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Showing 21 to 40 of 1331 Records
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2023 (4) TMI 1312 - NATIONAL COMPANY LAW TRIBUNAL HYDERABAD
Seeking for an order for liquidation of the Corporate Debtor (CD) - Section 33(1) read with section 34(1) of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- The fact remains that there is no resolution plan pending before the CoC and in the 18th CoC meeting, the RP explained to the CoC that in the event, the NCLT, Hyderabad does not accede to the request of granting further extension of 60 days, the liquidation process u/s 33(1) of Code shall commence in line with the order dated 31/12/2020. The ld. Counsel for the petitioner relies on this part of the Minutes of the 18th CoC meeting to contend that resolution of the CoC has to be deemed as being made, since CoC also noted the explanation given by the RP with regard to the liquidation. However, the Hyderabad Bench of NCLT, in the similar circumstances, has ordered for liquidation without the resolution of the CoC for liquidation. The adjudicating authority considered that no resolution plan was pending before CoC and that the adjudicating authority did not receive any resolution plan under sub-section (6) of Section 30 of the I&B Code, 2016.
When under section 33(1)(a), the Adjudicating Authority has power to order for liquidation when no resolution plan is submitted to it, it implies that the Adjudicating Authority has to only see whether any resolution plan has come up before it for approval prior to the order for liquidation under section 33(1)(a). As no resolution plan is received by the Adjudicating Authority, the questions whether CoC has resolved for liquidation or whether there is no coordination between RP and CoC, are immaterial for the Adjudicating Authority to order for liquidation u/s 33(1)(a).
There are no reason to reject the request made by the RP to order for liquidation of the Corporate Debtor - application allowed.
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2023 (4) TMI 1311 - DELHI HIGH COURT
Seeking permission to travel for two business meetings and for meeting his daughter in the USA - Ongoing investigations under the Black Money Act and the Potential risk posed by the petitioner's travel, particularly to the USA. - HELD THAT:- Bearing in mind the overall facts and circumstances of this case and the cooperation which has been extended by the Petitioner from time to time in terms of participation in the investigation and the two ld. Division Bench orders, and keeping in mind that the Court has vide three previous orders wherein granted the permission to travel abroad, the Court grants permission to the Petitioner to travel abroad in terms of the itinerary recorded above, subject to the conditions imposed - application disposed off.
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2023 (4) TMI 1310 - DELHI HIGH COURT
Taxability of centralized services fee earned by assessee - Tribunal held it not taxable as fee concerns various aspects, such as sales and marketing, loyalty programs, reservation service, technological service, operational service and training programs/human resources - HELD THAT:- Tribunal has noted, that the issue stands covered by the judgment of the coordinate bench in the case of Sheraton International Inc. [2009 (1) TMI 27 - DELHI HIGH COURT]
As in the assessee’s case for other AYs, the coordinate bench has followed the same approach i.e., accepted the ratio of the judgment in Sheraton International Inc. No substantial question of law arises for our consideration.
The appellant/revenue has preferred an appeal qua the judgment rendered by the Division Bench of this Court in Sheraton International Inc., it is made clear, that if the appellant/revenue were to succeed in the said matter, parties will abide by the final decision rendered by the Supreme Court.
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2023 (4) TMI 1309 - RAJASTHAN HIGH COURT
Seeking grant of bail u/s 439 CrPC - economic offence Or not - Offence punishble under Sections 132 (1) (b), (f), (h), (j), & (l) of Central Goods and Services Tax Act, 2017 - HELD THAT:- It is an admitted position that petitioner had evaded the tax and got the benefit of input tax credit of nearing Rs.88.33 Crores. Hon’ble Apex Court in various pronouncement observed that economic offender should not be dealt as a general offender and in circumstances while granting bail to Vinay Kant Ameta directed him to deposit Rs.200 Crores.
Thus, the bail application is allowed.
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2023 (4) TMI 1308 - CALCUTTA HIGH COURT
Revision u/s 263 - proceedings initiated based on a proposal received by the assessing officer - Inadeqaute or no enquiry done by AO - HELD THAT:- We find that the assessing officer has specifically recorded in the assessment order u/s 143(3) that during the course of assessment proceedings, the assessee was asked to explain the books of accounts, bills and vouchers and the authorised representative of the assessee filed the relevant documents in detail with many explanations which were examined by the assessing officer and verified with the books of accounts and the heard copies of the ITR and audited accounts and thereafter, the assessment was completed.
From the notice issued u/s 142(1) it is seen that as many as 21 particulars/documents were called upon to be produced by the assessee of which the document/observations in item No. 20-21 are relevant for the purpose of this case, they being (i) large increase in investment in unlisted equities during the year and (ii) low income in comparison to very high investment.
It is seen that first issue on which the information was called for by the assessing officer has not been taken as a ground by the PCIT while assuming jurisdiction u/s 263. Thus it has to be seen as to whether assessee had furnished the requisite information with regard to the second issue namely low income in comparison to very high investments.
The assessee had placed before the assessing officer many submissions in which the detail explanation has been given with regard to the said issue apart from placing reliance on various decisions of the Hon’ble Supreme Court as well as the High Courts.
Apart from that, a separate reply had also been given dealing with all the twenty-one issues. Thus it cannot be said that assessing officer did not conduct any enquiry in the matter with regard to the issue on which the PCIT had exercised jurisdiction under 263 of the Act.
It may be true that a proposal had been received by the PCIT from the assessing officer. However, solely based on the proposal, action could not have been initiated u/s 263 as the statute mandates that PCIT should enquire and be satisfied that the case warrants exercise of its jurisdiction u/s 263. Such satisfaction should be manifest in the show-cause notice which is issued u/s 263 of the Act.
We find in the instant case the word used by the PCIT is “prima facie”. Thus based on prima facie view the PCIT accepted the proposal of the assessing officer and initiated action u/s 263 of the Act. The decisions of the Hon’ble Courts on the point clearly holds that the satisfaction of the PCIT is essential. Though the Tribunal has knowledge of those facts as also the order sheet maintained by the assessing officer which records that on 19.09.2017 the authorised representative of the assessee had appeared and produced the books of accounts, bills vouchers etc and they were test checked and the case was discussed with the authorised representative of the assessee. If that be so, it could not have been stated that there was any lack of enquiry on the part of the assessing officer. Tribunal also admits that a paper book containing 124 pages of documents were also placed. Thus it is a case where the assessing officer had raised specific query and the case was discussed with the authorised representative of the assessee and thereafter decision has been taken.
Thus in absence of any satisfaction recorded by the PCIT that the order of assessment was both erroneous and prejudicial to the interest of revenue, the Tribunal ought to have granted relief to the assessee and faltered the PCIT for having exercised its jurisdiction. Assessee appeal allowed.
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2023 (4) TMI 1307 - PUNJAB AND HARYANA HIGH COURT
Reopening of assessment u/s 147 - nature of expenses - upgradation and development of various softwares - notice issued after a period of 4 years - assessee did not provide any explanation as to why the said expenses should be considered as revenue and not capital expenditure and the assessing officer had recorded reasons - HELD THAT:- After more than 4 years, the only reason for initiating reassessment proceedings is that only 30% to 60% depreciation could be given and rest of the amount is to be taken as capital. This change of opinion cannot be made a ground for reassessment.
Once, the AO had accepted the return and treated above said expenditures as revenue as these were incurred only to facilitate the business of the assessee who is engaged in the business of advertising and marketing communications. Further, the expenditures were disclosed at the time of making original assessment which were rightly treated as revenue. Thus after a period of 4 years, only on account of change of opinion, re-assessment proceedings cannot be initiated. In Kitchen Express Overseas Ltd.'s case [2017 (12) TMI 1127 - GUJARAT HIGH COURT] it has also been held that any expenditure incurred on purchase of software, software developments and services to facilitate existing infrastructure is to be taken as revenue and not capital.
Thus writ petition is allowed and initiation of re-assessment proceedings are set aside on both the counts i.e. delay and merits. Decided in favour of assessee.
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2023 (4) TMI 1306 - DELHI HIGH COURT
Money Laundering - Provisional attachment order - predicate offences - subject property is involved in any money laundering activities or not - Section 8(2) first proviso of the PMLA Act - HELD THAT:- The predicate offence in the present case are acts of criminal breach of trust and forgery by the accused persons with respect to the credit facilities provided by the Appellant/Bank between the years 2007-2018. The issue as to whether the commission of the offence between 2007-2018 overlaps or is prior to the creation of mortgage can be adjudicated by the authorities under the PMLA Act and this Court, at this juncture, is not inclined to go into that question. This Court, therefore, does not find any reason to interfere with the order of the learned Single Judge who has also not commented on this question and has left the matter to the authorities under the PMLA Act to consider the issue.
It is well settled that when a statute prescribes a particular mode or a mechanism for adjudication of disputes arising out of that statute, then writ Courts must loathe in interfering the mode prescribed in that stature.
The scheme of the PMLA Act provides for mechanism beginning with a Provisional Attachment Order (PAO) attaching the property which is then confirmed by the Adjudicating Authority under Section 8(2) of the Act. When a property stands confiscated, a trial is conducted by the Special Court and in accordance with Section 8(8) of the Act, the Special Court may direct Central Government to restore such confiscated property. Therefore, this Court is of the view that the Appellant/Bank has an alternate efficacious remedy within the scope of the Act - This Court, therefore, does not find any infirmity in the judgment of the learned Single Judge in relegating the Appellant/Bank to the Adjudicating Authority to ventilate its grievances under Section 8(2) of the PMLA Act and the same does not require interference and is accordingly upheld.
Application dismissed.
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2023 (4) TMI 1305 - GUJARAT HIGH COURT
Validity of Reopening of assessment u/s 147 - claim under CSR (Corporate Social Responsibility) expenses made was otherwise not allowable and as such, the said claim deserves to be disallowed and to that extent, income of the petitioner has escaped assessment - reliance on audit party opinion - HELD THAT:- As a matter of records, the petitioner has made average net loss of Rs. 187.67 crores during three immediately preceding Financial Years and as such, the petitioner was not under obligation to spend any amounts toward CRS by virtue of Section 135 of the Act and as such, the expenditure incurred by the petitioner is not the one which requires disallowance under explanation 2 to Section 37 (1). The expenditure incurred is out of Commercial expenses and is fully allowable and further it is the stand of the petitioner that even it is not the case of revenue that expenditure if any for explanation 2 to Section 37 is not allowable expenditure and as such, the fundamental error appears to have been crept in.
At this stage, reliance which has been made by the learned advocate appearing for the petitioner about the decision passed by the co-ordinate Bench of this Court in the case of Adani Power Maharashtra Limited [2023 (3) TMI 987 - GUJARAT HIGH COURT] where-in also this issue has been the subject matter of consideration and in which notice for re-opening and the order rejecting the objections came to be set aside.
Re-opening on the basis of audit party objection - As submitted that one of the Director of the Company submitted an application u/s 6(3) of the Right to Information Act seeking information as to objection raised by the audit party and the reply of the same was given by assessing officer. The said information was provided in the form of order dated 10.12.2021 issued u/s 7(1) of the Right to Information Act, it appears that step of re-opening is on the basis of the objection raised by the audit party as can be seen from paragraph 3 of the said page 117 in the case of this very petitioner and as such, also when the co-ordinate Bench has dealt with the issue as to whether on the strength of audit objections, re-opening of assessment is permissible or not is clearly clinching the issue raised in the present proceedings and hence, we answer in negative against the revenue.
Re-opening of the assessment is on the basis of the change of opinion - As detailed scrutiny was undertaken and after satisfying himself, the assessing authority has passed an order of assessment wherein neither there is any addition or disallowance of any claim is made and as such, on the basis of the same records, issuance of notice under Section 148 of the Act tantamounts to be on the basis of the change of opinion which is impermissible and since the said issue is now well settled, we may not overburden the present order by incorporating the case law on the subject. On the contrary, we also found from the contents of the objection that all details are consisting to computation of income, profit and loss figures and also tax audit report which are forming part of the assessment records, still in the absence of any tangible material, the respondent authority is trying to take a different view despite the original scrutiny of assessment is done. Under the circumstance, the action sought to be initiated is impermissible and we are of the considered opinion that a case is made out by the petitioner to call for interference. Petition allowed.
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2023 (4) TMI 1304 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL PRINCIPAL BENCH NEW DELHI
Direction to transfer Igatpuri Unit to the nominee of the Resolution Applicant M/s Kitply Industries Ltd within 45 (forty five) days - It is specific case of the appellant that the respondent failed to honour agreement and as such number of communications were made to the respondent/corporate debtor either to make payment or the appellant will take back possession of the property in question.
HELD THAT:- Admittedly the property of Igatpuri Unit is in relation to agreement to sale which was entered in between the appellant and Corporate Debtor long back in the year 1998. In terms of the agreement after payment of certain amount within a specified time, possession of land property of Igatpuri Unit was to be handed over to the Corporate Debtor i.e. Kitply Inds Ltd. It was clarified in the agreement as to how rest of amount was to be paid; in which manner and within what time.
It is specific case of the appellant that the respondent failed to honour agreement and as such number of communications were made to the respondent/corporate debtor either to make payment or the appellant will take back possession of the property in question. The record reflects that several opportunities were given for payment of the consideration amount failing which the appellant had communicated that it will terminate the agreement and take back possession of the property in question. However, it continued for several years. Even OTS was also offered. The appellant claims that as per OTS the entire consideration amount was not paid whereas the respondent has taken a plea that though there were two OTS i.e. dated 19.02.2008 and 20.02.2008, the respondent settled the dispute by making payment of Rs. 2 crore and by issuance of NCD of Rs.31 lakhs.
Once it is noticed that title holder of the property in dispute is the appellant, in such situation even after initiation of CIRP neither IRP or RP was competent to control the said property in view of rider as incorporated in Section 18(f) Explanation (a).
Admittedly till date the CD is not title holder of the property in question and dispute comes around the execution of the sale deed. It is admitted that dispute regarding either payment of remaining consideration amount as per sale agreement or non-execution of sale deed arose much before initiation of CIRP in the present proceeding and as such neither RP nor NCLT was having any jurisdiction to deal with such property - If there was still dispute in between parties it was not permissible for the NCLT to direct the appellant for transferring the property of Igatpuri in favour of CD or its nominee. Though it is not necessary to reiterate but it is established that unless in terms of agreement to sale, sale deed is finally executed after accepting full consideration amount, title always lies with the vendor.
The dispute whether agreement to sale which was entered in between the parties in the year 1998 was breached by the appellant or the respondent breached the agreement, may not be examined in a proceeding under the IBC. Such disputes are required to be examined by the court of competent jurisdiction. In view of admitted position that title of the property in respect of Igatpuri Unit still lies with the appellant, the Learned NCLT has committed error in allowing the application filed on behalf of the Respondent in directing for transferring the land in question and as such there is no option but to set aside the impugned order.
Impugned order set aside - appeal allowed.
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2023 (4) TMI 1303 - ITAT DELHI
Accrual of income in India - income from business or profession related to PE of the assessee - Fixed place Permanent Establishment ("PE") for business in India, to carry on the business of sale of software, export of goods, reimbursement and Royalty for use of technology and brand - DTAA between India and Ireland - AO proposed for addition of business income related to Permanent Establishment (“PE”) @ 40% - HELD THAT:- Revenue failed to rebut the fact that impugned transaction of sale of software/hardware was undertaken outside India to group company in India and were subjected to transfer pricing scrutiny in the hands of the alleged PE and same was accepted to be at arm’s length price. Therefore, nothing further would be attributable to the alleged PE
Looking to the facts of the present case, we find merit into the contention of the assessee that the Assessing Authority was not justified in making addition in the hands of the assessee when in the case of alleged PE of the assessee, the transactions have been treated to be arm’s length price. Furthermore, the assessee has pointed out that while making addition, the AO has also included the transaction related to hardware whereas allegation of PE is related to software. In the light of the binding precedents, we are of the considered view that the authorities below erred in making the impugned additions. We therefore, direct the AO to delete the same. Ground Nos. 1 to 10 raised by the assessee are hence, allowed.
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2023 (4) TMI 1302 - SUPREME COURT
Grant of anticipatory bail - demand of illegal gratification - High Court observed that there is a doubt regarding the acceptance of illegal gratification, as it was deposited in the account of Vardhman in Dhara Angadia firm and there is no evidence with respect to acceptance of the amount by Respondent No. 1.
HELD THAT:- The time-tested principles are that no straitjacket formula can be applied for grant or refusal of anticipatory bail. The judicial discretion of the Court shall be guided by various relevant factors and largely it will depend upon the facts and circumstances of each case. The Court must draw a delicate balance between liberty of an individual as guaranteed Under Article 21 of the Constitution and the need for a fair and free investigation, which must be taken to its logical conclusion. Arrest has devastating and irreversible social stigma, humiliation, insult, mental pain and other fearful consequences. Regardless thereto, when the Court, on consideration of material information gathered by the Investigating Agency, is prima facie satisfied that there is something more than a mere needle of suspicion against the Accused, it cannot jeopardise the investigation, more so when the allegations are grave in nature.
The CBI has produced the case diary which contains the statement made by Smit Thakkar, who handles Dhara Angadia firm. He has clearly stated that Malav Mehta was the owner of Vardhman account and had informed him that 30 lakhs rupees would be deposited in his account on 4th October, 2022, which in turn had to be sent to someone else. The purported recording of conversation between the complainant and Respondent No. 1 wherein Respondent No. 1 thanked the complainant, after the deposit of amount in the Vardhman account, is a reasonable link to connect Respondent No. 1 with the deposit of illegal gratification in Dhara Angadia firm, thereby prima facie showing acceptance thereof.
From the material placed on record, it seems that prima facie, the allegations against Respondent No. 1 cannot be brushed aside lightly at this stage. There appears to be a well-organised syndicate comprising officers and officials of the Income Tax Department, businessmen and Hawala traders, who are in tandem. Such a nexus needs to be unearthed through an unimpaired and unobstructed investigation - It is true that cancellation of bail must be done only for cogent and overwhelming reasons. Nevertheless, setting aside an unjustified order granting bail is distinct from cancellation of bail. This Court would not, invariably intervene into the judicial discretion exercised by the High Court while granting bail to an Accused. All that to be ensured is that the High Court exercises its discretion judiciously, cautiously and strictly in conformity with the basic principles laid down by this Court from time to time in a series of decisions.
Thus, howsoever hard or harsh it may be, the High Court ought to have refrained itself from extending protection against arrest to Respondent No. 1 in exercise of its discretionary jurisdiction Under Section 438 of the Code of Criminal Procedure.
Assuming Respondent No. 1 had some valid apprehensions that the actions of ACB (State Police) were actuated with extraneous reasons, he can no longer say so once the investigation has been transferred to CBI - there are no allegation of personal vendetta, victimisation, bias or ulterior motive against the Central Agency. In any case, CBI is expected to carry out a free, fair and dispassionate investigation with faithful observance to the rights of an Accused, who is subjected to custodial interrogation.
The impugned judgment and order of the High Court dated 19th December, 2022 is set aside and the anticipatory bail application of Respondent No. 1 is dismissed. As a consequence thereto, the order dated 30th December, 2022 passed by the Special Judge, CBI Court No. 3 partly allowing CBI's application for remand is also set aside - appeal disposed off.
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2023 (4) TMI 1301 - ITAT JAIPUR
Revision u/s 263 - as per CIT activity of taking loans not examined by AO - extension of scope of limited scrutiny - queries so raised by the AO during the course of assessment proceedings which was for Limited Scrutiny only to verify the“ Deduction against income from other sources” - HELD THAT:- The assessee had filed, names, complete address, IT PAN of persons to whom said interest paid along with their confirmation letters. The said documents have also been placed on record before us in paper book and all the said details so filed before Revenue Authorities goes to show that those were examined by the AO and accordingly order of assessment accepting the returned income was passed.
Verification of extra interest PCIT raised the issue of non verification of fresh loans by the AO, but in this context we further noticed that the assessee had filed confirmation letters of each of the fresh unsecured loan creditors having complete address and PAN number and that being so, assessee had already discharged his onus to prove the genuineness and identity of the said loan creditors, so the conduct of the assessee cannot be said to be found to be faulty. Even otherwise, the case of the assessee was selected for Limited Scrutiny to verify the “Deduction against income from other sources” only. Therefore, by any stretch of imagination it was out of purview of the AO to verify the fresh loan creditors.
The ambit of the assessment for Limited Scrutiny under CASS was admittedly in relation to the verification of “ Deduction against interest income from other sources” in response to which the assessee had already furnished complete documents relating to interest expenses claimed against the interest income under section 56 of the IT Act under the head Income from other sources. Even otherwise, the AO could not have travelled beyond enquiry into the interest expenses in view of CBDT Instruction No. 7/2014, 20/2015 and 5/2016 and also the CBDT letter dated 30 Nov. 2017 and thus asking for further details was beyond the purview of assessment.
AO made enquiries on the issue and the assessee complied with the enquiry and filed all the required details. Thus, it is not a case where the AO made no enquiry or verification which should have been made. Thus the proceedings under section 263 is a step to start again a second scrutiny/investigation of facts without there being any material to hold even prima facie that the assessment order passed by AO was erroneous which was not valid in the eyes of law.
Thus in case of limited scrutiny, the AO is duty bound to restrict himself to examine the matters for which matter was selected for limited scrutiny and where the AO takes a view and forms a reasonable belief that some other matters are required to be examined, the same will in effect be traversing beyond the scope of limited scrutiny which is not permissible unless the matter is converted into complete scrutiny and which has not happened during the course of present assessment proceedings. Therefore, the issue of activity of taking loans, i.e. how the amount is utilized, what is the rate of interest paid, what is the rate of interest charged, which are held by the ld PCIT as matters not being examined by the AO, are matters which are not part of the reasons for which the case was selected for limited scrutiny, therefore, no fault lie on the part of the AO resulting in order being held as erroneous and prejudicial to the interest of revenue. As far as matters for which case was selected for limited scrutiny for the reason of “Deduction against income from other sources”, the same has been duly examined by the AO - Appeal of the assessee is allowed.
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2023 (4) TMI 1300 - ITAT MUMBAI
Bogus LTCG - exemption claimed u/s. 10(38) on sale of penny stocks - onus to prove - HELD THAT:- As pointed out the investigation did not commence from the assessee but had commenced from the companies and the persons who were involved in the trading of the shares of these companies which are all classified as penny stocks companies. Therefore, the argument of the assessee that the copy of the investigation report has not been furnished, the persons from whom statements have been recorded have not been produced for cross examination are all contention which has to necessarily fail.
If there is information and data available of unreasonable rise in the price of the shares of these penny stock companies over a short period of time of little more than one year, the genuineness of such steep rise in the prices of shares needs to be established and the onus is on the assessee to do so as mandated in section 68. Thus, the assessee cannot be permitted to contend that the assessments were based on surmises and conjectures or presumptions or assumptions. The assessee does not and cannot dispute the fact that the shares of the companies which they have dealt with were insignificant in value prior to their trading.
Until and unless the initial burden cast upon the assessee is discharged, the onus does not shift to the revenue to prove otherwise. It is incorrect to argue that the assessee have been called upon to prove the negative in fact, it is the assessee’s duty to establish that the rise of the price of shares within a short period of time was a genuine move that those penny stocks companies had credit worthiness and coupled with genuineness and identity. The assessee cannot be heard to say that their claim has to be examined only based upon the documents produced by them namely bank details, the purchase/sell documents, the details of the D-Mat Account etc. The assessee have lost sight of an important fact that when a claim is made for LTCG or STCL, the onus is on the assessee to prove that credit worthiness of the companies whose shares the assessee has dealt with, the genuineness of the price rise which is undoubtedly alarming that to within a short span of time.
The transaction of LTCG claimed exempt u/s. 10(38) by the assessee is colourable device in guise of investment in listed shares. Entire transactions were stage managed with object to plough back his unaccounted income in form of fictitious long term capital gain (LTCG) and claim bogus exemption, Assessing Officer was justified in denying exemption under section 10(38) and treating such bogus LTCG in penny stock under purview of unexplained cash under section 68 - Assessee appeal dismissed.
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2023 (4) TMI 1299 - RAJASTHAN HIGH COURT
Validity of reopening of assessment - petitioner did not take any remedy to challenge the order under Section 148A(d) way-back on 26.03.2022 - HELD THAT:- As we find that the order u/s 148A(d) of the Income Tax Act was passed way-back on 26.03.2022. The petitioner did not choose to challenge this order. Finally assessment order has also been passed on 09.03.2023. This petition has been filed on 31.03.2023.
In the aforesaid circumstances, when the petitioner did not take any remedy to challenge the order u/s 148A(d) when it was passed on 26.03.2022, we are not inclined to exercise our discretion under Article 226 of the Constitution of India to interfere with the order as the petitioner has an alternative and efficacious statutory remedy. All the issues are left open for being considered in the appeal that may be filed by the petitioner.
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2023 (4) TMI 1298 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI
Condonation of delay of 33 days in filing appeal - sufficient reason for delay or not - HELD THAT:- It is evident that no plausible reason has been assigned for delay in filing the appeal. Under provision contained in Section 421 an appeal is to be filed within 45 days, however if further after expiry of 45 days appeal is not filed, then thereafter this tribunal is not competent to entertain the appeal. However, if during extended within 45 days, a party in a position to satisfy the court regarding the reasonable ground for delay, this court may entertain such petition. Considering the statement made in the condonation petition, it is not satisfying that any plausible explanation has been given for delay in filing the appeal. Normally, in condonation of delay application, it is required on the part of the party to explain day to day delay, however, in the present application no such explanation has been given and as such there are no ground to condone the delay.
The appeal stands dismissed on the ground of limitation itself.
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2023 (4) TMI 1297 - NATIONAL COMPANY LAW TRIBUNAL CHENNAI BENCH
Maintainability of application - initiation of CIRP - Corporate Debtor failed to make repayment of dues or not - Debenture Trust Agreement - Financial debt or not - HELD THAT:- In view of the facts that the 'financial debt' which is proved by the Financial Creditor and the 'default' committed by the Corporate Debtor, this Tribunal is left with no other option than to proceed with the present case and initiate the Corporate Insolvency Resolution Process in relation to the Corporate Debtor. This Application is accordingly admitted in terms of Section 7 of the code.
As a consequence of the Application being admitted in terms of Section 7 of the Code, moratorium as envisaged under provisions of Section 14(1) is declared - application allowed.
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2023 (4) TMI 1296 - ITAT MUMBAI
TP adjustment - resultant effect of omitted clause (i) of section 92BA with effect form 01/04/2017 - DR relied on the decision of Maari Multi Trading Pvt Ltd [2023 (2) TMI 1256 - ITAT MUMBAI] wherein Tribunal has, though deleted the TP adjustment made, has remitted the issue back to AO with a direction to re-adjudicate the issue claim of expenditure incurred in respect of the transactions with AE and the clause (b) of sub section (2) to section 40A - HELD THAT:- We notice that the Delhi Bench of the Tribunal in the case of Yorkn Tech Pvt Ltd [2021 (8) TMI 1374 - ITAT DELHI] as held Clause (i) of Section 92BA did not come into operation whenever any action has been taken especially after such omission. Accordingly, we hold that no Transfer Pricing Adjustment can be made on a domestic transaction which has been referred to by the Assessing Officer after the omission of the said clause by the Finance Act, 2017 even though transaction has undertaken in the Assessment Year 2016-17.
We also notice that the co-ordinate bench in the case of Maari Multi Trading Pvt Ltd vs ACIT [2023 (2) TMI 1256 - ITAT MUMBAI] has also deleted the TP adjustment by relying on the decision of Texport Overseas (P.) Ltd [2019 (12) TMI 1312 - KARNATAKA HIGH COURT] With respect to the contention that the issue should be remitted back to the AO to examine the impugned addition from the perspective of section 40A(2)(b), we notice that the AO, considering the volume of SDT has made the reference to the TPO and has not recorded any adverse finding with regard to the impugned transactions. We, therefore, see no reason to remit the issue for reexamining the impugned transactions from the perspective of section 40A(2)(b) and accordingly we see no merit in the claim of Revenue. Appeal of the assessee is allowed.
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2023 (4) TMI 1295 - DELHI HIGH COURT
Direct Tax Vivad Se Vishwas benefit - ground on which the petitioner’s declarations as rejected was that on the specified date i.e., 31.01.2020, its appeal was not pending - distinction as to the mode in which appeal is preferred - whether or not the appeal was pending either before the Tribunal or CIT(A)? - Commissioner (Appeals) passed two separate orders as the first order concerned the appeal filed by the assessee in physical mode which was dismissed on the ground that an appeal filed in physical form was not viable, i. e., could not be entertained. The second order the appeal preferred in digital mode. This order considered the assessee’s case on the merits. The Commissioner (Appeals), however, thereby sustained the reassessment order passed by the Assessing Officer.
The assessee preferred an appeal before the Tribunal who set aside the order passed in the appeal preferred by the assessee in physical form, and remanded the matter to the Commissioner (Appeals) and assessee thus filled miscellaneous application u/s 254(2) what it thought was an error apparent on record which was dismissed by Tribunal. A fresh appeal was filed by the assessee before the Tribunal with an application for condonation of delay which was admitted by tribunal. While the appeal was pending, the Finance Act, 2020 received the assent of the President of India on March 17, 2020.
HELD THAT:- There are two ways of looking at the matter. Firstly, the appeal preferred in physical form was pending.
The provisions of the 2020 Act do not make any distinction as to the mode in which appeal is preferred as long as it is pending. Therefore, if we were to take this view, according to us, respondent no.1 could not have passed the orders of rejection, as the appeal lodged by the petitioner in physical form had, in a sense, resurfaced with the Tribunal passing an order of remand on 01.04.2019. The order passed by respondent no.3 on merits was rendered otiose, in view of the order of remand passed by the appellate authority i.e., the Tribunal.
Appeal was pending since petitioner had attempted a course correction and filed a fresh appeal against the order on merits dated 06.07.2018 - Given the circumstances obtaining in the matter, there is weight in submission that once the Tribunal condoned the delay on 18.12.2020, the appeal would be construed as having been instituted on the date it ought to have been lodged.
Fresh appeal was filed before the 2020 Act had received the assent of the President i.e., on 17.03.2020. Therefore, the bona fides of the petitioner, clearly, cannot be doubted. But, as indicated hereinabove, this line of discussion need not be taken further in view of what we have stated hereinabove, which is that the order passed by the Tribunal, on 01.04.2019, gave a fresh lease of life to the appeal which had been preferred by the petitioner in physical mode.
Purpose of this direction was that respondent no.3 should have passed an order on merits and ought not to have dismissed the appeal only on the ground that it had not been filed in the digital mode. Tribunal’s order only complicated the matter by refusing to correct the inadvertent error which was committed by the petitioner.
Should the petitioner suffer on account of an obvious and inadvertent mistake made by the counsel for the petitioner?- It is often said that ignorance of the law is no excuse. To our minds, it is also equally well-settled, that not everyone knows the law. [See Motilal Padampat Sugar Mills Co. Ltd. v. State of Uttar Pradesh [1978 (12) TMI 45 - SUPREME COURT].
The petitioner would not have known that a viable appeal was one which was instituted in digital mode. Undoubtedly, the petitioner suffered on account of its lawyer’s failing. Therefore, for the aforesaid reasons, we are inclined to hold that the petitioner’s appeal was pending on the specified date i.e., 31.01.2020.
Accordingly, the impugned orders passed by respondent no.1 are set aside. As the assessee’s appeal was pending on the specified date, i. e., January 31, 2020. The rejection of the declaration was not valid.
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2023 (4) TMI 1294 - ITAT RAIPUR
TP Adjustment - price paid by the assessee to its AE for purchase of power was higher than the rate paid by the State Electricity Board for purchase of power from Captive Power plants - as observed by the TPO that there was a basic difference between purchase of power by the assessee directly from its AE as against that made from a non-AE, thus adopted the average rate of Rs.3.07 per unit at which Chhattisgarh State Power Distribution Company Ltd, i.e a non-AE had purchased power from Captive Power plant as a comparable to benchmark the ALP of per unit rate of 32208103 units of electricity purchased by the assessee company from its AE -
as observed by the CIT(A) that the price at which Chhattisgarh State Power Distribution Company Ltd. had purchased power from Captive Power plants, i.e. at the rate of Rs.3.07 per unit could not have been adopted as a comparable transaction for benchmarking the ALP of per unit rate of electricity purchased by the assessee company from its AEs - HELD THAT:- We find that on an earlier occasion the Tribunal in the case of Mahendra Sponge and Power Ltd [2022 (8) TMI 1445 - ITAT RAIPUR], had observed, that the issue presently under consideration before us was squarely covered by its earlier decision passed in the case of ACIT vs. Godavari Power and Ispat Ltd. [2011 (11) TMI 107 - ITAT, BILASPUR]. As further observed by the Tribunal that the Hon’ble High Court of Chhattisgarh in the case of CIT vs. Godavari Power and Ispat Ltd [2016 (2) TMI 1375 - CHHATTISGARH HIGH COURT] had observed, that the lower appellate authorities had rightly computed the market value of the power after comparing the same with the rate at which power was available in the open market, namely the price charged by the Chhattisgarh State Electricity Board. Decided against revenue.
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2023 (4) TMI 1293 - CALCUTTA HIGH COURT
Maintainability of writ petition against reassessment orders - denial of natural justice - opportunity of cross-examination/cross-verify the evidences not given - fundamental principles laid down for reopening an assessment by incorporating Section 148A ignored - HELD THAT:- On going through the reassessment order, we find that the assessing officer was fully aware of the writ petition, which was pending before the Court and yet to be taken up for hearing and the assessing officer would observe that there is no order passed by this Court restraining him or directing him to keep abeyance from the proceeding and by referring to Section 153 of the Act the assessment has been completed.
Various dates have been stated in the preceding paragraphs to show how the assessee has been dealt with by the assessing officer in the matter - we are confined to the aspect that there has been violation of principles of natural justice. The manner in which the reassessment proceeding has been taken through by the assessing officer is thoroughly flawed.
The fundamental error committed by the AO in not providing the third party information, which was the basis for issuance of the show cause notice apart from making available those third parties for cross-examination by the assessee when statements recorded by them have been relied upon for issuance of the show cause notice, more particularly, in spite of specific request made by the assessee in this regard. That apart, after passing the order under Section 148 of the Act the assessing officer could not have stated that if the assessee wishes to cross-verify/cross-examine the evidences they may do so after taking prior appointment from him. In fact, such opportunity should have been provided prior to passing of the order u/s 148A of the Act.
Thus, we are fully convinced that the procedure adopted by the assessing officer is wholly incorrect and there has been serious violation of principles of natural justice committed by the assessing officer in the entire process - order passed u/s 148A(d) and the consequential reassessment order have to be necessarily quashed and the matter should be restored to the position of show cause notice issued u/s 148A(b) with consequential directions. Assessee appeal allowed.
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