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Showing 21 to 40 of 2010 Records
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2019 (5) TMI 1990 - CESTAT AHMEDABAD
Demand of CENVAT credit utilized - balance credit of 2004 sought to be denied on the strength that sub Rule (3) of Rule 11 of Cenvat Credit Rules, 2004 - HELD THAT:- It is seen that sub-rule (3) of Rule 11 of Cenvat Credit Rules, 2004 was introduced vide Notification No. 10/2007 (NT) dated 01.03.2007 and thus cannot be made applicable retrospectively. Moreover, the said Rule applies only when the final product is exempted “absolutely”. In the instant case, the product manufactured by the appellant is fabric and yarn which is not exempt absolutely. Therefore, in these circumstances, this Rule is not applicable.
There are no merit in the impugned orders and the same are set-aside. Appeals are allowed.
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2019 (5) TMI 1989 - DELHI HIGH COURT
Let notice be issued to respondent No.2 by all the modes prescribed, on the petitioners taking the necessary steps, returnable on 26th September, 2019.
The impugned order dated 22nd March 2019 is stayed till the next date of hearing.
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2019 (5) TMI 1988 - CESTAT CHANDIGARH
CENVAT Credit - inputs - tower and shelter - input services used for providing telecommunication services/passive infrastructure - HELD THAT:- The issue has been settled by this Tribunal in the case of COMMISSIONER OF CENTRAL EXCISE AND SERVICE TAX-GURGAON VERSUS BHARTI INFRATEL LIMITED [2019 (2) TMI 1736 - CESTAT CHANDIGARH], wherein this Tribunal has held that The assessee-appellant are entitled to avail cenvat credit on items, towers, shelter parts thereof being input used for providing output service.
The impugned orders set aside and the credit availed by the appellants are allowed - appeal allowed.
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2019 (5) TMI 1987 - ITAT RANCHI
Addition u/s 69 - unexplained investment - income of the relevant year - Assessee to buy peace surrendered the LTCG as income from other sources in his revised computation of taxable income - HELD THAT:- AO could have added only income earned during Assessment Year 2015-16 and cannot tax the investment made in purchase of shares being income of past years, as there was no findings given by the AO that the purchases transactions was bogus transactions. Accordingly, direct the AO to delete addition made u/s.69 of the Act on account of unexplained investment. Decided in favour of assessee.
Charging of interest u/s. 234 B &C on the assessed income is in contrary to law in view of the decision of Ajay Prakash Verma [2013 (1) TMI 140 - JHARKHAND HIGH COURT] relying upon Smt. Tej Kumari [2000 (9) TMI 52 - PATNA HIGH COURT] wherein, interalia, it has been held that interest can be charged on the returned Income only and not on the assessed Income - direct the AO to delete the interest as charged u/s.234B of the Act. This ground of appeal of the assessee is allowed.
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2019 (5) TMI 1986 - SUPREME COURT
Rejection of application for discharge Under Section 239 of the Code of Criminal Procedure - Requirement of production of a certificate for leading secondary evidence u/s 65 B of IEA - HELD THAT:- Section 65B(4) is attracted in any proceedings "where it is desired to give a statement in evidence by virtue of this section". Emphasising this facet of Sub-section (4) the decision in Anvar [2014 (9) TMI 1007 - SUPREME COURT] holds that the requirement of producing a certificate arises when the electronic record is sought to be used as evidence.
The same view has been reiterated by a two judge Bench of this Court in Union of India and Ors. v. CDR Ravindra V. Desai [2018 (4) TMI 1939 - SUPREME COURT]. The Court emphasised that non-production of a certificate Under Section 65B on an earlier occasion is a curable defect.
The High Court erred in coming to the conclusion that the failure to produce a certificate Under Section 65B(4) of the Evidence Act at the stage when the charge-sheet was filed was fatal to the prosecution. The need for production of such a certificate would arise when the electronic record is sought to be produced in evidence at the trial. It is at that stage that the necessity of the production of the certificate would arise.
The investigating officer handing over a spy camera to the complainant on 15 November 2012 would indicate that the investigation had commenced even before an FIR was lodged and registered on 16 November 2012 or not - HELD THAT:- In the present case, on 15 November 2016, the complainant is alleged to have met the Respondent. During the course of the meeting, a conversation was recorded on a spy camera. Prior thereto, the investigating officer had handed over the spy camera to the complainant. This stage does not represent the commencement of the investigation. At that stage, the purpose was to ascertain, in the course of a preliminary inquiry, whether the information which was furnished by the complainant would form the basis of lodging a first information report. In other words, the purpose of the exercise which was carried out on 15 November 2012 was a preliminary enquiry to ascertain whether the information reveals a cognizable offence.
The High Court has erred in coming to the conclusion that in the absence of a certificate Under Section 65B when the charge sheet was submitted, the prosecution was liable to fail and that the proceeding was required to be quashed at that stage. The High Court has evidently lost sight of the other material on which the prosecution sought to place reliance. Finally, no investigation as such commenced before the lodging of the first information report. The investigating officer had taken recourse to a preliminary inquiry.
Appeal allowed.
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2019 (5) TMI 1985 - ITAT JODHPUR
Unexplained investment - purchase of land - addition on the basis of statement of one Shri Madan Mohan Gupta [scheme developer from whom assessee purchased a plot in residential project] - HELD THAT:- Addition made by AO merely on the basis of statement, when there is no corroborative material with AO suggesting the alleged addition, without allowing assessee an opportunity to cross examine the person on whose statement addition was made. Accordingly, AO is directed to delete the addition so made - Decided in favour of assessee.
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2019 (5) TMI 1984 - SUPREME COURT
Recovery of entire standby charges paid by Tata Power Company (TPC) to Maharashtra State Electricity Board (MSEB) - tariff payable by BSES to TPC included a component of standby charge - HELD THAT:- The period in dispute is 1.4.1999 to 30.9.2004. It is apparent that TPC has an agreement with MSEB for standby supply of 550 MVA. Initially, in 1985, TPC has increased its generating capacity whereby reducing the offtake of electricity from MSEB to zero. In order to compensate MSEB for loss of revenue caused as a result of the stoppage of purchase of electricity, the MSEB entered into an arrangement with TPC whereby TPC was required to pay to MSEB initially for 300 MVA standby to be increased by 50 MVA every year. The standby was freeze in the year 1990 when the parties agreed not to increase the standby beyond 550 MVA.
The standby facility was made available to TPC in the event there was a failure of power in TPC’s generation of 1777 MW. BSES/REL used to purchase electricity from TPC between 29 percent to 37 percent from 1998 to 2006. The standby charges for aforesaid purchase were factored into the tariff charged from its retail customers. The standby charges to the extent of supply were borne by BSES/REL for optimum supply from TPC when interconnectivity was provided at Borivali point as per the Government order. The dispute arose between TPC and BSES/REL as to whether BSES/REL entitlement to draw 275 MVA from TPC in the case of outage and failure of electricity supply, the charges which were required to be paid were over and above the charges that would be paid for energy actually drawn.
The main principles on the basis of which Agreement was to be reached between TPC and BSES/REL were settled. As per clause 2 of the Principles of Agreement, BSES/REL had to pay to TPC for 220 KV interconnection at Borivali at Rs.3.5 crores per month. The parties had agreed to cooperate in order to ensure that Government order dated 19.1.1998 is implemented in the spirit of it. A detailed power supply agreement was to be entered into by 21.4.1998. The agreement could not be executed as consensus with respect to several aspects could not be reached - The power was conferred upon the MERC vide notification dated 27.10.2000 under the provision of Section 22(2)(n) of Electricity Regulatory Commission Act, 1998, to adjudicate upon the disputes and differences between licensees and utilities. On 4.12.2000, BSES/REL had filed an application to MERC in respect of sharing of standby charges between BSES/REL and TPC. The prayers were made to regulate action and standby charges levied by them and to fix and determine the standby charges payable by them.
Several factors were required to be taken into consideration, on that basis aforesaid figure has been worked out. It has also been considered that electricity used to be purchased by BSES/REL from TPC to the aforesaid extent and the standby charges used to be realised which were factored in the tariff, which liability was ultimately passed on to the retail consumers. Even when the Principles of Agreement have been reached as to standby charges though it was subject to revision basis was fixed which could not have been departed from, it was on consideration of several aspects - Considering the standby charges of Rs.24.75 crores recovered by MSEB from TPC with effect from 1.10.1996 and as per the Government order and Principles of Agreement Rs.3.5 crores was additionally being available and a difference of standby which was made to increase the liability Rs.24.75 crore per month to Rs.30.25 crores per month.
There are force in the submission raised on behalf of BSES/REL that order of APTEL has already been worked out even otherwise it is found to be just and equitable. No case for interference with the same is made out - there is no question of applicability of Article 14 of the Constitution. As a matter of fact, what was agreed in the Principles of Agreement more amount than that has been ordered to be paid on the basis of principles of business equilibrium and other factors.
The order passed by Technical and Judicial Members of APTEL is hereby upheld. The amount which is payable to Reliance Energy Limited, deposited or secured by way of bank guarantee by TPC as per order dated 07.02.2007 along with interest lying with the Registrar of this Court as per agreement of the Counsel for Reliance Energy Limited and Adani Electricity Mumbai Limited be paid to Adani Electricity Mumbai Limited.
Appeal dismissed.
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2019 (5) TMI 1983 - ITAT DELHI
Levy of penalty u/s. 271(1)(c) - disallowance u/s.43B - Assessee had revised the tax audit report offering higher disallowance u/s.43B - HELD THAT:- As only when the assessee had revised the tax audit report offering higher disallowance u/s.43B the AO has raised the query. Thus, it cannot be held that revising of the tax audit report and offering of higher amount of disallowance u/s.43B was not voluntarily or the same was offered when assessee was cornered by the Assessing Officer at any point of time.
Thus it cannot be held that assessee’s offer for higher disallowance u/s.43B is not voluntary. Decidedin favour of assessee.
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2019 (5) TMI 1982 - ITAT BANGALORE
Depreciation on non-compete fee - whether it falls in the category of an 'intangible asset’? - CIT(A) has allowed depreciation - HELD THAT:- CIT(A) has followed the binding decision rendered in the case of Ingersoll Rand International Ltd. [2014 (6) TMI 934 - KARNATAKA HIGH COURT] Even though the Hon’ble Delhi High Court has taken a different view, yet the decision rendered by the jurisdictional High Court in binding on all the persons falling within its jurisdiction. In view of the same, we do not find any reason to interfere with the orders passed by the ld CIT(A) on this issue in all the years under consideration.
Depreciation on the goodwill - CIT(A) noticed that the assessee itself has submitted that no amount could be attributed towards Goodwill, thus in principle, held the disallowance of depreciation on goodwill is justified - HELD THAT:- The issue relating to eligibility to claim depreciation on Goodwill has since been settled in the case of CIT Vs. Smifs Securities Ltd.. [2012 (8) TMI 713 - SUPREME COURT] Hence the assessee is eligible to claim depreciation on the amount paid for Goodwill.
SC held that the difference between the cost of an asset and the amount paid for acquiring the same constituted goodwill. In commercial parlance also, the amount paid over and above the value of tangible and intangible rights is considered as goodwill. There is also no dispute with regard to the fact that the assessee has treated the difference amount as goodwill only in its books of account. Hence, in our view, merely because the assessee has taken a different stand before the AO to the effect that the difference/excess amount paid by it represented payment made for trademark/trade name would not change the character of payment made by the assessee. In the case, the alternative contention raised before the AO would not, in our view, disentitle the assessee to claim depreciation on the amount, which is otherwise could be considered as goodwill in its hand.
The tax authorities are not justified in denying the depreciation claimed by the assessee on the amount of goodwill.
Assessee appeal allowed.
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2019 (5) TMI 1981 - ITAT KOLKATA
Addition u/s 68 - CIT(A) deleted the addition considering remand report as given by AO - whether the AO can appeal before the Tribunal against this order of the ld. CIT(A) which is only based on his remand report? - HELD THAT:- AO in this case disputes his own finding in the remand report, thus we hold that the AO cannot file an appeal against his own factual finding given by him in the remand report. Hence we dismiss this appeal of the revenue as not maintainable. See Smt. B. Jayalakshmi [2018 (8) TMI 208 - MADRAS HIGH COURT] and M/s Shraddha Tower Pvt. Ltd [2018 (10) TMI 1405 - ITAT KOLKATA] - Decided against revenue.
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2019 (5) TMI 1980 - GUJARAT HIGH COURT
Constitutional Validity of Notification dated 11.5.2011 and the Notification dated 4.12.2014 issued by the respondent Tariff Authority for Major Ports (TAMP) constituted under Section 47A of the Major Port Trusts Act, 1963 - use of the lands belonging to the Kandla Port Trust - non-payment of the lease rentals as per the scale of rates framed by the TAMP under the impugned notifications - non-payment of the compensatory bills - prayer for renewal of leases - HELD THAT:- The Ministry of Shipping, Government of India, considering the importance of the lands belonging to the Port Trusts and considering the provisions contained in Section 34 of the said Act, had issued the Land Policy for Major Ports in 2004 in exercise of the powers conferred under Section 111 of the said Act. Thereafter the Government of India, in supersession of the said Land Policy of 2004, issued Land Policy for Major Ports - 2010 for implementation by all Major Ports and Ennore Port Limited. Thereafter the Government of India had issued the Policy Guidelines for the land management by Major Ports 2014. However, the Indian Port Association, an Apex Body of Major Ports having highlighted certain difficulties and suggested some changes, the Ministry had constituted a Two-Member Committee to examine the suggestions and furnish a report. Based on the report, the revised guidelines were framed and issued under Section 111 of the said Act, vide communication dated 17.7.2015. The said Policies inter alia contained the directions/guidelines to be followed by the Port Trusts with regard to the Land Use Plan, Land Allotment Policy, Renewal of Existing Leases, determination of market value of port land and the scale of rates etc.
The upshot of the discussions and findings may be concluded as under:-
(i) The Land Policies of 2010 and 2014 in respect of the Port lands issued by the Central Government under Section 111 of the MPT Act, are legal, valid and binding to the respondent KPT and the TAMP.
(ii) No interference is called for in the order dated 13.11.2014 passed by the TAMP and published vide the Notification dated 4.12.2014 under Section 49 of the said Act. The SoR framed by the TAMP shall be effective from 1.1.2014 as directed in the said order. The said order stands confirmed accordingly. The demand notices, if any issued to the petitioners based on the said order also stand confirmed accordingly.
(iii) The order dated 25.3.2011 passed by the TAMP and published vide Notification dated 11.5.2011 is partly set aside to the extent it approves the SoR with retroactive effect from July 1999. The SoR approved by the TAMP for the period from 1.1.2009 to 31.12.2013 as per the said order are confirmed. The order stands modified accordingly. The demand notices, if any issued by the KPT based on the said order shall stand set aside. However, the KPT shall be at liberty to issue fresh demand notices as per the modified order and take actions or file proceedings against the defaulters, in accordance with law.
(iv) The Renewal of lease in respect of the port land is governed by the land policies issued by the Central Government and cannot be claimed by the lessee as a matter of right. There could not be any automatic renewal of lease on the expiry of lease period. The port land being public premises, if the lease is not renewed by the lessor KPT after the expiry of lease period, the status of lessee in respect of the subject land becomes that of an unauthorized occupant. Mere acceptance of rent by the lessor KPT for subsequent period during which the lessee has continued to occupy the public premises, could not be construed to be the conduct signifying assent on the part of lessor.
The impugned order dated 25.3.2011 passed by the TAMP and published vide the Notification dated 11.5.2011 under Section 49 of the Major Port Trusts Act, is partly set aside to the extent it approves the SoR with retrospective effect from July 1999. The said order to the extent it approves the SoR for the period from 1.1.2009 to 31.12.2013 is confirmed. The demand Notices, if any, issued against the petitioners based on the said order shall stand set aside, however, the KPT shall be at liberty to issue fresh demand Notices. Rest of the prayers made in each of the petitions are rejected. The petitions stand partly allowed.
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2019 (5) TMI 1979 - ITAT SURAT
Addition u/s 37 (1) or 36(1)(v) - expenditure being the premises actually paid to LIC under Group Gratuity Scheme – Cum Life Insurance Scheme - Principle of consistency - disallowance of gratuity expenses being claim of the assessee on the ground that the gratuity scheme was not approved as per the requirement of section 36(1)(v) and the assessee has failed to produce necessary certificate in support of the same - HELD THAT:- It is just because the assessee is not able to prove the copy of the approval, the claim has been denied to the assessee. We are of the view that this claim of the assessee is allowable on the plea of consistency. As decided in the case of Radhasaomi Satsang Saomi Bagh [1991 (11) TMI 2 - SUPREME COURT] held that the assessments are quasi-judicial and each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different A.Y. s has been found as a fact one way or the other and the parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year.
As the employer bank does not have any control over the funds of the irrevocable trust created exclusively for the benefit of the employees and that the assessee had absolutely no control over the fund created by the LIC for the benefit of the employees of the assessee and further all the contribution made by the assessee in the said fund ultimately came back to the Bank Employees Gratuity Fund. The assessee has also obtained the policy in favour of the bank - thus we hold that the assessee is entitled for deduction for payment of gratuity scheme to LIC.
Non disclosure of income from interest from Bank - HELD THAT:- We observe that the AO has asked the assessee vide order sheet noting to produce reconciliation of all income with its corresponding TDS. However, the assessee has only submitted details of interest receivables in which amount of Rs.12,12,500 from Union Bank of India and Rs. 20,14,546 was not reflected. Accordingly, the AO made addition of above sums and allowed credit of TDS deducted at Rs. 5,24,159. CIT (A), the appellant has failed to furnish any reconciliation of interest received and shown in the books of accounts. In view of this matter, we are not inclined to interfere with order of lower authorities. Accordingly, same is upheld. This ground of appeal is therefore, dismissed.
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2019 (5) TMI 1978 - ITAT MUMBAI
TP Adjustment - selection of MAM - CUP v/s TNMM - rejecting the benchmarking done by the assessee with regard to the payment made to AE towards charter hire of dredgers by applying Comparable Uncontrolled Price (CUP) method as the most appropriate method and selecting Transactional Net Margin Method (TNMM) as the most appropriate method - HELD THAT:- In case of the present assessee material facts permeating through different assessment years are more or less identical as the terms and conditions on which the dredgers are hired have not changed. That being the case, applying the rule of consistency, a different view cannot be taken in the impugned assessment year with regard to the benchmarking of lease rentals paid for charter hire of dredgers by applying CUP method.
For the aforesaid reasons, we allow the grounds raised by the assessee with a direction to the Assessing Officer / Transfer Pricing Officer to accept the benchmarking done by the assessee under CUP method after verifying the fact that the independent valuer has made the valuation as per CIRIA norms. Grounds are allowed.
TP Adjustment - arm's length price of management services paid to the AE - HELD THAT:- It is evident from the order of DRP that they have decided the issue relying upon their decision in assessee’s own case for the assessment year 2009–10 [2016 (11) TMI 1249 - ITAT MUMBAI] Tribunal has held that the amount received is neither in the nature of royalty nor fees for technical services under Article–12 of India–Netherland Tax Treaty. That being the case, respectfully following the decision of the Co–ordinate Bench referred to above, we delete the addition made by the Assessing Officer.
Addition made on account of reimbursement of salary by treating it as fees for technical services - HELD THAT:- Tribunal while deciding the issue in assessment year 2009–10 [2016 (11) TMI 1249 - ITAT MUMBAI] held that reimbursement of salary is not in the nature of fees for technical services as per Article–12(5) of India–Netherland Tax Treaty. Therefore, respectfully following the aforesaid decision of the Co– ordinate Bench, we delete the addition made by the Assessing Officer. These grounds are allowed.
Levy of interest under section 234B - HELD THAT:- We find that in Balash Hamp Dredging B.V. [2011 (6) TMI 941 - BOMBAY HIGH COURT] as following the decision in NGC network LLC [2009 (1) TMI 174 - BOMBAY HIGH COURT] has held that interest under section 234B of the Act cannot be charged as the assessee is not liable to pay advance tax and the liability is on the payer to deduct tax at source. We allow the ground raised by the assessee.
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2019 (5) TMI 1977 - ITAT SURAT
Assessment u/s 153A - Addition u/s 68 - incriminating material as found during the course of search or not?HELD THAT:- Assessees have admittedly filed original returns of income which were accepted and no assessment proceedings were pending on the date of search. No incriminating material was found during the course of search so as to make addition u/s.68 - assessees have shown commission / brokerage income received in cash in the original return of income.
AO in the orders passed u/s.153A / 144 of the Income Tax Act in absence of explanation from the side of the assessee treated this said receipt of cash as commission / brokerage unexplained cash credit u/s.68 of the Act. Thus, no incriminating material was found during the course of search against all the three assessee for making addition u/s.68 - The issue is therefore covered by above judgments reproduced above. No addition could be made of this nature in the assessment order u/s.153A of the Income Tax Act. Appeal of assessee allowed.
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2019 (5) TMI 1976 - ITAT PUNE
Miscellaneous Application against an order passed by the Tribunal - Miscellaneous Application against Miscellaneous Application - Approval u/s 10(23C)(vi) - directions of Tribunal in Miscellaneous Order that registration under section 10(23C)(vi) of the Act was deemed to be granted w.e.f. 30.09.2006 - HELD THAT:- Applying the ratio laid down in CIT Vs. Society for the Promotion of Education [2016 (2) TMI 672 - SC ORDER] it was held that the Commissioner having not disposed of application dated 31.03.2006 within period of six months, registration was deemed to be granted to the assessee w.e.f. 30.09.2006.
Miscellaneous Application filed by applicant-Revenue is not maintainable as there is no provision in the Act to allow filing of Miscellaneous Application against an order passed by the Tribunal in Miscellaneous Application filed by assessee. Hence, Miscellaneous Application moved by the Revenue is dismissed.
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2019 (5) TMI 1975 - SUPREME COURT
Applicability of Section 22 of the Act to agricultural lands - Preferential right given to an heir of a Hindu under said Section 22 of the Hindu Succession Act, 1956 - property in question is an agricultural land - HELD THAT:- In the present case it is nobody’s case that the matter relating to succession to an interest in agricultural lands is in any way dealt with by any State legislation operating in the State of Himachal Pradesh or that such legislation must prevail in accordance with the principles under Article 254 of the Constitution of India. The field is occupied only by Section 22 of the Act insofar as State of Himachal Pradesh is concerned. The High Court was, therefore, absolutely right in holding that Section 22 of the Act would operate in respect of succession to agricultural lands in the State.
Even if it be accepted that the provisions of Section 22 would apply in respect of succession to agricultural lands, the question still remains whether the preferential right could be enjoyed by one or more of the heirs. Would that part also be within the competence of the Parliament? The “right in or over land, land tenures” are within the exclusive competence of the State legislatures under Entry 18 of List II of the Constitution. Pre-emption laws enacted by State legislatures are examples where preferential rights have been conferred upon certain categories and classes of holders in cases of certain transfers of agricultural lands. Whether conferring a preferential right by Section 22 would be consistent with the basic idea and principles is the question - the content of preferential right cannot be disassociated in the present case from the principles of succession. They are both part of the same concept.
The preferential right given to an heir of a Hindu under Section 22 of the Act is applicable even if the property in question is an agricultural land. The High Court was right in affirming the judgment and decree passed by the Court of District Judge, Hamirpur - Appeal dismissed.
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2019 (5) TMI 1974 - ITAT MUMBAI
Income deemed to accrue or arise in India - Permanent Establishment in India - advertisement revenue -income attributable to assessee in India - income the assessee reported international transaction with its associated enterprises (AE) i.e. Taj Television and Zee Entertainment Ltd. for advertising sales agency services, share of distribution services, recovery of expenses on sale of broadcasting rights, reimbursement of expenses and recovery of expenses - HELD THAT:- We respectfully following the decision of co-ordinate bench [2016 (12) TMI 1291 - ITAT MUMBAI] held that the Taj India does not constitute agency PE in terms of India-Mauritius DTAA. Therefore, no income/profit can be said to be attributable to the assessee in India from its PE, as Taj India is remunerated at Arm’s Length Price (ALP). Hence, we direct the Assessing Officer to delete the addition towards computation of income attributable to assessee in India.
TDS u/s 195 - distribution of revenue - programming cost paid to various non residents and also payments made to M/s PanAM Sat International System Inc. towards transponder charges for failure to deduct tax at source - HELD THAT:- As relying on assessee’s own case for A.Y. 2006-07 [2016 (12) TMI 1291 - ITAT MUMBAI] we direct the Assessing Officer to delete the addition made for disallowance of programming cost, transponder charges and up-linking charges under section 40(a)(i). Decided in favour of assessee.
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2019 (5) TMI 1973 - ITAT PUNE
TP Adjustment - comparable selection - HELD THAT:- Cybermate Infotek Ltd. being engaged in both sale of software products and also providing software development services and in the absence of any segmental details of two divisions being available, the margins of said concern cannot be applied in order to benchmark arm's length price of international transactions undertaken by the assessee, which was solely engaged in providing software development services.
Cybercom Datamatics Information Solutions Ltd.a product company and was also providing software development services to its associated enterprises, cannot be included in final list of comparables while benchmarking international transactions of assessee of providing software development services to its associated enterprises.
Infobeans Systems Pvt. Ltd. as earning foreign exchange from export of goods on FOB basis is also not to be included in the final list of comparables.
Thirdware Solutions Ltd. was deriving revenue from sale of license and software services export from SEZ units and also revenue from subscriptions, etc. The said concern had imported raw materials and was also owning intangibles and in the absence of any segmental details, was held to be not functionally comparable.Thirdware Solutions Ltd. is to be excluded from final list of comparables.
Decided in favour of assessee.
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2019 (5) TMI 1972 - ITAT MUMBAI
Disallowance being the amount of premium paid for acquiring lease hold rights over a plot of land by the assessee - assessee has filed a declaration u/s 158A(1) stating “we forward herewith a declaration in Form No. 8 as prescribed u/s 158A r.w. Rule 16 of the Income Tax Rules, 1962 vis-a-vis ground No. 1 raised in the captioned appeal viz. disallowance of amortization of premium paid for the leasehold land” - HELD THAT:- We find that the above issue has been decided by in assessee’s own case for AY 2004-05 [2011 (3) TMI 1630 - ITAT MUMBAI] held that the CIT(A) is justified in confirming the disallowance of amortization of the premium paid for leasehold land - Decided against assessee.
Ad-hoc disallowance being 5% of the expenses incurred by the appellant - HELD THAT:- Similar issue arose before the ITAT ‘C’ Bench, Mumbai in assessee’s own case for AY 2005-06 thus we set aside the order of the Ld. CIT(A) and restore the above matter to the file of the AO to examine the nature of expenditure from the details submitted/or to be submitted by the assessee and decide the issue accordingly keeping in view the provisions of section 37(1) of the Act. Thus the above ground of appeal is allowed for statistical purposes.
Disallowance u/s 40(a)(ia) - AO observed that though the appellant has made provision for expenses in the books of accounts but not deducted tax at source - HELD THAT:- Similar issue arose before the ITAT in Aditya Biral Nuvo Ltd. [2014 (10) TMI 154 - ITAT MUMBAI] - The Bench following the decision in the case of Mahindra & Mahindra Ltd. (2013 (9) TMI 522 - ITAT, MUMBAI) held that the assessee had made provisions but not received the bills, that in the subsequent year the provisions made by it were offered for taxation. Therefore, it allowed the appeal filed by the assessee.
An examination of the ledger accounts indicates that these are ad-hoc provisions. Being so, following the ratio laid down in above decisions, we delete the disallowance u/s 40(a)(ia) of the Act .Thus the 3rd ground of appeal is allowed.
Addition u/s 41(1) - HELD THAT:- In the instant case, there is nothing on record to suggest that there was remission or cessation of liability during the impugned assessment year. We fail to understand how the Ld. CIT(A) dismissed the above ground of appeal, after observing that the assessee himself in FY 2009-10 has written back the said credits outstanding for more than three years.We follow the ratio laid down in Bhogilal Ramjibhai Atara [2014 (2) TMI 794 - GUJARAT HIGH COURT] and allow the 4th ground of appeal.
Disallowance of depreciation claimed by the assessee on additions made during the year to the fixed assets - HELD THAT:- Additional evidence being photocopies of sample invoices of the Paper Book filed before us, which were also submitted before the CIT(A) would resolve the contentious issue arising out of the above ground of appeal. We set aside the order of the CIT(A) and restore the matter to the AO to examine the additional evidence and pass an order after giving reasonable opportunity of being heard to the assessee. We direct the assessee to file the relevant documents/evidence before the AO. Thus the 5th ground of appeal is allowed for statistical purposes.
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2019 (5) TMI 1971 - ITAT PUNE
TP Adjustment - selection of MAM - assessee had applied TNMM method for benchmarking its international transactions and had declared that its margins were higher than with mean margins of comparables - HELD THAT:- Where the issue stands covered by the order of jurisdictional High Court in the case of assessee itself, there is no merit in the orders of authorities below in making aforesaid transfer pricing adjustment in the hands of assessee both with respect to exports to associated enterprises and with respect to imports from associated enterprises. It may be pointed out that majority of transactions have been accepted to be at arm's length price by the TPO by applying TNMM method, only in respect of few transactions, the TPO had applied CUP method. There is no merit in the order of TPO in this regard and reversing the final order passed by Assessing Officer, we allow the claim of assessee and direct the Assessing Officer to delete the transfer pricing adjustment made in the hands of assessee. The grounds of appeal No.2 and 3 are thus, allowed.
Non allowance of additional depreciation on tools purchased by the assessee - case of assessee is that the assessee had claimed additional depreciation on plant & machinery u/s 32(1)(iia) which has been allowed in the hands of assessee - HELD THAT:- The aim under the Finance Act, 2005 while allowing the additional depreciation under section 32(1)(iia) of the Act was extended to new industrial undertaking on additional investments. Once the earlier basis of allowing additional depreciation for the units where the capacity had to be increased for about 25% is no more and now additional depreciation is to be allowed on additional investments and where the plant includes tools, the assessee is entitled to the claim of additional depreciation under section 32(1)(iia) of the Act on the aforesaid tools purchased by assessee. Consequently, we direct the AO to allow the claim of assessee of additional depreciation under section 32(1)(iia) - Appeal of assessee is allowed.
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