|
Advanced Search Options
Case Laws
Showing 41 to 60 of 1491 Records
-
2023 (3) TMI 1451 - MADRAS HIGH COURT
Condonation of Delay of 380 days - The Tribunal rejected the condonation of delay petition, finding the reasons for the delay not to be bona fide - HELD THAT:- The court referred to several decisions, including N. Balakrishnan v. M. Krishnamurthy [1998 (9) TMI 602 - SUPREME COURT] and Esha Bhattacharjee v. Raghunathpur Nafar Academy [2015 (1) TMI 1053 - SUPREME COURT], emphasizing the importance of a liberal, justice-oriented approach in dealing with applications for condonation of delay.
The legal position discernible from the aforesaid decisions is that the question of limitation is not based on technical consideration, but is on the principles of public policy and equity; and the substantial justice is paramount consideration and pivotal.
The court set aside the order of the Income Tax Appellate Tribunal and condoned the delay in filing the appeal. The matter was remanded to the Tribunal for a decision on merits, in accordance with the law.
-
2023 (3) TMI 1450 - DELHI HIGH COURT
Condonation of delay - present Appeal has been filed after delay of 4 years and 100 days as per the Appellant/Revenue [i.e.,1560 days] and 1589 days as per the Registry of this Court - Connection usage charges paid to Foreign Telecom Operator(s) - 'Royalty' OR 'Fees' for Technical Services - HELD THAT:- The law requisites that an applicant seeking condonation of delay is required to explain the delay in filing the Appeal. The reasons as cited in the Application for condonation of delay as filed by the Appellant/Revenue completely fails to explain the immense delay of over 4 years and a 100 days.
The record before this Court shows that even after the filing of the Appeal, the Appellant/Revenue has taken adjournments on almost each date of hearing over the last two years.
In any event, the Apex Court in Bherulal case [2020 (10) TMI 1231 - SUPREME COURT] while relying upon an earlier decision in Postmaster General And Others. Vs. Living Media India Limited and Another [2012 (4) TMI 341 - SUPREME COURT] has categorically held that the law of limitation binds everybody including the Government and there is no separate statute of limitation provided for governmental appeals.
As such, we find that the Appellant/Revenue has not been able to give any adequate or sufficient reasons, to explain the delay. We are therefore unable to condone the huge delay of more than 4 years and 100 days in filing of the present Appeal, which is dismissed as being time barred.
-
2023 (3) TMI 1449 - SC ORDER
Principles of natural justice - Resolution Plan already approved during the pendency of this Application - Applicant/Appellant was not given opportunity to meet the Chairman-cum-Managing Director, who is the Competent Authority for considering the proposal of the Applicant/Appellant who is an MSME - HELD THAT:- This Court is of the opinion that the impugned order has already granted the liberty to the appellant to approach the National Company Law Tribunal (NCLT) - In case such a course is adopted, the respondents shall not object to the consideration by the NCLT only on the ground of jurisdiction.
The civil appeal is disposed of
-
2023 (3) TMI 1448 - CALCUTTA HIGH COURT
Notice u/s 24(1) of the Prohibition of Benami Property Transactions Act, 1988 - HELD THAT:- Both the parties jointly submit that the issue of legality of the aforesaid notice is covered in favour of the petitioner, by a judgement of the Hon’ble Supreme Court which was followed by this Court in order in Deific Abode LLP – Vs – Union of India & Ors [2022 (11) TMI 1438 - CALCUTTA HIGH COURT]
Considering the joint submission of the parties that the issue of legality of the aforesaid notices are covered by the aforesaid order of this Court in favour of the petitioner, this writ petition is disposed of by setting aside the impugned notice under Section 24(1) of the Prohibition of Benami Property Transactions Act, 1988 and all subsequent proceedings on the basis of the aforesaid notices are also quashed and all legal consequence will automatically follow.
-
2023 (3) TMI 1447 - CALCUTTA HIGH COURT
Notice u/s 24(1) of the Prohibition of Benami Property Transactions Act, 1988 - HELD THAT:- Both the parties jointly submit that the issue of legality of the aforesaid notice is covered in favour of the petitioner, by a judgement of the Hon’ble Supreme Court which was followed by this Court in order in Deific Abode LLP – Vs – Union of India & Ors [2022 (11) TMI 1438 - CALCUTTA HIGH COURT]
Considering the joint submission of the parties that the issue of legality of the aforesaid notices are covered by the aforesaid order of this Court in favour of the petitioner, this writ petition is disposed of by setting aside the impugned notice under Section 24(1) of the Prohibition of Benami Property Transactions Act, 1988 and all subsequent proceedings on the basis of the aforesaid notices are also quashed and all legal consequence will automatically follow.
-
2023 (3) TMI 1446 - CALCUTTA HIGH COURT
Notice u/s 24(1) of the Prohibition of Benami Property Transactions Act, 1988 - HELD THAT:- Both the parties jointly submit that the issue of legality of the aforesaid notice is covered in favour of the petitioner, by a judgement of the Hon’ble Supreme Court which was followed by this Court in order in Deific Abode LLP – Vs – Union of India & Ors. [2022 (11) TMI 1438 - CALCUTTA HIGH COURT]
Considering the joint submission of the parties that the issue of legality of the aforesaid notices are covered by the aforesaid order of this Court in favour of the petitioner, this writ petition is disposed of by setting aside the impugned notice under Section 24(1) of the Prohibition of Benami Property Transactions Act, 1988 and all subsequent proceedings on the basis of the aforesaid notices are also quashed and all legal consequence will automatically follow.
-
2023 (3) TMI 1445 - ANDHRA PRADESH HIGH COURT
Diversion of funds of the Society and misusing money for wrongful gain - HELD THAT:- The de facto complainant herein filed an affidavit to that extent tendering his unconditional consent to quash the subject matter. Hence, at this stage, without going into the merits of the case and in view of the common judgment passed by this Court in Writ Appeal Nos.234, 142, 149, 204 & 253 of 2022 and taking into consideration of affidavit filed by the de facto complainant tendering his unconditional consent and no objection in quashing the proceedings in respect to the subject crime, this Court is of the view that continuation of proceedings would amount to abuse the process of law.
The Criminal Petition is allowed, quashing the proceedings in Crime No.85 of 2021 of Mangalagiri Rural Police Station, Guntur Urban, Guntur District, against the petitioners herein.
-
2023 (3) TMI 1444 - CALCUTTA HIGH COURT
Maintainability of petition - Rejection of application of the petitioner for refund - appealable order or not - HELD THAT:- This Court is constrained to record that learned advocate appearing for the petitioner has made misrepresentation and incorrect statement by trying to make out a case that petitioner’s application for refund was rejected on the ground of limitation by not considering the period of limitation protected by the order of the Supreme Court during the Covid-19, which is totally incorrect and false statement, as appears from the aforesaid impugned order of rejection from which it is found that adjudicating authority has specifically recorded that the claim of the petitioner is not time barred and claim has been rejected on some other grounds.
Petition is dismissed on the ground of availability of alternative remedy by way of statutory appeal.
-
2023 (3) TMI 1443 - DELHI HIGH COURT
Income taxable in India - PE in India - as per ITAT service charges received by the Appellant under the various SOSA Agreements were taxable as royalty -
Whether the Tribunal misdirected itself both in law and on facts in holding that service charges received by the Appellant under the various SOSA Agreements were taxable as royalty? - Whether the Appellant has Permanent Establishment in India within the meaning of the DTAA? - Whether the findings recorded by the Tribunal, in paragraphs 56, 57 and 59 are perverse and contrary to the terms of the Strategic Oversight Services Agreement (SOSA)? - Is Article 7(1) of the DTAA at all applicable to the Appellant, having regard to the fact that it has incurred losses in the relevant financial years?
HELD THAT:- In so far as the fourth question is concerned, this Court had, on 16.01.2023, expressed its view that the said question is required to be considered by a larger Bench, considering this Court’s reservation regarding the decision of the coordinate Bench of this Court in the case of Commissioner of Income Tax (International Taxation)-2 v. M/s Nokia Solutions and Networks OY [2022 (12) TMI 700 - DELHI HIGH COURT]
Appellant states that, at this stage, the appellant does not wish to press the fourth question as stated above because the appellant’s appeals can be decided on the basis of the first three questions. He, however, reserves the right for pressing the said question at an appropriate stage if the need so arises.
This Court considers it apposite to examine the first three questions as set out above in the first instance.
-
2023 (3) TMI 1442 - MADRAS HIGH COURT
Assessment of private discretionary trusts- prayer is for a mandamus seeking directions to modify Form ITR-2 in a manner so as to enable the petitioners to file returns of income electronically under the status of individual - specific case of the petitioners, that a private discretionary trust acquires the status of an individual, and that the trustees of a discretionary trust must be assessed under that status - respondents proceeds on the basis that the petitioner is liable to be taxed in terms of Section 160(1)(iv) read with Section 164(1)(i) of the Income Tax Act, 1961, at maximum marginal rate.
HELD THAT:- Mandamus as sought for by the petitioner is not liable to be granted. It does not fall within the domain of the Court to structure the Forms and contents thereof, as applicable to specific categories of assessees.
Rule 112 of the Income Tax Rules, 1962 provides for the prescription of Forms by the Board, and hence it is Board, which is the appropriate authority to take note of the grievances of the petitioners and do the needful, if found appropriate. Learned counsel for the petitioner is unsure as to whether such representation has already been filed before the Board.
Hence, the petitioners are hence permitted to file representations afresh before the Board, if not already filed, and pursue the same in order to obtain remedy, as appropriate. Let the representations/remainders be disposed within a period of twelve (12) weeks from date of receipt of the same by the Central Board of Direct Taxes, in accordance with law. These writ petitions are disposed in terms of the aforesaid order. No costs. Connected miscellaneous petitions are closed.
-
2023 (3) TMI 1441 - CESTAT AHMEDABAD
CENVAT Credit - amount paid towards technical knowhow under the head of IPR services - denial on the ground that since the appellant paid R& D cess on the IPR service, service tax was not payable as per notification no. 17/2004- ST and hence the appellant is not eligible for cenvat credit - reverse charge mechanism - denial of refund claim on the ground that the appellant did not submit evidence to establish that the benefit of notification no. 17/2004- ST was available to them.
CENVAT Credit - HELD THAT:- From Section 5 A it is clear that the assessee is bound to avail an unconditional (absolute) notification but there is no compulsion to avail a conditional notification. As per the above provision the appellant enjoys the option of availing the conditional notification or not. Therefore, if the appellant have paid the Service tax without availing Notification No. 17/2004-ST the same is not objectionable and the payment of service tax is legal and correct. Consequently, the cenvat credit on such service tax paid Can also not be disputed.
In catena of case laws it is held that even though the service tax on any service is not payable but assessee pays the service tax the recipient is entitled for the cenvat credit - reliance can be placed in COMMISSIONER OF CENTRAL EXCISE, CHENNAI-I VERSUS CEGAT, CHENNAI [2005 (1) TMI 125 - HIGH COURT OF JUDICATURE AT MADRAS] and COMMISSIONER, C. EX., & CUSTOMS VERSUS PURITY FLEXPACK LTD. [2006 (11) TMI 105 - HIGH COURT, GUJARAT].
The appellant are entitled for the cenvat credit of the total amount paid as service tax. Accordingly, the impugned order set aside - appeal allowed.
Refund claim - HELD THAT:- Since the entire amount of cenvat credit of the service tax paid by the appellant is allowed, there is no question of further refund as claimed.
-
2023 (3) TMI 1440 - ITAT BANGALORE
TP Adjustment - Provision for Bad and Doubtful Debts as operating expenditure - HELD THAT:- This Tribunal in the case of ACI Worldwide Solutions Pvt. Ltd [2019 (9) TMI 1595 - ITAT BANGALORE] as held that provision for bad and doubtful debts should be treated as operating expense while computing the PLI OP/OC of the comparable companies which ultimately remains for comparison. In view of the above order of the Tribunal, we direct the AO/TPO that provisions for doubtful debts to be considered as operating expenses.
Grant of Working Capital Adjustment - Tribunal in the case of Altimetrix India Pvt. Ltd. [2022 (7) TMI 1400 - ITAT BANGALORE] there would remain no comparable uncontrolled transactions for the purpose of comparison. Transfer pricing exercise would therefore fail. Therefore in keeping with the OECD guidelines, endeavor should be made to bring in comparable companies for the purpose of broad comparison. Therefore the working capital adjustment as claimed by the Assessee should be allowed.
Comparable selection - Deselection of companies of Manipal Digital Systems Pvt. Ltd., Datamatics Business Solutions Ltd. and Infosys BPO Limited as functionally dissimilar.
CES Limited is doing both BPO and KPO services - segregation of ITes services has to be categorically conducted before classifying as functionally comparable with another. In this case Revenue Authorities have only looked into the revenue earning from ITes segment and included this company as comparable. The facts remains both these companies are functionally different. We therefore, direct the AO/TPO to exclude CES Limited from the final set of comparables with that of the assessee company.
Ultramine Pigments Ltd - We are of the opinion that this is the initial filter on the basis of which the comparables are selected. So if a company falls this filter, then it will not be selected as a comparable at the first place. Service income has to be seen at the entity level in all the cases. Hence, the TPO is directed to exclude the company as comparable. As it fails the service income filter adopted by the TPO, we do not find it contingent to discuss on the other allegation of the assessee on exclusion of this filter. The intangibles referred in the Asset Schedule represent the computer software.
For any software company, it is essential to have rights of software for coding purposes. Therefore, such intangibles cannot be equated with the intangibles acquired/created by the assessee to provide specific enduring benefit. We also note that intellectual property referred to, as per the annual report, is amortized over its estimated useful life of 2 years. The fixed asset schedule for the year ended 31.3.2017 does not show any intellectual property. Also, the assessee has failed to establish that such differences have material effect on the margin of the above company, in terms of clause (i) of sub--rule (3) of Rule 10B, which provides that an uncontrolled transaction shall be comparable to an international transaction if none of the differences, if any, between enterprises entering into business transactions or likely to materially affect the profit arising from such transactions in the open market. Hence, these pleas were rejected by the ld. DRP.
The above findings of the ld. DRP are self-contradictory. This should be re-examined at the end of AO/TPO. Accordingly, this issue is set aside to the file of AO/TPO for reconsideration.
SPI Technologies Ltd. be excluded as functionally dissmilar.
BNR Udyog Ltd. assessee has passed through the foreign exchange filter and it should be considered as a comparable.
Crystal Voxx Ltd. - We accede to the request of the assessee’s counsel and remit it back to the file of AO/TPO for fresh consideration to examine whether assessee passed through all the filters adopted by the TPO or not. The issue is remitted to the file of AO/TPO for fresh consideration.
R System International Ltd. and Bhilwara Technology Ltd. issue is remitted to the file of AO/TPO for fresh consideration.
ISN Global Ltd - As per the information in the annual report, the company is into ITES services and functionally comparable to the assessee. Hence, the ld. DRP directed the TPO to verify the financials and consider the company for inclusion if satisfies all the filters. DRP is not justified in excluding this comparable from the list of comparable. Accordingly, we direct the AO/TPO to include this company ISN Global Solutions Ltd. in the list of comparables.
-
2023 (3) TMI 1439 - SC ORDER
Removal of RP - expunging remarks against CoC as well as RP - it was held by NCLAT that though some of the respondents were allowed to participate in 1st CoC Meeting subsequently without prior approval of the Adjudicating Authority they were restrained from participating in the proceeding. Similarly number of other irregularities were committed by the RP. In such situation it was imperative for the Adjudicating Authority to pass order for removal of the RP by the impugned order.
HELD THAT:- There are no error in the order of the National Company Law Appellate Tribunal in [2022 (12) TMI 499 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI] - appeal dismissed.
-
2023 (3) TMI 1438 - SECURITIES APPELLATE TRIBUNAL, MUMBAI
Ex-parte ad-interim order with regard to the trades done by the appellants - orchestrated scheme to induce any unsuspecting investors to trade in the shares of the scrip in question featured in the alleged videos which were uploaded on the YouTube channels - alleged fraudulent and manipulative scheme which was violative of Section 12A of the SEBI Act read with Regulations 3 and 4 of the PFUTP Regulations - only allegation against the appellants are that they are volume creators and are connected to noticee no. 1 - HELD THAT:- Ad-interim orders can be passed in case of urgency or where it is found that the noticee is about to dispose of the property. In the absence of any finding that the appellants will defalcate the unlawful gains, the impounding order constitutes malice in law. Further, the power must be exercised with extreme care and caution and should be resorted to only as a last resort or measure. Merely by stating that the appellants may divert the unlawful gains is not based on any cogent evidence rather on surmises and conjectures and formation of unguided subjected satisfaction which is not permissible.
We however find that there is an admission of the appellant Arshad Warsi that he is connected with noticee no. 1 who is alleged to have been the main player in the promoting the videos and thereby misleading the investors. Investigations are still going on and the possibility of the appellants being involved in the manipulative scheme cannot be ruled out. However, at this stage, the impugned order is bereft of any evidence against the appellants requiring passing of such strong and harsh order. However, balance of convenience is required to be considered at this stage.
Considering the aforesaid following directions passed :-
(i). The appellants are restrained from trading in the scrip of Sadhna during the pendency of the investigation.
(ii). The appellants shall deposit 50% of the alleged unlawful gains in an escrow account with a scheduled commercial bank within 15 days from today. For the balance amount, the appellants shall give an undertaking within the same period of 15 days that they will deposit the balance amount within 30 days from the date of final order, if any, passed by the WTM.
(iii). This escrow account shall be kept in an interest bearing escrow account and a lien will be created in favour of SEBI.
(iv). Directions (i), (ii) and (iii) would continue to operate during the investigation.
(v). The appeal is partly allowed.
The impugned order in so far as it relates to the said appellant is quashed. The appeal is allowed. We however restrain the appellant from dealing in the scrip of Sadhna during the pendency of the investigations.
We also direct SEBI to complete the investigation within six months and initiate appropriate proceedings, if any, against the appellants. If the investigations remain incomplete and no proceedings are initiated, it will be open to the appellants to apply for modification of our order.
Any observation, findings given in this order is only tentative in nature and will not affect the investigation. Further, neither party will rely upon any observation / finding in any proceedings before any authority. In the circumstances of the case, parties shall bear their own costs.
-
2023 (3) TMI 1437 - ITAT DELHI
Assessment u/s 153A - unexplained investment being cash payment - seized document being “Receipt in full discharge of claim against Farm House at Gadaipur” and receipt against payment of Farm House - first receipt was found from the business premises of the partnership firm and present assessee is a partner of the said firm - bone of contention is that the alleged payment of Rs. 6.50 crores in cash, with the two payments made by cheques were found to be reflected in the bank statement and the Assessing Officer/ld. CIT(A) presumed that the payment of Rs. 6.50 crores in cash was also made by the assessee for effecting the relinquishment of 50% of shares in the Farm House
HELD THAT:- It would be imperative to understand the legal status of a ‘partnership firm’ and a ‘partner’ - it is clear that in so far as Income tax assessments are concerned, a ‘partnership firm’ and a ‘partner’ are distinct entities, which means that any document found from the business premises of a partnership firm cannot, ipso facto, mean that the same was found from the possession of a partner.
There is no dispute that the impugned document, around which the quarrel revolves, was found from the business premises of the partnership firm.The above document is unsigned and it can be seen that there are four legal heirs of the deceased Late assessee. Most surprisingly, none of the legal heirs have been examined by the Assessing Officer in respect of the alleged receipt of Rs. 6.50 crores by them for the alleged relinquishment of shares in the said Farm House.
We have given thoughtful consideration to the assessment order but fail to find any reference to any partnership deed of the firm in which the deceased Late Shri Kulbir Singh Punihani was a partner alongwith his brothers. We do not know what the relevant clauses of the partnership deed are relating to the demise of any working partner. Therefore, we are not in a position to understand what would be the fate of a partnership firm on the demise of a partner.
It is clear that capital account of Late Shri Kulbir Singh Punihani was transferred to loan account of Smt. Saloni Punihani and which was subsequently paid by the firm over a period of time. It is also clear from the afore-stated affidavit that cheque payments found in the alleged receipt was loan amount given by Shri Tarlok Singh and Shri Narinder Singh to Smt. Saloni Punihani in their individual capacity. There is a categorical mention that neither Shri Tarlok Singh nor Shri Narinder Singh advanced any sum in cash.
There is not even a whisper about these affirmations made by Smt Saloni Punihani in the assessment order. We are of the considered view that the entire assessment and order of the first appellate authority have been made only on presumptions, surmises and conjectures, there being no supportive/conclusive evidence to justify the impugned addition.
As per the balance sheet which is drawn after the death of Shri Kulbir Singh Punihani has capital account in the name of Shri Tarlok Singh Punihani, Narinder Singh Punihani and Shri Amarjeet Singh Punihani and capital account of Shri Kulbir Singh Punihani was transferred to Smt. Saloni Punihani, wife of the assessee, and is reflected under the head “unsecured loan”, which means that all that the firm owes to the erstwhile partner is the unsecured loan which was repaid subsequently by the partnership firm.
In light of these facts, the impugned additions do not have any legs to stand on.
The undisputed fact is that the alleged documents were found from the business premises of the partnership firm M/s Punihani International. Assessments of the assessee are unabated assessments on the date of search, which means that the ratio laid down by the Hon'ble Delhi High Court in the case of Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] and Meeta Gutgutia Prop. M/s. Ferns N Petals [2017 (5) TMI 1224 - DELHI HIGH COURT]squarely apply - Thus we do not find any merit in the impugned additions and, therefore, we direct the Assessing Officer to delete the impugned additions from the hands of both the appellants under consideration.
-
2023 (3) TMI 1436 - SUPREME COURT
Murder - reliance placed on the evidence of the so called eyewitnesses or not - Appreciation of oral evidence - whether High Court committed a serious error in dismissing the appeal filed by the two Appellants herein against the judgment and order of conviction passed by the Trial Court? - Principles of Res Gestae - Exception 4 to Section 300 of IPC.
Appreciation of oral evidence - HELD THAT:- The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence - The oral evidence of all the three eyewitnesses is consistent and there is no good reason to disbelieve the ocular version as narrated by the three eyewitnesses. The Trial Court as well as the High Court looked into the oral evidence of all the three eyewitnesses referred to above closely and have recorded a concurrent finding that they are reliable witnesses.
In the exercise of the power Under Article 136 of the Constitution of India, this Court, normally would not interfere with the concurrent findings of fact, except in very special circumstances or in the case of a gross error committed by the courts below. Only where the High Court ignores or overlooks "crying circumstances" and "proven facts" or "violates and misapplies well established principles of criminal jurisprudence" or refuses to give benefit of doubt to the Accused persons, etc., would this Court step in to correct the legally erroneous decisions - this Court, while considering the evidence on record took note of a suggestion which was put to one of the witnesses and considering the reply given by the witness to the suggestion put by the Accused, arrived at the conclusion that the presence of the Accused was admitted.
It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the Accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence - It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the Accused and this is exactly what has happened in the present case.
The suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the Accused.
Take for instance in case of a charge of rape Under Section 376 of the Indian Penal Code, the statement of the Accused contained plain denial and a plea of false implication, a subsequent suggestion by the defence lawyer to the prosecutrix about consent on her part would not, by itself, amount to admission of guilt on behalf of the Accused - if a specific question is put to a witness by way of a suggestion indicative of exercise of right of private defence then the Court would well be justified in taking into consideration such suggestion and if the presence of the Accused is established the same would definitely be admissible in evidence.
Principles of Res Gestae - HELD THAT:- The Rule embodied in Section 6 is usually known as the Rule of res gestae. What it means is that a fact which, though not in issue, is so connected with the fact in issue "as to form part of the same transaction" becomes relevant by itself. To form particular statement as part of the same transaction utterances must be simultaneous with the incident or substantial contemporaneous that is made either during or immediately before or after its occurrence - Sections 6 and 7 of the Act 1872 in the facts and circumstances of the case, in so far as, the admissibility of a statement of the PW 3 Nasir Rajjak Khan coming to know about incident, immediately from the PW 1 Asgar Shaikh that Abbas Baig had been seriously assaulted and that Asgar Shaikh had also suffered injuries and admitted by the PW 1 Asgar Shaikh in his evidence would be attracted with all its rigour.
Exception 4 to Section 300 of IPC - HELD THAT:- There is no dispute that the death of the deceased occurred due to culpable homicide and not due to accident or suicide - It is proposed to consider whether the incident comes within any of the exceptions indicated in Section 300 of the Code - the sine qua non for the application of an Exception to Section 300 always is that it is a case of murder but the Accused claims the benefit of the Exception to bring it out of that Section and to make it a case of culpable homicide not amounting to murder. It is assumed that this would be a case of murder and it is for the Accused to show the applicability of the Exception - On a plain reading of Exception 4, it appears that the help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found.
It is convincing that no case is made out by the Appellants to interfere with the impugned judgment and order of the High Court - appeal dismissed.
-
2023 (3) TMI 1435 - CESTAT MUMBAI
CENVAT Credit - input services - denial of credit on the ground that input service was not used in or in relation to manufacture of finished goods - HELD THAT:- Interpreting the definition of Input Services as per Rule 2 (l) of CENVAT Credit Rules, 2004 for the period prior to 01.04.2011 a larger bench of Tribunal has in case of M/S. RELIANCE INDUSTRIES LTD., VADODRA VERSUS COMMISSIONER CENTRAL EXCISE & SERVICE TAX (LTU) , MUMBAI [2022 (4) TMI 1357 - CESTAT MUMBAI (LB)] held that The definition of “input service” is of wide import and covers not only input services which have a nexus with the manufacture of the final product (covered by the first limb), but also other input services, which do not have such a nexus, and are covered by the other limbs of the definition. Each limb of the definition is independent and, therefore, if an assessee can satisfy any one of the limbs, the benefit of Cenvat credit would be available, even if the assessee does not satisfy the other limbs of the definition.
For the period prior to amendments made in the definition of input services, the outdoor catering services availed by the appellant for providing canteen services to their employees are input services - In view of the Circular No 943/4/2011-CX dated 29.04.2011 the CENVAT Credit availed on these two invoices cannot be denied.
There are no merits in the impugned order, and same is set aside - appeal allowed.
-
2023 (3) TMI 1434 - ITAT KOLKATA
Disallowance u/s 14A - expenditure incurred on earning exempt income - HELD THAT:- There is no specific finding of the lower authorities indicating that the interest bearing funds have been applied for investment purposes on the basis of entries appearing in the books of accounts.
Disallowance made by ld. AO is merely based on the average investments of the assessee. Hon'ble Supreme Court of India in the case of Reliance Industries Ltd. [2019 (1) TMI 757 - SUPREME COURT] affirmed the view taken by the Tribunal that if interest free funds available with the assessee are sufficient to meet its investment then it could be presumed that investments were made from the interest free funds available to the assessee. Applying this ratio on the issue in the instant appeal we find that the assessee had interest free funds in the form of share capital and reserve and surplus as on 31.03.2012 at Rs. 73.79 Cr approx. which is much more than investments in shares and mutual funds at Rs. 39.91 Cr. Therefore, it can be safely presumed that interest free funds have been applied for the purpose of making investments in shares and therefore, interest disallowance of Rs. 14,74,087/- is uncalled for and the same is deleted.
Disallowance at the rate of 0.5% of the average investment made under Rule 8D(2)(iii) of the Rules the contention of the assessee taking shelter of the judgment of REI Agro Ltd. [2022 (3) TMI 1549 - CALCUTTA HIGH COURT] is that such disallowance should be made only in relation to income which does not form part of total income and this can be done only taking into consideration the investment which has given rise to such income which does not form part of total income.
In the instant case we notice that the exempt income is not only from dividend but also from long term capital gain from sale of equity shares. No specific details have been filed by the assessee in support of its contention and prayer is made to restore the issue to ld. AO which will keep the issue live. We, on perusal of the audited balance sheet noticed that the investments constitute investment in equity shares at Rs. 10.10 Cr, investment in mutual funds and venture capital funds at approx. 6 Cr and other investments in quoted and unquoted investments. So far as the investments in mutual funds are concerned the assessee is charged by such mutual fund companies for maintaining the investments.
So, no additional expenditure needs to be incurred to keep the investments in the mutual funds. We, therefore, in order to end the litigation and taking into consideration the investments of the assessee company, sustain the disallowance at Rs. 6 lakh under Rule 8D(2)(iii) of the Act. Therefore, the grounds raised by the assessee against the disallowance made u/s 14A are partly allowed and disallowance is sustained at Rs. 6 lakh, and thus, the assessee gets a relief of Rs. 27,86,993/-.
Disallowance u/s 14A added to the book profit for the purpose of computing the income u/s 115JB - HELD THAT:- We are inclined to hold that so far as the disallowance u/s 14A of the Act which is to be considered for computing total income under the normal provision of Income Tax Act and it cannot be considered for the purpose of computing book profit u/s 115JB of the Act, however, taking note of Clause ‘f’ to Explanation ‘1’ of Section u/s 115JB of the Act which provides that for purpose of computing book profit the same should be increased by the amount or amounts of expenditure relatable to any income to which Section 10 (other than the provisions contained in clause (38) thereof) or Section 11 or Section 12 apply and therefore, for the purpose of Clause ‘f’ to Explanation ‘1’ of Section 115JB of the Act an ad-hoc disallowance is made at Rs. 3 lakh and the same should be added to the book profit for the purpose of Section 115JB of the Act. Therefore, ground raised by the assessee is partly allowed.
Addition u/s 68 for unexplained share capital and share premium - HELD THAT:- Considering the financial details referred of the alleged share subscribers as well as the assessee company and the mode of making investment and written compliance by the share subscribers directly to ld. AO and the assessee having discharged the initial onus casted upon it and ld. AO having failed to point out any defect thereto, we are inclined to hold that ld. CIT(A) erred in sustaining the addition u/s 68 of the Act and thus, reverse the finding of ld. CIT(A) and delete the additio and allow ground raised by the assessee.
Unreconciled duty drawback - HELD THAT:- As on perusal of the details filed by the assessee in the form of the paperbook as well as details of duty drawback on examining the complete details of the duty drawback found that the alleged sum was sanctioned by the appropriate authority in the subsequent year and has been offered to tax in the return of income for AY 2019-20. The details of income for AY 2019-20 have been filed before us and we, on perusal of the same find merit in the statement made by the assessee and are inclined to hold that the alleged sum of Rs. 2,03,823/- though was applied for duty drawback during AY 2018-19 but it was finally received by the assessee during AY 2019-20 after being sanctioned by the appropriate authority and the same has been duly offered to tax in the income for AY 2019-20. Therefore, no addition is called for unaccounted duty drawback. Therefore, ground raised by the assessee is allowed.
Disallowance of bad debts claimed for alleged non-submission of the proof - HELD THAT:- Since the sales have been duly accounted for and certain portions of the sundry debtors which could not be recovered have been claimed to be bad debts and this claim of the assessee is allowable in view of the ratio laid down in the case of TRF Limited[2010 (2) TMI 211 - SUPREME COURT] - We are inclined to hold that the assessee has made a justified claim of bad debts u/s 36(1)(vii) of the Act and the same deserves to be allowed.
Addition u/s 68 - unexplained unsecured loan taken from 7 body corporates and also disallowing the interest paid on such loans - HELD THAT:- Assessee has successfully discharged its onus of proving the identity of the loan creditors which are body corporates in the instant case duly registered with Ministry of Corporate Affairs, having PAN and regularly filing the returns, further creditworthiness of the transaction is proved with the fact that they have been carried out through banking channel and sufficient funds in the form of share capital and reserve and surplus available with the loan creditors to explain the amount of loan given and the genuineness of the transaction is proved with the fact that the assessee company is carrying out regular business activity and huge turnover is achieved year by year and for business needs the said loan has been taken and the major portion of the unsecured loan has been repaid in the year itself and only a minor sum was paid in the subsequent year and all transactions were carried out through banking channel, interest paid on the loans and tax at source has been deducted and duly reflected by the alleged loan creditors in their income tax return and therefore, we fail to find any justification in the action of ld. AO invoking the provisions of Section 68 of the Act.
We, thus, set aside the finding of ld. CIT(A) and delete the addition made u/s 68 and further hold that invoking the provisions of Section 115BBE of the Act was not justified and further, since provisions of Section 68 of the Act are held to be wrongly invoked and the alleged transaction is held to be genuine, the interest expenditure incurred on alleged loans is also allowable to the assessee. Thus, ground of the assessee’s appeal are allowed.
Deduction u/s 80G - CSR expenses incurred by the assessee already stands disallowed in the computation of income - HELD THAT:- Tribunal in the case of M/s. JMS Mining Pvt. Ltd. [2021 (7) TMI 907 - ITAT KOLKATA] has allowed the deduction u/s 80G of the Act on CSR expenses - Assessee appeal allowed.
-
2023 (3) TMI 1433 - ITAT DELHI
TP adjustment - Advertisement, Marketing and Promotion (AMP) expenses, alleged to have been incurred on behalf of the Associated Enterprises (AEs) - international transaction or not? - HELD THAT:- As we find, the TPO has made the adjustment to AMP expenses by treating it as international transaction coming within the definition of section 92B of the Act and has computed the adjustment applying Bright Line Test (BLT) method. It is observed, while deciding identical issue in assessee’s own case for assessment year 2008-09, the Tribunal in order [2022 (1) TMI 1082 - ITAT DELHI] has held that the transaction relating to AMP expenses will not fall in the category of international transaction. Thus we restore the issue to the Assessing Officer with similar direction.
Adjustment made to ALP of Information Technology (IT) support services provided by the assessee to its AEs - assessee is a resident corporate entity engaged in the business of manufacturing, marketing and selling of wrist watches and after selling services - HELD THAT:- Assessee provided services in ITES segment. In fact, in the order passed under section 92CA(3) of the Act, the TPO himself has stated that the assessee provides limited IT help desk and support services to the AEs. In spite of such factual position established on record, the TPO has gone forward to re-characterize the assessee as a software development service provider and selected fresh comparables in the software development segment. Unfortunately, Commissioner (Appeals) has also completely misconceived the facts by approving the re-characterization of the assessee.
As observed, similar erroneous approach was adopted by the TPO while proposing adjustment to similar transaction with the AEs in assessment year 2011-12. While deciding assessee’s objections on the issue, learned DRP accepted assessee’s business profile as an IT service provider and directed the AO/TPO to select comparables in ITES segment. However, the TPO again selected comparables providing Knowledge Process Outsourcing (KPO) services. While deciding the issue in appeal, the Tribunal in [2018 (12) TMI 1852 - ITAT DELHI] rejected the comparables selected by the TPO. It is relevant to observe, while dismissing Revenue’s appeal against the decision of the Tribunal in assessment year 2011-12, the Hon’ble Jurisdictional High Court upheld the decision of the Tribunal holding the assessee as an ITES segment company.
Addition on account of advance written off - assessee has debited certain amounts on account of advances written off - as deduction claimed by the assessee does not satisfy the condition of section 36(2) of the Act, the Assessing Officer disallowed the deduction - HELD THAT:- As could be seen from the facts on record, certain trade advances in relation to the business operations could not be recovered even after long lapse of time. Therefore, the assessee has written them off in its books of account. In our view, the Assessing Officer made a fundamental error by holding that the deduction claimed comes under section 36(2) of the Act. Undisputedly, the trade advances were in course of business. Therefore, if the assessee was unable to recover such advances, it can be treated as business loss, hence, allowable. Accordingly, we uphold the decision of Commissioner (Appeals) on the issue.
Spreading over of expenditure - Payment for stamp duty and brokerage for office lease - as per AO since, the period of lease is for five years, the brokerage expenditure has to be spread over the period of lease - HELD THAT:- It is a fact on record that the assessee has incurred the brokerage expenditure in the year under consideration. Therefore, the expenditure has to be allowed in the year under consideration. Merely because the lease of office premises is for particular period, the expenditure actually incurred on brokerage cannot be spread over the period of lease. Accordingly, we uphold the decision of learned Commissioner (Appeals) on the issue.
-
2023 (3) TMI 1432 - CALCUTTA HIGH COURT
Validity of scrutiny assessment - Jurisdiction of authority who issued notice - whether there is valid notice issued u/s 143(2) for commencing the scrutiny assessment? - HELD THAT:- As on the date of selecting the case for scrutiny, the very basis for having jurisdiction over the assessee is the returned income which was more than Rs.30 lakhs and the same was lying with the DCs/Acs but the notice u/s. 143(2) of the Act has been issued by ITO, Ward-9(4), Kolkata.
Tribunal has noted the facts and rendered a finding that on the date when the case was selected for scrutiny, the authority who issued the notice namely, the Income Tax Officer, Ward No.9(4), Kolkata did not have jurisdiction and the jurisdiction was with the Deputy Commissioner of Income Tax.
The above factual position recorded by the Tribunal is not in dispute. Therefore, we are of the clear view that the Tribunal rightly allowed the assessee’s appeal and quashed the scrutiny proceedings as defect in issuance of notice is incurable as it goes to the root of the matter.
........
|
