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Showing 41 to 60 of 1441 Records
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2022 (2) TMI 1402 - ITAT BANGALORE
TP Adjustment - adjustment of notional interest in respect of delayed receivable from its AEs - rate of interest adopted by the TPO - LIBOR + 2% - DRP rejected the contention of the assessee that the adjustment is not required in this regard, since it is not an international transaction - HELD THAT:- As in case of Swiss Re Global Business Solutions India Pvt. Ltd. [2022 (1) TMI 1275 - ITAT BANGALORE] by following the judgment of AMD (India) Pvt.Ltd. [2018 (8) TMI 2094 - KARNATAKA HIGH COURT] held that deferred revenue from AE would constitute independent international transaction and the same needs to be benchmarked independently. Further, it was held by the Tribunal that the rate of interest to be adopted is at LIBOR + 2%.
Thus we direct the A.O. to calculate the interest rate on outstanding receivable from AE by adopting LIBOR + 2%
TP Adjustment to be confined to International transaction only - AR stated that the revenues from the international transaction constitute only 29.85% of the total revenue, therefore, as submitted that the TP adjustment if at all ought to be restricted to that extent - HELD THAT:- The action of the TPO is wholly erroneous and contrary to the provisions of the Act and the Rules made there under. A.O. has to refer the matter to the TPO for computation of ALP only in relation to the international transactions and the TPO is empowered to compute ALP only in respect of the said international transactions. In the case of IKA India (P.) Limited [2018 (10) TMI 49 - ITAT BANGALORE] had decided an identical issue and held that the transfer pricing adjustment is to be limited only to the international transactions entered by the assessee with its AEs.
In the instant case, the assessee claims that the revenue from the international transactions constitute only 29.84% of the total revenue. TPO is directed to rework the TP adjustment only in respect of the international transaction undertaken by the assessee with its AEs.
Disallowance u/s 14A - assessee had made sou moto disallowance for expenditure attributable to earning of exempted income - HELD THAT:- AO has not recorded his dissatisfaction as regards the correctness of the claim made by the assessee. The working of suo moto disallowance is on record.
AO has not pointed out any specific reasons having regard to the accounts of the assessee for rejecting the suo moto disallowance by the assessee. Assessee has sufficient own funds and borrowed funds were not used for the purpose of making investment.
As per the statutory Auditors report (clause No.16 and 17), all the borrowed funds have been utilized for the purpose for which it has been borrowed. Further, on perusal of the financials, it is clear that the assessee has sufficient own funds which exceeds the investments. Therefore as placing reliance on Reliance Industries Ltd. [2019 (1) TMI 757 - SUPREME COURT] and Microlabs Ltd. [2016 (4) TMI 219 - KARNATAKA HIGH COURT] we hold that disallowance u/s 14A r.w.Rule 8D(2)(ii) is not warranted in the facts of the instant given case.
Nature of expenditure - Expenditure incurred for treatment of products registration - revenue or capital expenditure - HELD THAT:- As decided in own case, [2021 (12) TMI 1467 - ITAT BANGALORE] the expenses incurred by assessee in respect of Dolenio during the years under consideration towards Mutual recognition process variation, Patent and Trade mark and other registration expenses, are be considered as revenue expenditure, allowable u/s 37(1).
In respect of the Annual fee/license fees paid the ledger account revels that these are recurring in nature, and hence cannot be treated to be one time payment. These are in respect of renewal of licence with the drug authorities in respective countries to continue to hold the licence to export and sell the products developed by assessee.
Accordingly no infirmity in the observation of Ld. CIT(A) to treat the payments to be revenue expenditure allowable u/s 37(1) - Decided in favour of assessee.
Non grant of entire credit of MAT paid by the assessee u/s 115JAA - HELD THAT:- The assessee is entitled to the entire credit available to it as per law. Therefore, the A.O. is directed to grant the appropriate credit available to the assessee.
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2022 (2) TMI 1401 - ITAT SURAT
Reopening of assessment u/s 147 - deduction u/s 80IA disallowed - notice after four years from the end of relevant assessment year - as per AO deduction could not be allowed on old existing infrastructure facility, as such, the assessee does not fulfil the requisite condition for claiming deduction u/s 80IA - HELD THAT:- As there was no failure on the part of the assessee in disclosing fully and truly all necessary for assessment as the assessing officer fully and extensively examined the whole of the claims while finalising the assessment. The AO solely relied on the material information available on record.
As assessment order passed by AO was the subject-matter of appeal before CIT(A) and principle of merger would apply. Moreover, there is no tangible material before the AO to reopen the assessment.
Thus, we hold that the action of AO for re-opening is not valid as the original scrutiny assessment was the subject-matter of appeal before Ld. CIT(A) and again appeal before Tribunal, moreover, the action of Assessing Officer is based on “change of opinion” on similar set of fact. Moreover, it was overreaching to the decisions of the superior authorities on the similar set of fact on similar issues. Therefore, the re-opening is held as invalid and subsequent action initiated thereof are void ab initio.
Disallowance of 10% ad hoc expenses for earning income from other source (interest income) - There is no dispute on the fact that the AO disallowed ad hoc expense @ 10% by taking view that no nexus was proved in the setting aside proceedings and that the assessee again failed to prove the nexus with the expense qua the interest income earned. Before us the assessee could not substantiate the cross- examination made the submission that same expense is certainly incurred. In the absence of any nexus, we are unable to concur with the submission of Ld. Sr. counsel for the assessee. Therefore, we affirm the order of Ld. CIT(A). In the result of assessee’s appeal is dismissed.
Penalty levied u/s 271(1)(c) - HELD THAT:- As in quantum appeal we have set aside the assessment order by holding as invalid and based on change of opinion thereby accepted the appeal of assessee, therefore, the addition of disallowance under section 80IA does not survive, therefore penalty levied u/s 271(1)(c) has no leg to stand.
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2022 (2) TMI 1400 - SC ORDER
Seeking quashing of Case Crime No. 540 of 2019 registered at P.S. Hazratganj, District Lucknow, Uttar Pradesh - petitioners have not been named as accused in the crime - HELD THAT:- The petitioners not being named as accused in the said crime or the case now registered by the CBI on the basis of the said crime, cannot be permitted to ask for quashing of the proceedings concerning some other persons (accused) - it is not required to examine the correctness of the relief claimed under Section 438 of the Criminal Procedure Code at the instance of the petitioners herein.
This special leave petition is disposed of.
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2022 (2) TMI 1399 - GUJARAT HIGH COURT
Jurisdiction of executing court to entertain and decide the execution proceedings - Section 44A of the Code of Civil Procedure, 1908 (CPC) - HELD THAT:- It could be well said that the ground that the dispute is not ‘commercial dispute’ and consequentially the Commercial Court lacks inherent jurisdiction to execute the decree, falls flat. It is deprecable that despite the above findings of the Division Bench, the very ground is raised and re-raised in yet another present proceedings. Be as it may. Repeating the litigation on the same grounds under different pretext and different context tantamount to abuse of process of law.
In VADODARA MAHANAG SEVA SADAN FORMALY KNOWN SS MUNICIPAL CORPORATION VERSUS MS KHURANA ENGINEERING LTD. [2018 (9) TMI 2128 - GUJARAT HIGH COURT], the petitioner Corporation had challenged order of the Commercial Court in relation to the award of the arbitrator for which the execution petition was filed before the Commercial Court. The contention was raised on behalf of the petitioner that though the application for setting aside the arbitral award may be pending before the Commercial Court, the execution petition of the contractor would not be competent as it was for the amount below Rs.1 Crore.
It was observed that since the award was enforceable in terms of the Code of the Civil Procedure in the same manner as it was the decree of the Court, “the Court having jurisdiction over the subject matter could be the court competent to execute it as per the Section 38 of the CPC.
Coming to the facts of the present case, it is the decree of English Court, the reciprocating territory, is being executed under Section 44A, CPC. This provision in the CPC, 1908, provides for Execution of decrees passed by the Courts in reciprocating territory. It provides that certified copy of a decree of any superior Courts of any reciprocating territory is filed in the district court, the decree may be executed as if it has been passed by the district court. Sub section (2) of Section 44A provides for filing of certified copy regarding satisfaction of decree to the extent of such satisfaction or adjustments. Sub section (3) says that as per the provisions of Section 47 shall as from filing of the certified copy of the decree apply to the proceedings of a district court for executing a decree under this Section. The execution can be refused if it is shown that the decree falls within any of the exception in Section 13.
In the present case, it is the money decree passed by England Commercial Court upon adjudication of commercial dispute and now sought to be executed under Section 44A which is deemed in law to be the decree as if it has been passed by district court. Upon conjoint reading of Section 44A and Section 38 CPC, it could be certainly deduced that the decree passed by the English Commercial Court can be executed by the commercial court when presented under Section 44A of the CPC - When the execution is filed from the decree of commercial court, the ‘commercial dispute’ continues to exists. In the execution proceedings initiated to execute the decree of the commercial court, the characteristics of the ‘commercial dispute’ is not lost, rather the dispute continues in the same nature, that is the ‘commercial dispute’.
There remains hardly any substance in the submission that since the provisions relating to execution were not amended while amending certain provisions of CPC as per the Section 16 of the Commercial Courts Act, the commercial court does not have the jurisdiction to try and decide the execution petitions. Merely because there is no amendment in relation to the execution provisions brought about and certain other provisions of CPC were amended to be applied to the commercial suits, it would not mean or imply that the commercial court does not have the power to execute.
A clear position of law emerges that commercial court does have the jurisdiction to try and decide the execution applications arising from the judgment and decree passed by the commercial court - the impugned order dismissing the application Exhibit 65 and refusing to hold that the commercial court does not have the jurisdiction to entertain and decide execution proceedings books no error whatsoever - petition dismissed.
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2022 (2) TMI 1398 - ITAT AHMEDABAD
Unexplained cash credits u/s. 68 - Bogus Share Capital and Share Premium received by the Appellant - onus to prove - HELD THAT:- The assessee has issued shares at premium of his 990 which was based on the valuation report by independent valuer by using the method of discounted cash flow which has been recognized under the provision of law and the same has also not been controverted by the AO except stating that valuation has been made on basis of future expected profit. Furthermore, we also find that the basis of the valuation for determining the premium on the share has nowhere been doubted by the AO during the assessment proceedings. Based on the above, we note that the value of the premium cannot be doubted.
Whether the principles laid down by the Hon’ble Supreme Court in the case of Pr. CIT v. NRA Iron & Steel (P.) Ltd. [2019 (3) TMI 323 - SUPREME COURT] are applicable to the present facts of the case? - The finding of facts would bind only the parties to the decision itself and it is the ultimate decision that binds. Where facts are distinguishable, such as assessee has replied and clarified all the doubts like non-service of summons on the directors of the investing companies due to change of address, existence of the investing companies on the portals of MCA/ROC and with the Income Tax Department long after investment, providing DIN of directors of investing companies and their other particulars, providing reasons for charging huge premium, adequate creditworthiness on the basis of assets, source of immediate availability of funds for investment, etc., then this decision in NRA Iron & Steel (P.) Ltd. (supra) cannot be applied as Admittedly, the assessee in the case on hand has sufficiently furnished the details of the parties
As we are of the view that the assessee company has sufficiently discharged its onus cast under section 68 of the Act with respect identity of the investor companies, credit worthiness and genuineness of the transaction. Therefore we direct the AO to delete the addition made by him. Decided in favour of assessee.
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2022 (2) TMI 1397 - ITAT AHMEDABAD
Deemed dividend u/s.2(22)(e) - AO treated the unsecured loan as deemed dividend - whether it is sine qua non that the assessee company, which is not a registered shareholder, obtains any loan from companies in which its shareholder also holding substantial share may brought under the scanner of deemed dividend? - HELD THAT:- Coming to the case on hand, admittedly the assessee company is not holding any shares or rights of M/s. JP Iscon Ltd. Thus considering the above discussion and judgment of Hon’ble jurisdictional court in case of Mahavir Inductomelt [2017 (1) TMI 1159 - GUJARAT HIGH COURT] AO was not justified in invoking the provision of section 2(22)(e) - CIT(A) rightly deleted the addition made by the AO.
We note that in the case which arose before T. Abdul Wahid & Co.[2020 (9) TMI 977 - MADRAS HIGH COURT] the facts were that the assessee, a partnership firm, received unsecured loan from a company and the AO opined that one of partners of assessee-firm, being also a shareholder in the said company, holding 26.25 per cent shares had substantial interest in the firm and, consequently, concept of deemed dividend under section 2(22)(e) of the Act would apply. The High Court, on appeal by the Revenue, held that since payment had been made to the assessee, a partnership firm and assessee was not a shareholder in company, it was neither a loan nor an advance, but a deferred liability and, thus, section 2(22) (e) of the Act would not apply.
The decision of Gopal and Sons (HUF) [2017 (1) TMI 331 - SUPREME COURT] was distinguished by the Madras High Court after observing that "as in the case before the Supreme Court the assessee was the beneficial shareholder, whereas on facts, it was not so, in the assessee's case. Admittedly, the assessee in the case on hand was neither the beneficial owner of the shares nor registered owners of the shares. Accordingly, in our humble understanding, the principles laid down by the Hon’ble Supreme Court in the case of Gopal and Sons (HUF) [2017 (1) TMI 331 - SUPREME COURT] are not applicable in the given facts and circumstances. Thus the ground of appeal raised by the Revenue is hereby dismissed.
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2022 (2) TMI 1396 - BOMBAY HIGH COURT
Money Laundering - Predicate offence - Conspiracy for misappropriation of money - misuse of important documents - whether it can be said that there is no cognizable offence disclosed and that no further investigation is necessary and, therefore, the FIR needs to be quashed and/or whether the FIR can be quashed on the premise that it is filed to wreak vendetta and is mala fide?
HELD THAT:- Once it is revealed in the investigation that a huge sum of cash was withdrawn on vouchers and for a corresponding period, substantial deposits have been made in the personal Accounts of those, who were in charge of the Trust, i.e. Applicant Ashok Gandole and others, the matter requires investigation as during investigation, the source of Rs.7,00,00,000/- would be traced and, therefore, at this stage, it cannot be said that there is nothing to investigate because the Auditor has made a statement before the Enforcement Directorate.
As regards the contention that the Respondent No.2 is on the run and is avoiding investigation by the Enforcement Directorate, the learned Senior Advocate for Respondent No.2 submitted that Respondent No.2 has taken exemption from the Enforcement Directorate and thereafter, no summons have been issued by the Enforcement Directorate, and it is entirely incorrect to state that the Respondent No.2 is on the run. Except asserting this orally, nothing further is pointed out to us by the Applicants that Respondent No.2 is avoiding investigating by the Enforcement Directorate. The Enforcement Directorate in the complaint itself has stated that it has not drawn any conclusion regarding the role of Respondent No.2, and further investigation is going on.
As regards the facts at hand are concerned, Applicant Ashok Gandole was in-charge of the affairs of the Trust. Other Applicants have been shown as connected with him. The Trust in question conducted various Colleges, which were grant-in-aid, and public money was received. The Investigating Agency has stated that money was siphoned off from the Accounts of the Trust on cash withdrawal. Applicant Ashok Gandole and others are alleged to have deposits in their personal Accounts and have substantial properties. Therefore, at this stage, when the investigation is in progress, and all facts are not before the Court, the Court will have to allow the Police Authorities to carry on the investigation as cognizable offences stand disclosed.
Once it is concluded that the FIR discloses cognizable offence and that investigation into this crime is necessary, and no case is made out for exercise of power under Section 482 of the Code, then direction that no coercive steps be taken cannot be continued. The Applicants have a remedy to apply for anticipatory bail under Section 438 of the Code, and if the court is satisfied, the Applicants can be released on anticipatory bail and, therefore, the Applicants are not remediless. To conclude, no case is made out by the Applicants to quash the concerned FIR.
Application dismissed.
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2022 (2) TMI 1395 - MADRAS HIGH COURT
Stay of demand - condition imposed that unless the petitioner/assessee makes a payment of 20% of the demand, the petitioner/assessee is not entitled for stay - HELD THAT:- The judgment of the Hon'ble Supreme Court LG Electronics India Private Limited 2018 (7) TMI 1905 - SC ORDER] has been relied upon by the learned Judge in the said order in Queen Agencies case [2021 (4) TMI 609 - MADRAS HIGH COURT] as stated that definite 20% need not be imposed in each and every case, even a lesser percentage can be imposed while passing an order under Section 220(6) of the Act.
If we take the said proposition this Court feels that, if at all the petitioner is having any grievance, that may be only to a limited extent to state that, 20% as has been sought for through the impugned order may be reduced to a lesser one. If it is a lesser one, we cannot once again remand the matter back to the respondent i.e., the assessing authority to use his discretion to fix a lesser percentage of the demanded amount to be paid by the petitioner/assessee.
In this context, since the demand under the assessment which is in question before the appellate authority is Rs. 12,86,72,780/-, which is comparatively a huge sum, instead of 20% demand by citing the Department Instruction No.1914 dated 29.02.2016, the assessing authority could have passed an order by making a demand of some lesser percentage.
Considering all this Court feels that, instead of remanding the matter back to the respondent for re-consideration, a direction can be given to the petitioner/assessee to make a payment of at least 15% of the demand and on that condition, the petitioner would be entitled to get a stay of the assessment order which is under appeal before the appellate authority. If such a direction is given as an interim arrangement, this Court feels that, the ends of justice would be met.
Thus dispose of this writ petition with the following order.
a. That the impugned order is modified to the effect that, instead of 20%, the petitioner/assessee shall pay 15% of the demand within a period of four weeks from the date of receipt of a copy of this order.
b. On this condition, there shall be an order of stay of the assessment order till the disposal of the appeal filed before the second respondent.
c. It is made clear that, within four weeks time if the payment of 15% of the demand as directed above has not been paid or complied with by the petitioner/assessee, the order of stay shall stand automatically vacated without any further reference to this Court.
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2022 (2) TMI 1394 - GUJARAT HIGH COURT
Direction to furnish security by way of cash deposit - money decree - the judgment-debtor has since date of the decree though had means to pay the amount of the decree for substantial part thereof has neglected to pay the same - Order XXI Rule 40(b) CPC - HELD THAT:- The present decree is money decree. The court below has noticed the conduct of the judgment-debtor reflecting his unwillingness to satisfy the decree. On the basis of the factual material before it, the conclusion is drawn by the court below that though the judgment-debtor has means to satisfy the decree but has neglected in discharging his obligation. Upon assessing the facts and conduct of the judgment-debtor the Executing Court has duly found that they are indicative of unwillingness and avoidance on part of the judgment-debtor to pay the decreetal amount despite availability of means with him to pay. The Court has considered therefore that order for furnishing security deserved to be passed. The view taken by the court below is reasonable on facts and in law.
When there are circumstances suggesting that despite possessing the means, the judgment-debtor has neglected and refused to pay the decreetal amount, furnishing of security by judgment-debtor is warranted. The security is considered proper to be solicited by the judgment-debtor to ensure that the rights of the decree holder are not defeated.
In exercise of powers Order XXI Rule 40(b) of the Code of the Civil Procedure, 1908, requires the judgment debtor to furnish security and sum of Rs. 12,89,19,458/- which is the equivalent amount to the worth of the book value of shares in the four Australian companies held by the judgment-debtor. The impugned order is proper and reasonable in law as such in directing the judgment-debtor in furnish security - while no ground exists to interfere with the said order requiring the judgment-debtor to furnish the security to the aforesaid extent, what becomes conspicuous in the impugned order that the said security is directed to be furnished by way of cash deposit with the Registry of this Court.
While maintaining the impugned order as well as the reasons supplied by the Court in so far it requires the judgment-debtor to furnish security, the direction in the order is modified to the limited extent that the judgment-debtor petitioner herein may furnish the security for the sum of Rs. 12,89,19,458/- by way of bank guarantee equal to the said amount - Application dismissed.
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2022 (2) TMI 1393 - RAJASTHAN HIGH COURT
Addition u/s 68 - unexplained unsecured loans obtained by the assessee - tribunal confirmed the view of the CIT (Appeals) that the additions made by the assessing officer were not sustainable - HELD THAT:- As observed that the companies through which the assessees had indulge into bogus accommodation entries, were not managed or controlled by Mr. Anand Sharma, who was supposed to be the kingpin. As it was observed that there was no link found in the documents and the financial statements of the companies concerned.
As noted that the assessee had produced the affidavit and the notices issued by the AO u/s 131 and 133(6) of the Act which was duly complied by the creditors. The statement of director of Ms. Royal Crystal Dealers Pvt. Ltd. was also recorded by the assessing officer while the director has confirmed the transaction of loan. The tribunal further observed that the assessment order was passed solely on the report of the Investigation Wing, Kolkata which merely contained the narration of the statements recorded during the investigation and the assessing officer had in his possession only the statement of Anand Sharma.
Tribunal was of the opinion that the assessing officer could not have made the additions in the hands of the assessee on the basis of the Investigation Wing at Kolkata to which the assessee was not privity to. The assessee was also not granted opportunity to cross-examine the persons whose statements were recorded by the investigation wing. Decided against revenue.
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2022 (2) TMI 1392 - CESTAT AHMEDABAD
Classification of goods - Fuel &oil stored in the Engine Room of the vessel - to be classified under 89.08 or 27.10? - HELD THAT:- It is found that on this issue much water has flown. There are contrary judgments of this Tribunal on this issue. However, the jurisdictional High Court in the case of PRIYA HOLDING (P) LTD VERSUS COMMISSIONER OF CUSTOMS, PREVENTIVE [2012 (11) TMI 532 - GUJARAT HIGH COURT] decided the issue in the favour of the assessee in as much as it was upheld that the Fuel/oil stored in the tanks in the Engine Room should be classified under CTH 89.08. Accordingly, this judgment of the Hon’ble Gujarat High Court is binding and in force.
The Fuel and oil stored in the Tanks in the Engine room of the vessel is classifiable under CTH 89.08 - impugned order set aside - appeal allowed.
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2022 (2) TMI 1391 - RAJASTHAN HIGH COURT
Smuggling - Absolute Confiscation of seized Gold - prohibited goods - power of the adjudicating authority in terms of Section 125 of Customs Act, to confiscate absolutely - HELD THAT:- Sub-section (1) of Section 125 provides that whenever confiscation of any goods is authorized by the Act, the officer adjudging it, the importation or exportation of goods which is prohibited may and shall in other cases offer an option to pay fine in lieu of confiscation. It is in this context that the counsel for the department has argued that the case falls under the first part of sub-section (1) of Section 125.
In a recent judgment dated 17.02.2022 Division Bench of this Court [2022 (2) TMI 1081 - RAJASTHAN HIGH COURT] has considered a very similar issue. It was a case in which the assessee had attempted to smuggle gold by concealing it in his handbag and not declaring the same upon arrival at the international airport. The authorities had provided absolute confiscation of gold and also imposed penalties. In the context of interpretation of Section 125 of the Customs Act, this Court held Whenever confiscation of goods is authorized under the Act, as per sub-section (1) of Section 125 the adjudicating officer has a discretion to offer redemption fine in lieu of confiscation in case of goods importation or exportation whereof is prohibited. In all other cases there is a statutory mandate on the adjudicating officer to offer such redemption fine. If the interpretation of Section 112 and 125(1) is not reconciled as above, this latter portion of sub-section (1) of Section 125 which covers all cases except where the importation or exportation of the goods is prohibited, would become otiose.
Attention drawn to the judgment of the Madras High Court in the case of COMMISSIONER OF CUSTOMS (AIR) VERSUS SAMYNATHAN MURUGESAN & CESTAT [2009 (4) TMI 77 - MADRAS HIGH COURT] in which view taken was slightly different. It is pointed out that the said decision was also upheld by the Supreme Court when the SLP was dismissed.
Petition dismissed.
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2022 (2) TMI 1390 - ITAT SURAT
Addition u/s 68 - unexplained share capital and share premium assessee company could not establish the genuineness of transaction - manadation of recording satisfaction - scope of amendment - CIT(A) deleted the addition - HELD THAT:- We note that with effect from assessment year 2013-14 section 68 has been amended to provide that if a closely held company fails to explain the source of share capital, share premium or share application money received by it to the satisfaction of the A.O., the same shall be deemed to be the income of the company u/s 68 of the Act.
The said amendment has been held to be prospective and not retrospective in Gagandeep Infrastructure Private Limited [2017 (3) TMI 1263 - BOMBAY HIGH COURT].
In a recent decision of Hindusthan Tea Trading Co. Ltd.. [2003 (3) TMI 53 - CALCUTTA HIGH COURT] it was held that the power of the assessing officer u/s 68 is not an absolute one. It is subject to his satisfaction where an explanation is offered. The power is absolute where the assessee offers no explanation.
The satisfaction with regard to the explanation is in effect an in-built safeguard in section 68 protecting the interest of the assessee. It provides for an opportunity to the assessee to explain the nature and source of the fund. Once it is explained, it is incumbent on the assessing officer to consider the same and form an opinion whether the explanation is satisfactory or not.
We are of the view that in assessee`s case the three ingredients of the Section 68 are satisfied to a reasonable extent, by the assessee. That being so, we decline to interfere in the order of ld CIT(A), his order on this issue is hereby upheld and grounds of appeal raised by the Revenue is dismissed.
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2022 (2) TMI 1389 - CALCUTTA HIGH COURT
Maintainability of appeal before HC on low tax effect - Tribunal holding that income of brokerage from dealing in shares in client account were to be allowed to the set off against speculation loss treated under Section 73, profit of sale of shares to be treated as Long Term Capital Gain and Short Term Capital Gain instead of normal business income, disallowance of interest expenditure ought to have been made under Rule 8D(2)(ii) and only dividend yielding investment are to be taken into account while calculating the disallowance under Section 14A - assessee submitted that the tax effect for the assessment year under consideration is below the threshold limit fixed by the CBDT Circular - HELD THAT:- As our attention was drawn to the Income Tax Computation Form appended to the assessment order from which we find that the total income computed is Rs. 1,04,65,829/- and the tax payable thereon in terms of the order of the assessing officer is nearly Rs. 35 lacs. Therefore, the appeal cannot be pursued by the revenue on the ground of low tax effect. Revenue appeal dismissed.
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2022 (2) TMI 1388 - SUPREME COURT
Re-auction of the entire properties by fixing the upset price higher than what has been fixed earlier - Sale in favour of highest bidder set aside - representations made by third parties, who did not even participate in the auction proceedings - HELD THAT:- Once the Appellant was found to be the highest bidder in a public auction in which 45 persons had participated and thereafter when the sale was confirmed in his favour and even the sale deed was executed, unless and until it was found that there was any material irregularity and/or illegality in holding the public auction and/or auction/sale was vitiated by any fraud or collusion, it is not open to set aside the auction or sale in favour of a highest bidder on the basis of some representations made by third parties, who did not even participate in the auction proceedings and did not make any offer.
Reliance placed in the case of JASBHAI MOTIBHAI DESAI VERSUS ROSHAN KUMAR HAJI BASHIR AHMED [1975 (12) TMI 167 - SUPREME COURT] where it was held that despite adequate opportunity, if a person has not lodged any objection at an appropriate stage and time, he could not be said to have been in fact, grieved - It is also required to be noted that the sale was confirmed in favour of the Appellant by the Commissioner, Endowments Department after obtaining the report of the Assistant Commissioner. Therefore, in the aforesaid facts and circumstances of the case, the High Court ought not to have ordered re-auction of the land in question after a period of 23 years of confirmation of the sale and execution of the sale deed in favour of the auction purchaser by observing that the value of the property might have been much more, otherwise, the object and purpose of holding the public auction and the sanctity of the public auction will be frustrated. Unless there is concrete material and it is established that there was any fraud and/or collusion or the land in question was sold at a throw away price, the sale pursuant to the public auction cannot be set aside at the instance of strangers to the auction proceeding.
n the present case, though Shri Jagat Kumar immediately after finalising the auction stated that he is ready and willing to pay a higher price, however, subsequently, he backed out. If the auction/sale pursuant to the public auction is set aside on the basis of the such frivolous and irresponsible representations made by such persons then the sanctity of a public auction would be frustrated and the rights of a genuine bidder would be adversely affected.
The impugned judgment and order passed by the Division Bench of the High Court is unsustainable and deserves to be quashed and set aside and is accordingly quashed and set aside - Appeal allowed.
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2022 (2) TMI 1387 - RAJASTHAN HIGH COURT
Reopening of assessment u/s 147 - Scope of Section 148A as newly inserted - Comparison between old and new provisions for reassessment - Individual identity of Section 148 as prevailing prior to amendment - applicability of the newly inserted provisions of Section 148A and the amendments brought inter alia w.e.f. 1.4.2021 - identity of Section 148 as prevailing prior to amendment and insertion of section 148A - HELD THAT:- As decided in SUDESH TANEJA WIFE OF SHRI CP TANEJA [2022 (1) TMI 1212 - RAJASTHAN HIGH COURT] Under no circumstances the extended period available in clause (b) of sub-section (1) of Section 149 which we may recall now stands at 10 years instead of 6 years previously available with the revenue, can be pressed in service for reopening assessments for the past period. This flows from the plain meaning of the first proviso to sub-section (1) of Section 149. In plain terms a notice which had become time barred prior to 01.04.2021 as per the then prevailing provisions, would not be revived by virtue of the application of Section 149(1)(b) effective from 01.04.2021. All the notices issued in the present cases are after 01.04.2021 and have been issued without following the procedure contained in Section 148A of the Act and are therefore invalid.
Also held by virtue of notifications dated 31.03.2021 and 01.04.2021 issued by CBDT substitution of reassessment provisions framed under the Finance Act, 2021 were not deferred nor could they have been deferred. The date of such amendments coming into effect remained 01.04.2021.
In the result we find that the notices impugned in the respective petitions are invalid and bad in law. The same are quashed and set aside. The learned Single Judge committed no error in quashing these notices.
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2022 (2) TMI 1386 - NATIONAL COMPANY LAW TRIBUNAL KOLKATA BENCH
Seeking withdrawal of SLP - settlement agreement entered into between parties - HELD THAT:- Three settlement agreements all dated 21.01.2022 have been entered into with the three financial creditor who are petitioners in the present petition - The corporate debtor has agreed to settle the outstanding between them in terms of the settlement agreements in which future payments are also envisaged the settlement agreements are taken on record and shall form a part of this order.
The undertakings given shall be treated as undertakings given to the court. CP No. 1621/2018 shall stand dismissed as withdrawn in accordance with the three settlement agreements.
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2022 (2) TMI 1385 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI.
Admission of application - initiation of CIRP - Corporate Debtor failed to make repayment of its dues - HELD THAT:- The figure of Rs.1.35 Crore which was mentioned in the Reply was reflected in the oral submission made by the Counsel for the Corporate Debtor which has been noted by the Adjudicating Authority. There being financial debt due which was an admitted fact, there are no error in the impugned judgment of the Adjudicating Authority by which Application has been admitted. Counsel for the Corporate Debtor submits that he does not admit the amount of default. An amount of Rs. 1.35 Crore having been admitted, the Application was rightly admitted.
It is open for the Corporate Debtor to enter into settlement and on the basis of settlement, if any, may file an Application under Section 12A before the Competent Authority i.e. Adjudicating Authority for passing appropriate order. It is made clear that the observations made in this order are without prejudice to the rights and contentions of the parties.
Appeal dismissed.
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2022 (2) TMI 1384 - BOMBAY HIGH COURT
Reopening of assessment - HELD THAT:- As the order passed by this court [2022 (1) TMI 543 - BOMBAY HIGH COURT] will squarely cover this petition as well and, therefore, this petition can also be disposed in those terms.
Petition accordingly allowed. Notice dated 6th March 2019 issued u/s 148 of the Income Tax Act 1961 for A.Y.-2012-2013 and the order disposing of the objections are hereby quashed and set aside.
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2022 (2) TMI 1383 - CESTAT MUMBAI
Condonation of delay of 2004 days in filing the appeal - applicant has stated that due to incorrect advice of the Consultant, instead of filing the appeal before the Tribunal, the Revision Application was filed before the Government of India in terms of Section 129A read with Section 129DD of the Custom Act 1962 - HELD THAT:- Consequent upon rejection of the application by the Revisionary Authority, the applicant has filed the present appeal before the Tribunal along with application for condonation of delay within the reasonable time. Under the facts and circumstances of the case, the delay in filing the appeal can be condoned, in the interest of justice. Accordingly, miscellaneous application filed by the applicant is allowed.
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