of the dates of departure from and entry into India.
Petition disposed off.
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2022 (5) TMI 1628 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI
Maintainability of application - It is submitted that there was no necessity to file Application which was only filed to delay the proceeding - HELD THAT:- The order of rejection passed by the Adjudicating Authority on the Application need no interference in this Appeal.
It is made clear that any observations made by the Adjudicating Authority while rejecting the Application have no bearing when the issues are decided by the Adjudicating Authority in accordance with law and merits. All contentions of both the parties are left open.
Appeal dismissed.
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2022 (5) TMI 1627 - ITAT BANGALORE
Validity of assessment u/s 153A - whether no seized material so as to frame the assessment u/s 153A found? - HELD THAT:- There was no dispute regarding the search action us/ 132 of the Act at the premises of the assessee and also seizure of various documents at their premises and recording of statement u/s 132(4) of the Act from Internal auditor and financial manager of assessee company.
There was also recording of statement u/s 132(4) from Executive Director of assessee company on the basis of this, notice u/s 153A of the Act was issued to the assessee on 23.11.2012. Now the contention of the Ld. A.R. is that there is no seized material so as to frame the assessment u/s 153A of the Act. In our opinion, this argument of Ld. A.R. is devoid of merits. As seen from the case records there were seized materials found during the course of search and also the statement recorded u/s 132(4) of the Act from Internal auditor and also from Executive Director of the company. Executive Director offered additional undisclosed income at Rs. 9.96 crores for financial year 2008-09 to 2010-11 and another Rs. 3.6 crores for the financial year 2011-12 in his statement recorded u/s 132(4) of the Act.
In another occasion, he offered additional income of Rs. 10.50 crores for the assessment year 2009-10 & Rs. 4.50 crores for the AY 2010-11 in answer to Q.Nos.22 & 24. Since there are seized materials and consequent to the panchanama so drawn where they admitted the various transactions with Vinayak Fruit Mandi, Venkateshwara Fruit Mandi and Venkateswara Bottle Traders. Being so, assessee’s case is covered against the assessee by the judgement of Hon’ble Karnataka High Court in the case of PCIT Vs. Delhi International Airport [2021 (11) TMI 928 - KARNATAKA HIGH COURT]
Thus we confirm the issue of notice u/s 153A of the Act and framing of assessment u/s 153A r.w.s. 143(3) - Ground No. 2 of additional ground is dismissed.
AO has not given opportunity of cross examination of certain person whose statement has been recorded on oath during the course of search - With regard to seized documents found in the premises of the assessee pertaining to Vinayaka Fruit Mandi, Venkateshwara Bottle Traders and Srinivasa Bottle Traders, these were confronted to Shri V. Janardhan, Internal Auditor & Finance Manager of SPR Group Holdings P. Ltd., who has admitted that there was no purchase of goods and services from FY 2007-08 onwards. This is the basis for the addition made by the AO. The statement of Shri V. Janardhan who has admitted that there were bogus purchases, his statement was confronted to the Director of the assessee company viz. Suresh Gowda. The statement of Suresh Gowda was also recorded by searched team.
For statement recorded from the third parties argument of the assessee’s counsel is devoid of merit. The statement recorded from Janardhan V was rightly confronted to the assessee represented by Executive Director Suresh Gowda and he has given reply against various submissions made by Shri Janardhan V., in his statement recorded u/s 132(4) of the Act. Further, at the time of recording the statement, the authorities asked him whether he wants to say anything else. He said in his answer to question No. 24 that nothing more to add to the above answers and offered Rs. 15 crores additional income for these assessment years and at that point of time, he has not asked for any cross examination of Shri V. Janardhan or later also he has not asked for the same. Being so, there is no merit in this argument of the assessee and deserves to be rejected. This common additional ground No. 3, in all appeals of the assessee is rejected.
Bogus purchases - Addition is based on the seized material and statements recorded from Janardhan V. and Suresh Gowda. However, the Ld. CIT(A) has not examined how these transactions are treated in the hands of Vinayaka Fruit Mandi, Venkateswara Bottle Traders and Srinivasa Bottle Traders in these assessment years. In our opinion, these facts are very relevant to decide the issue in the assessee’s case as there should be similar treatment in the hands of seller also. If it is considered as genuine in the hands of these vendors on the same principle, these transactions should be considered as genuine in the hands of the present assessee also. With these observations, we remit this issue on merit to the file of Ld. CIT(A) to consider afresh and decide in accordance with law.
Income generated in the hands of the assessee on giving advance to T. Nanda Krishna who has bought the property and later it was sold to M/s. SPR Developers Pvt. Ltd - CIT(A) is required to examine all the documents relating to these transactions listed in earlier para and also examine various statements recorded during the course of search action and decide the issue afresh by considering the entire facts and circumstances of the case. Accordingly, this issue is remitted back to the file of CIT(A) for fresh consideration to decide the same within six months of receipt of this order as this is old matter relating to the AY 2007-08.
Appeal partly allowed for statistical purposes.
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2022 (5) TMI 1626 - DELHI HIGH COURT
Exemption u/s 11 - activity of the assessee of letting out gallery frequently for a price - Whether qualify as being called in the nature of charity - Whether merely because a small percentage of the income of the Assessee is from letting out of its premises and sale of paintings, the essential activity of the Assessee would not cease to be charitable for the purposes of Sections 11 and 12?
As decided in ALL INDIA FINE ARTS & CRAFTS SOCIETY, NEW DELHI [2020 (6) TMI 603 - ITAT DELHI] Proviso to Section 2(15) of the Act, which was inserted by Finance Act, 2008, was directed to prevent the unholy practice of pure trade, commerce and business entities from masking their activities and portraying them in the garb of an activity in the object of a general public utility but was not designed to hit at those institutions, which had the advancement of the objects of general public utility at their hearts and were charity institutions, thus direct the AO to allow the assessee the benefit of exemption u/s 11 & 12
HELD THAT:- Appellant fairly draws our attention to the order passed [2019 (8) TMI 1500 - DELHI HIGH COURT], whereby the Revenue’s appeal, arising from the order [2019 (2) TMI 905 - ITAT DELHI] in relation to the respondent-assessee for the assessment year 2009-10, was dismissed by this Court. The impugned order passed by the Tribunal relies on the earlier order [2019 (2) TMI 905 - ITAT DELHI] in relation to the assessment year 2009-10.
Since this Court has already held that no substantial question of law arises for the consideration of this Court, we do not find any merit in the present appeal as well as in the application for condonation of delay, and the same are dismissed.
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2022 (5) TMI 1625 - ITAT CHENNAI
Bogus LTCG - unexplained profit on sale of shares of shares - unexplained credit u/s. 68 - claim of exemption u/s. 10(38) rejected by holding the sale of shares as penny stocks - HELD THAT:- As noticed that in the case of penny stock, we are consistently taking a view, where the SEBI report and the report of the Investigation Wing of Kolkata & Delhi or any other report was not confronted to the assessee, the matter is being restored back to the file of the AO for confronting the material gathered and used against the assessee. Similar view in the cases of SMT. VANDANA JAIN, MR. RAJ KUMAR JAIN, RAJ KUMAR JAIN HUF, and SMT. MITHU KUMARI RANKA [2022 (4) TMI 893 - ITAT CHENNAI],
As in the present case before us, the material gathered during the course of investigation was never confronted to the assessee. Hence, taking a consistent view, as taken we remit the issue back to the file of the AO exactly on similar directions. Appeal filed by the assessee is allowed for statistical purposes.
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2022 (5) TMI 1624 - CUSTOMS AUTHORITY FOR ADVANCE RULINGS, MUMBAI
Classification of goods proposed to be imported - dehydrated dark - small seedless raisins (Vitis vinifera) - eligibility for sr. no. 32 of N/N. 50/2017-Cus., dated 30.06.2017 - HELD THAT:- Regarding the issue of eligibility for the concessional rate of duty under sr. no. 32 of notification no. 50/2017-Cus., dated 30.06.2017, it is found that the said entry covers dark seedless raisins. The impugned goods being dehydrated dark and seedless raisins are eligible for concessional rate of duty under sr. no. 32 of the said notification.
The applicant in the personal hearing mentioned that the product is colloquially known as Zante currants also and that fact may create confusion in the minds of the assessing officers. As per the applicant, the Zante currants are raisins only. In support of above, the applicant submitted a certificate dated 15.07.2021 issued by the Associate Professor, Director of Laboratory of Viticulture, Greece, certifying that the product "Black Corinthian Currants" (alternatively "Zante currants", "Corinth raisins currants", "dark seedless raisins", are raisins of the seedless cultivar black Corinth Vitis vinifera). The definition of raisins given in the Food Safety and Standards (FSSAI) Regulations, 2009 has been examined. Regulation 5.5.46- "Nuts and Raisins" describes raisins as the product obtained by drying sound, clean grapes of proper maturity belonging to Vitis vinifera L. The product may be washed, with or without seeds and stems and may be bleached with Sulphur Dioxide - if the goods to be imported satisfy the above-mentioned condition then they are classifiable under subheading 08062010 and will be eligible to avail benefit under Sr. No. 32 of notification no. 50/2017. In other words, on verification, if the product imported by the applicant is proved to be of vitis vinifera, either by way of certification from PQ or FSSAI or otherwise, then the appropriate classification will be subheading 08062010 and goods will be eligible for the said notification benefit.
Thus, the dehydrated dark and small seedless raisin (Vitis vinifera) merit classification under subheading 08062010 of the first schedule of the Customs Tariff Act, 1975 and are eligible for exemption benefit allowed under sr. no. 32 of notification no. 50/2017-Cus., dated 30.06.2017.
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2022 (5) TMI 1623 - ITAT AHMEDABAD
Addition of unaccounted stock/unaccounted income - Assessee has not submitted any supporting evidences regarding its practice of valuation of closing stock - survey proceedings u/s 133A carried out at the business premises of the assessee - HELD THAT:- There was clear finding by the CIT(A) that the assessee never filed any supporting evidences regarding its practice of valuation of closing stock and during the survey proceedings the assessee himself admitted that there was excess unaccounted stock. The assessee was very well aware that there was excess stock, despite this fact the assessee offered only Rs.66,88,110/- and has not included the difference of Rs.13,57,865/-- in the return of income filed by the assessee. Merely, offering the declared gold and silver ornaments in survey proceedings in subsequent A.Ys. cannot held that there was no excess stock/unaccounted stock available during the A.Y. 2015-16.
The documents shown at the time of hearing by the assessee has not given the bifurcation as to how much was the quantity sold on the particular period related to gold ornaments and silver ornaments which shows that the assessee was deliberately following unaccounted stock and when survey conducted the same was admitted by the assessee. There is finding of the Assessing Officer that the G.P. shown during the survey period is higher than the post-survey period and the AO also pointed out discrepancy in the submissions made by the assessee. Thus, AO has made proper addition and the CIT(A) has correctly confirmed the same. The CIT(A) has given detailed finding and there is no need to interfere with the finding of the CIT(A). Therefore, the appeal filed by the assessee is dismissed.
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2022 (5) TMI 1622 - SUPREME COURT
Smuggling - Gold - appellant – accused – Rekha Jain is found to be in possession of the gold jewellery, which was taken away from the complainant - It is submitted that therefore the High Court has committed a grave error in not quashing the criminal proceedings against the appellant – accused Rekha Jain for the offence under Section 420 of IPC. - HELD THAT:- It is required to be noted that the offence alleged against the appellant – accused – Rekha Jain is for the offence under Section 420 of IPC. She has been now chargedsheeted for the said offence. However, considering the allegations in FIR/complaint, it can be seen that the entire and all the allegations are against the accused Kamalesh Mulchand Jain. In the complaint/FIR, there are no allegations whatsoever to the effect that the accused Rekha Jain induced the complainant to part with the gold jewellery. Therefore, in the absence of any allegation of inducement by the accused Rekha Jain, she cannot be prosecuted for the offence under Section 420 of IPC. There must be a dishonest inducement by the accused.
The allegations of dishonest inducement and cheating are against her husband – accused – Kamalesh Mulchand Jain. Therefore, considering the allegations in the FIR/complaint as they are, and in the absence of any allegation of dishonest inducement by Rekha Jain, it cannot be said that she has committed any offence under Section 420 of IPC for which she is now chargesheeted. Therefore, the High Court has committed a grave error in not quashing the criminal proceedings against Rekha Jain for the offence under Section 420 of IPC. This is a fit case where the High Court could have exercised its powers under Section 482 of Cr.PC and to quash the criminal proceedings against Rekha Jain for the offence under Section 420 of IPC.
The criminal proceedings against the appellant – accused – Rekha Jain for the offence under Section 420 of IPC is hereby quashed. However, it is clarified that what is quashed is the criminal proceedings for the offence under Section 420 of IPC only and not for any other offence(s), if any, committed by the accused – Rekha Jain. The present appeal is limited to the offence under Section 420 of IPC only as at present she is chargesheeted only for the offence under Section 420 of IPC.
Appeal allowed.
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2022 (5) TMI 1621 - DELHI HIGH COURT
Oppositions to trademark applications had been rejected on the ground that they were filed beyond the four months’ limitation period, which was contrary to the extension of limitation orders passed by the Supreme Court from time to time during the pandemic - HELD THAT:- It is clarified that the filing of the opposition and the suspension of the registration certificate of the Respondent, shall not affect the merits of the dispute between the parties, both in the suit and the appeal mentioned above, as the opposition has been permitted to be filed on a technical ground (limitation) and not on merits. Thus, the said opposition proceedings shall proceed in accordance with law and such proceedings shall not affect the suit or any other disputes pending between the parties. Clarified accordingly.
List all these matters on 3rd August, 2022 for receiving of the status reports to be filed by the office of the CGPTDM.
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2022 (5) TMI 1620 - ITAT BANGALORE
TP Adjustment - Adoption of the Most Appropriate Method (MAM)in determining the ALP in respect of an international transaction of payment of royalty to its Associated Enterprise (AE) u/s.92 - TNMM v/s Profit Split Method (PSM) - HELD THAT:- The facts in AY 2016-17 [2021 (6) TMI 855 - ITAT MUMBAI] are identical and the reasoning given in AY 2013-14 [2020 (3) TMI 947 - ITAT BANGALORE] will equally apply to the AY 2016-17 also. Respectfully following the aforesaid decision, we set aside the question of determination of ALP to the TPO afresh applying TNMM as the most appropriate method as was done in Assessment Years 2013-14 and 2014-15 in the order referred to above. The other issues with regard to determination of ALP under the PSM is academic and does not require adjudication.
Rate of tax on dividend distributed to non-resident shareholders - whether DDT is a tax on the Company or the Shareholder since the distributable surplus stands reduced to the extent or DDT? - HELD THAT:- We find that the ITAT Mumbai Bench in the case of Dy Cit 11 (3)(1), Mumbai vs Total Oil India Pvt Ltd. [2021 (6) TMI 855 - ITAT MUMBAI] in Assessment year 2016-17 has for identical reasons given by the DRP, made a reference to Special Bench disagreeing with the view of the ITAT Delhi in the case of Gieseck. & Devrient [India] Pvt Ltd. [2020 (10) TMI 750 - ITAT DELHI] Since the issue has not attained finality, we are of the view that it would be just and appropriate to remand the issue to the TPO/AO for fresh consideration in accordance with law. The grounds are treated as partly allowed for statistical purpose.
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2022 (5) TMI 1619 - ITAT CUTTACK
Addition based on higher consumption of electricity and lower production - undisclosed amount of paddy milled by the assessee - assessee had failed to furnish quantitative details of paddy milled, rice produced, by-products for specific period asked by AO - CIT(A) deleted addition - HELD THAT:- Addition on the basis of suspicion and noticing the factum of higher consumption of electricity and lower production which could be a case of strong suspicion but it is also settled law that suspicion, however strong, cannot take the place of evidence against the assessee for making a sustainable addition.
From the relevant part of the CIT(A) order, we observe that CIT(A) has accepted the explanation of the assessee towards higher electricity consumption in the relevant assessment year which was frequent breakdown and longer load of electricity that has then to be used to restart the milling machinery, which consumes higher electricity.
CIT(A) also observed that the AO calculated the undisclosed amount of paddy milled by the assessee and enhanced his income accordingly without bringing any evidence on record to suggest a suppression of the stock of paddy by the assessee and the books of accounts have not been rejected by the AO u/s.145(3) of the Act, which implies an acceptance of the results therein by the AO.
AO merely relied on the figures of electricity consumption available in the internet without verifying the facts and circumstances of the case of the assessee and he rightly held that this is not a plausible approach of the AO. In view of foregoing discussions, we reach to a logical conclusion that the CIT (A) was right in deleting the addition made by the AO on the basis of on suspicion, conjectures and surmises without bringing any adverse material and positive evidence against the assessee on record to show that the assessee has claimed higher electricity consumption to avoid tax payment. Ground No.1 of the revenue is rejected.
Capital contribution by partners - failure to explain the source and nature of cash deposits immediately before transfer and they had not shown adequate in their ITRs for Capital contribution - CIT(A) deleted addition observing that the assessee firm had duly discharged the onus cast upon it by the AO to establish the identity of the partners and their creditworthiness alongwith copies of I.T.returns of three partners, copies of bank accounts from where cheques were issued to the assessee firm, ledger accounts of the partners - CIT(A) observed that If the AO harboured doubts about the credit entries in the bank accounts of the respective partners, then it was open to him to re-open the assessments of these partners and make addition in their hands after conducting inquiries - HELD THAT:- In this regard, we are in agreement with the conclusions arrived at by the ld CIT(A) and in our considered opinion, if the AO was not satisfied with the creditworthiness of the partners, then he was eligible to take action against the partners under the relevant provisions of the Act but no addition can be made in the hands of the assessee firm in view of preposition rendered in the case of Odedara Constructions (2014 (2) TMI 130 - GUJARAT HIGH COURT] and case of Jaiswal Motor Finance (1983 (2) TMI 47 - ALLAHABAD HIGH COURT]. Respectfully following the same, we are compelled to hold that the conclusions arrived at by the CIT(A) does not carry any ambiguity, perversity and inferiority. Thus, we uphold the same. Ground No.2 of the revenue is rejected.
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2022 (5) TMI 1618 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI
Seeking withdrawal of appeal - Application under Section 7 has been admitted - HELD THAT:- An Application has been filed by the parties bringing on record a Settlement dated 21.04.2022. The Settlement contemplates that both the parties shall withdraw respectfully the Appeal being Company Appeal as well as the Application under Section 7 filed by the Financial Creditor.
The application is allowed taking the Settlement on record and the Appellant is permitted to withdraw the Company Appeal to enable the parties to approach the Adjudicating Authority by filing an Application for withdrawal of Section 7 Application. With regard to expenses etc., it shall be open for the parties to request the Adjudicating Authority to pass appropriate order.
The Appeal is permitted to be withdrawn.
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2022 (5) TMI 1617 - SUPREME COURT
Seeking grant of interim bail - bail sought on the ground that the sister of the petitioner is suffering from cancer and the petitioner's mother in law is suffering from non-alcholic liver cirrhosis requiring the spouse of the petitioner to travel from Kanpur to Delhi leaving no one in the family to attend to the needs of the petitioner's sister - HELD THAT:- It is considered appropriate to direct that the petitioner shall be released on interim bail for a period of four weeks, subject to such terms and conditions as may be imposed by the trial court. The period of bail shall commence immediately upon the release of the petitioner and after the expiry of which the petitioner shall surrender forthwith.
The application for interim bail is disposed of.
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2022 (5) TMI 1616 - ITAT KOLKATA
Rectification of mistake - miscellaneous application filed by the assessee stating therein that some errors apparent on record have occurred while adjudicating the appeal of the assessee - application seeking admission of additional ground has escaped attention of the Tribunal and no order has been passed by the Tribunal in respect of the said application - HELD THAT:- The error apparent on record has occurred in the common order of the Tribunal dated 26.03.2021 on account of non-adjudication of the application of the assessee for admission of additional grounds. The order of the Tribunal is, therefore, recalled for the limited purpose for adjudication upon the application of the assessee for admission of additional grounds and if the application is accepted by the Tribunal then for adjudication of the aforesaid additional grounds.
No adjudication upon Grounds pertaining to the levy of interest u/s 234B and 234D - As the aforesaid grounds have not been adjudicated by the Tribunal in the common order dated 26.03.2021. This being an error apparent on record, order of the Tribunal is hereby recalled on this limited issue also for the purpose of adjudication of Ground No.6 & 7 of the grounds of appeal of the assessee.
Non-consideration of certain facts in the common order - Tribunal in para 7.4 inter alia has observed that no other transaction of purchase of AE is benchmarked with the prices in ICIS-LOR website; that however the applicant’s purchase of Paraxylene from AE’s was benchmarked using ICIS LOR - HELD THAT:- We find from the order of the Tribunal that the point raised by the assessee was not the sole point to arrive at the final conclusion. The Tribunal has considered the overall facts and circumstances of the case.
It cannot be said that any error apparent on record has occurred in the aforesaid order of the Tribunal. The applicant has raised this context in just by disputing one observation made by the Tribunal whereas the order passed by the Tribunal is based on overall facts and circumstances of the case.
As decided in the case of Ramesh Electric And Trading Co. [1992 (11) TMI 32 - BOMBAY HIGH COURT] while relying upon the decision of 'T. S. Balaram, ITO V. Volkart Brothers' [1971 (8) TMI 3 - SUPREME COURT] categorically held that the power of rectification under section 254(2) of the Income-tax Act can be exercised only when the mistake which is sought to be rectified is an obvious and patent; mistake which is apparent from the record, and not a mistake which requires to be established by arguments and a long drawn process of reasoning on points on which there may conceivably be two opinions.
Failure by the Tribunal to consider an argument advanced by either party for arriving at a conclusion is not an error apparent on the record, although it may be an error of judgment and under such circumstances the Tribunal has no jurisdiction under section 254(2) to pass the second order. In view of our above observations and the legal position as stated above, we do not find any merit on this issue.
Miscellaneous Application of the assessee is partly allowed.
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2022 (5) TMI 1615 - ITAT MUMBAI
Taxability of income in India or not - income of royalty arising out of the above trademark of ‘ brand Marriott’ taxability - Who may be regarded as agent u/s 163? - whether the provision of section 163 can be invoked or not considering assessee as an ‘agent’ of Non-resident? - HELD THAT:- As assessee has given a registration certificate dated 21st august, 2006 and covers above assessment years [2006-07 to 2009-10]. No doubt, as held by the Hon'ble Delhi High Court in the case of CUB Pty Limited vs. [2016 (7) TMI 1094 - DELHI HIGH COURT] that since the brand owner not located in India, the situs of the brand would also be outside India and naturally, the income arising there from would be chargeable to tax in the hands of the owner of the brand. In fact, Marriott International Inc. (assessee) in these appeals is not the owners of the brand as per certificate of ownership produce before us.
Therefore, it is chargeable to tax in the hands of the person who owns the brand. Nevertheless, it is not the contention of the assessee that no tax should have been deducted under section 195 of the Act on the payments made by, Juhu Beach Resorts Limited, V.M. Salgaonkar and Brothers Pvt. Ltd. and Chalet Hotels Limited and we are also conscious of the fact that sum is received by the assessee and provision of section 163 of the act also needs to be examined. However, there is a substantive provision for that.
We set aside all these four appeals back to the file of AO with a direction to consider the certificate of registration on trademark dated 21 August 2006, which was applied for on 24 November 2003. AO may re-consider that in whose hands the above income is chargeable to tax as royalty income.
AO may also consider that who received the above sum on behalf of the non- resident tax payers and whether the provision of section 163 of the Act can be invoked or not considering assessee as an ‘agent’ of Nonresident. AO may also consider that if the tax is required to be deducted u/s 195 , then whether the tax has been deducted by the payer or not and whether they can be held to be agent of the non-resident. AO before proceeding against any other assessee or this assessee may issue requisite notice. We set aside all the grounds of appeal back to the file of the learned Assessing Officer for deciding the taxability of royalty. Appeals filed by the assessee are allowed for statistical purposes.
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