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Showing 1 to 20 of 2362 Records
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2018 (7) TMI 2368
Competence and jurisdiction under the amended Section 28 of the Customs Act, 1962 - HELD THAT:- This Court is of the opinion that an identical approach is necessary in these cases. Accordingly, following the order in Forech India [2017 (12) TMI 984 - DELHI HIGH COURT], these appeals are allowed partly and the CESTAT would independently apply its mind to the question of jurisdiction and also decide the appeal on merits – including the aspect of imposition of penalty if any.
Appeal allowed in part.
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2018 (7) TMI 2367
Classification of software - Finacle Software developed and customized for banks - whether the Finacle software supplied by the applied to various banks, merits to be classified under 8523 8020 as Information Technology Software and charged to Excise duty? - it was held by CESTAT that 'The issue is remanded to the adjudicating authority for requantifying the demand.' - HELD THAT:- Issue notice on the question of interim relief only.
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2018 (7) TMI 2366
Penalty u/s 271(1)(c) - allegation of change in the basis of initiation of penalty proceedings - HELD THAT:- A bare perusal of the assessment order passed u/s 143(3) dated 05.12.2013 shows that a satisfaction as contemplated u/s 271(1)(c) of the Act r.w.s. 271(1B) has formed towards concealment of particulars of income in respect of long term capital gains arising on sale of certain immovable property.
A perusal of the penalty order passed u/s 271(1)(c) of the Act shows that the AO has shifted from its original satisfaction and imposed penalty for default committed on account of filing ‘inaccurate particulars of income’ with reference to long term capital gains.
Therefore, there is a definite change in the basis of initiation of penalty proceedings and imposition thereof which is not permissible in law. The issue is squarely covered in favour of the assessee by the decision of the co-ordinate bench in in Shri Kantibhai Naranbhai Prajapati [2018 (2) TMI 1823 - ITAT AHMEDABAD] as held in the absence of continuity in the findings of the AO and the CIT(A), the order of the penalty passed by the AO is liable to be struck down on this ground alone. Decided in favour of assessee.
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2018 (7) TMI 2365
Revocation of the Customs Broker's license was within the prescribed time limit under the Customs Brokers Licensing Regulations, 2013 - HELD THAT:- The detection of the offence must have led to recording of statements from concerned individuals. In view of that matter, this statement recorded in respect of an importer namely M/s.ASP Senna Traders, Kutch, Gujarat must be after detecting the offence and the statement recorded from the petitioner himself was on 05.06.2014. Therefore, it is very clear that some offence was detected against the petitioner as early as on 28.05.2014 much less on 05.06.2014, when a statement was recorded. As per 20(1) of the Regulation, 2013, the Commissioner shall issue a show-cause notice within 90 days from the date of offence report. Since there is no offence report mentioned in the representation, it is construed that the date of offence shall be prior to 28.05.2013 and it came to the knowledge of the Commissioner before recording the statement. If that is taken as date of offence and same offence report is sent to the Commissioner, the Commissioner should have issued a show-cause notice for revoking the licence on or before 05.09.2014, much less before 25.02.2015, whereas the show-cause notice came to be issued only on 11.11.2015. The contention, therefore, made by the petitioner that the show-cause notice dated 11.11.2015 is barred by limitation, has some force.
Conclusion - Regulation 20 is mandatory in nature and if any failure in not issuing show-cause notice within 90 days, would vitiate the entire proceedings. Therefore, the show-cause notice dated 11.11.2015 issued by the respondent is liable to be set aside.
SCN is set aside - petition allowed.
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2018 (7) TMI 2364
Coparcenary property or not - admissible evidence of exchange deed - benefit of Section 53A of the Transfer of Property Act, 1882 - Application of Section 53A of the T.P Act.
Whether the property allotted to defendant No. 2 in the partition dated 31.07.1987 retained the character of a coparcenary property? - HELD THAT:- Admittedly, Gopalji Prasad and his five sons partitioned the property by a deed of partition dated 31.07.1987. It is clear from the materials on record that Gopalji Prasad retained certain properties in the partition. Certain properties had fallen to the share of defendant No. 2 who is the father of plaintiff Nos. 1 to 3 and grandfather of plaintiff No. 4. Certain properties had fallen to the share of the first defendant. The trial court has held that the properties are ancestral properties. The High Court has confirmed the finding of the trial court. There are no ground to disagree with this finding of the courts below.
It is settled that the property inherited by a male Hindu from his father, father’s father or father’s father’s father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.
Therefore, the properties acquired by defendant No. 2 in the partition dated 31.07.1987 although are separate property qua other relations but it is a coparcenary property insofar as his sons and grandsons are concerned. In the instant case, there is a clear finding by the trial court that the properties are ancestral properties which have been divided as per the deed of partition dated 31.07.1987. The property which had fallen to the share of defendant No. 2 retained the character of a coparcenary property and the plaintiffs being his sons and grandson have a right in the said property. Hence, it cannot be said that the suit filed by the plaintiffs was not maintainable.
Whether the exchange deed at Exhibit P2 is admissible in evidence or not? - HELD THAT:- The transfer of ownership of their respective properties by defendant Nos. 1 and 2 was done through Exhibit P2 deed of exchange. It was contended by defendant No. 1 that the exchange was only of the businesses. However, a careful perusal of Exhibit P2 clearly shows that the RCC building is also a subject matter of the deed of exchange - It is clear from Section 118 of the TP Act that where either of the properties in exchange are immovable or one of them is immovable and the value of anyone is Rs. 100/- or more, the provision of Section 54 of the TP Act relating to sale of immovable property would apply. The mode of transfer in case of exchange is the same as in the case of sale. It is thus clear that in the case of exchange of property of value of Rs. 100/- and above, it can be made only by a registered instrument. In the instant case, the exchange deed at Exhibit P2 has not been registered.
Section 17(i)(b) of the Registration Act mandates that any document which has the effect of creating and taking away the rights in respect of an immovable property must be registered and Section 49 of the Registration Act imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered under Section 17 of the Registration Act. Since, the deed of exchange has the effect of creating and taking away the rights in respect of an immovable property, namely, RCC building, it requires registration under Section 17. Since the deed of exchange has not been registered, it cannot be taken into account to the extent of the transfer of an immovable property.
Since Exhibit P2 is an unregistered document, it is inadmissible in evidence and as such it can neither be proved under Section 91 of the Evidence Act nor any oral evidence can be given to prove its contents. Therefore, the High Court has rightly discarded the exchange deed at Exhibit P2.
Application of Section 53A of the T.P Act - HELD THAT:- It is well settled that the defendant who intends to avail the benefit of this provision must plead that he has taken possession of the property in part performance of the contract. Perusal of the written statement of the first defendant shows that he has not raised such a plea. Pleadings are meant to give to each side, intimation of the case of the other, so that, it may be met to enable courts to determine what is really at issue between the parties. No relief can be granted to a party without the pleadings. Therefore, it is not open for the first defendant/appellant to claim the benefit available under Section 53A of the T.P. Act.
Conclusion - i) The properties acquired in partition retain their ancestral character concerning male descendants. ii) The High Court's decision upheld, confirming the ancestral nature of the property, the inadmissibility of the unregistered exchange deed, and the inapplicability of Section 53A to the appellant.
Appeal dismissed.
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2018 (7) TMI 2363
Sale of immovable property as stock-in-trade - lands which are subject matter of the JDA - as decided by ITAT when an immovable property is held as stock-in-trade, the same is to be considered as sold only when the sale is conveyed by means of a registered sale deed and not before that - CIT (A) has also expressed the same view in the impugned order in the case on hand and the said view, in our considered opinion, is in order
HELD THAT:- As Revenue submitted that for the next Assessment Year 2010-11 also and other subsequent years, some appeals are pending before the learned Tribunal and therefore, these observations, a sale being made only on registered sale deed may come in the way of the Revenue and adversely affect the interest of Revenue. To this argument, Assessee submitted that the Tribunal may decide those appeals un-influenced by these observations and all contentions of the parties may be kept open.
We are of the opinion that no substantial question of law in the present appeal filed by Revenue for Assessment Year 2009-10 would arise for our consideration.
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2018 (7) TMI 2362
Paying off creditors as per Section 53 of the I&B Code - waterfall mechanism - gratuity of the employees can be used for payment of dues of Creditors in terms of Section 53 of the I&B Code or not - HELD THAT:- The gratuity amount of the employees/workmen lying in the ‘Gratuity Trust Fund’ has not been treated as asset of the Corporate Debtor. The details relating to the Fund have been shown but we find that there is a shortage of Rs.5.70 Crore in the said Fund. How such shortage in Gratuity Trust Fund has occurred and who is to make good of such amount and the competent authority, who is to ensure that the amount is paid to the ex-employees/workmen/officers of the Corporate Debtor to the extent they are entitled as per their share and law, could not be decided by the Adjudicating Authority or this Appellate Tribunal in the Company Petition or in this appeal.
Any decision of the Adjudicating Authority relating to the ‘Gratuity Trust Fund’ or observation made in the impugned order dated 8th March, 2018 should be treated as mere observation not binding on the Competent Authority or any Court of Law. In view of the fact that the ‘Gratuity Trust Fund’ has not been treated as asset of the Corporate Debtor, we leave other questions open for determination by appropriate authority/ a court of competent jurisdiction.
Conclusion - Taking into consideration that the Corporate Debtor is undergoing liquidation and the creditors are entitled for their share in terms of Section 53 including wages, salaries of the employees, but the employees who are also entitle to withdraw their gratuity amount from the Fund, the Appellants or any other employee or other association are allowed to move before appropriate authority or a court of competent jurisdiction who may take care of their grievances.
Appeal disposed off.
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2018 (7) TMI 2361
Taxability on amounts received by the appellants towards renting of immovable properties such as commercial complex, shops, lands etc. to various parties - HELD THAT:- Discernibly, the Hon’ble Supreme Court has found it proper to defer decisions in these matters awaiting the judgment of the nine Judge Bench in MINERAL AREA DEVELOPMENT AUTHORITY ETC. VERSUS M/S STEEL AUTHORITY OF INDIA & ORS [2011 (3) TMI 1554 - SUPREME COURT]. Viewed in this light, it is opined that in the interests of justice, all these appeals should be kept in abeyance pending the decision of the Hon’ble Supreme Court in all the three cases referred to supra, namely UNION OF INDIA AND ORS. VERSUS UTV NEWS LTD. [2018 (5) TMI 1367 - SUPREME COURT], HOME SOLUTIONS RETAILS INDIA LTD. VERSUS UOI AND ORS. [2011 (10) TMI 13 - SC ORDER], since the final outcome therein will have a translational impact and affect the decision in all such matters as covered in these appeals.
Conclusion - This Court would not proceed with the appeals until the Supreme Court resolves the legislative competence issue.
Appeal disposed off.
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2018 (7) TMI 2360
Addition u/s 68 - identity, genuineness and creditworthiness of the investors - Held that:- The exercise for determining the identity, genuineness and creditworthiness of the investors of the share capital of the Assessee as well as lenders was undertaken in an elaborate manner by the CIT(A). Comments from the AO were sought. Detailed reasons have been given by the CIT(A) to come to the conclusion that the Assessee had discharged its onus of establishing the identity, genuineness and creditworthiness of both the investors as well as the lenders. This has been concurred with by the ITAT in the impugned order which is again an extremely detailed one.
The concurrent factual findings of both the CIT(A) and ITAT have not been shown to be perverse by the Appellant. This is virtually the fourth stage of the litigation. - Decided in favour of assessee
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2018 (7) TMI 2359
Refund of Service tax paid - tax was paid under protest - services being provided to their own members of the club - Club or Associations Services - rejection of refund on the ground of time limitation and unjust enrichment - Held that:- Having held that service tax was being paid “Under Protest”, the limitation prescribed under Section 11B will not apply - the refund claim by the appellant has to be held as having been filed with limitation.
Unjust Enrichment - Held that:- The club, while providing services to its members, have not provided the same to a second person and such services have been held to have been provided to the club itself or to the member themselves - For invoking the principle of 'unjust enrichment’, the presence of two different parties, distinct from each other is required and it has to be held that the tax collected by the one, who is claiming the refund of the same has already been collected by him from the other party and the refund of the same cannot be allowed so as to make first party as unduly enriched - When services stands provided to himself only, and there is no second party, it cannot be said that the club would become unduly enriched by collecting the service tax from its members as well as by claiming the same as refund inasmuch as club and members have been held to be the same by various High Courts.
The Tribunal in the case of Karnavati Club Ltd. vs. Commissioner of Service Tax, Ahmedabad [2013 (5) TMI 752 - CESTAT AHMEDABAD] has examined an identical issue and has held that members are not to be seen separately as client or customers. Services rendered to self cannot be equated with services rendered to client or customers and as such it has to be held that assessee passed hurdle of the principles of 'unjust enrichment’.
Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 2356
Disallowance on account of commission & brokerage - assessee failed to furnish the details with evidences in respect of expenditure shown by the assessee on account of “commission and brokerage” - CIT(A) deleted addition - HELD THAT:- It is noticed from the impugned order of the CIT-A that the assessee has given names, addresses and PAN to the AO. The assessee deducted the TDS on such payments. The entire transactions were through banks. Decided in favour of assessee.
Addition made on account of donation of Puja expenses - CIT(A) deleted addition - HELD THAT:- CIT-A by placing reliance on the decision of Aruna Sugars Ltd [1977 (1) TMI 8 - MADRAS HIGH COURT] correctly deleted the impugned addition made by the AO wherein held the subscription and donation was given by the assessee to various organizations to avoid confrontation and for smooth running of its business, therefore, the expenses incurred by the assessee on subscription and donation as incidental to assessee' business and allowable as business expenditure. Decided in favour of assessee.
Disallowance under the head ‘other expenses’ - According to AO, most of the above expenses were repetitive in nature as training, stipend or staff incentive are similar type of expenses and most of them were paid in cash - CIT(A) deleted addition - HELD THAT:- Assessee in response to the show cause explained the nature of expenses and filed detailed of statement of expenditure headwise. But, however, the AO without considering the same estimated the disallowance @ 20% as pointed out by the CIT-A. The AO did not dispute the genuineness of expenditure and make out adverse comment with the vouchers. Therefore, we find no infirmity in the order of the CIT-A and it is justified.
Appeal of revenue dismissed.
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2018 (7) TMI 2355
Disallowance of provision for bad debts deduction u/s 36(1)(vii) r/w Section 36(2) - lower authorities have denied the claim on the premises that the impugned expenditure was mere provision in nature and secondly the individual accounts of the debtors were not closed by the assessee - whether the reduction of the impugned amounts on aggregate basis without closing individual accounts entitle the assessee to claim the aforesaid deduction or not ? - HELD THAT:- As decided in Tainwala Chemicals & Plastics India Ltd. 2013 (4) TMI 211 - BOMBAY HIGH COURT] as relying on M/S. VIJAYA BANK VERSUS COMMISSIONER OF INCOME TAX & ANR. [2010 (4) TMI 46 - SUPREME COURT] held assessee has debited the provision of doubtful debt to the profit and loss account and correspondingly reduced the assets by reducing the amount of unsecured loans. On the aforesaid facts, the Tribunal held that this would amount to writing off of the debt. Thus, on examination of facts it concluded that the respondent-assessee has written off the loan and would be entitled to the claim of bad debts.
Tribunal by the impugned order also recorded a finding of fact that once the respondent-assessee has lent surplus money and offered the interest to tax as business income, then the activity of the respondent-assessee of lending money is a business activity. Therefore, the debt qualifies for deduction under Section 36(1)(vii) read with Section 36(2) of the Income Tax Act, 1961 - Decided against revenue.
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2018 (7) TMI 2354
Admissibility of unregistered agreements to sell as evidence - Suit for relief of specific performance of contract with alternative relief of refund of advance amount and permanent injunction against the Defendants was questioned - whether the suit agreement dated 9th July 2003, on the basis of which relief of specific performance has been claimed, could be received as evidence as it is not a registered document? - HELD THAT:- The document containing contract to transfer the right, title or interest in an immovable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53A of the 1882 Act to protect its possession over the stated property. If it is not a registered document, the only consequence provided in this provision is to declare that such document shall have no effect for the purposes of the said Section 53A of the 1882 Act.
The issue is no more res integra. In S. Kaladevi v. V.R. Somasundaram and Ors., [2010 (4) TMI 1184 - SUPREME COURT] this Court has re-stated the legal position that when an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received as evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act.
Reverting to the registered General Power of Attorney, the same has been executed by the original Defendant No. 1 -predecessor in title of Respondent Nos. 1 & 2 (Defendant Nos. 3 & 4), in favour of Respondent No. 3 (Defendant No. 2). Being a registered document, in our opinion, the Trial Court was justified in observing that there is a legal, rebuttable presumption that the same has been duly stamped. As observed by the Trial Court, the question as to whether the document is hit by the provisions of the 1882 Act or the 1899 Act can be decided after the parties adduce oral and documentary evidence. The High Court, therefore, should have stopped at that instead of analysing the said instrument by invoking the principle of incorporation by reference to the agreement to sell dated 12th November, 1995.
The Trial Court was right in overturning the objection regarding marking and exhibiting these documents as urged by Respondent Nos. 1 & 2 (Defendant Nos. 3 & 4), while making it clear that the question regarding the genuineness, validity and binding nature of the documents, including as to whether it is hit by the provisions of 1882 Act or the 1899 Act, as the case may be, would be decided at the appropriate stage.
This appeal ought to succeed by restoring the order of the Trial Court dated 1st June, 2016 in the above terms. The Trial Court shall decide all other issues concerning the validity, genuineness, applicability and binding nature of the documents including whether it is hit by the provisions of the 1882 Act or the 1899 Act on its own merits and uninfluenced by the observations made by it or by the High Court - Appeal allowed.
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2018 (7) TMI 2353
Denial of Cenvat credit - appellant was neither registered in centralized registration during the periods 2008-09 to 2011-12 and premises for which the invoice has been issued for also not registered with service tax department - HELD THAT:- In this case, the appellant has applied for centralized registration at their head office on 25-3-2008 and registration certificate was issued on 13-8-2012 prior to that the appellant was registered with the service tax department in their own capacity.
As on 25-3-2008 the appellant has applied for centralized registration at their head office, therefore, the date of registration is to be taken from 25-3-2008 i.e. date of application for centralized registration.
Although, the registration certificate has been issued on 13-8-2012, but, the effective date of registration is only the date of application i.e. 25-3-2008. In that circumstances, Cenvat credit cannot be denied to the appellant on the premise that the appellant has not been registered with the service tax department. In that situation, Cenvat credit cannot be denied to the appellant for the intervening period, therefore, the impugned order is set aside and the appeal is allowed.
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2018 (7) TMI 2352
TP Adjustment - comparability of the company M/s.Megasoft in the software segment - Miscellaneous Petition filed by the assessee-company stating that this Tribunal, while passing the impugned order had failed to adjudicate the argument of the assessee made during the course of hearing of appeal by case of M/s.Megasoft Ltd. comparable company, the margin of the company should be adopted by adopting the segmental information.
HELD THAT:- We had gone through the contents of the MP filed by the assessee-company and also perused the chart filed during the course of hearing of the appeal. On mere perusal of the impugned order, it is clear that there is no discussion in the order as to the argument advanced by the learned counsel as to correctness of the margin of the comparable entity M/s.Megasoft Ltd., We also note that no specific ground of appeal is raised in the appeal. We are of the considered opinion that in the interest of justice the appeal may be recalled for the limited purpose of adjudicating the argument advanced on behalf of the assessee-company on the issue of correction of margin of the company M/s.Megasoft Ltd..
MP is allowed in the above lines.
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2018 (7) TMI 2351
TP Adjustment - Determination of operating revenue - DRP by ratifying the decision taken by TPO also considered foreign exchange gain as non-operating by applying the Safe Harbour Rules - HELD THAT:- We are of the considered view that in order to compute the operating margin of the taxpayer, foreign exchange gain is to be considered as part of operating income for computing the operating margin of taxpayer as well as comparable companies. So, Ground No. 2 is determined in favour of the taxpayer.
Computation of margins of comparable companies - compute the margin of the company considered as comparable by the taxpayer for the purpose of TNMM - When there are apparent discrepancies in the margin in OP/Sales computed by TPO as well as taxpayer, the TPO is directed to verify the margin and to reconsider the same to bring on record the correct margin of the aforesaid comparable companies. So, Ground as determined in favour of the taxpayer for statistical purposes.
Selection of comparable companies - ANG Industries Ltd. be excluded as comparable on the ground that the same is engaged in diversified activities and segmental reporting is not available. So, in these circumstances, we find ANG chosen by the TPO/DRP not a valid comparable.
Elofic is not a valid comparable keeping in view the diversified market of Elofic and failing the export income to total sales filter.
WABCO's provision of catering to after market segment and carrying out significant R&D activities benefiting the company makes it incomparable to the taxpayer which is a routine manufacturer. So, we order to exclude WABCO.
DRP not providing adjustment on account of high depreciation to the total cost in the case of the taxpayer - Keeping in view the fact that in taxpayer’s own case for AY 2009-10, difference in capacity in which the taxpayer is operating and the capacity in which comparable companies are operating were recognised, we are of the considered view that the issue is required to be sent back to the TPO to decide in the light of the revenue’s own order in taxpayer’s own case for AY 2009-10 and in view of the decisions rendered by the coordinate Benches of the Tribunal (supra). Ground determined in favour of the taxpayer for statistical purposes.
DRP not considering cash profits for the purpose of TNMM in order to provide for excessive depreciation in case of the taxpayer vis-à-vis comparable companies - When the taxpayer has brought on record the complete analysis of cash profits earned by the taxpayer to be compared with complete analysis of cash profit earned by the comparable companies extracted in the preceding paras, we are of the considered view that the issue is required to be decided afresh by the TPO in the light of the decision rendered in ACIT vs. Gates India (P) Ltd. [2017 (8) TMI 282 - ITAT DELHI] and Schefenacker Motherson Ltd. [2009 (6) TMI 125 - ITAT DELHI] - So, ground is allowed for statistical purposes.
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2018 (7) TMI 2350
Dropping of charge of undervaluation - clearance made to sister unit as well as to independent buyers - it was held by CESTAT that 'when the clearance has been made to sister unit as well as to the independent buyers, the provisions of Rule 9 read with Rule 8 of the Valuation Rules, 2000 are not invocable' - HELD THAT:- Delay condoned subject to cost of Rs. 15,000/- which shall be paid to Supreme Court Legal Services Committee.
Leave granted.
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2018 (7) TMI 2349
Nature of expenses - expenditure incurred by the assessee on repairs etc. - capital expenditure or revenue expenditure - HELD THAT:- It is required to be noted that the property in question in which the aforesaid work was done is a leased property.
In the case of Empire Jute Co. Ltd. [1980 (5) TMI 1 - SUPREME COURT] as held that there may be cases where expenditure, even if incurred for obtaining an advantage of enduring benefit, may nonetheless, be on revenue account and the test of enduring benefit may break down.
If the advantage merely facilitates the assessee’s trading operation or enabling the management to conduct the assessee’s business to be carried on more effectively or more profitably while leaving the fixed capital untouched, the expenditure would be on revenue account, even though the advantage may endure of an indefinite future.
Considering the expenditure incurred in the present case for for plastering, flooring, replacement of doors, electrical fittings, plumbing, laying sheets and roofs, resurfacing road, etc. the same can be said to be incurred to “preserve and maintain” an already existing unit. Under the circumstances, the learned ITAT has rightly held the aforesaid expenditure incurred as revenue expenditure and has rightly allowed the deduction as claimed by the assessee. Decided in favour of assessee.
Addition made u/s. 40(a)(ia) - HELD THAT:- Similar disallowance was deleted by the learned CIT(A) which came to be confirmed by the learned ITAT and the same has attained finality. Under the circumstances, no error has been committed by the learned ITAT in confirming the deletion of the addition made u/s. 40(a)(ia) of the Act. No substantial question of law arises.
Transfer Pricing Adjustment - Addition of guarantee commission - ITAT deleted addition - assessee has borrowed the money on interest of 12.25% per annum as against interest of 15% quoted by the Bank - HELD THAT:- The guarantee commission of 0.75% paid by the assessee, the total cost of borrowing comes to 13% which is still lower than the rate of 15% quoted by the Bank. This in itself justifies the payment of guarantee commission. F
FAA has given a categorical finding in relation to similar transactions in earlier assessment year, where no adjustment was made by the AO / TPO. Another undisputed fact is that the operating margin of the assessee company is at 18.21% which is much better as compared to the average margin of 10.36% of the other comparables. On this account also, the payment of guarantee commission is justifiable - ITAT committed no error in deleting the addition made on account of Transfer Pricing Adjustment - Decided in favour of assessee.
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2018 (7) TMI 2348
TP adjustment - difference in the arms length price of the international transactions relating to payment of royalty - HELD THAT:- It is noticed that an identical issue having similar facts was a subject matter of the assessee’s appeal for the earlier assessment years 2008-09 and 2009-10 in those years also assessee furnished the additional evidences as has been done in the year under consideration. This Bench of the ITAT in assessee’s own case for the aforesaid assessment years 2008-09 and 2009-10 while deciding the identical issue in [2018 (5) TMI 953 - ITAT DELHI] has restored the issue back to the file of the AO / TPO.
So respectfully following assessee’s own case issue under consideration in the present case relating to payment of royalty is also set aside to the file of the AO / TPO to be adjudicated afresh in accordance with law by keeping in view the directions given in the aforesaid referred to order dated 14.5.2018. Appeal of the assessee is allowed for statistical purposes.
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2018 (7) TMI 2347
Exclusion from the Women's team for the 2018 Asian Games - Interim reliefs and timing of the writ petition - Selection criteria and alleged bias in the selection process - Territorial jurisdiction of the court - seeking directions to the Badminton Association of India to refrain from sending the select list of players to the Indian Olympic Association, as also to restrain the said respondents from permitting the two included players - arrayed as the 6th and 7th respondents in the writ petition - to participate in the Asian Games.
HELD THAT:- It can be seen from the composition of the committee that the Chief National Coach is an important constituent thereof, for he is the person most suited to speak on the inter-se merit among players who equally merit inclusion in the national team. Equally important is his choice of the event for which players must be included. As a national coach, his assessment of the ground realities that are likely to be faced in the upcoming international event has to be given due weightage. He is, in other words, an indispensable constituent of the selection committee. We make this observation because we are faced with a challenge to the composition of the selection committee in the instant case, on account of the fact that the 6th respondent, who was chosen for inclusion in the women's team, happens to be the daughter of the Chief National Coach.
Whether, in the absence of bias, the decision of the selection committee can be said to be vitiated on any other ground. In this connection it must be noted that the selection procedure that was followed was a fair and transparent one. The players aspiring for inclusion in the national team were informed of the basis on which they would be awarded points, and the tournaments in which they had to participate in order to earn those points. That having been done, the decision as to whether the last two slots in the team had to be filled by two singles players or a doubles pair has to be seen as one that was within the discretion of the selection committee. We are of the view that, in the absence of any material to suggest mala fides or patent illegality, we must defer to the wisdom of the selection committee, the expert body in these matters, for they are better suited to take decisions on the relative merit of players, more so in national interest.
It is pointed out, the exclusion of the petitioners from the Indian team happened at the meeting of the selection committee in Bangalore and hence, only the High Court of Karnataka would have the jurisdiction to adjudicate this case. Per Contra, Sri. Bechu Kurien Thomas would contend that the applications for participation at the selection tournaments, which was the criteria for seeking selection to the Indian team, had to be routed through the respective State Badminton Associations and hence, insofar as the applications of the petitioners' were routed through the 3rd respondent, located in Kozhikode, a part of the cause of action arose within the jurisdiction of this Court.
It is clear that the challenge to the exclusion from the national team depends, for its success, on the establishment by the petitioners', of factors that would vitiate the decision of the selection committee.
Territorial jurisdiction of the court: The deliberation of the selection committee having been at Bangalore, we would think that the High Court at Karnataka would be more suited to adjudicate upon this issue. We cannot accept the contention of the learned Senior Counsel for the petitioners' that, merely because the applications for participation at the selection tournaments were routed through an authority in Kerala, the said fact would clothe this court with territorial jurisdiction to adjudicate this matter. The routing of the applications, or even the participation in the selection tournaments at Bangalore and Hyderabad, were not required to be proved for establishing the right claimed by the petitioners' viz. a right to preferential selection from among players, all of who were found equally eligible, after their participation at the selection tournaments.
In the result, we find no reason to interfere with the decision of the selection committee, impugned in these proceedings. Consequently, we dismiss the Writ Petition and the Writ Appeals.
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