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Showing 1 to 20 of 1591 Records
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2022 (9) TMI 1592 - SC ORDER
Seeking release of attached scheduled properties - the petitioners approached the High Court challenging the order of provisional attachment/ attachment as the Appellate Authority was not available - HELD THAT:- It is reported that now the Appellate Authority is available and therefore, the petitioners proposed to approach the Appellate Authority to challenge the order of attachment.
Release of attached properties - HELD THAT:- As the petitioner is ready and willing to deposit Rs. 3,00,00,000/- in fixed deposit in any nationalised Bank with the lien in faovur of the Enforcement Directorate and the copy of the fixed deposit would be deposited with the E.D., we direct that on producing the fixed deposit of Rs. 3,00,00,000/-, with no lien of any other party, except the Enforcement Directorate and by way of interim order, the attachment with respect to aforesaid properties is ordered to be lifted. Meaning thereby, the order of attachment shall be substituted by the aforesaid fixed deposit. However, the same shall be without prejudice to the rights and contentions of the respective parties in the proceedings to be initiated before the Appellate Authority.
SLP disposed off.
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2022 (9) TMI 1591 - DELHI HIGH COURT
Seeking release on bail - overlooking the provisions of Section 45 of the Prevention of Money Laundering Act, 2002, while granting bail - illegal transplant of human organ - HELD THAT:- The Court acknowledged the need for a detailed hearing on the matter and directed the production of case diaries for the next hearing date. The respondent was given two weeks to file a response, with an advance copy to the petitioner. The case was listed for further proceedings on 12th October, 2022.
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2022 (9) TMI 1590 - SUPREME COURT
Seeking relief of declaration of ownership and perpetual injunction in respect of the suit property -Transactions of sale - Mutation of names in revenue records - Loan transactions and Ownership - Original Plaintiff adopted by Baliram - HELD THAT:- Admittedly, evidence was adduced at the trial. The Original Plaintiff examined himself as witness and examined five other witnesses. The Original Plaintiff gave evidence of adoption. The second witness Trivenibai, wife of Digamber, the brother of the Original Plaintiff, Chandrabhan stated that there was an adoption ceremony held at the residence of Rambhau. She also stated that the Original Plaintiff Chandrabhan had performed the last rites of Baliram as his adopted son. The other witnesses also deposed that they had attended the ceremony at which the Original Plaintiff Chandrabhan had been given in adoption to Baliram. The Trial Court rejected the contention of the Plaintiff on the ground of contradiction and inconsistencies in the evidence.
In this case, as observed above, evidence had been adduced on behalf of the Original Plaintiff as well as the Defendants. The First Appellate Court analysed the evidence carefully and in effect found that the Trial Court had erred in its analysis of evidence and given undue importance to discrepancies and inconsistencies, which were not really material, overlooking the time gap of 34 years that had elapsed since the date of the adoption. There was no such infirmity in the reasoning of the First Appellate Court which called for interference.
Right of appeal is not automatic. Right of appeal is conferred by statute. When statute confers a limited right of appeal restricted only to cases which involve substantial questions of law, it is not open to this Court to sit in appeal over the factual findings arrived at by the First Appellate Court.
The questions raised in High Court, did not meet the tests laid down by this Court for holding that the questions are substantial questions of law. We are constrained to hold that there was no question of law, let alone any substantial question of law, involved in the Second Appeal.
The appeal is, for the reasons, as discussed above, allowed. The impugned judgment and order is set aside and the judgment and order/decree of the First Appellate Court in Regular Civil Appeal is restored.
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2022 (9) TMI 1589 - ITAT CUTTACK
Assessment Based on Seized Materials - violation of natural justice - Addition based on estimate basis - HELD THAT:- Foundation on the basis of which the assessment has been done, being the so called extracts from BDJC-27 and CWJ-12, are not available with the department, nor they were provided to the assessee for his rebuttal.
Coming to the appraisal report, though the CIT-DR refers to the same as the excel sheet prepared by the AO, this statement of the AO in his assessment order the comparison with the same with appraisal report, shows that these are nothing but the figures dawn out by the investigation wing in the appraisal report.
The gold bars have been quantified at 98,284.36 gms and the old gold ornaments purchased net weight has been determined at 492.929 gms. The appraisal report, thus, determines the computation of purchases of Cuttack branch for the assessment year 2011-2012 at 126.555 gms whereas the sales have been determined at 50101.66 to be the transfer to the Bhubaneswar branch head office is 8572 gms. Even these are the information relating to the assessment year 2011-2012. The impugned first year of appeal is assessment year 2012-2013. After this excel sheet shows wherein for the assessment year 2012-2013, the net closing stock has been determined at 29,799 gms and in respect of silver in the assessment year 2012-2013, a net negative stock of 11,456 gms has been determined. As against this, the excel chart at page 15 shows positive figures for the four branches of the assessee being, Cuttack, Bhubaneswar, Angul and Guragaon for both gold and silver. On what basis the appraisal report has been prepared showing negative figures are also not known.
Thus, clearly the assessment made is unsupported by any of the seized materials. No stock statement of the inventory as on the date of search is also produced. The revenue has been unable to produce any of the seized material to substantiate any of the figures for any of the assessment years. The so-called “working copy” of the hard disk being BDJC-27 has also not been produced before the Tribunal nor before the ld. CIT(A).
CIT(A) was absolutely right in facts in arriving at the conclusion that the additions have been made in all the three assessment years under consideration in total violation of the principle of natural justice and that the additions have been made clearly on estimate basis. Wfind no error in the order of the ld. CIT(A) which calls for any interference. In these circumstances, the findings of the ld. CIT(A) on the issue for all the three assessment years under consideration, stands confirmed.Decided in favour of assessee.
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2022 (9) TMI 1588 - BOMBAY HIGH COURT
Exemption of Social Welfare Surcharge - Notification No. 24/2015-CUS - Seeking refund of the Social Welfare Surcharge wrongly debited - Merchandise Export from India Scheme (MEIS) / Service Exports from India Scheme (SEIS) scrips - interest - HELD THAT:- An identical issue was considered by this court where the court by order [2022 (8) TMI 1489 - BOMBAY HIGH COURT] disposed the petition. Thus, respondents are directed not to auto debit from petitioner's MEIS and SEIS scrips any amount towards Social Welfare Surcharge.
Moreover, any amount deducted shall be refunded to petitioner within 8 weeks of receiving an application from petitioner for refund. Mr. Sridharan states that necessary application for refund to justify the quantum of refund will also be filed. Refund shall be issued together with interest thereon in accordance with law.
Petition disposed.
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2022 (9) TMI 1587 - CESTAT HYDERABAD
Whether demand of service tax rightly confirmed on liquidated damages/penalties recovered by the Appellant u/s 66E (e) of the Finance Act 1994 - Appellant is a PSU - Manufacture of heavy power electrical equipment - HELD THAT:- The Tribunal in South Eastern Coalfields Ltd vs Commissioner of Central Excise & Service Tax [2020 (12) TMI 912 - CESTAT NEW DELHI] observed that such amounts collected by way of penalty/liquidated damages for non-compliance of contract, cannot be considered as consideration for tolerating an act and hence, not leviable to service tax u/s 66E (e) of the Finance Act. The contracts nowhere provided obligation on the assessee to refrain from an act or tolerate an act or a situation and flow of consideration thereof. Such liquidated damages/penalty cannot be considered as receipts towards any service per say, since neither assessee is carrying on any activity to receive compensation nor there can be an intention of other party to breach or violate the contract and suffer a loss. This Tribunal relied on the ruling of Hon'ble Supreme Court in Tara Chand vs Balkishan [1963 (1) TMI 46 - SUPREME COURT].
Thus, we find that the issue herein is squarely covered in favour of the Appellant-assessee by the precedent order of this Tribunal in South Easter Coal Field Ltd vs CCE and ST (supra). Accordingly, we allow the appeal and set aside the impugned order. The appellant shall be entitled to consequential benefits, in accordance with law.
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2022 (9) TMI 1586 - ANDHRA PRADESH HIGH COURT
Seeking declaration of action of the 1st respondent in not taking any action against the letter filed by the petitioner on 20.12.2015 enclosing the H Forms post assessment for the period 2011-12 (CST), as illegal - HELD THAT:- The present Writ Petition is disposed of directing respondent No.1 to deal with the representation made by the petitioner on 20.12.2015 in accordance with law and keeping in view the law laid down by the Courts. There shall be no order as to costs.
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2022 (9) TMI 1585 - ITAT DELHI
Equipment/process royalty receipts - consideration received by the assessee for providing bandwidth services to Indian Telecom Operators outside India - assessee is a company incorporated in Singapore engaged in the business of providing digital transmission of data through International Private Line (‘IPL’) or Multi-Protocol Label Switching (‘MPLS’), etc. to facilitate high-speed data connectivity [bandwidth services outside India to its customers] - whether the bandwidth services are covered as “Equipment Royalty” or “Process Royalty” under Article 12 of the India, Singapore Tax Treaty? - HELD THAT:- We find that the issue in appeal has been decided in favour of the assessee by the Tribunal in [2020 (10) TMI 604 - ITAT DELHI] holding that the consideration received by the assessee company for the bandwidth services to various Indian Telecom Operators like Bharti Airtel India the services provided outside India is not taxable as “Royalty” in view of the beneficial provisions of DTAA between India – Singapore.
We allow the grounds of appeal raised by the assessee and direct the AO to delete the additions made on account of “Royalty”. Appeal of the assessee is allowed.
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2022 (9) TMI 1584 - DELHI HIGH COURT
Compliance with the conditions as prescribed in Section 583 of the Companies Act, 1956 - respondent is a foreign company not registered in India - HELD THAT:- List on 5th December, 2022.
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2022 (9) TMI 1583 - CESTAT MUMBAI
Application for conversion of shipping bills - time limitation prescribed in the circular no. 36/2010-Cus - Obligation under the ‘advance authorisation scheme’ - seeking coverage under schemes of the Foreign Trade Policy - conversion of ‘shipping bills’ fall into five broad categories: from ‘free’ to ‘drawback’, ‘free’ to ‘scheme’, ‘scheme’ to ‘drawback’. ‘drawback’ to ‘scheme’, and ‘scheme’ to ‘scheme’ - HELD THAT:- According to the appellant, the intent of the impugned exports as being in discharge of obligation under the ‘advance authorisation scheme’ of the Foreign Trade Policy is evident from the shipping bills and it is merely the title of the said bills that is stated to require alteration for enabling the appellant herein to remedy the defect pointed out by the licensing authority under the Foreign Trade Policy. Any further processing of their claim before the licensing authority arises under the Foreign Trade (Development & Regulation) Act, 1992 which, even if envisaging clearance from customs authorities for a decision on the closure of the said authorizations is, yet, an event of the future with no relevance on the request made before the competent authority u/s 149 of Customs Act, 1962 and should not have been a criterion for deciding upon the said request.
In view of the settled position, elaborated in Haldiram Foods International Pvt Ltd.[2020 (12) TMI 1229 - CESTAT MUMBAI], on the irrelevance of the deadline stipulated in the circular of Central Board of Excise & Customs (CBEC) relied upon in the impugned order, we set aside the rejection of the applications for amendment and direct the original authority to decide the matter afresh within the framework of section 149 of Customs Act, 1962 on the propriety of the changes sought for in the shipping bills.
Appeal is, accordingly, disposed off.
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2022 (9) TMI 1582 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL CHENNAI
Direction to place the Respondents resolution plan before the Appellant for consideration - whether the Respondents No.1 to 3 after expressing their inability to submit the Resolution Plan vide their email dated 06.11.2019 can again submit the Resolution Plan after lapse of more than 5 months and that to after approval of the Resolution Plan by the CoC in accordance with law? - HELD THAT:- In the instant case, the Respondents have failed to submit the resolution plan within the time, therefore there is no immunity to the respondents to file beyond the time prescribed. The RP rightly rejected the request of the Respondents - The Respondents failed to establish that the ‘RP’ violated the CIRP process. It is only the case of the Respondents such averments allegations have been made and the ‘Adjudicating Authority’ without going into the reality simply ratified the submissions of the Respondents, which this ‘Tribunal’ highly deprecate the said stand.
In the present case, the case of the Respondents is that despite submission of resolution plan beyond the CIRP period and much later to the last date of submission of plans, sought a direction to the RP to place its / their plan before the CoC. Therefore, the Respondents are not at all to be considered as PRAs since they have backed out from submission of the plan and intend to make an entry in to the CIRP belatedly even beyond the period of CIRP.
In view of the decisions of the Hon’ble Supreme Court in Ebix Singapore, ‘Committee of Creditors’ of Essar Steel India [2019 (11) TMI 731 - SUPREME COURT] and this Tribunal judgment in M/s Renganayaki [2021 (4) TMI 776 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , CHENNAI] and in Union Bank of India [2022 (1) TMI 1182 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL , PRINCIPAL BENCH , NEW DELHI], this ‘Tribunal’ comes to an irresistible and inescapable conclusion that the ‘Appellant’ has made out a ‘prima-facie’ case to be interfered with the order passed by the ‘Adjudicating Authority’, whereby the ‘Adjudicating Authority’ exceeded its jurisdiction in directing the ‘Resolution Professional’, to place the ‘Resolution Plan’ of the Respondent Nos.1 to 3, before the Committee of Creditors, amounts to interfering with the Commercial Wisdom exercised by the Committee of Creditors, more particularly absence of any material irregularity and violation of any Law for the time being enforce.
This Tribunal comes to a resultant conclusion that the impugned order by the Adjudicating Authority, (National Company Law Tribunal, Bengaluru Bench) is an illegal one and hence, the same is set aside, to secure the ends of justice. Accordingly, the Company Appeal is allowed.
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2022 (9) TMI 1581 - RAJASTHAN HIGH COURT
Restoration of mining operation and business of the petitioner by issuing e-ravanna - refrain from creating any hindrance or obstruction in the mining operation - no prior notice before inspection was given - HELD THAT:- Submission of the learned senior counsel for the petitioner that entire exercise undertaken by the respondents is bad in law inasmuch as no prior notice before inspection was given to it, does not merit acceptance as this Court is not satisfied that before carrying out inspection of the petitioner's mine, any prior notice was required. In absence of any statutory provision under the Rules of 2017 mandating so, the respondents were at liberty to carry out surprise inspection.
This Court is also not satisfied that no demand could have been based on the inspections carried out in absence of authorised representative of the petitioner firm inasmuch as the inspection on both the occasions was carried out in presence of Shri Anil Parashar, who, undoubtedly, was a representative of the petitioner as is revealed from the supplementary agreement dated 24.1.2019 executed between the parties wherein, Shri Parashar has stood as a witness on behalf of the petitioner-firm as also from the fact that the documents obtained by Shri Anil Parashar under the RTI Act, 2005, have been relied upon by the petitioner firm to substantiate the averments made in the writ petition. Therefore, this Court has no hesitation in holding that inspections were carried out in presence of representative of the petitioner firm.
This Court is not satisfied with the contention of learned State Counsel that since the demand raised vide order dated 11.8.2020 was maintained vide order dated 30.12.2021, they were required neither to supply a copy of the inspection report dated 9.4.2021 to the petitioner firm nor, to issue any show cause notice or afford it an opportunity of hearing before passing the order dated 30.12.2021. This specious argument is rather reflective of pre-determination of the respondents in maintaining the penalty imposed vide order dated 11.8.2020 - in the considered opinion of this Court, the respondents were under an obligation not only to supply the petitioner a copy of the inspection report dated 9.4.2021; but, also to afford it an opportunity of hearing before passing the order dated 30.12.2021.
The order dated 30.12.2021 as also the order dated 11.8.2020 are quashed and set aside - Petition allowed.
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2022 (9) TMI 1580 - NATIONAL COMPANY LAW APPELLATE TRIBUNAL, NEW DELHI.
Eligibility to be a resolution applicant in view of Section 29A(f) of the Insolvency and Bankruptcy Code, 2016 - proceedings under Section 29-A(f) of the Code has been carried out against the Appellant on the basis of notice of BSE dated 28.03.2018 - falls under the scope of Section 11(4) of the SEBI Act, 1992 - opportunity of hearing not provided - violation of principle of natural justice (Audi alterm partem) and is also violation of Section 11(4) of the SEBI Act, 1992.
HELD THAT:- Section 29(A)(f) of the Code provides that “A person not eligible to be resolution applicant: (f) is prohibited by the securities and exchange board of India from trading in securities or accessing the securities markets.” The Appellant in this case has been categorically debarred for the reasons that it failed to comply with the mandatory direction issued by the SEBI in the circular dated 10.10.2016 and 01.08.2017 by which the Appellant was repeatedly cautioned that in case, one of the option is not exercised within the time line prescribed, the necessary action shall be taken as prescribed in clause 6 of the circular dated 10.10.2016.
The argument of Counsel for the Appellant not impressed upon that the SEBI was required to follow the provisions of Section 11(4) of the Act before initiating the action in terms of circular dated 10.10.2016 and 01.08.2017 as the said action has been taken in terms of Section 11(1) of the Act.
Reference could be had to be the decision of the Hon’ble Supreme Court in the case of Sahara India Real Estate Corporation Limited & Ors. [2012 (9) TMI 374 - SUPREME COURT] in which it was held that sub-section (2) is subservient to sub-section (1) of section 11. Therefore both sub-sections (2A) and (4) will inferentially be subservient to sub-section (1) of section 11 of the SEBI Act. Therefore, the obligation cast on SEBI, to protect the interest of investors in securities, to promote the development of the securities market, and to regulate the securities market " by such measure as it thinks fit", remains undiluted even by subsections (2A) and (4) of Section 11 of the SEBI Act.
Counsel for the Appellant has submitted that there is no delegation of power by SEBI to BSE which is required to be done in accordance with Section 19 of the Act but in this case, it is opined that BSE has passed on the information to the Appellant by the impugned notice that it had been declared as non-compliant of Section 29(A) (f) of the Code in view of its act and conduct considered by the SEBI in pursuance of the circulars dated 10.10.2016 and 01.08.2017 and has exercised power under Section 11(1) of the Act. It is also a fact that the Appellant had admitted that it is barred in the list of BSE from accessing the security market for 10 years and when the resolution plan was submitted on 28.01.2019 and the Appellant was ineligible in view of Section 29(A) (f) of the Code.
The impugned order does not require any interference as there is no merit in these appeals and hence, the same are hereby dismissed.
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2022 (9) TMI 1579 - SC ORDER
Time limitation of proceedings as financial creditor under Section 7 of the Insolvency and Bankruptcy Code, 2016 - calculation of time period - HELD THAT:- The company had paid a sum of Rs.49,50,000/- on 19.12.2016, amounting to acknowledgment of debt - the period of three years has to be calculated from the said date.
Reliance is placed on a Judgment of this Court in SESH NATH SINGH & ANR. VERSUS BAIDYABATI SHEORAPHULI CO-OPERATIVE BANK LTD AND ANR. [2021 (3) TMI 1183 - SUPREME COURT], wherein this Court has held We see no reason why Section 14 or 18 of the Limitation Act,1963 should not apply to proceeding under Section 7 or Section 9 of the IBC. Of course, Section 18 of the Limitation Act is not attracted in this case, since the impugned order of the NCLAT does not proceed on the basis of any acknowledgment.
The order passed by the National Company Law Appellate Tribunal is clearly erroneous in law. The same is set aside and the order of the National Company Law Tribunal dated 27.08.2019 is restored. The appeal is, accordingly, allowed.
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2022 (9) TMI 1578 - CESTAT HYDERABAD
Denial of CENVAT Credit - input services - insurance services under group Medishield policies and personal accident policies provided to its employees and their families - period January, 2006 to July, 2007 - penalty u/s 78 of FA - HELD THAT:- The service on which Cenvat credit is admissible must fall in the same category as the listed services. Medical insurance does not fall in that list and is also not similar to the services indicated in that list. Therefore, the appellant is not entitled to Cenvat credit. He relies on the judgment of the Hon’ble Gujarat High Court in the case of COMMISSIONER OF CENTRAL EXCISE, AHMEDABAD – II VERSUS M/S CADILA HEALTH CARE LTD. [2013 (1) TMI 304 - GUJARAT HIGH COURT].
The issue of Cenvat credit on insurance services provided to the employees has been dealt with by the Larger Bench of this Tribunal in the case of M/S. RELIANCE INDUSTRIES LTD., VADODRA VERSUS COMMISSIONER CENTRAL EXCISE & SERVICE TAX (LTU) , MUMBAI [2022 (4) TMI 1357 - CESTAT MUMBAI (LB)] and it has been held that Cenvat credit is available on the service tax paid on such premium. Reliance Industries Ltd dealt with the question whether such premium was paid for insurance of not the employees but those who have opted for voluntary separation scheme announced by the company. In other words, the persons who would benefit from this insurance premium will cease to be employees of the company in that case. In the present case, the claim of the appellant is on a much better footing, inasmuch as the premium in this case is paid for medical insurance of its own employees and their families.
The impugned order cannot be sustained and needs to be set aside - Appeal allowed.
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2022 (9) TMI 1577 - ITAT MUMBAI
Disallowance of interest expenditure attributable to earning of exempt income - HELD THAT:- Respectfully following the decision in assessee’s own case for the A.Y. 1997-98.we allow ground raised by the assessee wherein as held Commissioner (Appeals) has recorded a categorical factual finding that the interest bearing funds have no nexus with the investment made in tax free bonds. Further, he has also recorded a finding of fact that the assessee had sufficient own fund to make investment in tax free bonds. The aforesaid factual finding of the first appellate authority has not been controverted by the Revenue through any substantive evidence brought on record.- Decided against revenue.
Nature of expenses - Expenditure on refurbishment of premises and software - AR submitted that the bank incurred expenditure towards electrical fittings, false ceiling, interiors, temporary fittings, paintings wooden partition, flooring etc. and it is essential for the Bank to incur such expenses for proper ambience as it is in a customer centric industry - HELD THAT:- We observed that Hon'ble Supreme Court in the case of Madras Auto Services Pvt. Ltd. [1998 (8) TMI 1 - SUPREME COURT] on similar issue adjudicated in favour of the assessee as held looked upon expenditure which did bring about some kind of an enduring benefit to the company as a revenue expenditure when the expenditure did not bring into existence any capital asset for the company. The asset which was created belonged to somebody else and the company derived an enduring business advantage by expending the amount.
In all these cases, the expense has been looked upon as having been made for the purpose of conducting the business of the assessee more profitably or more successfully. In the present case also, since the asset created by spending the said amounts did not belong to the assessee but t he assessee got the business advantage of using modern premises at a low rent, thus saving considerable revenue expenditure for the next 39 years, both the Tribunal as well as the High Court have rightly come to the conclusion that the expenditure should be looked upon as revenue expenditure.- Decided against revenue.
Taxability u/s. 115JA - Assessee is not constituted as a company under the Companies Act - HELD THAT:- As we observed that similar issue was considered and adjudicated by the Coordinate Bench in assessee’s own case for the A.Y. 1997-98 and decided the issue in favour of the assessee wherein as held since the assessee is not constituted as a company under the Companies Act, 1956, the provisions of section 115JA of the Act cannot be applied. While doing so, the Bench further observed that since the assessee Corporation is not required to distribute any dividend, it cannot be considered to be a company under the Companies Act, 1956. The facts involved in assessee’s case are more or less identical to the facts of MSEB [2001 (8) TMI 310 - ITAT MUMBAI]. In view of the aforesaid, we hold that the provisions of section 115JA of the Act are not applicable to the assessee. - Decided against revenue.
Denial for deduction of head office expenditure in entirety - restricting the claim u/s. 44C - AR submitted that Deduction of Head Office expenses should be allowed in entirety as per Non Discrimination Article 26 of Tax Treaty between India and UK and not restricting the claim u/s. 44C - AR submitted that discriminatory provisions have to be ignored for foreign/non-resident assessee in view of Tax Treaty - HELD THAT:- We observe that Coordinate Bench in the case of Metchem Canada Inc., [2005 (9) TMI 227 - ITAT BOMBAY-F] considered the similar issue and adjudicated in favour of the assessee as held beyond dispute, only such expenses are to be allowed as a deduction on account of head office expenses as can be fairly allocated to the PE. The only impact of the applicability of non-discrimination clause will be that the scope of deduction under Section 37(1) will not stand curtailed by the restriction placed under Section 44C of the Act. Section 44C has no application in the matter and that the assessee is to be allowed deduction of such head office expenses as can be fairly allocated to the PE. - Decided against revenue.
Non taxability of interest on income tax refund - HELD THAT:- As decided in the case of Avada Trading [2006 (1) TMI 465 - ITAT MUMBAI] any income assessed may become non-taxable by virtue of retrospective amendment and consequently, erroneous assessment can be rectified. Therefore, in our humble opinion, if the interest granted under Section 244A(1) is varied under Sub-section (3) of such section, then the interest originally granted would be substituted by the reduced/increased amount as the case may be -Interest on refund under Section 244A(1) would be assessable in the year in which it is granted and not in the year in which proceedings under Section 143(1)(a) attain finality.
Interest on tax refund be taxed at 10% as per India-UK Treaty - HELD THAT:- As decided in Credit Agricole Indosuez [2015 (6) TMI 974 - BOMBAY HIGH COURT] no fault can be found with the impugned order of the Tribunal in restoring the issue to the Assessing officer to determine / adopt the rate of tax on refund in the light of the relevant clauses of Indo-France DTAA and the decision of Special Bench in Clough Engineering [2011 (5) TMI 562 - ITAT, DELHI].
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2022 (9) TMI 1576 - MADRAS HIGH COURT
Nature of expenditure - Commission paid to the Managing Director - appellant company is following mercantile system of accounting and such method of accounting has been accepted by the department in all the other years - Tribunal held that the expenditure incurred can be treated as Revenue expenditure and not as capital expenditure
HELD THAT:- On a careful perusal of the order of the Assessment Officer, we are of the view that the methodology adopted by the Revenue is perfectly correct for the simple reason that it is not disputed that the amount has been shown as expenditure and that the payment has been made to the Managing Director. However, the amount has been received by the beneficiary only for the subsequent Assessment Year, which does not mean that as long as the Appellant has not shown the payment in the Books of Accounts in respect of liability, it cannot be stated that the expenditure was incurred during 2004-2005 as such expenditure would be ratified only after Board's meeting.
We have no other option, but to dismiss this Appeal. Accordingly, this Tax Case Appeal is dismissed and the question of law answered against the Assessee and in favour of the Revenue.
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2022 (9) TMI 1575 - CESTAT NEW DELHI
Condonation for delay of four years and nineteen days in filing the appeal - Department failed to provide Proper and satisfactory explanation for the delay - HELD THAT:- In the present case, it has been seen as a fact that as far back as on May 18, 2018, the department was aware that the appeal filed by the department had been returned because of defects and even the letter dated December 07, 2020 sent by the Department to the Tribunal also takes note of the fact that the Department had also been verbally informed that the appeal papers had been returned. Yet the Department sent letters dated November 23, 2020 and September 14, 2021 to the Tribunal seeking status of the appeal which had already been returned back to the Department. This only reflects the casual attitude adopted by the Department, more particularly when the time limit of filing an appeal is three months. A proper and satisfactory explanation was required to be given for explaining the delay of four years and nineteen days in filing the appeal but despite having been granted an opportunity to file a better application to explain the delay, the Department has not been able to explain the enormous delay to the satisfaction of the Bench.
The inevitable conclusion that flows from the aforesaid facts is that the Department was highly negligent in filing the appeal on February 10, 2022 to assail the order dated October 06, 2017 when the Department had, for the first time acquired knowledge on May 18, 2018 that the appeal had been returned to the Department by the Tribunal because despite three notices sent by the Tribunal, the defects had not been removed. Subsequently, even the letter dated December 17, 2020 sent by the Department to the Registry of the Tribunal admits that on verbal enquiry, the Department had been informed that the appeal papers had been returned. No cogent or plausible reason has been given by the Department for explaining this enormous delay except stating that it had written two letters to the Tribunal on November 23, 2020 and September 14, 2021 seeking status of the appeals filed by them before the Tribunal on January 18, 2018 when in fact, they were aware that the appeal had been returned by the Tribunal by letter dated May 08, 2018, which letter they had received on May 18, 2018.
The application filed for condonation for delay, therefore, deserves to be rejected and is rejected. This would result in the dismissal of the appeal also as it was not filed in the statutory period provided under the Act.
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2022 (9) TMI 1574 - ALLAHABAD HIGH COURT
Maintainability of petition - availability of alternative statutory remedy by filing appeal - respondent nos. 2 and 3 submitted that he has not been provided the copy of writ petition but he has been told that by means of this petition the order of Tribunal has been assailed, therefore, this petition is not maintainable - HELD THAT:- There are substance in the submission of respondent nos. 2 and 3, therefore, assailing the order of Tribunal may not be maintainable.
This petition is dismissed being not maintainable - However, the liberty is given to the petitioner to file an appeal u/s 35 G of Central Excise Act, 1944.
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2022 (9) TMI 1573 - DELHI HIGH COURT
Reopening of assessment u/s 148A - Assessee-Company had taken entries from twenty-eight bogus entities maintained by one accommodation entry provider - Petitioner contends that there has been violation of principles of natural justice as the Petitioner has been denied an effective opportunity to rebut the information available with the Asseesing Offcer - HELD THAT:- This Court has consistently observed that to give effect to the objective of the scheme of Section 148A, AO must provide specific material and information to the Assessee in the notice issued u/s 148A(b) so that the Assessee can provide a meaningful response at the stage of inquiry u/s 148A proceedings.
Consequently, as the show cause notice issued u/s 148A(b) of the Act as well as the subsequent notice are bereft of any details, this Court is of the view that the Revenue by asking the Petitioner-Assessee to respond to the aforesaid vague show cause notice was virtually asking the Petitioner to search for ‘a needle in a haystack’.
As Revenue now states that the Respondent shall supply all the relevant material documents and information in its possession, the impugned order passed u/s 149A(d) as well as the notice issued u/s 148 are set aside with a direction to Revenue to issue a supplementary notice in pursuance to the initial notice issued u/s 148A(b) within three weeks enclosing all the relevant/incriminating information/material/documents. AO is directed to pass a fresh order under Section 148A(d) in accordance with law within six weeks thereafter.
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