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Showing 21 to 40 of 1329 Records
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2023 (5) TMI 1309 - DELHI HIGH COURT
Grant of bail - involved in irregularities in framing and implementation of excise policy of GNCTD of Delhi for the Year 2021-22 - HELD THAT:- The law regarding grant of bail is very well settled. The liberty of an individual is sacrosanct and is relatable to Article 21 of the Constitution of India. It is no more res integra that the rule is bail and not jail. It is also a settled proposition that at the stage of bail, the court is not required to enter into the meticulous examination of facts nor it can examine the probative value of the witnesses. The court has merely to see the prima facie case.
On the basis of law as has crystallised is that at time of considering an application for bail, the courts is required to take into account certain factors such as existence of prima facie case against the accused, the gravity of the allegations, the position and status of the accused, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of tampering with the witnesses and obstructing the court in administration of justice as well as the criminal antecedents of the accused. It is also well settled that the court ought not to go deep into the merits of the matter while considering an application for bail. However, all that needs to be established from the record is the existence of the prima facie case against the accused.
The present case revolves around the formation of a New Excise Policy replacing the Old Excise Policy. The purported reason for changing the policy was to bring transparency and to enhance the state excise duty revenue. Besides this, the object was to simplify liquor policy pricing mechanism and checking malpractices. The purpose was also to transform the nature of liquor trade commensurating with the changing structure in the national capital. The applicant was admittedly holding a very high influential position of Deputy Chief Minister having 18 portfolios including the Excise department. The applicant was also undisputedly a prominent leader of Aam Aadmi Party which is having the present government in Government of NCT of Delhi. Thus, the role of the applicant in any policy decision including a formation of new excise policy replacing the old one has to be extremely relevant.
The case of the CBI is that the applicant was the pivot of the entire conspiracy and everything was being done under his instructions and supervision. The margin of profit from 5% to 12% was increased in order to recoup the kickbacks which had already been received through Vijay Nair. in this regard reliance has been placed upon the statement of approver Mr. Dinesh Arora. The parameter for grant of the bail has already been stated hereinabove and therefore need not to be repeated again. The court at this stage has only to see the prima facie case. The CBI has brought the material on record in the form of the document and the statements of the witnesses to show that initially Ravi Dhawan Expert Committee Report was presented which was later on not followed by the Government in material aspects and certain provisions were inserted which indicate towards malafide.
In the present case, the allegation is that the New Excise Policy has been brought in and certain provisions have been added to render undue advantage to a particular group against the illegal gratification having been received from them. The allegations if found to be correct are very serious in nature and goes to the very foundation of the case. The court at this stage is not to meticulously examine the material and evidence on the record nor should it make any comment beyond the same as it may prejudice the parties during the trial.
The applicant at this stage, cannot be seen saying that he had no role to play. He being the deputy Chief minister and Minister of Excise, was at the helm of affairs. The witnesses in the present case are mostly public servants. Presently also, the party of the applicant is in power. Therefore, it cannot be disputed that the applicant is a high profile person and has potential to influence the witnesses. Therefore, the apprehension of the CBI that the applicant might tamper with or otherwise adversely influence the witnesses cannot be ignored. The applicant is also not entitled to parity in view of his unparalleled position.
Thus, the allegations are very serious in nature that excise policy was formed at the instance of the "South Group" with malafide intention to give undue advantage to them. Such an act points towards the misconduct of the applicant, who was admittedly a public servant and holding highest position. The statement of the concerned excise officers has been relied upon by the CBI. This court is restraining itself to make any comments and minute examination of the material on record so as to no prejudice is caused to the applicant or the prosecution during the trial. The gravity and the allegations do not entitle the accused to be admitted to bail - the petitioner fails the triple test in the view of the seriousness of the allegations and his position.
The petitioner is not entitled to bail - Petition dismissed.
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2023 (5) TMI 1308 - CALCUTTA HIGH COURT
Grant of Interim order - HELD THAT:- There is no scope of passing any interim order in the matter and the issues involved require affidavits from the respondents for final adjudication.
Let the respondents file affidavit in opposition within four weeks; reply thereto, if any, to be filed by the petitioner within two weeks thereafter - List the matter for final hearing in the monthly list of August, 2023.
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2023 (5) TMI 1307 - DELHI HIGH COURT
Seeking permanent injunction restraining infringement of trademark and passing off along with other ancillary reliefs - plaintiff failed to comply with provisions of Section 12A of the Commercial Courts Act mandating pre-institution mediation before filing a commercial suit - Order XXXIX Rules 1 and 2 of the CPC - HELD THAT:- In CHANDRA KISHORE CHAURASIA VERSUS RA PERFUMERY WORKS PRIVATE LTD. [2022 (10) TMI 1233 - DELHI HIGH COURT], a Division Bench of this Court interpreted the expression, ‘contemplate any urgent interim relief’ used in Section 12A of the Commercial Courts Act. In the case before the Division Bench, the Commercial Court did not accept the contention of the defendant that the plaint should be rejected under Order VII Rule 11 of the CPC on the ground that the suit had been filed without complying with the mandatory provisions of Section 12A of the Commercial Courts Act.
The facts of the present case are very similar to those before the Coordinate Bench in BOLT TECHNOLOGY OU VERSUS UJOY TECHNOLOGY PRIVATE LIMITED AND ORS. [2022 (8) TMI 1495 - DELHI HIGH COURT]. Like in the present case, the plaintiff in Bolt Technology, had issued a cease and desist notice dated 6th November, 2020 to the petitioner/defendant to which no response was received. In respect of the notice of opposition filed by the plaintiff therein against the trademark application of the defendant, the defendant filed a counter-statement stating that the opposition was frivolous - the Court in the aforesaid case held that the requirement of Section 12 A of the Commercial Courts Act stands satisfied on both counts i.e., i. Firstly, the Plaintiff had attempted an amicable resolution which was clearly refuted, rejected and condemned by the Defendants; Secondly, the Plaintiff has also sought urgent interim relief before this Court and is entitled to maintain the present suit.
The plaintiff has also filed along with the plaint an application for grant of ex parte interim injunction under Order XXXIX Rules 1 and 2 of the CPC against the defendant from using the impugned mark. In the said application also, it has been pleaded that the plaintiff shall ‘suffer an irreparable loss and injury, which cannot be compensated in monetary terms unless an immediate order of injunction is passed’. The plaintiff also filed an application seeking exemption from complying with the provisions of Section 12A of the Commercial Courts Act on the ground that the plaintiff is seeking ex parte ad interim injunction against the defendant.
The Commercial Court correctly came to the conclusion that the suit filed by the plaintiff contemplated grant of urgent interim reliefs against the defendant and therefore, the plaintiff was not required to exhaust the remedy of pre-institution mediation as contemplated under Section 12A(1) of the Commercial Courts Act.
There is no merit in the present petition and the same is dismissed.
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2023 (5) TMI 1306 - SC ORDER
Rejection of bail application (second bail application) - HELD THAT:- The impugned order shows that what has weighed with the Court is the fact that the co-accused who was released on bail has not surrendered. It is this factor alone which can be discerned to be the reason to not entertain the bail application.
The fact that the co-accused who was released on bail has not surrendered cannot be a germane factor to decline bail to the co-accused, namely, the appellant - impugned order is set aside - Appeal allowed.
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2023 (5) TMI 1305 - DELHI HIGH COURT
Seeking grant of Default bail - arrest on 18.07.2019 and the chargesheet in the present case was filed on 18.01.2020 without a report from the FSL - indefeasible right to default bail under Section 167(2) of the Cr.P.C. - HELD THAT:- A coordinate bench of this Court in SULEMAN VERSUS THE STATE (NCT OF DELHI) [2022 (8) TMI 1491 - DELHI HIGH COURT], in the background of the similar factual matrix, after discussing various judgments of this Court held At present, the settled law persists in the view that non filing of FSL report with the charge-sheet does not fall within the realms of Section 173(2)CrPC so as to consider it as “incomplete report”. In the present case although FSL report has not been filed, however, the charge-sheet was already filed on 3-3-2021 within the time period as per law. Further, the amount of quantity recovered from the accused is of commercial nature baring the accused from bail under Section 37 of the NDPS Act.
In view of the judgment rendered by a coordinate bench of this Court in Suleman, this Court is of the opinion that the chargesheet filed in the present case is not incomplete - Application dismissed.
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2023 (5) TMI 1304 - PATNA HIGH COURT
Maintainability of petition - offence punishable under Sections 304(B)/34 and 120(B) of the Indian Penal Code - the learned counsel for the petitioner seeks not to press the present petition - HELD THAT:- The present modification petition stands dismissed as not pressed.
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2023 (5) TMI 1303 - ALLAHABAD HIGH COURT
Submission of revised Tran-1/Tran-2 offline on 30.11.2022 on the last date - Argument is that having received the returns on the last date in offline form the department is not justified in refusing to entertain them on the incorrect pretext that such returns were filed on 01.12.2022 - HELD THAT:- Procedures have been provided to subserve the larger interest of the policy and the substantive rights of the persons, who are to be regulated by such procedures. The State having provided for a time frame to avail the facility cannot be permitted to deny the benefit of scheme only because the application was not made online, when it is not disputed that the online system itself was not functional on that day. The dealer has accordingly exercised its right in terms of the policy and has submitted offline application within the time permitted by the State under the policy.
The authorities of State must make necessary amendments in the procedures so as to deal with exigency of the present kind and the rights exercised by the dealer to avail the ICT benefit cannot be denied for the reasons set forth above.
Writ petition, accordingly, succeeds and is allowed.
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2023 (5) TMI 1302 - SUPREME COURT
Grant of default bail - valid charge sheet or not - although the chargesheet might have been filed within the statutory time period as prescribed in law yet the chargesheet sans a valid order of sanction passed by a competent authority - cognizance of the chargesheet is necessary to prevent the Accused from seeking default bail or not - Special Court are in a position to take cognizance on account of failure on the part of the prosecution to obtain sanction to prosecute the Accused or not.
HELD THAT:- The chargesheet is nothing but a final report of police officer Under Section 173(2) of the Code of Criminal Procedure. Section 173(2) of the Code of Criminal Procedure provides that on completion of the investigation, the police officer investigating into a cognizable offence shall submit a report. The report must be in the form prescribed by the State Government, stating therein(a) the names of the parties;(b) the nature of the information;(c) the names of the persons who appear to be acquainted with the circumstances of the case;(d) whether any offence appears to have been committed and, if so, by whom(e) whether the Accused has been arrested;(f) whether he had been released on his bond and, if so, whether with or without sureties; and(g) whether he has been forwarded in custody Under Section 170 - In fact, the report Under Section 173(2) of the Code of Criminal Procedure purports to be an opinion of the Investigating Officer that as far as he is concerned he has been able to procure sufficient material for the trial of the Accused by the court. The report is complete if it is accompanied with all the documents and statements of witnesses as required by Section 175(5) of the Code of Criminal Procedure. Nothing more need be stated in the report of the Investigating Officer. It is also not necessary that all the details of the offence must be stated. The details of the offence are required to be proved to bring home the guilt to the Accused at a later stage i.e., in the course of the trial of the case by adducing acceptable evidence.
It is very much necessary that the evidence collected by the investigating agency in the form of chargesheet is thoroughly looked into and thereafter, the recommendations are made. The investigating agency gets full 180 days to complete the investigation and file its report before the competent court in accordance with Section 173(2) of the Code of Criminal Procedure. If we accept the argument canvassed on behalf of the Appellants, it comes to this that the investigating agency may have to adjust the period of investigation in such a manner that within the period of 180 days, the sanction is also obtained and placed before the court. We find this argument absolutely unpalatable.
The filing of a chargesheet is sufficient compliance with the provisions of Section 167 of the Code of Criminal Procedure and that an Accused cannot claim any indefeasible right of being released on statutory/default bail Under Section 167(2) of the Code of Criminal Procedure on the ground that cognizance has not been taken before the expiry of the statutory time period to file the chargesheet.
Once the investigation is completed, the report Under Section 173 of the Code of Criminal Procedure is to be filed in the Special Court constituted under the Act. Section 16 of the NIA Act leaves no room for any doubt, as it empowers the Special Court to take cognizance of any offence without the Accused being committed to it, for trial, upon receiving a complaint of facts that constitute such offence or upon a police report of such facts. Thus, by incorporating Section 16 in the NIA Act the legislature has made the Special Court as the court of original jurisdiction unlike the Sessions Court, which is a court of committal under the Code of Criminal Procedure.
The error on the part of the investigating agency in filing chargesheet first before the Court of Magistrate has nothing to do with the right of the Accused to seek statutory/default bail Under Section 167(2) of the Code of Criminal Procedure. The committal proceedings are not warranted, when it comes to prosecution under the UAPA by the NIA by virtue of Section 16 of the NIA Act. This is because the Special Court acts, as one of the original jurisdictions. By virtue of Section 16 of the NIA Act, the Court need not follow the requirements of Section 193 of the Code of Criminal Procedure.
Appeals dismissed.
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2023 (5) TMI 1301 - ITAT MUMBAI
Disallowance u/s. 80P(2)(d) - interest income earned from cooperative bank - HELD THAT:- Section 80P(2)(d) specifies any income by way of interest or dividend which is otherwise taxable under the head income from other sources, deduction is allowable if the same is derived from investment made with any other cooperative societies.
As following the judgment of Totagars Cooperative Sale Society [2010 (2) TMI 3 - SUPREME COURT] and in the case of PCIT vs. Percoorkada Service Co. Bank Ltd. [2021 (12) TMI 1084 - KERALA HIGH COURT] we hold that assessee is eligible for deduction of interest income earned from cooperative bank. Decided in favour of assessee.
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2023 (5) TMI 1300 - ITAT MUMBAI
Addition u/s 69A r.w.s. 115BBE - amount received by the assessee as donation - assessment of trust - HELD THAT:- Section 69A can be applied only in those cases where the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and such money, bullion, jewellery, or valuable article is not recorded in the books of account, if any, maintained by him for any source of income.
In this case whatever may be the amount received by the assessee as donation in various forms, were duly entered in the books of accounts and tallied with bank statement also. Assessee’s books were subject to audit and duly audited accounts were produced before the authorities for verification. Rather, amount tried to be covered u/s. 69A was pointed out by the department from assessee’s own books of accounts and bank statements. Since otherwise also assessee was not found with any money, bullion, jewellery, or other valuable article conditions prescribed in section 69A can’t be applied. Thus we are of the considered view that section 69A has no applicability in the present case, hence section 115BBE of the Act. Accordingly, Ground Nos. 1 & 2 raised by the assessee is allowed.
Interest claimed on Corpus fund - We set aside the matter back to AO for verification with a direction that if interest so claimed by the assessee pertains to corpus fund, then the same has to be allowed as accretion to corpus fund, otherwise it will be deemed to be the income of the assessee subject to the benefits available in section 12A.
Anonymous donations received - As reverting to the definition of anonymous donations under sub-section (3) of section 115BBC, it is found that it has been mentioned that anonymous donations means voluntary contributions where the person receiving such contributions does not maintain a record of the identity indicating the name and address of the person making such contribution and charitable trust as in the case of the assessee, it is generally not only difficult but also not possible to maintain such type of record.
A perusal of the entire section 115BBC shows that the provisions of said section are not applicable to the institutions like that of assessee-trust as the same are meant to check the inflow of unaccounted/black money into the system with a modus operandi to make out as a part of the accounts of the institutions like university, medical institutions where the problem relating to the receipt of capitation fees, etc. is generally highlighted. Under such circumstances, there is no justification on the part of the Commissioner (Appeals) in taxing the offerings received in the hundis/donation boxes as income of the assessee u/s 115BBC.
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2023 (5) TMI 1299 - ITAT MUMBAI
Taxability of software sale by the US entity to Indian entities - Indian subsidiary is held as DAPE [Dependent Agent Permanent Establishment] of the assessee in India - when DAPE is remunerated at arm’s length - whether transaction of sale of software is not at arm's length? - HELD THAT:- Similar issue was considered and adjudicated by the Coordinate Bench in assessee’s own case for the A.Y. 2017-18 [2022 (5) TMI 1513 - ITAT MUMBAI] and decided the issue in favour of the assessee as held that once the DAPE is remunerated at arm’s length no further addition can be made in the hands of the assessee.
As transactions in question were at arm’s length price, no taxability survives in the hands of the assessee. Once basic taxability under the DAPE itself comes to an end, all other issues raised in the appeal are rendered academic and infructuous - Decided in favour of assessee.
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2023 (5) TMI 1298 - ITAT KOLKATA
Revision u/s 263 against non-Est assessment - As argued statutory notice under section 143(2) of the Act was not issued to the assessee - as per CIT AO has not examined the transactions of share capital and share premium received by the assessee during the year - HELD THAT:- As D.R. being unable to place any documentary evidence on record to prove that the assessee was served with the notice under section 143(2) of the Act at the time of carrying out the reassessment proceedings after the issue of notice under section 148, we are inclined to hold that such reassessment proceedings were itself bad-in-law and nonest and the same cannot be a subject matter of the revisionary proceedings and thus on this legal ground itself, the revisionary proceedings under section 263 of the Act are quashed.
Whether extensive inquiries and investigation was carried out by AO before adopting one of the possible views, hence, assessment order cannot be said to be erroneous? - There is no dispute to the fact that an extensive inquiry has been conducted by the ld. Assessing Officer regarding the issue of share capital and share premium received by the assessee during the year and the ld. Assessing Officer has made proper application of mind and taken possible view as permissible in law which are duly backed by the documentary evidences filed by the assessee, independent inquiry conducted by the ld. Assessing Officer and settled judicial precedence, therefore, since the issue referred in the show-cause notice under section 263 of the Act has been properly examined by the ld. Assessing Officer, there remains no justification for ld. CIT to assume jurisdiction on the very same issue and, therefore, we quash the impugned revisionary proceedings carried out under section 263 of the Act and allow all the grounds of appeal raised by the assessee.
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2023 (5) TMI 1297 - ITAT RAIPUR
Validity of assessment order framed by non-jurisdictional officer - sustainability of the assessment framed by the ACIT, Circle 4(1), Raipur which in turn was based on a notice u/s 143(2) issued by the ITO-1(3), Raipur, i.e a non-jurisdictional officer - HELD THAT:- As the facts and the issue involved in the present appeal remains the same as were involved in the aforementioned orders of the Tribunal in the case of Durga Manikanta Traders [2023 (1) TMI 1099 - ITAT RAIPUR] and Chowaram Dhiwar [2022 (12) TMI 1492 - ITAT RAIPUR] therefore, respectfully following the same parity of reasoning, we are of the considered view that as the assessment framed in the case of the present assessee by the ACIT, Circle-4(1), Raipur vide order u/s. 143(3) on the basis of notice issued by the ITO-1(3), Raipur i.e. a non-jurisdictional A.O is devoid and bereft of any force of law, thus, the same cannot be sustained and is liable to be struck down on the said count itself. Accordingly, the impugned assessment framed by the ACIT, Circle 4(1), Raipur u/s. 143(3) dated 29.03.2016 is quashed for want of valid assumption of jurisdiction on his part. Decided in favour of assessee.
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2023 (5) TMI 1296 - ITAT DELHI
Accrual of income in India - Sale of logistic services and global account manager expenses received - assessed as Fees for Technical Services (“FTS”) under the Act as well as India-USA DTAA - HELD THAT:- Revenue has not disputed the fact that the Coordinate Bench of the Tribunal for the preceding AY(s) [2022 (1) TMI 1290 - ITAT DELHI], [2020 (10) TMI 654 - ITAT DELHI] have decided the issues in favour of the assessee wherein held the issues in question are no longer res-integra and has consistently been decided in favour of the assessee in preceding AYs.
Addition on account of sale of logistic services treating the same as FTS under the Act as well as India-USA DTAA - The Coordinate Bench of the Tribunal in its decision [2022 (11) TMI 125 - ITAT DELHI] for AY 2018-19 where held that the amount received by the assessee from freight/logistic support services cannot be treated as FTS/FIS either under the Act or under treaty provisions. Accordingly, the addition was deleted. Identical view was expressed by the Tribunal while deciding the appeals for subsequent assessment years, as noted above. In fact, though, the departmental authorities were conscious of the fact that the Tribunal has decided the issue in favour of the assessee in earlier assessment years, however, for the purpose of keeping the issue alive, a contrary decision has been taken. There being no change either in the factual or legal position relating to the disputed issue in the impugned assessment year, respectfully following the consistent view of the Tribunal in assessee’s own case in the preceding assessment years, as mentioned above, we delete the addition made by the assessing officer.
Addition of reimbursement of global account management charges received by the assessee treating the same as FTS under the Act as well as India-USA DTAA - The Coordinate Bench of the Tribunal in its decision [2022 (11) TMI 125 - ITAT DELHI] for AY 2018-19 observed that the issue has been consistently decided in favour of the assessee in all these years, while holding that the amount received towards reimbursement of global account management charges is not in the nature of FTS/FIS.
Addition of reimbursement of lease line charges received treating the same as royalty under the Act as well as India-USA DTAA - Tribunal in its decision [2022 (11) TMI 125 - ITAT DELHI] AY 2018-19 held that lease line charges are not in the nature of royalty - As the payment made, being not in the nature of royalty, no disallowance under section 40(a)(i) of the Act can be made.
Assessee appeal allowed.
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2023 (5) TMI 1295 - ITAT BANGALORE
TP Adjustment - comparable selection - HELD THAT:- We note that the TPO while rejecting the comparables being not given any reasons. The DRP while upholding the rejection of the comparables, simply stated that these companies are involved in manufacturing different products. We note that assessee had adopted TNMM as the most appropriate method under which identical similarities in the functions are not necessary. Broad similarities in the business model and functioning are only necessary to be compared as the net margin is considering for the purposes of comparing.
We, therefore remand the comparables back to the Ld.AO/TPO for necessary verification of the FAR of these comparables with that of assessee. In the event, the broad similarities are ascertained under TNMM and passes through the filters applied by the Ld.TPO, the same may be considered for inclusion.
Annanya Interface & Controls Pvt. Ltd. company as per the corporate information given is engaged in manufacturing of control panels for machines and installation, erection of machines. In the profit and loss account, the revenue from operations are from sale of products and sale of services. It is nowhere into manufacturing of any automation equipments / instruments as has been observed by the DRP. It also do not provide any automation solutions for industrial plants. The assessee before us is into manufacturing of control systems, industrial automation instruments and equipments and electrical measuring instruments. The product that is developed by the comparable company is a small element manufactured by the assessee. The manufacturing activities carried out by the assessee in the varied products cannot be compared with that of the comparable and therefore deserves to be excluded.
Abak Elcerofab Engg Pvt. Ltd - As rightly pointed out by the Ld.DR, the revenue has been recognised by this company to be as manufacturing sales. From the annual report, it is not discernible what is the manufacturing activity carried out by this company. We therefore remand this company back to the Ld.AO/TPO to carry out necessary verification and to find out what is the product manufactured by this company and to ascertain whether the manufacturing activity is comparable with that of assessee. In the event, the product manufactured is more or less similar with that of assessee and the same may be retained. Thus this comparable is remanded back to the Ld.AO/TPO for necessary verification.
Dembla Valves Ltd.company is involved in manufacture of various kinds of valves that forms a small part of an equipment used in a particular industry. We therefore do not find it comparable with that of assessee who is involved in manufacturing the entire equipment.
Limitorque India Ltd., Flowserve India Controls Pvt. Ltd. and Koso India Pvt. Ltd. - direct the Ld.AO/TPO to verify the RPT filter of these three comparables and to apply it at threshold limit of 15%. In the event, the RPT of these three comparables exceed 15%, comparables will stand excluded.
Not considering Swati Switchgears India Pvt. Ltd. as a comparable - We note that in the order giving effect dated 11.10.2019, the Ld.TPO has not mentioned anything in respect of this comparable as per the directions of the DRP. We therefore remand this comparable back to the Ld.AO/TPO to follow the directions of the DRP and to carry out necessary verification as observed by the DRP.
Remi Sales & Engineering Ltd. (sought for inclusion) - As revenue accepted this comparable in the preceding assessment year. Without there being a cogent reason, the comparable cannot be excluded. There is nothing placed on record to establish that this company is functionally not similar to the assessee.
Innovative Automation Pvt. Ltd.(sought for exclusion) - We note that assessee is also into sale of finished goods without any value addition. The plain activity carried by this comparable is trading of a finished product. This is functionally similar with the assessee under the trading segment. We therefore do not find any infirmity in this comparable to be included.
Correcting the margin of the comparable Innovative Automation Pvt. Ltd. - We accordingly direct the Ld.AO/TPO to follow the directions of the DRP and recomputed the margin of this comparable in accordance with law.
Appropriate working capital adjustment that was not granted while computing the margins of the assessee under both trading and manufacturing segment - HELD THAT:- It must not be forgotten that transfer pricing analysis is estimation and not an exact science. One has to see that, reasonable adjustment must be made where ever it is needed, so as to bring both comparable and test party on same footing. In present facts of case, DRP may be correct in denying working adjustment due to unavailability required data, however there is no merit in observations of DRP/TPO as supported by Ld.CIR DR, in denying working capital adjustment due to absence of details for working out adjustments in comparable companies chosen.
Regarding comparable companies, one has to fall back upon only on information available in public domain. If that information is insufficient, it is beyond the power of the assessee to produce correct information about comparable companies. Revenue on the other hand has sufficient powers u/s. 133(6) to compel production of required details from comparable companies. If this power is not exercised to find to get information required, then it is no defense to say that Assessee has not furnished required details to deny any adjustment on account of working capital differences. Therefore this objection of DRP is not sustainable.
Thus respectfully following decision of coordinate Bench of this Tribunal in the case of Huawei Technologies India (P.) Ltd [2018 (10) TMI 1796 - ITAT BANGALORE] we direct working capital adjustment to be computed and to allow as per actual, after considering exclusion/inclusion of comparable companies in the final set of comparables as discussed hereinabove.
Addition made on global sales and marketing activity expenses incurred by assessee to be in the nature of AMP spent - Expenditure incurred by assessee towards global sales and marketing activity has to be treated as operating cost and has to be allotted in the ratio of the turnover of the other international transaction for determining the ALP under TNMM analysis.
TDS u/s 192 - Expat salary reimbursement disallowed u/s. 40(a)(i) - HELD THAT:- In the present facts of the case, the Ld.AO has recorded that TDS u/s. 192 has been deducted on gross salary however the same has not been verified by the Ld.AO. We accordingly remand this issue to the Ld.AO for necessary verification in accordance with the observations hereinabove.
Refund of DDT- whether lower authorities erred in not refunding amount paid as divident distribution tax in excess of 10% with interest - HELD THAT:- We note that this issue has been now decided in case of DCIT vs. Total Oil India Pvt. Ltd.[2023 (4) TMI 988 - ITAT MUMBAI (SB)] Accordingly, the Ld.AO is directed to follow the decision of Hon’ble Special Bench and consider this claim in accordance with law.
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2023 (5) TMI 1294 - CALCUTTA HIGH COURT
Validity of reassessment proceedings - legality of the impugned order u/s 148A(d) - reopening merely on the basis of remarks “potential borrower/lender” - as argued AO has relied on some investigation report from the office of the DGIT (Investigation) where some remarks was made as “potential borrower/lender” and it is the case of the petitioner that impugned proceeding on the basis of the alleged remarks of “potential borrower/lender” without naming or disclosing anything in detail against the petitioner, is legally not sustainable - HELD THAT:- Such allegation of petitioner that the assessing officer has proceeded merely on the basis of remarks “potential borrower/lender” is not correct since in the later part of the order assessing officer has clarified that on verification of the document the assessing officer has found credible evidence of actual borrowings and not potential in nature.
It has also been recorded by AO in the impugned assessment order that it is evident that the assessee has availed cash loan through finance broker from different lenders and it has also been recorded that there is a huge unexplained expenditure within the meaning of Section 69C of the Act and that the cash loan and repayment in cash comes within the crux of provision 269SS and 269T and other relevant provisions of penalty under the aforesaid Act.
As find on perusal of the aforesaid impugned order u/s 148A(d) of the Act that the same is based on huge materials and evidence regarding the alleged transaction and that Court in exercise of Constitutional Writ Jurisdiction cannot act as an assessing officer and scrutinize those facts and evidence and substitute the same with its own.
Thus aforesaid impugned order is neither a nonspeaking order nor any violation of principles of natural justice nor any procedural irregularity has been committed during the proceeding nor the impugned order has been passed by an officer having inherent lack of jurisdiction which is based on facts and findings and materials evidence. The aforesaid factors should not be ignored. In addition the order under Section 148A(d) of the Act is neither a final assessment order nor any demand arises out of such order and petitioner still will have ample opportunity and scope to make out a case in its favour in proceeding subsequent to the order passed under Section 148A(d) of the Act.
This writ petition stands disposed of.
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2023 (5) TMI 1293 - MADRAS HIGH COURT
Violation of Section 75 (4) of the respective GST enactments - petitioner's request for filing their reply to DRC-01 dated 03.01.2023 has not been considered - HELD THAT:- The case is remitted back to the respondents to pass a speaking order within a period of 45 days from the date of receipt of a copy of this order - The petitioner shall positively file their reply to the respective DRC-01 dated 03.01.2023 within a period of 15 days from the date of receipt of a copy of this order.
Writ Petitions stand disposed of.
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2023 (5) TMI 1292 - ITAT DELHI
Revision u/s 263 - assumption of jurisdiction by CIT presuming, and merely on basis of audit objection and lack of enquiry by the AO - HELD THAT:- From the order of the PCIT passed u/s 263 it is observed that in the show cause notice he raised certain issues and made observations to which the assessee gave reply in seriatim followed by legal submissions but not a word thereupon has been mentioned by the Ld. PCIT.
This is contrary to the law laid down in PCIT vs. Delhi Airport Metro Express Pvt. Ltd. [2017 (9) TMI 529 - DELHI HIGH COURT] wherein the Hon’ble Jurisdictional High Court held that for purposes of exercising jurisdiction u/s 263 the conclusion that the order of the AO is erroneous and prejudicial to the interests of the Revenue has to be preceded by some minimal enquiry. In fact, if the Ld. PCIT is of the view that the AO did not undertake any enquiry, it becomes incumbent on him to conduct such enquiry. Nothing of the sort has been done by the Ld. PCIT in the case of the assessee before us.
In Synergy Waste Management (P) Ltd. [2016 (6) TMI 23 - ITAT DELHI] is held that if an AO, acting in accordance with law, makes a certain assessment, the same cannot be branded as erroneous by the Commissioner simply because according to him the order should have been written more elaborately. Section 263 does not visualise a case of substitution of the judgment of the Commissioner for that of the AO.
In our opinion this cannot be done as in the show cause notice the Ld. PCIT has nowhere mentioned to invoke the Explanation 2 to Section 263. Likewise, the assessee cannot take a plea of assumption of jurisdiction by the Ld. PCIT on the basis of audit objection without there being any material in the record to substantiate the plea.
We are of the view that the Ld. AO made enquiries and after applying his mind he completed the assessment under section 143(3) of the Act accepting the income declared by the assessee in its return. Appeal of assesee allowed.
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2023 (5) TMI 1291 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, PRINCIPAL BENCH, NEW DELHI
Approval of the Conditional Resolution Plan - HELD THAT:- The condition which are contained to the effect that Resolution Applicant can seek suitable modification or withdraw plan are conditions which are unenforceable on account of law declared by the Hon’ble Supreme Court in “Ebix Singapore” (Supra). The facts of the present case as detailed in the Reply filed by Respondent No.3 as well as Resolution Professional indicate that plan has been implemented and all necessary approvals including the approval by NHAI has been received for carrying out the plan. After implementation of the plan, we are of the view that the submissions of learned counsel for the Appellant that Resolution Plan was conditional plan and could not have been approved, does not furnish any ground to interfere with the impugned order, at this stage. NHAI approval was set out as a condition precedent to takeover the Corporate Debtor since it was provided in Clause 5.3.1 of the Concession Agreement.
The law declared by the Hon’ble Supreme Court in Ebix Singapore [2021 (9) TMI 672 - SUPREME COURT] made categorical that no Resolution Applicant can be allowed to withdraw their plan and in facts of the present case, Resolution Applicant has never come up with any case, application or request to withdraw from the Resolution Plan.
Present is a case where Form G was issued and time to submit the plan was extended time to time. There were two Resolution Plans which were duly considered by the Committee of Creditors. The submission of the Appellant that mandatory requirements as prescribed under Regulation 38(3) of the Regulations, 2016 has not been satisfied since there are no reasons given regarding cause of default - submission of learned counsel for the Appellant that mandatory requirement under Regulation 38 is not fulfilled, is not correct and the plan gives causes of default, hence, the above mandatory requirement under the plan is fulfilled.
There are no substance in any of the submission of learned counsel for the Appellant to interfere with the impugned order - there is no merit in the Appeal - appeal dismissed.
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2023 (5) TMI 1290 - CALCUTTA HIGH COURT
Revision u/s 263 for order passed u/s 154 - Chargeability of taxation u/s 115QA - Tribunal noted that PCIT has exercised its revisional jurisdiction in respect of an order passed under Section 154 of the Act, even when the subject matter of revision did not at all arise out of the said rectification order passed - HELD THAT:- The issue was pertaining to levy of tax under Section 115QA, which was examined by the assessing officer in the assessment proceedings. The Tribunal noted that assessment order having been passed on 28.12.2017, PCIT could have exercised its jurisdiction u/s 263 not later than 31.03.2019.
PCIT exercised its jurisdiction on 10.06.2020, which is barred by limitation in respect of the assessment order, which was passed on 28.12.2017. That apart, the Tribunal noted that the assessee in the original assessment proceedings demonstrated that the provision of Section 115QA was not applicable to their case as the explanation to Section 115QA (1) as applicable prior to 01.06.2016. Buy-back means, the purchase by the companies of its own shares in accordance with the provisions of the Section 77 of the Companies Act.
Thus, Tribunal noted that as per the said provision in force during the relevant assessment year, the buy-back pursuant to order of Company Law Board will appear under Section 402 of the Companies Act was not included. Therefore, the Tribunal on fact held that the PCIT was not justified in invoking the provisions of Section 263 of the Act. Thus, we find that the Tribunal having examined the jurisdictional issue as well as on facts allowed the appeal filed by the assessee. No substantial questions of law
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