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Showing 41 to 60 of 1721 Records
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2019 (6) TMI 1684 - ITAT JAIPUR
Deduction u/s 35(1)(iii) - undisclosed expenditure for acquiring accommodation entry in the name of donation - donation made to M/s School of Human Genetics & Population Health, Kolkata when the said donation was bogus and the whole transaction a SHAM transaction - commission paid for obtaining entry of donation - HELD THAT:- CIT(A) found that he has considered the facts and circumstances of the instant case, which are pari materia to the decision of the Coordinate Bench in the case of M/s P.R. Rolling Mills P. Ltd. [2018 (7) TMI 737 - ITAT JAIPUR] and allowed the assessee’s claim of deduction U/s 35(1)(iii) of the Act and also deleted the addition made by the A.O. on account of alleged commission paid for obtaining entry of donation.
As the facts and circumstances of the instant case are pari materia to the facts dealt with by the Tribunal in the great deal with respect to the donation given to the very same institution i.e. M/s School of Human Genetics & Population Health, Kolkata after considering the CBDT notification No. 4/2010 dated 28/01/2010. We do not find any infirmity in the order of the ld. CIT(A) in deleting the disallowance of donation claimed U/s 35(1)(iii) of the Act in respect of donation to M/s School of Human Genetics & Population Health, Kolkata. Appeal of the revenue is dismissed.
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2019 (6) TMI 1683 - CESTAT KOLKATA
Levy of penalty - service tax along with interest paid paid before issuance of SCN - Management Consultancy services - period 2002-03 to 2007-08 - Intent to evade tax or not, appellant being PSU - extended period of limitation - HELD THAT:- In the Show Cause Notice as well as in the impugned adjudication order, there is no positive evidence to show that service tax has been intentionally not paid except that mere allegation of suppression has been made to invoke the extended period of limitation.
In view thereof, there are no case of suppression and hence, set aside the demand of service tax confirmed for the period covered under the extended period of limitation. Since this is not a case of suppression, imposition of penalties under Section 77 and 78 are also set aside in view of Section 80 of the Act.
The appeal is thus allowed by way of remand for limited purpose of calculation of service tax leviable for normal period of limitation on cum-tax basis.
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2019 (6) TMI 1682 - MADHYA PRADESH HIGH COURT
TDS u/s 194 A - Motor Accidents Claims - Insurance Company liability to deduct TDS on the interest paid - HELD THAT:- As the Insurance Company has been directed to deposit the lump sum compensation amount along with interest and only after the amount with interest is deposited by the Insurance Company, the said amount was to be apportioned amongst the claimants. The Insurance Company was not directed to calculate the compensation amount with interest as per the share determined by the Claims Tribunal. Under these circumstances, this Court is of the considered opinion, that the Insurance Company did not commit any mistake in deducting the TDS on the entire interest. However, each of the claimant would be entitled to claim refund from the Income Tax Department, in case, if he/she is of the view that excessive tax has been deducted.
This Court is of the considered opinion, that the Insurance Company is liable to deduct TDS on the interest paid by it as per the provisions of Section 194-A (3)(ix)(ix-a) of the Income Tax Act, and if the assessee is of the view, that the tax has been deducted in excess, then he can always claim refund of the same from the Income Tax Department.
Accordingly, this Court is of the considered opinion that the Executing Claims Tribunal, committed material illegality by holding that the Insurance Company is not liable to deduct the TDS.
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2019 (6) TMI 1681 - CESTAT ALLAHABAD
CENVAT Credit - electricity - common inputs and input services in the manufacture of dutiable final product as also in the generation of electricity, which is a non dutiable product - Rule 6(3) of the Cenvat Credit Rules - HELD THAT:- On appeal against the said order Commissioner (Appeals) by following the Hon’ble Allahabad High Court decision in the case of Gularia Chinni Mills Ltd. [2013 (1) TMI 525 - ALLAHABAD HIGH COURT]as also the Hon’ble Supreme Court decision in the case of DSCL [2015 (10) TMI 566 - SUPREME COURT] held in favour of the assessee - It was held that Since it is not a manufacture, obviously Rule 6 of the Cenvat Rules, 2004, shall have no application as rightly held by the High Court. - Since Bagasse is held not to be result of any manufacture.
Revenue in their memo of appeal have not advanced any reasons for non applicability of the said decision of the Hon’ble Allahabad High Court. When the issue stands decided by the jurisdictional High Court as well as the Hon’ble Apex Court, there are no reasons to take a view different than the one taken by Commissioner (Appeals).
Revenue’s appeal is rejected.
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2019 (6) TMI 1680 - ITAT AHMEDABAD
Capital gain computation - calculation of cost of acquisition as on 1.4.1981 - action of the AO in making reference to the DVO under section 55A(a) - Scope of amended section 55A(a) w.e.f. 1.7.2012 for making reference to the DVO - HELD THAT:- AO can refer the valuation of property to a Valuation Officer in a case where the value claimed by the assessee based on the registered valuation report is less than its fair market value. However in the case before us there is no dispute that the fair market value as declared by assessee is not less than the value determined by the DVO. Thus, the valuation determined by the DVO cannot be accepted as it is against the provision of Section 55A of the Act as applicable prior to the amendment.
ITAT Mumbai Bench in the case of Shri Rabinder H Chhabra(HUF) [2014 (6) TMI 283 - ITAT MUMBA] has taken into consideration similar plea of the Revenue that if assessment proceedings is pending then cognizance to amended provision of section 55A effective from 1.7.2012 could be made. ITAT Mumbai Bench on strength of Hon’ble Bombay High Court decision in the case of CIT Vs. Puja Print [2014 (1) TMI 764 - BOMBAY HIGH COURT] has held that such amendment would be applicable to the assessment proceedings subsequent to 1.7.2012. In that case, assessment year involved was 2006-07.
As relying on Gauranginiben S. Shodhan [2014 (2) TMI 78 - GUJARAT HIGH COURT] neither with help of amended proviso of section 55A a reference can be made nor under the old proviso, because value declared by the assessee as on 1.4.1981 is far more than fair market value. The ld.AO is therefore directed to re-compute capital by adopting fair market value adopted by the assessee as on 1.4.1981 on the basis of registered valuer’s report. This ground of appeal is allowed.
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2019 (6) TMI 1679 - MADRAS HIGH COURT
Liability of Respondent/ Assessee/ Selling Dealer for the alleged false declarations in Form-17 given by the Purchasing Dealer - Section 38 of the Tamil Nadu Sales Tax Act - HELD THAT:- The learned counsel for the Appellant/Revenue is unable to establish whether any enquiry was held against the Purchasing Dealer to whom such blank declaration forms / books were issued and who in turn gave such declarations to the present Selling Dealer, the Respondent/Assessee to claim the concessional rate of Sales Tax in question. In the absence of any enquiry from the Purchasing Dealer, the Selling Dealer obviously cannot be imposed with the difference tax in question.
The law is well settled and it is only the Purchasing Dealer, who had given the wrong declaration in question, can be proceeded against under the provisions of the Act only if the Purchasing Dealers themselves are found to be non existing or bogus, the Selling Dealer can be proceeded against.
The Tribunals order does not suffer from any legal infirmity and does not warrant any interference - the present Tax Case Revision filed by State is devoid of merit and is hereby dismissed.
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2019 (6) TMI 1678 - GAUHATI HIGH COURT
Seeking grant of bail - Smuggling - illegal trafficking of contraband substance - cough syrup - methamphetamine tablets - statement recorded u/s 67 of the NDPS Act - HELD THAT:- Undisputed position is that, commercial quantity of contraband substance is involved in this case and as such, the restriction of section 37 of the NDPS Act shall apply. Therefore, in terms of the provision of section 37 and also in view of the decision of the Supreme Court in SATPAL SINGH VERSUS STATE OF PUNJAB [2018 (7) TMI 32 - SUPREME COURT], it is imperative on the part of the court to record a finding as to it’s satisfaction as per section 37 of the NDPS Act, before granting or refusing bail.
According to the learned Standing Counsel for the NCB petitioner was arrested on the basis of statement of the co-accused Magrab, who stated in his statement purportedly recorded u/s 67 of the NDPS Act, that he would sell 68 gms of methamphetamine tablets to the present petitioner. The petitioner in his statement purportedly recorded u/s 67 of the NDPS Act denied such averment of the co-accused Magrab. Therefore, materials on record clearly show that no contraband involved in this case was recovered or seized from the possession of the present petitioner, inasmuch as, admittedly all the contraband, i.e., 18000 bottles of cough syrup and 758 methamphetamine tablets were seized from the possession of the other co-accused as mentioned above. Except the purported statement of co-accused Magrab Ali recorded u/s 67 NDPS Act, that he was suppose to sell the 68 gms of methamphetamine tablets to the present petitioner, which was denied by him, no other material has been brought on record to connect the present petitioner with the recovery of contraband or the offence of the present case.
It is difficult to hold that the trial against the present petitioner may in all probabilities culminate in conviction. Therefore, there is no reasonable ground to believe that the petitioner may be ultimately held liable for the offence of this case. There is also no other cogent material to suggest that in the event of enlargement on bail, the petitioner shall commit the offence under the NDPS Act.
The petitioner is allowed to be enlarged on bail of Rs. 20,000/- with a solvent surety of like amount to the satisfaction of the learned Special Judge, NDPS, Kamrup (Metro) - bail application disposed off.
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2019 (6) TMI 1677 - BOMBAY HIGH COURT
Maintainability of petition - Validity of Ordinance which came into force on 20th May, 2019 - amendment in Section 16 of the Maharashtra State Reservation (of seats for admission in educational institutions in the State and for appointments in the public services and posts under the State) for Socially and Educationally Backward Classes (SEBC) Act, 2018 - HELD THAT:- Based upon the weighty arguments advanced on behalf of the respondents and intervenors by their respective learned Senior Counsel, learned counsel and learned Government Pleader, the answer would have to be given as in the negative, that the petition could not be admitted.
It may be pointed out here that the petitioners also knew that the directions given in the order dated 4th June, 2019 were likely to have a prohibitive impact on this petition. This can be seen from the averments made in paragraphs 8 and 9 of the Misc. Application filed before the Hon'ble Supreme Court. One of the averments is that 16% seats, reserved in favour of the socially and educationally backward classes (SEBC), are subject matter in this petition and therefore the decision in this petition is likely to substantially affect the admisision process.
The other submission was that with such impact on the admission process and embargo placed upon entertaining further petition/application in respect of the “admission for the present academic year” a clarification was due that clause (9) of the order passed by the Hon'ble Supreme Court on 4th June, 2019 would not come in the way of the High Court while deciding the present petition, particularly, keeping in view the order dated 24th May, 2019 passed by the Hon'ble Apex Court. But, the application was rejected observing that order dated 4th June, 2019 required no clarification. Such rejection according to us has only made it even more clear that this petition being of such a nature as would have a substantial impress on the “admission for the present academic year” one way or the other, now cannot be entertained by this Court.
Petition dismissed as not maintainable.
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2019 (6) TMI 1676 - NATIONAL COMPANY LAW TRIBUNAL, MUMBAI BENCH
Seeking restoration of name of the company in the Register of Companies maintained by the Registrar of Companies, Pune - failure to file Financial Statements and Annual Returns for the period of 5 years i.e. 2011-12 to 2015-16 - Section 248 (5) of the Companies Act, 2013 - HELD THAT:- Upon analysis of the Balance Sheet, Profit and Loss Account of the Company, it is observed that the company did not generate any Income/Revenue since incorporation. Further it is also noted that Revenue From Operations Nil, other income Nil, Employee Benefit Expenses Nil, Cash and Cash Equivalents is a negligible amount of Rs.14,888/-for the year ending 31.03.2017, further revenue from Operations Nil, for the financial years 2016-17 as per the documents submitted by the petitioner company. All these Nil figures indicates that the company currently exists only on paper, not carrying on any business or operation which substantiates the criteria as laid down in section 248 of the Companies Act 2013, therefore, the action taken by ROC is justified and the Bench did not feel any ground to interfere with action of striking off the name of the company by ROC.
The Bench is also of the considered view that these type of companies only put burden on the system, Government/ROC, by way of record keeping, ensuring compliance by these companies and at times these companies may be used for various purposes other than the purpose/object for which the company was originally incorporated. It also puts burden on the company to comply with various regulatory/statutory compliances.
The Bench has not found any justifiable/ reasonable grounds to interfere with the action taken by the Government of India/ROC in striking off names of Lakhs of companies including the Petitioner Company - Appeal seeking restoration of the company’s name in the Register of company maintained by the ROC, Pune is dismissed.
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2019 (6) TMI 1675 - ITAT KOLKATA
Addition u/s 56(2)(viib) - unquoted equity shares were sold by the assessee at price more than Fare Market Value - shares were sold by the assessee at Rs. 100 per share as against its Fare Market Value of Rs. 98/-. - provision of round off the valuation of shares at the next rupee - assessee has submitted that the fair market value of the unquoted equity shares sold by the assessee was Rs. 98.61 per share and the same was rounded off by the assessee to Rs. 100/-. He has contended that even if the valuation so rounded off at Rs. 100/- may not be acceptable, the value as rounded off of to next rupee that is Rs. 99 should be adopted - HELD THAT:- Even the learned counsel for the assessee has not been able to point out any provision in the Act or in the Rules which permits such rounding off of the valuation to the next rupee. This makes it clear that the valuation taken by the AO at Rs. 98/- instead of Rs. 98.61 while computing the amount to be added u/s 56(2)(viib) is also not correct - therefore, direct the AO to recompute the addition u/s 56(2)(viib) by taking the of valuation at Rs. 98.61 after necessary verification.Appeal of the assessee is partly allowed.
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2019 (6) TMI 1674 - ITAT MUMBAI
Disallowance u/s 14A r.w.r. 8D - as argued no exempt income earned by assessee - CIT-A deleted the addition - HELD THAT:- It is an undisputed fact that during this Assessment Year assessee did not receive any exempt income. When no exempt income is received by the assessee, whether there can be any disallowance u/s. 14A has been considered by the Coordinate Benches of this Tribunal and it has been consistently holding that if there is no exempt income there should not be any disallowance u/s. 14A of the Act - See M/s. Ballarpur Industries Limited [2016 (10) TMI 1039 - BOMBAY HIGH COURT] as held that the provisions of Section 14A of the Income Tax Act, 1961 would not apply to the facts of this case as no exempt income was received or receivable during the relevant previous year. It is not the case of the Assessing Officer that any actual income was received by the assessee and the same was includible in the total income. In the facts of the case, the Authorities held that since the investments made by the assessee in the sister concerns were not the actual income received by the assessee, they could not have been included in the total income.
It is not in dispute that the assessee has not earned any exempt income during this Assessment Year, therefore in the absence of any exempt income there shall not be any disallowance u/s. 14A - Decided in favour of assessee.
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2019 (6) TMI 1673 - ITAT BANGALORE
TP Adjustment - Comparable selection - application of turnover filter - HELD THAT:- We find that various aspects of application of turnover filter, was considered by this Tribunal in the case of Autodesk India Pvt. Ltd [2018 (7) TMI 1862 - ITAT BANGALORE] and it was held that turnover is a relevant criteria for deciding comparability of companies and that a company with huge turnover cannot be compared with a company with small turnover. The turnover criteria was based on classification of companies with turnover upto Rs. 200 Crores falling within one category and companies with turnover of Rs. 200 crores to Rs. 500 crores falling in another category and so on.
We hold that it would be appropriate while choosing comparable companies to exclude companies by application of turnover filter. We also observe that the TPO has himself applied lower turnover filter of excluding companies with turnover of less than Rs. 1 Crore and in such circumstances, there is no reason as to why he should not apply the higher turnover limit.
We, therefore, direct the AO to re-compute ALP by excluding above six companies from the list of comparable companies by applying the turnover filter. No other arguments were advanced on the determination of ALP.
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2019 (6) TMI 1672 - CESTAT MUMBAI
Recovery of CENVAT credit that was erroneously - availment of CENVAT credit against documents evidencing duties paid upon procurement of ‘base oil’ and ‘other lubricating oils’ in bulk but not reversed to the extent of actual receipt at the premises of the appellant - HELD THAT:- The issue is settled based on earlier orders of the Tribunal in their own matter. Likewise the decision of Tribunal in NEERA ENTERPRISES VERSUS COLLECTOR OF CENTRAL EXCISE, CHANDIGARH. [1998 (5) TMI 119 - CEGAT, NEW DELHI], COMMISSIONER OF C. EX., RAJKOT VERSUS BOMBAY DYEING & MFG. CO. LTD. [1997 (10) TMI 141 - CEGAT, MUMBAI] and host of others on similar lines preclude the recovery of duty in consequence of difference between quantity paid for and actual ascertainment on receipt.
Appeal allowed - decided in favor of appellant.
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2019 (6) TMI 1671 - KARNATAKA HIGH COURT
Criminal Conspiracy - fabrication of documents by obtaining invoices from various firms in order to pass off the said iron ore to show that the same has been procured from legal sources - HELD THAT:- It is well settled law that once first information report is registered, the accused can always approach this Court by filing a petition under Section 482 of the Code of Criminal Procedure. A Two Judge Bench of this Court in the case of ‘STATE OF HARYANA AND ORS VS CH. BHAJAN LAL AND ORS’, [1990 (11) TMI 386 - SUPREME COURT] after taking note of the decisions in the cases of HAZARI LAL GUPTA VS RAMESHWAR PRASHAD & ANR [1971 (12) TMI 125 - SUPREME COURT], dealt with the contour of exercise of inherent powers of the High Court under Section 482 of the Code. The view taken by the Supreme Court has been reiterated in the case of BHAJAN LAL.
From the material available on record, it is evident that the petitioner herein being partner of M/s. S.B.Logistics in conspiracy with accused Nos.4, 5, 10, 11 and 16 supplied 20,000 metric tones of illegal iron ore to M/s SMSPL during the year 2009-10. The principal allegation against the petitioner is that he had supplied iron ore without possessing valid permits issued by authorized Government agency. The activities of the petitioner in conspiracy and connivance with the other accused persons have caused wrongful loss of more than 90 crores to the Government exchequer and corresponding wrongful gain to the accused persons including the petitioner - The petitioner admittedly has filed an application under Section 239 of the Code for his discharge, which has been rejected by an order dated 03.10.2018. However, in the instant case, there is ample material on record against the petitioner.
Thus, it is evident that the charges against the petitioner are not the same. Therefore, the contention that the second charge sheet has been filed for the same offence also does not deserve acceptance - no case for exercise of inherent powers under Section 482 of the Code is made out - petition dismissed.
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2019 (6) TMI 1670 - ITAT BANGALORE
TP Adjustment - comparability analysis - determination of Arm’s Length Price (ALP) in respect of an international transaction of rendering Software Development Services (SWD services) by the Assessee to its Associated Enterprise (AE) i.e., its holding company Verisign Inc., US and Versign SARL - comparable selection - HELD THAT:- Infosys Ltd., Larsen & Toubro Infotech Ltd. and Persistent Systems Ltd. need to be deslected from comparable list when compared to assessee providing SWD services to its AE as relying on AGILIS INFORMATION TECHNOLOGIES INDIA PVT. LTD. (NOW KNOWN AS INFOGIX INTERNATIONAL PVT. LTD.) [2017 (11) TMI 908 - ITAT DELHI]
Companies as functionally dissimilar with that of assessee as involved in providing SWD services to its AE need to be deselected from final list.
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2019 (6) TMI 1669 - MADHYA PRADESH HIGH COURT
TDS liability of Insurance company - Taxability of certain income - provision requiring the Insurance Company to deduct the TDS after spreading over the interest in number of years from the date of filing of the claim petition - HELD THAT:- This Court is of the considered opinion, that the Insurance Company is liable to deduct TDS on the interest paid by it as per the provisions of Section 194-A (3)(ix)(ix-a) of the Income Tax Act, and if the assessee is of the view, that the tax has been deducted in excess, then he can always claim refund of the same from the Income Tax Department.
Accordingly, this Court is of the considered opinion that the Executing Claims Tribunal, committed material illegality by holding that the Insurance Company is not liable to deduct the TDS.
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2019 (6) TMI 1668 - ITAT MUMBAI
Income accrued in India - determination of a PE in India - scope of business connection in India as per the provisions of section 9(1)(i) - India-Germany tax treaty - dependent PE in India - assessee pointed out that the activities of the Indian subsidiary do not involve any actuarial or underwriting services, but it is providing only administrative support services in relation to the actuarial and underwriting functions carried out by the assessee thus contended that the Assessing Officer has grossly misunderstood the use of Electronic Underwriting Software by the Indian subsidiary - scope of operations of the Indian subsidiary, which have indeed been carried out from India - HELD THAT:- Factually as well as on point of law, we do not find any merit in the stand of the Revenue that the activities of the LO of assessee generate any scope for treating it as a PE of assessee in India or a ‘business connection’ in India. We say so for the reason that the conditions under which the LO has been allowed to operate clearly bring out that the activities were preparatory or auxiliary in nature and the same cannot lead to determination of a PE in India, considering the provisions of Article 5(4)(e) of the India-Germany Tax Treaty. As per the statement made by the learned representative at the Bar, the LO has complied with the conditions imposed by IRDA and there is no adverse view determined by IRDA. Thus, on facts we do not find any force in the plea of the Revenue; and, even on the point of law, as has been brought out by the Hon'ble Delhi High Court in the case of National Petroleum Construction Co. [2016 (2) TMI 47 - DELHI HIGH COURT] LO merely acts as a channel of communication between the Head office and the parties in India and cannot undertake any commercial, trading or industrial activity, and thus, the activities of the LO cannot give rise to a ‘business connection’ within the meaning of Sec. 9(1)(i) of the Act or a PE of the assessee in India, considering that the activities are compliant with the approval granted by IRDA.
Whether the operations of the Indian subsidiary, which have indeed been carried out from India, can be construed as enabling invoking of ‘business connection’ of the assessee as envisaged under Section 9(1)(i) of the Act or whether the Indian subsidiary constitutes a PE of assessee in India? - There is no factual support for the stand of the Assessing Officer, as there is nothing either as per the Service agreement or any material to say that the Indian subsidiary has provided actuarial and risk underwriting services, which are core and crucial activities of the reinsurance business. Even the use of ‘Electronic Underwriting Software’ by the Indian subsidiary is a misnomer. The software is a standard tool which is used by global entities of the group for entering the data in respect of the reinsurance transactions of the assessee. The software is owned by the assessee and not the Indian subsidiary, and the software is used by the Indian subsidiary to enter the data of the Indian insurance companies, but no further recommendations are made by the Indian subsidiary. It is only the assessee through its own personnel who examines the proposal and negotiates the terms and conditions of the reinsurance contracts. There is nothing to dispute the assertions of the assessee that the infrastructure, personnel and approvals to carry out reinsurance activities are from outside India. Thus, there is nothing to suggest that the core activities of the reinsurance business of the assessee are carried out in or from India by the Indian subsidiary.
Moreover, in the context of Article 5(1) of the India-Germany Tax Treaty, what is essential is to examine whether there exists an assessee’s fixed place of business in India or not. Factually or legally speaking, the place of business of Indian subsidiary per-se can in no way be equated to mean the fixed place of business of the assessee in India - the mere rendering of support services in connection with actuarial or underwriting services cannot be a ground to say that there exists a fixed place or a PE of the assessee in India. Therefore, on parity of reasoning which prevailed with the Hon'ble Supreme Court in the case of E funds IT Solution Inc [2017 (10) TMI 1011 - SUPREME COURT] in the present case too, the arguments of the Revenue do not deserve any indulgence. Accordingly, the same are rejected.
Dependent PE in India - We have perused the order of the Assessing Officer as well as of the DRP and find that the assertions of the assessee in this regard have been completely brushed aside. The income-tax authorities have not referred to any particular arrangement or agreement or any other piece of evidence to show that the Indian subsidiary could enter into contracts or was authorised to enter into any business in India on behalf of the assessee. Considering that it was imperative for the Revenue to bring out instances where the Indian subsidiary had concluded contract or secured orders on behalf of the assessee, we find that such burden has not been discharged by the Revenue. In fact, at the time of hearing, the learned representative for the assessee referred to an illustrative agreement placed at pages 28 to 102 of the Paper Book, which is a reinsurance arrangement with SBI Group Life, which has been entered into by assessee and the Indian insurance company, i.e. SBI Group Life directly. Therefore, factually also, we find no support for the case of the Revenue that the Indian subsidiary constitutes a dependent PE of assessee in India.
Thus the income-tax authorities have erred in holding that there exists a ‘business connection’ in India under Section 9(1)(i) of the Act and also that there exists a PE in India within the meaning of Article 5(1) and/or 5(4) of the India-Germany Tax Treaty. In view of the aforesaid discussion, we hereby set-aside the order of Assessing Officer and uphold the stand of the assessee. As a consequence, so far as Ground of appeal nos. 1 to 4 are concerned, the same are treated as allowed.
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2019 (6) TMI 1667 - ITAT DELHI
Income deemed to accrue or arise in India - PE in India - DTAA between India and UAE (DTAA) - As per CIT -A profits attributable to the assessee’s PE at 3.56% of its offshore supply segment and 14.69% of its onshore service segment, were not taxable in India - HELD THAT:- It is pertinent to note that for assessment years 2007-09 [2012 (10) TMI 257 - ITAT DELHI] and 2008-09 [2013 (10) TMI 753 - ITAT DELHI] the Tribunal held that there is no PE in India during the relevant assessment year which was confirmed by the Hon’ble High Court. In the present assessment year as well the issues are common and the facts remain identical to that of the earlier assessment year. The CIT(A) while deciding this issue, relied upon the decision of the Hon’ble High Court as well as the Tribunal and after taking cognizance of the decisions of judicial forums decided the appeal in favour of the assessee. There is no need to interfere with the findings of the CIT(A) as the matter is covered in favour of the assessee in assessee’s own case for earlier assessment years. Decided in favour of assessee.
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2019 (6) TMI 1666 - ITAT MUMBAI
Estimation of income - bogus purchases - confirmation of disallowance to the tune of 12.5% of the alleged bogus purchases - HELD THAT:- CIT(A) has correctly held that entire purchases could not be added to the income of the assessee and that only profit element in the said purchases have to be brought to tax however we are not in agreement with the rate applied on the alleged purchases.
In this case, we observe that the assessee has already accounted for these purchases in the books of accounts and have returned the profits on these purchases. Under these circumstances, in our view, the only savings which the assessee may have made by purchasing the goods from the grey market have to be brought to tax. In the present case, the assessee is a dealer in iron and steel items and the applicable VAT rate is 4%. Under these circumstances, we are of the view that the purchases which are stated to be bogus should be brought to tax @ 5%. Accordingly, we set aside the order of Ld. CIT(A) and direct the AO to apply a rate of 5% on these bogus purchases.
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2019 (6) TMI 1665 - CHHATTISGARH HIGH COURT
Validity of SCN - non-satisfaction of the license fee - main ground of the challenge is that the license fee is forming part of the revenue to be generated by the sale, and hence, it cannot be taxed - HELD THAT:- It may have to be considered whether it is so or does it occupy a different pedestal. This is more so since, even when a license is issued to a party, subject to satisfaction of the license fee, it may not be logically correct to say that there will always be a sale. In other words, although license is issued and the shop is established, there need not be any sale at all, for various reasons like, objection as to the location, raised by the nearby inhabitants or because of the quality of liquour that is being supplied, the price at which the commodity is sold and such other aspects, by virtue of which, no revenue may be generated, despite the license issued. In such circumstance, it may not be corrrect to say that license fee is part of the revenue generated by sale. However, we do not express any opinion with regard to the said aspects.
The writ petition is dismissed without prejudice to the rights and liberty to the petitioner to raise all the contentions, both in facts as well as in law, before the Assistant Commissioner, Central Excise and Service Tax, Bilaspur, who has issued the show-cause notice to the petitioner.
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