|
Advanced Search Options
Case Laws
Showing 81 to 100 of 1612 Records
-
2022 (4) TMI 1532 - DISTRICT AND SESSIONS JUDGE DEHRADUN
Money Laundering - scheduled offences - proceeds of crime - agricultural land shown as non-agricultural land - HELD THAT:- It is quite clear that during the land acquisition for the widening and construction of NH 74, land of different accused persons named in this complaint as accused was acquired which was actually agricultural land and with the connivance of some government officials various conspiracies were hatched by different land owners to declare their land as non agricultural land to get 10 to 12 times more compensation. Each and every such conspiracy constituted a different offence and these all offences generated different Proceeds of Crime (POC). The main offence which generated this Proceed of Crime (POC) falls within the category of scheduled offence, therefore, Directorate of Enforcement initiated investigation with regard to laundering of this money which was actually the Proceeds of Crime (POC) generated by these different offences - The averments in this complaint are clear that different offences were committed by different persons and these different offences generated different POC, however this complaint is filed after clubbing all these Proceeds of Crime (POC) in one investigation, whereas every money laundering of each and every Proceed of Crime (POC) is a distinct offence under section 3 of the PMLA punishable under section 4 of the PMLA.
In the present case all accused persons have not committed the offence of Money Laundering in the course of the same transaction because different POCs were generated in different crimes and all accused persons are not involved in the Money Laundering of each and every POCs.
If the cognizance is taken on this complaint then at one hand it would infact initiate a joint trial of different offenders by this Court in contravention of Section 223 of Code of Criminal Procedure on the other hand it would complicate the trial and delay the recording of the evidences. Besides this it would result in converting multiple offences of Money Laundering committed by some common accused persons viz A-1, A-2, A-3, A-4, A-5, A-6, A-7 into one single offence of Money Laundering, thus would result into minimasing the penalty. It would further be in contravention of the principles of joinder of charges as enshrined in sections 218, 219 and 223 of the Code of Criminal Procedure - Therefore this complaint is liable to be returned to complainant, Directorate of Enforcement for filing fresh and separate complaints in accordance with the provisions of section 223 of the Code of Criminal Procedure by considering each act of money laundering of various POCs a distinct offence of Money Laundering under section 3 of PMLA which is punishable under section 4 of the PMLA.
This complaint is returned to the complainant i.e. Directorate of Enforcement for filing fresh complaints in accordance with law.
-
2022 (4) TMI 1531 - ITAT KOLKATA
Addition u/s 68 - assessee had failed to establish the identity, genuineness and creditworthiness of the share subscribers - unexplained income - burden of proof - HELD THAT:- Assessee in this case, as noted above, explained about the identity, creditworthiness and financials etc. of each of the share subscriber company individually. We note that in the assessment order that the AO has not even mentioned the names of the share subscriber companies and even has not mentioned a word as to which of the share subscriber company or the corresponding transaction thereof was not genuine and on what grounds.
AO, in our view, could have taken an adverse inference, only if, he would have pointed out the discrepancies or insufficiency in the evidences and details received in his office and pointed out as to on what account further investigation was needed by way of recording of statement of the directors of the subscriber companies.
Even if the directors of the subscriber companies have not come personally in response to the summons issued by the AO, in our view, adverse inference cannot be taken against the assessee solely on this ground as it is not under control of the assessee to compel the personal presence of the directors of the shareholders before the AO.
Assessee has rightly placed reliance upon the decision of Paradise Inland Shipping Pvt. Ltd. . [2017 (11) TMI 1554 - BOMBAY HIGH COURT] wherein held that once the assessee has produced documentary evidence to establish the existence of the subscriber companies, the burden would shift on the revenue to establish their case.
CIT(A), in this case, has not only duly examined the facts and explanation as furnished by the assessee but also has given a categorical finding that the identity and creditworthiness of the share subscribers and genuineness of the transaction stood established. Decided against revenue.
-
2022 (4) TMI 1530 - BOMBAY HIGH COURT
Validity of reopening of assessment u/s 147 - reopening beyond period of four years - Invalid approval u/s 151 - sanction has been given by Additional Commissioner of Income Tax (ACIT), Joint Commissioner of Income Tax and not Principal Commissioner - HELD THAT:- Since four years had expired from the end of the relevant assessment year as provided under Section 151(1) of the Act, it is only the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner who could have accorded the approval and not the Joint Commissioner of Income Tax. On this ground alone, we will have to set aside the impugned notice. Consequently, the order on objections passed also has to be quashed and set aside.
-
2022 (4) TMI 1529 - DELHI HIGH COURT
Seeking to quash the order and to conduct de novo proceedings under Section 110(1D) of the Customs Act, 1962 - no notice was not issued to the petitioner before undertaking the exercise of identifying/certifying the subject gold and consequently, he could not remain present on the given date i.e., 17.02.2022 - violation of principles of natural justice - HELD THAT:- In an exercise of this nature, the law would oblige adherence to principals of natural justice [i.e. notice and participation in the exercise] especially given the fact that there is no express exclusion in the Act.
The order is set aside - petition disposed off.
-
2022 (4) TMI 1528 - ITAT MUMBAI
Nature of expenses - Products Registration Expenses - revenue or capital expenditure - HELD THAT:- As relying on case of CIT Vs. Cadila Healthcare Ltd [2013 (3) TMI 539 - GUJARAT HIGH COURT] Products Registration Expenses is revenue in nature, therefore, we set aside the finding of the CIT(A) on these issues and allowed the claim of the assessee.
-
2022 (4) TMI 1527 - ITAT MUMBAI
Applicability of provisions of section 144C - whether no variation in the income returned and the income assessed and accordingly the impugned assessment order was time barred? - HELD THAT:- This issue is covered in favour of the assessee by a series of order of the coordinate benches including in the cases of IPF India Property Cyprus Ltd. 2020 (2) TMI 1667 - ITAT MUMBAI], Cupiono Ltd. [2021 (4) TMI 1357 - ITAT MUMBAI], Mausmi SA Investments LLC [2019 (4) TMI 2079 - ITAT MUMBAI], Mosbacher India LLC. [2016 (12) TMI 235 - ITAT CHENNAI], DCIT vs. Magna International Inc [2019 (1) TMI 1199 - ITAT PUNE] AND Regen Renewable Energy Generation Global Limited [2020 (1) TMI 1632 - ITAT CHENNAI], even though learned Departmental Representative vehemently relied upon the stand of the Assessing Officer as embedded in the grounds of appeal set out herein above.
Thus provisions of section 144C did not apply to the fact of this case as there was no variation in the income returned and the income assessed and accordingly the impugned assessment order was time barred. Decided in favour of assessee.
-
2022 (4) TMI 1526 - ITAT DELHI
CIT-A powers dismissing assessee's appeal in limine for non- prosecution - HELD THAT:- As powers of Ld. CIT(A) are co-terminus with powers of the Assessing Officer.
When the Commissioner (Appeals) dismisses the appeal of assessee in limine for non-prosecution of appeal by the assessee; in effect, indirectly it leads to same results as withdrawal of appeal by assessee. When the assessee is not permitted to withdraw the appeal filed before the first appellate authority, the first appellate authority is duty bound to not allow a situation to arise, through dismissal of appeal in limine for non-prosecution of appeal before the first appellate authority; in which, in effect, indirectly the same results are obtained as arise from withdrawal of appeal by the assessee.
What cannot be permitted in law to be done directly, cannot be permitted to be done indirectly either, as is well settled. In view of the foregoing discussion; it is amply clear that Ld. CIT(A) was in error in dismissing the appeal in limine for non-prosecution of appeal by the assessee.
We draw support from order of CIT vs. Premkumar Arjundas Luthra (HUF) [2016 (5) TMI 290 - BOMBAY HIGH COURT] for the proposition that Ld. CIT(A) is required to apply her mind to all issues which arise from impugned order before her whether or not same had been raised by appellant before her; and further, that CIT(A) is obliged to dispose of the appeal on merits.
We set aside the impugned order of the Ld. CIT(A) and we direct the Ld. CIT(A) to pass denovo order as per law, in accordance with Sections 250 and 251 - Assessee’s appeal is partly allowed for statistical purposes.
-
2022 (4) TMI 1525 - ITAT BANGALORE
Penalty u/s. 271D - receipt of the amount exceeding Rs.20,000 in cash - amount having been received from the trustee - main contention of the ld. AR is that the transaction is genuine and it is not found that the loan has been taken out of unaccounted cash from the managing trustee - HELD THAT:- In the present case, the assessee's plea that in view of the intention of the legislature while enacting the provisions of s. 269SS and 269T as well as 271D and 271E, which, as explained in Circular No. 387, dt. 6th July, 1984, was to curb the transaction of black money, is liable to be accepted because in the present case, the Revenue has accepted the transaction as genuine and has not found the deposit being out of unaccounted cash or the deposit having been made with an effort to explain or introduce cash in the garb of loan/deposit.
Penalty like 271D of the Act will not be imposed unless the party concerned has acted deliberately in defiance of law or was guilty of contumacious or dishonest conduct or acted in conscious disregard of its obligation and penalty will not be imposed merely because it is lawful to do so. Imposition of penalty for failure to perform statutory obligation is only a discretionary power of the authority exercising judicial functions in consideration of all the relevant circumstances. If the assessee acted on genuine belief that penal provisions have no application to deposits when it is between the trustee and assessee, then penalty could not be levied. In the present case, in our opinion, there exists reasonable cause in accepting loan in cash. Therefore, the assessee is exonerated from levy of penalty.
In the present case, the assessee accepted loan from its managing trustee, who is looking after the day to day affairs of the present assessee. This being so, the transaction between the assessee and managing trustee cannot be termed as loan so as to apply the provisions of section 269SS of the Act. The transaction between the assessee and managing trustee is in the course of discharge of duty of the managing trustee in the day to day affairs of the assessee trust and when the assessee needed some funds to meet the day to day operation of the construction of the college building, it was facilitated by the managing trustee and assessee is having running account with the managing trustee and the transaction between these two parties cannot be termed as loan transaction so as to levy penalty u/s. 269SS.
Transaction undertaken by the assessee with managing trustee is incidental to attainment of main object of assessee society and in this context, if the assessee has not paid money to the contractors who have undertaken construction of the building, the managing trustee himself is liable for all the consequences of non-payment even bouncing of cheques for insufficient funds and in that view the money advanced by the managing trustee to the assessee to meet the urgent business exigency amounts to reasonable cause within the purview of section 273B of the Act and on this count also, the penalty cannot be levied.
Concept of mutuality is primarily based on the principle that one cannot profit from himself. Thus, when the managing trustee provided funds to the society to meet urgent business exigency, it cannot be said that it was a loan transaction so as to attract penalty u/s. 269SS.
Thus, the managing trustee of the society is not covered by the expression “any other persons” occurring in section 269SS or 269T of the Act. The transaction also is attributed to various exigencies relied by the assessee which constitute reasonable cause contemplated by section 273B of the Act. Appeal of assessee allowed.
-
2022 (4) TMI 1524 - CHHATTISGARH HIGH COURT
Rate of GST for works contract services executed prior to 18.07.2022 - applicability of N/N. 11/2017- Central Tax (Rate) dated 28.06.2017, as amended by notification No. 03/2022-Central Tax (Rate) dated 13.07.2022 - Seeking refund of 6% of additional GST paid by them for the contract executed prior to 18.07.2022 - HELD THAT:- The documents submitted by the petitioners in the present writ petitions postulate that some of the departments of the State Government of Chhattisgarh have accepted such claim of the contractors where certain additional burden of money was incurred upon them after coming into force of the GST.
This Court in M/S D.A. ENTERPRISES THROUGH ITS PROPRIETOR DINESH KUMAR MISHRA VERSUS STATE OF CHHATTISGARH THROUGH THE SECRETARY; CHIEF ENGINEER HASDEO BASIN; SUPERINTENDING ENGINEER; EXECUTIVE ENGINEER MANIYARI [2022 (12) TMI 1136 - CHHATTISGARH HIGH COURT] directed the petitioner therein to make a fresh claim showing the difference of tax liability that was incurred at the time of submission of bids and the excess tax paid by him in the light of the introduction of the GST and upon such claim being made, the respondents were directed to forthwith process the same and after due scrutiny and enquiry, the petitioner therein be suitably reimbursed the additional tax burden incurred by him.
Thus, keeping in view the fact that present cases are not distinguishable to that of above case, it would be just and expedient in the interest of justice to direct the petitioners herein as well to follow the process, as has been directed/observed in the aforesaid writ petition. Accordingly, it is directed that the petitioners shall make a fresh claim before the respondent authorities agitating their grievance and upon such claim being made, the respondent authorities shall proceed ahead with the necessary scrutiny and enquiry and thereafter if the petitioners are found entitled to be reimbursed the additional tax liability incurred upon them, they will suitably be reimbursed.
Petition disposed off.
-
2022 (4) TMI 1523 - ITAT KOLKATA
Assessments u/s 153A - addition u/s 68 - Whether incriminating material found during the course of search relating to these two assessment years? - HELD THAT:- AO has made reference to unsecured loan from different entities. These unsecured loans are already shown as part of the accounts. These were subject to scrutiny in the scrutiny assessments passed in AY 2013-14 and 2014-15 respectively.
We failed to note, which is the specific material available with the AO in these two years authorizing him to undertake assessment proceedings in these years u/s 153A of the Act. Therefore, in view of the position of law discussed above on the strength of decision in the case of CIT vs. Kabul Chawla[2015 (9) TMI 80 - DELHI HIGH COURT], Saumya Construction [2016 (7) TMI 911 - GUJARAT HIGH COURT] and on the basis of various decisions of the Hon’ble Jurisdictional High Court namely PCIT vs. Rashmi Infrastructure Pvt. Ltd.[2020 (2) TMI 1463 - CALCUTTA HIGH COURT], CIT vs. Veerprabhu Marketing Ltd. [2016 (8) TMI 813 - CALCUTTA HIGH COURT], PCIT vs. Salasar Stock Broking Ltd.[2016 (8) TMI 1131 - CALCUTTA HIGH COURT] we are of the view that additions are not sustainable. We allow these grounds of appeal and delete the additions because they are added without any seized material available pertaining to these assessment years. Decided in favour of assessee.
-
2022 (4) TMI 1522 - ITAT VISAKHAPATNAM
Exemption u/s 11 - registration u/s 12A cancelled - CIT-A held petitioner has not rendered its services directly to the farmers but is rendering its services directly to its clients / agents who are engaged in the trading of the certified seeds with profit motive and therefore, its activities are not for the advancement of any other object or general public utility and hence not for the charitable purpose u/s 2(15) - HELD THAT:- We find that the assessee, inspite of several opportunities provided has failed to appear and pursue the case. We, therefore, note that the assessee is not interested in pursuing the case before the Tribunal. In view of the above, we find no infirmity in the order of the Ld.CIT(A) and no interference is required. Appeal of the assessee is dismissed.
-
2022 (4) TMI 1521 - ITAT BANGALORE
TP Adjustment - comparable selection - HELD THAT:- Infosys BPO Ltd. is an established player who is not only a market leader but also a company employing sheer breadth in terms of economies of scale and diversity and geographical dispersion of customers. The presence of the aforesaid factors will take this company out of the list of comparables, thus it is to be excluded as a comparable.
TCS E-serve Ltd. is also stated to be a Knowledge Process Outsourcing and therefore for the reasons stated by us while dealing with this issue of comparability of the company Infosys BPO Ltd. shall equally hold good and therefore we direct the AO/TPO to exclude this company from the list of comparables.
-
2022 (4) TMI 1520 - BOMBAY HIGH COURT
Interest for delayed payment - Petitioner had merely deposited the amount in the Electronic Cash Ledger but did not accept it as a tax liability and deposited by furnishing GSTR-3B Return - whether this can be considered as payment of tax and interest need not be demanded as per Section 50 of the Central Goods and Service Tax Act, 2017 - Petitioner is a Semi Government Agency - HELD THAT:- In the Petition and rejoinder the Petitioner has placed on record various factual aspects to demonstrate that for some period the Petitioner may have made the payment late but for substantial period the Petitioner has not defaulted in making payment in time. The learned Counsel for the Petitioner points out to us that there is no distinction made between this period in the impugned order and the Petitioner is liable to pay the interest for the entire period i.e. from February 2020 to January 2021. In the rejoinder, the Petitioner has placed before us a chart to demonstrate that periodical payments made during this period was as per the prescribed period specified under Section 50 of the CGST Act, 2017.
The Petitioner has also sought to contend that the amounts which were available to the Petitioner as the Input Tax Credit should be considered while calculating the liability under Section 50 of the CGST Act, 2017. This aspect is also not considered by the Deputy Commissioner. The learned Counsel for the Respondents has sought to contend that availability of the Input Tax Credit cannot be considered for the purpose of Section 50 of the CGST Act, 2017 - both, the mentioned factual aspect and legal aspect having been not considered and considering the fact that the Petitioner is a Semi Government Agency, the matter needs to be re-examined by the Deputy Commissioner.
Petition disposed off by way of remand.
-
2022 (4) TMI 1519 - SUPREME COURT
Seeking enlargement of bail - Whether a 'victim' as defined Under Section 2(wa) of the Code of Criminal Procedure, 1973 is entitled to be heard at the stage of adjudication of bail application of an Accused? - overlooking relevant considerations while passing the impugned order granting bail to the Respondent-Accused - HELD THAT:- It cannot be gainsaid that the right of a victim under the amended Code of Criminal Procedure are substantive, enforceable, and are another facet of human rights. The victim's right, therefore, cannot be termed or construed restrictively like a brutum fulmen - A 'victim' within the meaning of Code of Criminal Procedure cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings. He/She has a legally vested right to be heard at every step post the occurrence of an offence. Such a 'victim' has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision.
It is worth mentioning that, the complainant in FIR No. 219 of 2021, as well as the present Appellants, are close relatives of the farmers who have lost their lives in the incident dated 03.10.2021 - an application seeking a rehearing on the ground that the 'victims' could not participate in the proceedings was also moved but it appears that the same was not considered by the High Court while granting bail to the Respondent-Accused - in the present case, the 'victims' have been denied a fair and effective hearing at the time of granting bail to the Respondent-Accused.
Whether the High Court overlooked relevant considerations? - HELD THAT:- Power to grant bail Under Section 439 of Code of Criminal Procedure, is one of wide amplitude. A High Court or a Sessions Court, as the case may be, are bestowed with considerable discretion while deciding an application for bail. But, as has been held by this Court on multiple occasions, this discretion is not unfettered. On the contrary, the High Court or the Sessions Court must grant bail after the application of a judicial mind, following well-established principles, and not in a cryptic or mechanical manner.
While a Court may examine prima facie issues, including any reasonable grounds whether the Accused committed an offence or the severity of the offence itself, an extensive consideration of merits which has the potential to prejudice either the case of the prosecution or the defence, is undesirable. It is thus deemed appropriate to outrightly clarify that neither have considered the merits of the case nor are we inclined to comment on the evidence collected by the SIT in the present case.
The High Court has taken into account several irrelevant considerations, whilst simultaneously ignoring judicial precedents and established parameters for grant of bail. It has been ruled on numerous occasions that a F.I.R. cannot be treated as an encyclopaedia of events. While the allegations in the F.I.R., that the Accused used his firearm and the subsequent post mortem and injury reports may have some limited bearing, there was no legal necessity to give undue weightage to the same. Moreover, the observations on merits of a case when the trial has yet to commence, are likely to have an impact on the outcome of the trial proceedings - the order under challenge does not conform to the relevant considerations.
Whether interference is warranted by this Court? - HELD THAT:-No Accused can be subjected to unending detention pending trial, especially when the law presumes him to be innocent until proven guilty. Even where statutory provisions expressly bar the grant of bail, such as in cases under the Unlawful Activities (Prevention) Act, 1967, this Court has expressly ruled that after a reasonably long period of incarceration, or for any other valid reason, such stringent provisions will melt down, and cannot be measured over and above the right of liberty guaranteed Under Article 21 of the Constitution - this Court on account of the factors like (i) irrelevant considerations having impacted the impugned order granting bail; (ii) the High Court exceeding its jurisdiction by touching upon the merits of the case; (iii) denial of victims' right to participate in the proceedings; and (iv) the tearing hurry shown by the High Court in entertaining or granting bail to the Respondent/Accused; can rightfully cancel the bail, without depriving the Respondent-Accused of his legitimate right to seek enlargement on bail on relevant considerations.
Matter remanded back to the High Court - High Court shall decide the bail application afresh - appeal disposed off.
-
2022 (4) TMI 1518 - JAMMU & KASHMIR AND LADAKH HIGH COURT
Validity of action of the respondents for forcing, pressuring and compelling the petitioner-schools to provide information to various persons under the Right to Information Act, 2005 - seeking information with regard to affairs of the petitioner-schools under the Act of 2005 - scope of expression “public authority” as defined under Section 2(h) of the Act of 2005 - HELD THAT:- Definition of two expression i.e. “information” and “right to information” given in Section 2(h) and 2(j) of the Act of 2005 when considered in juxtaposition and interpreted in harmony with each other would unequivocally and clearly manifest that not only the information which is held by the public authority can be accessed under the Act of 2005 but such information as is under the control of such authority, too, can be accessed. Information relating to any private body which can be accessed by a public authority under any other law for the time being in force can also be accessed by the information seeker under the Act of 2005. There is no doubt that in terms of Section 22, Act of 2005 has been given overriding effect over any other law for the time being in force or instrument having effect by virtue of any law other than the Act of 2005 - The Society herein need not be a public authority but if the information lying with such private body can be accessed by the public authority under law, the same can be provided by public authority on an application filed by an information seeker.
This petition is disposed of by holding that Tyndale Biscoe & Mallinson Society, which has established and is running the petitioner-educational institutions is not a public authority, as defined in Section 2(h) of the Act of 2005 and, therefore, information in its exclusive possession cannot be accessed directly from it by the information seeker under the provisions of the Act of 2005. Information seeker may, however, approach the public authority to obtain information relating to the petitioners and the public authority shall be bound to provide such information in relation to petitioners as may be in its possession or which can be accessed by it under any other law for the time being in force. The public authority before supplying such information shall put the petitioners on notice and adjudicate the objection, if any, raised by it under Section 8 of the Act of 2005 or any other similar provision contained in the Act of 2005.
-
2022 (4) TMI 1517 - BOMBAY HIGH COURT
Seeking permission of presence of the Advocate at a visible but not at audible distance and that the Petitioner be permitted to videograph during the recording of the statements - Respondent submits that the videography has to be at the expense of the Petitioner and the same would be provided after the show cause notice is issued to the Petitioner.
HELD THAT:- The Petitioner is permitted the presence of an Advocate at a visible but not at audible distance and the videography may be done at the cost of the Petitioner and a copy of the said videogrphy shall be given after the show cause notice is issued to the Petitioner.
The Writ Petition is disposed of.
-
2022 (4) TMI 1516 - BOMBAY HIGH COURT
Provisional release of the goods - Seeking permission of presence of Advocate during investigation - Respondent submits that now CC Camera are applicable - HELD THAT:- Following orders are passed:-
(i) The Respondent shall decide the application of the Petitioner for provisional release of goods i.e. at Ex. ‘G’ on its own merits and in accordance with law, preferably within two weeks.
(ii) The Petitioner is also permitted the presence of Advocate at visible but not at audible distance and also recording for the statement under the videography at the expense of the Petitioner.
Writ Petition disposed of.
-
2022 (4) TMI 1515 - BOMBAY HIGH COURT
Seeking permission of presence of the Advocate at a visible but not at audible distance and that the Petitioner be permitted to videograph during the recording of the statements - Respondents submits that the videography has to be at the expense of the Petitioner and the same would be provided after the show cause notice is issued to the Petitioner.
HELD THAT:- The Petitioner is permitted the presence of an Advocate at a visible but not at audible distance and the videography may be done at the cost of the Petitioner and a copy of the said videogrphy shall be given after the show cause notice is issued to the Petitioner.
Writ petition disposed off.
-
2022 (4) TMI 1514 - ITAT HYDERABAD
TP Adjustment - corporate guarantee fees - international transaction - assessee submitted before us that a corporate guarantee does not form an international transactions as it does not result in any quantifiable benefits to the “AEs” being since it is a shareholding activity only than an international transaction falling under section 92B - whether a corporate guarantee amounts to an international transactions or not? - HELD THAT:- As decided in Revenue’s favour and against the assessee in PCIT Vs. Redington (India) Limited. [2020 (12) TMI 516 - MADRAS HIGH COURT] as considered Explanation to Section 92B inserted by the Finance Act, 2012 to with effect from 01.04.2002 to hold that such a corporate guarantee indeed forms an international transaction with retrospective effect. We thus reject the assessee’s legal arguments and express our agreement with a learned lower authorities’ action treating the assessee’s corporate guarantee(s) as an international transaction in principle.
Quantification of the impugned corporate guarantee commission adjustments - Both parties have quoted a catena of case law wherein various learned co-ordinate benches have adopted different rates. Faced with this situation, we deem it appropriate in these peculiar facts and circumstances that a lumpsum commission rate of 0.5% qua the extent of amount of assessee’s corporate guarantee(s) actually utilized only in all these four assessment years; would be just and proper. This second substantive ground is partly allowed in very terms.
ALP adjustments of interest as trading receivables assessment year-wise - Both the learned representatives reiterated their respective stands regarding the impugned “ALP” adjustment made going by the bank’s short term deposit interest rates. So far as the legal question as to whether such interest on outstanding receivables forms an ‘international transaction’ or not, we note that the same also comes under Section 92B Explanation (I)(c) which has been already as applicable with retrospective effect - We thus uphold the learned lower authorities’ impugned action interest on outstanding receivables as ‘international transactions’ to this limited extent.
No merit in the Revenue's instant argument since Chapter -X of the Act is a special provision wherein each and every adjustment could only be made going by the uncontrolled market price of the transactions in the very segment; followed by benchmarking thereof as per the international currency "LIBOR" rates only. We, therefore, reverse the TPO's identical action in all these Assessment Years in view of the foregoing twin reasons regarding non- quantification of the impugned adjustment(s) segment wise and as per the LIBOR rates. We accordingly delete the impugned “ALP” adjustment in very terms.
ALP adjustments pertaining to sale and purchase transactions - CIT-DR’s case is that the lower authorities have rightly not considered the corresponding combined audited results as the ALP of the corresponding sales and purchases has to be seen transaction wise than at entity level in light of CIT Vs. Firestone International Pvt. Ltd. [2015 (6) TMI 1123 - BOMBAY HIGH COURT] - HELD THAT:- We find no merit in the Revenue’s instant arguments in principle as once the above stated unit of Vivimid Labs (Althur) Limited had stood merged w.e.f. 01.04.2015 and the assessee had made its sale - purchase transactions covered under section 92B of the Act to its Spain based “AE”, the learned lower authorities ought to have benchmarked the combined book results at segmental level pertaining to both these units only. We therefore direct the learned TPO to go by the assessee’s consolidated book results as per the combined audit report and proceed afresh for the purpose of necessary benchmarking as per law.
Depreciation disallowance - HELD THAT:- There is no rebuttal to the fact of the AO having submitted the foregoing remand report as well as the issue regarding closing balance as on 31.03.2013 and the corresponding opening balancing figure as on 01.04.2013 relating to the first assessment year herein i.e. 2014-15. Faced with this situation, we are of the opinion that instant depreciation issue requires afresh adjudication at the Assessing Officer’s level in all these four assessment years so as to enable him to go by the foregoing closing figure(s) which cannot be disbursed as opening balance. We order accordingly.
Disallowance u/s 14A r.w.r.8D - HELD THAT:- The Finance Act, 2022 has inserted an Explanation to section 14A(1) that the impugned disallowance provision is applicable in absence of exempt income as well but with prospective effect only from 01.04.2022 onwards. We reiterate that we are in A.Ys. 2014-14 to 201718 only. We thus find no merit in Revenue’s stand and direct the Assessing Officer to delete the impugned disallowance.
Disallowing sales, promotions and business marketing expenses - HELD THAT:- We prima facie find merit in the assessee’s claim as DRP’s findings have nowhere made it clear as to in what manner the assessee had offered freebies to the doctors which are covered under the Medical Council of India Act’s guidelines. We also take note of the hon’ble apex court’s recent landmark decision M/s. Apex Laboratories (P.) Ltd [2022 (2) TMI 1114 - SUPREME COURT] upholding disallowance of freebies offered by pharmaceutical companies to doctors’ associations. We next note that there is not even a single observation in the DRP’s directions that the assess had incurred the impugned expenditure for any such freebies to doctors and their associations. We reiterate that it has not even manufactured the final products to be sold in market as well. We accordingly conclude that the impugned disallowance is not sustainable. The same stands deleted.
Disallowing section 35(2AB) weighted deduction claim - HELD THAT:- Once Rule 6(7A)(b) of the Income Tax Rules regarding quantification of section 35(2AB) deduction claim stands amended w.e.f. 01.07.2016 only, the assessee’s instant substantive grievance deserves to be accepted in very terms. Ordered accordingly. It is however made clear that the assessing authority shall be very much at liberty to verify the relevant facts in consequential computation(s).
Capital gains on slump sales - Assessee ’s first and foremost argument before us is that the corresponding sales in relation to which the impugned outstanding receivables are considered have already been offered to tax in preceding assessment years’ computation - HELD THAT:- Revenue’s stand on the other hand is that the instant issue more requires a reconciliation than any substantive adjudication. Faced with this situation and in order to avoid double addition on the very same issue, we direct the learned Assessing Officer to verify the necessary factual position and ensure that the assessee does not suffer a double addition herein. This 9th substantive ground is accepted for statistical purposes.
Denying section 80IC deduction(s) pertaining to its Haridwar Unit - CIT-DR vehemently contended during the course of hearing that a return filed u/s 153A ought not to include a fresh claim of deduction under Chapter VI of the Act in light of section 80IC requiring a return to be filed u/s 139(1) - HELD THAT:- No merit in the Revenue’s stand in principle. We make it clear that the assessee had not claimed the impugned Section 80-IC deduction relief in its original returns filed u/s.139(1) of the Act. There is further no dispute that the department had carried out the search in issue on 09.11.2016 in assessee’s case wherein the time limit for filing Section 139(1) return for including Section 80-IA deduction had very well elapsed. The Assessing Officer thereafter initiated Section 153A proceedings thereby asking for assessee’s returns.
Whether the assessee could raise a fresh claim of Section 80-IC deduction in a return filed u/s.153(1)(a)? - We find no merit in the Revenue’s instant technical argument as Section 153A nowhere draws any distinction of an “abated” or “un-abated” assessment so far as an assessee’s eligibility to raise a new deduction claim under Chapter-VI therein is concerned. We thus uphold the CIT(A)’s lower appellate findings in principle. We therefore adopt the foregoing detailed discussion mutatis mutandis to accept the assessee’s foregoing legal arguments in principle and direct AO to decide its corresponding section 80IC claim in light of all the statutory conditions as per law after necessary factual verification.
Nature of receipt - treatment to subsidy amounts received - as in the nature of industrial promotions assistance, under the West Bengal Incentive Scheme, 2000, as revenue items or capital receipts - HELD THAT:- We find no merit in Revenue’s instant arguments as the tribunal’s latest decision DCIT Vs. M/s. Ankit Metal and Pvt. Ltd. [2021 (11) TMI 49 - ITAT KOLKATA] holds the very incentive scheme as giving rise to a capital receipt not liable to tax.
Validity of the impugned assessments for want of incriminating material found or seized during the course of search - HELD THAT:- We find that the tribunal’s order in assesses’s case [2022 (4) TMI 1503 - ITAT HYDERABAD] has quashed the assessment proceedings stating that the instant plea hardly carries any substance since the question framed therein was not regarding lack of incriminating material but the Assessing Officer’s jurisdiction to take all other material into account in a search assessment which is not the issue before us. We thus accept the assessee’s instant legal ground to quash both these assessments thereby rendering all other pleadings on merits to have been become infructuous.
Section 43B disallowance - DRP’s corresponding directions deciding its objections had granted substantive relief - HELD THAT:- We direct the learned Assessing Officer to verify the necessary factual position and allow the impugned relief as per law in light of DRP’s directions which are binding on him u/s 144C(13) of the Act. This 12th substantive grievance is accepted subject to the assessing authority’s factual rectification in above terms.
-
2022 (4) TMI 1513 - JHARKHAND HIGH COURT
Refund the amount realized from the bank account of the petitioner, which was realized during the pendency of Appeal - HELD THAT:- Upon remand by the learned ITAT the assessment has been completed and order has been passed read with corrigendum wherein the petitioner has been assessed for amount of Rs.2,38,32,860/- and a demand notice has been issued on 31st March 2022 raising a total demand of Rs.71,14,028/- after making necessary adjustment including the adjustment of Rs.36.59 Lakhs which the petitioner was claiming as refund.
These statements have been made in the supplementary counter affidavit filed by the respondents. In view of these developments, learned counsel for the petitioner seeks permission to withdraw the writ application in order to seek appropriate remedy in accordance with law.Writ petition is, accordingly, dismissed as withdrawn with the aforesaid liberty.
........
|
