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2022 (7) TMI 1369
Application for review of the judgment and order passed by the Income Tax Appellate Tribunal - petition Filled under Article 226 and 227 of the Constitution what is prayed is to set aside order [2021 (7) TMI 252 - ITAT AHMEDABAD] passed by the Income Tax Appellate Tribunal - Disallowance of head loss in contract account - HELD THAT:- While learned senior advocate raised various contentions to urge the court that the review application ought to have been allowed by the Tribunal, he fairly admitted the factum that the department has already preferred appeal under Section 260A of the Income Tax Act against the aforementioned judgment and order of the Tribunal [2017 (1) TMI 671 - ITAT AHMEDABAD]
The dismissal of the Special Civil Application by this court is only on the ground that the petitioner department has preferred substantive appeal before this court. It goes without saying that all the contentions of the petitioner will be open to be raised in accordance with law in the appeal proceedings.
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2022 (7) TMI 1368
Vivad Se Viswas Scheme - Assessee seeks restoration of appeals to file on the ground that though the assessee wanted to settle the issues under Vivad Se Viswas Scheme, due to financial constraints, the assessee could not take them to their logical conclusion and, therefore, the process under Vivad Se Viswas Scheme failed - HELD THAT:- In so far as the assessee not paying the amount requisite under the Vivad Se Viswas Scheme is concerned, absolutely there is no dispute. There is nothing on record to show that the assessee did not have any financial constraints for not getting the matter settled under the Vivad Se Viswas Scheme. Even otherwise also, the record speaks that the assessee pleaded not to dismiss the appeal as withdrawn, in view of the fact that the settlement in tune with Form No.3 was not finalised by the department as on such date. Leave was granted to the assessee to file a petition to restore the appeals to file, if the settlement benefit under the Vivad Se Viswas Scheme was not given to the assessee.
Matter is not decided on merits and no reference has been made to any of the contention of the parties. No adjudication took place in this matter. Only on the assumption that the appeals would be withdrawn on the proceedings under Vivad Se Viswas Scheme reaching their logical conclusion, the matter was dealt with in a summary manner, granting leave to the assessee to approach the Tribunal for revival of proceeding, if the proceedings under Vivad Se Viswas Scheme did not attain finality. Assessee never withdrew the appeals nor has any intention to withdraw the same. In these circumstances, we are of the considered opinion that the act of court shall not prejudice to case of any party. Actus Curiae Neminem Gravabit. With this view of the matter, while allowing these MAs, and restore the appeals to file.
All these MAs are allowed restoring the appeals to file. Registry is directed to fix the appeals for hearing on 22-08-2022.
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2022 (7) TMI 1367
Validity of order passed u/s. 92CA(3) - Time limit for completion of assessments and reassessments - HELD THAT:- We hold that the adjustment proposed by the TPO in the order passed under section 92CA on account of adjustment on account of transfer pricing adjustment arising from the determination of the ALP of the international transactions to be time barred order, cannot be sustained. All issues raised by assessee on the grounds of appeal allowed.
Disallowance of deduction u/s 80 JJAA - disallowance u/s 80JJAA in respect of additional wages paid to the employees working in 10A units read with section 80A(4) - HELD THAT:- As decided in own case [2021 (11) TMI 1129 - ITAT BANGALORE] the assessee had claimed deduction in respect of employees, who had joined as engineers in their respective field such as systems engineer, test engineer, software design engineer, IC design engineer, lead engineer etc. A cursory perusal of those lists establishes that the assessee had claimed deduction in respect of the engineers employed not in the category of supervisory control. All these details were filed before the AO during assessment proceedings. These facts were not properly considered by the AO. Further, from the order of the CIT(A), it is seen that he had taken note of the notification issued by the Government of Karnataka and concluded that as per the notification issued, the assessee company engaged in the development of software is covered by the Industrial Disputes Act, 1947. Further it is not the case of the Revenue that the assessee did not fulfil the conditions extracted elsewhere in this order. Considering all those factual matters we do not find any infirmity in the order of CIT(A) according relief to the assessee. In fact he had clarified the relevant portions related to Industrial Disputes Act, 1947 and IT Act while granting relief to the asssessee
The facts and circumstances under which the disallowance in made in the present year is similar with the assessment year 2100-12. Respectfully following the above view, we direct the Ld.AO to consider the claims in accordance with the observations of this Tribunal in assessee’s own case in the preceding assessment years.
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2022 (7) TMI 1366
TP Adjustment - upward adjustment on account of A&M expenditure - HELD THAT:- We make it clear that we are conscious of the fact that in the final assessment order passed by the AO, no addition on account of A&M expenditure was made, as this addition was subsumed in the addition made on account of international transaction of import of raw materials. Therefore, the findings on A&M expenditure shall become academic, in view of the addition made by TPO / AO on account of TP adjustment in respect of international transaction of import of raw materials is sustained.
TP adjustment on account of international transaction of import of raw materials with AEs - benchmarking of international transaction of import of raw materials - objection raised before the DRP is that the TPO was not justified in using TNMM as most appropriate method for the purpose of benchmarking the transaction of import of raw materials as against CUP method used by the assessee - HELD THAT:- The appellant company sought this transaction of import of raw materials to be justified at arm's length price by adopting benchmarking analysis by considering the AE as tested party taking the foreign companies as comparable entities by submitting the documents in the form of confirmation certificates from AE certifying the mark-up charged on supply of raw materials and certificate issued by Independent Cost Accountant certifying the mark-up charged by the AE to the appellant on supply of raw material.
As regards to the deemed international transaction i.e. third party vendors, the appellant company sought to justify that the transaction of import of raw materials at arm's length by submitting certificates from third party vendors demonstrating that the price charged to the appellant is lower than the market price. The benchmarking analysis carried out by the appellant was rejected by the TPO as well as the DRP.
We find that the contention of assessee that the third party vendors are not the AEs of the appellant remained un-adverted. Therefore, the certificate issued by third party vendors whereby, they confirmed that the discount of 10% to 20% had been given to the appellant on the raw materials supplied during the year and further confirmed that the price they have charged to the appellant company is lower than the price, it would have charged if the appellant had not purchased under global sourcing arrangement cannot be ignored by holding that these certificates were issued by AEs. Similarly, as regards to the import of raw materials from AEs, the contention of appellant company that the price charged by the AEs is lower than the prevailing market price remains uncontroverted. The lower authorities have failed to advert to this submission made by the appellant and therefore, we are of the considered opinion that the matter requires remission to the AO / TPO to examine the above benchmarking analysis furnished by the appellant and then proceed with the benchmarking of the transaction of import of raw materials in accordance with law.
Without prejudice to the above, the appellant company made an alternate claim that for the purpose of benchmarking the transaction of import of raw materials, the gross margins of appellant company should be compared with the gross margins of comparable companies, as the competition faced by the appellant company effected the net margins of appellant company on account of lower volume and in support of this, he also placed reliance on the decisions of Kirloskar Toyota Textile Machinery Pvt. Ltd [2016 (5) TMI 1595 - ITAT BANGALORE] and 3M India Ltd [2010 (7) TMI 520 - ITAT BANGALORE] - We are of the considered opinion that, in case the AO / TPO on examination of benchmarking analysis made by the appellant company is found to be not acceptable, the AO / TPO shall examine the relevance of comparison of gross profits of appellant company with the comparable companies and proceed to benchmark the international transaction of import of raw materials. Thus, this ground of appeal stands partly allowed for statistical purposes. The other grounds of appeal become academic in view of above our decision.
TP adjustment to international transaction alone - The direction of DRP is in consonance with the law laid down by Jurisdictional High Court in the case of (i) CIT vs. Hindustan Unilever Ltd [2016 (7) TMI 1245 - BOMBAY HIGH COURT] and CIT vs. Ratilal Becharlal & Sons [2015 (11) TMI 1524 - BOMBAY HIGH COURT] Therefore, we do not find any reason to interfere with the directions of DRP and hence, we do not find any merit in the grounds of appeal filed by the Revenue.
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2022 (7) TMI 1365
Income deemed to accrue or arise in India - Royalty receipts - Receipts from distribution/supply of software - attribution to profit when the transaction has been found to at Arm’s Length between foreign party and the Indian AE - amount received by ADIR from sale of software to Indian distributors as royalty income u/s 9(1)(vi) as well as under Article 12(3) of India Ireland tax treaty and taxed the same at the rates applicable with receipt as royalty income - Whether assessee was having fixed place PE/dependent agent PE? - HELD THAT:- We are of the opinion that the decision of Morgain Stanley & Co. [2007 (7) TMI 201 - SUPREME COURT] squarely applies in this case. Hence holding that since the transactions between the assessee and its Indian AE has been found to be at Arm’s Length in the transfer pricing adjustment, no further attribution can be made to the PE of the appellant as claimed. Hence, this issue needs to be decided in favour of the assessee.
Functions attributed to the Adobe India by the Revenue - As regards the few e-mails that have been referred they are only also marked to the Adobe India personnel which has been said to be done only for the sake of keeping the Adobe India in the loop. In none of the e-mail referred Adobe India has actually provided guidance and directions regarding the quotes. This is a fiction of imagination by the Revenue. Hence, the functions attributed on the basis of these e-mails are not at all enlarging the scope of actual functions performed by the AE than as per the agreement and the transfer pricing report. The plea that the email dump has not been provided is a peculiar plea. In Adobe India T.P. adjustment no such issue has been recorded. It is common knowledge e-mail correspondence is a two way process. So when everything was found in order in Adobe India T.P. Adjustment, hence, it cannot be said that Revenue did not have complete access to all the e-mails between Adobe India and Adobe Ireland.
CIT(A) is also of view that the assets client list gives rise to in intangible assets has also no basis. No cogent case has been made out that Adobe India was provided with right to any intangible asset belonging to the assessee i.e. Adobe Ireland. The issue raised by the Ld. CIT(A) by relying upon legal dispute infringement of copy right in India being looked after by Adobe India/Adobe Ireland is also without any basis as it is Adobe USA, the IP owner which handles the legal matters relating to infringement of brand, copy right matters and other related actions to be undertaken in all jurisdiction in which the Adobe operates including India. Adobe USA is authorised in monitoring to Indian operations and their legal counsels handles the matters there from.
Risk recoverable from distributors, the hypothesis that the risk is borne by Adobe India has also no basis. The documents clearly show that the collection from the customers is managed by the team Adobe Ireland. Thus, from the above, it is apparent that only on hypothesis and guess work and assigning of all sorts of imaginary motives by a few e-mails, CIT(A) and therefore the Revenue is contending that the functions performed by Adobe India are much wider than the that as per the agreement and the transfer pricing analysis. We find that as discussed by us hereinabove these submissions are not at all cogent enough to warrant a view that the transfer pricing analysing done in the case of Adobe India does not adequately reflects functions performed and the risk assumed by the enterprise. In such a situation there is no need to attribute any further profit as all functions and risk have been considered in the computation of Arm’s Length Price in the case of Adobe India.
It follows that the finding of PE is also without cogent basis. Be that as it may issue of PE becomes academic and we are not engaging further into it. We have already found that functions performed by Adobe India are actually not different than the agreement and transfer pricing documentation.
Levy of 234B interest - HELD THAT:- On the basis of the decision of Jacabs Civil Incorporated/ Mitsubhishi Corporation [2010 (8) TMI 37 - DELHI HIGH COURT], and GE Packaged Power Inc. [2015 (1) TMI 1168 - DELHI HIGH COURT] the CIT(A) has held that interest under section 234B of the Act should not be applied for until AY 2012-13. As contended that for AY 2007-08, AY 2010-11, AY 2011-12 and AY 2012-13, no interest should have been levied under section 234B of the Act for delay in payment of advance tax since as per the law, as it existed then, tax was ‘deductible’ at source on the entire income earned by Adobe Ireland from India, we remit the issue to the file of the Assessing Officer to decide this issue accordingly.
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2022 (7) TMI 1364
Confiscation of goods alongwith conveyance - section 130 of the Goods and Services Tax Act, 2017 - HELD THAT:- A contention has been raised by the petitioner that the goods in question were purchased from one M/s. Om Bana Enterprise and the same was being transported. When the goods were in transit, the authorities intercepted the goods and confiscated them. In another words, it was submitted that the authorities sought to derive their powers to overcome the possession of the petitioner of goods in transit from section 129 of the GST Act. It was submitted that since section 129 of the GST Act begins with the non-obstante clause, it is a provision independent of section 130. It was submitted that the entire exercise of powers under section 130 was without jurisdiction.
While the question raised by the petitioner would require a detailed examination, it could be immediately noticed that the impugned order came to be passed in a quick succession as noticed above, that too without permitting the petitioner to file reply. The hot hurry on the part of the authorities sacrificed the right of the petitioner to reply and in the process, there was evident breach of principles of natural justice to the prejudice to the petitioner.
A prima facie case is made out for grant of interim relief - Rule, returnable on 21.07.2022.
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2022 (7) TMI 1363
Reasons for Not Attending the Personal Hearing - HELD THAT:- We find that the assessee has reasonable cause for non attending the hearing before the ITAT. Respectful observation of the judicial orders in the case CIT, Madras v. S. Chenniappa Mudaliar, Madurai [1969 (2) TMI 10 - SUPREME COURT]. The order was passed without adjudicating the ground of the assessee and the documents filed before the Bench. Accordingly, we are accepting the miscellaneous application filed by the assessee and the order is legal and we will fix for further hearing.
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2022 (7) TMI 1362
Disallowance u/s 14A r.w.r. 8D - Necessity to record satisfaction - disallowance of expenses relatable to exempt income claimed u/s.10(34) of the Act, by invoking the provisions of Sec.14A - HELD THAT:- Where the assessee makes a claim that there is expenditure relatable to exempt income and he makes disallowance i.e. suo moto disallowance u/s.14A of the Act, if the AO proposed to invoke Sec.14A, he has to record satisfaction. That this satisfaction cannot be plain or simple satisfaction or simply invoking the formula prescribed u/r.8D(2), but it is to be done with regard to the analysis carried out on the accounts of the assessee.
Hon’ble jurisdictional High Court in the case of Marg Ltd. [2020 (10) TMI 102 - MADRAS HIGH COURT] had considered the issue on satisfaction and held that the disallowance u/r.8D of the Rules r.w.s.14A of the Act, can be computed only after recording satisfaction by the AO in terms of provisions of Sec.14A r.w.r.8D of the Rules.
As noted from the assessment order and the order of the CIT(A) that there is no discussion about any expenditure which is relatable to exempt income and how the AO recorded the satisfaction and in our considered view, the AO has not carried out any analysis of the accounts or he has not gone into the accounts despite complete books of accounts were produced before him and has not rejected the disallowance suo moto offered by the assessee.
According to us, the mandate given by the provisions of Sec.14A(2) and Rule 8D(2) of the Rules, as regards to recording of satisfaction by the AO qua correctness of the accounts of the assessee for the expenditure claimed qua exempt income is absent and hence, on this very issue, we reverse the order of the lower authorities and allow this jurisdictional issue in favour of the assessee.
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2022 (7) TMI 1361
TP adjustment - origination and marketing support services in respect of investment banking mandates - Comparable selection - AR submitted that the assessee does not provide full fledged investment/merchant banking, consultancy/research and advisory services, as presumed by the tax authorities - HELD THAT:- No reason for rejecting M/s SREI Capital Markets Limited, M/s Edelweiss Capital Limited and M/s Keynote Corporate Services Limited. Accordingly, we direct the TPO/AO to include these three companies as comparable companies.
We noticed earlier that the activities carried on by the assessee falls mainly under the category of marketing support services. It is also a fact that both the parties could not identify any other company, which carries on exactly same nature of activities as that of the assessee. There is no other option but to select companies whose functions are broadly comparable. There is no dispute that M/s Karvy Stock broking Limited and M/s Birla sunlife Distribution Company Limited are engaged in marketing of financial products of various companies. Accordingly we are of the view that these two companies can be taken as comparable companies. We direct the AO/TPO to take these two companies also as comparable companies.
Accordingly, we restore this issue to the file of AO/TPO for determining ALP of the transaction afresh.
TP Adjustment - international transaction pertaining to marketing and sales support services in relation to American Depository Receipt (ADR) - HELD THAT:- Companies functionally dissimilar with that of assessee need to be deselected.
We restore this issue to the file of AO/TPO for determining ALP of the transaction afresh by excluding all the above said three companies [Sumedha Financial Services Limited, Sundaram Finance Distribution Limited AND L & T Capital Company Limited] - It is pertinent to note that the assessee had voluntarily made transfer pricing adjustment under this segment. AO/TPO may deal with the same in accordance with law.
Companies functionally dissimilar with that of assessee investment advisory activities also be deselected.
Deduction towards adjustment for Additional cost incurred for unrelated party trades and Additional interest earned for related party trades - HELD THAT:- We direct the AO/TPO to allow adjustment towards additional cost incurred in providing services to unrelated parties.
Interest income adjustment on account of high volume of trades for related parties - HELD THAT:- We direct the AO/TPO to allow adjustment towards additional interest income earned in respect of related party transactions.
Disallowance of claim of loss arising from error trades - AO disallowed the claim apparently holding that the error losses are not related to the business carried on by the assessee - HELD THAT:- We noticed earlier that the AO has followed the earlier year’s orders. We further notice that the DRP had directed the AO to verify the details of loss again. AO has observed that the details have been verified, yet he comes to the conclusion that the same is not acceptable, i.e., the AO has not given the basis on which he had to come to such a conclusion. Again the AO is confirming the disallowance, following the order passed by him in AY 2006- 07. We noticed that the Tribunal has allowed identical claim made in the assessment year 2006-07. Accordingly, following the order of the Tribunal, we direct the AO to allow this claim in this year.
Disallowance u/s 14A - main contention of the assessee was that the investments are mainly strategic investments - HELD THAT:- We notice from the written submission furnished by the assessee that the assessee has raised an alternative ground contending that the disallowance should not exceed the amount of dividend and in this regard, it has placed reliance on the decision rendered by Hon’ble Delhi High Court in the case of Joint Investments P Ltd [2015 (3) TMI 155 - DELHI HIGH COURT] Accordingly, we direct the AO to restrict the disallowance to the amount of dividend income.
Disallowance made out of entertainment expenses - HELD THAT:- As decided in own case in A.Y. 2006-07 [2015 (7) TMI 1054 - ITAT MUMBAI] Apart from making a very generalized observation, the AO has not pointed out any particular instance which could demonstrate that the expenditure was incurred for any non business purpose. It is also not the case of Revenue that the explanation furnished by the assessee in the course of assessment proceedings was lacking in any manner. We direct the AO to delete the addition.
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2022 (7) TMI 1360
Seeking grant of bail - non-service of the summons on foreign entities - violation of the provisions of Section 447 of the Companies Act 2013 - HELD THAT:- Having regard to the position as it remains regarding non-service of the summons on foreign entities, the period of custody already undergone and no immediate possibility of the trial commencing, we are of the considered view that the appellant would be entitled to the grant of bail.
Having duly considered the provisions of Section 212(6) of the Companies Act 2013, we are of the view that in the facts of the present case, the appellant ought to be granted the benefit of bail under Section 439 of the Code of Criminal Procedure 1973 since the right to an expeditious trial is protected under Article 21 of the Constitution. It is directed that the appellant shall be released on bail, subject to such terms and conditions, as may be imposed by the Sessions Judge, Kanpur in connection with Sessions Trial No 577 of 2020.
The appeal is disposed off.
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2022 (7) TMI 1359
CIRP - distribute of money under the Resolution Plan - Resolution Professional has given four options for distribution of amounts to the Financial Creditors - Appellant has chosen option-3 - CoC by majority has decided for distribution as per Option-1 - HELD THAT:- The decision of the CoC regarding the distribution of amount is in its commercial wisdom which we cannot question or be questioned by the Appellant. - The Adjudicating Authority has rightly referred the judgment of the Hon’ble Supreme Court in “India Resurgence Arc. Pvt. Ltd. Vs. M/s. Amit Metaliks Ltd. & Anr.[2021 (6) TMI 684 - SUPREME COURT]”
The above judgment of the Hon’ble Supreme Court is fully attracted in the facts of the present case and we do not find any error in the order of the Adjudicating Authority rejecting the Application relying on the above judgment of the Hon’ble Supreme Court. There is no merit in the Appeal.
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2022 (7) TMI 1358
Assessment u/s 153A and 153C - ‘incriminating’ material - ITAT, upon appreciation of the documents on record, concluded that the documents referred to by the AO as ‘incriminating’ were admittedly not found from the address of the assessee - HELD THAT:- ITAT, concluded that since no assessment was pending for the relevant assessment year 2010-11 on the date of search and no incriminating material was found during the course of search, the issue is covered in favour of the assessee by the judgment in the case of Kabul Chawla [2015 (9) TMI 80 - DELHI HIGH COURT] and Meeta Gutgutia [2017 (5) TMI 1224 - DELHI HIGH COURT] as well M/s Kapis Impex LLP [2020 (7) TMI 44 - ITAT DELHI]
Predecessor Division Bench of this Court in Kabul Chawla (supra) has held that if no incriminating material is found during the course of the search in respect of an issue, then no addition in respect of such an issue can be made in the assessment under Sections 153A and 153C of the Act.
Though the judgment in Kabul Chawla (supra) has been challenged in connected matters and is pending before the Supreme Court, yet there is no stay of the said judgment till date. Accordingly, this Court finds no ground not to follow the said judgment.
Keeping in view the aforesaid, this Court is of the opinion that the question of law raised in present appeal has been settled by earlier Division Bench in Kabul Chawla (supra) and no incriminating documents or materials had been found and seized at the time of search. - Decided in favour of assessee.
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2022 (7) TMI 1357
Disallowance of deduction claimed u/s 35(1)(ii) in respect of donation given by the assessee - AO disallowed claim on the basis of certain information shared by the Investigation wing and the said disallowance was confirmed by learned CIT(A) - HELD THAT:- As identical disallowance made in the hands of the assessee in A.Y. 2012-13 [2022 (3) TMI 1451 - ITAT MUMBAI] has since been deleted by the Division Bench of the Tribunal - Thus we respectfully follow the judicial precedence and set aside the order of the CIT(A) and direct the Assessing officer to delete the addition and allow the ground of appeal in favour of the assessee.
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2022 (7) TMI 1356
Deduction u/s.80JJAA - adjustment of total income computed in the intimation received u/s.143(1) - assessee has not filed audit report, as required under the provisions of section 44AB of the Income Tax Act, 1961, in Form No.10DA - HELD THAT:- It is well settled principle of law by the decisions of various Courts, including decision of Raghuvir Synthetics Ltd. [2017 (4) TMI 975 - SUPREME COURT] if the issue involved is debatable, then same cannot be adjusted in intimation issued u/s.143(1) of the Income Tax Act, 1961. In this case, if you go through nature of adjustment made by the Assessing Officer towards deduction in respect of employment of new employees as per provisions of section 80JJAA of the Act, we find that the issue is highly debatable which can be resolved by deliberation, including verification of necessary documents and thus, we are of the considered view that the Assessing Officer cannot make adjustments towards deduction u/s.80JJAA of the Act, while processing return u/s.143(1) of the Income Tax Act, 1961.
Therefore, we direct the Assessing Officer to delete additions made towards disallowance of deduction claimed u/s.80JJAA of the Income Tax Act, 1961. Appeal filed by the assessee is allowed.
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2022 (7) TMI 1355
TP Adjustment - Unrealised foreign exchange gain on FCCBS - forex gain on restatement of FCCB is held to be operating in nature - HELD THAT:- We direct the Ld.AO to verify the claim of assessee that the gain has not been claimed in the computation of income and forms part of computing the margin as per transfer pricing provisions. TPO is directed to consider the claim in accordance with the above view in assessee’s own case for A.Y. 2010-11 [2015 (9) TMI 556 - ITAT BANGALORE]
Interest on trade receivables - TPO computed interest on outstanding receivables at the rate equal to 4.3087% on receivables that exceeded 90 days as per the directions of the DRP - HELD THAT:- There has to be a proper inquiry by the TPO by analysing the statistics over a period of time to discern a pattern which would indicate that vis-à-vis the receivables for the supplies made to an AE, the arrangement reflected an international transaction intended to benefit the AE in some way.
Similar matter once again came up for consideration in Avenue Asia Advisors Pvt. Ltd.[2017 (9) TMI 1295 - DELHI HIGH COURT] - Following the earlier decision in Kusum Healthcare [2017 (4) TMI 1254 - DELHI HIGH COURT] it was observed that there are several factors which need to be considered before holding that every receivable is an international transaction and it requires an assessment on the working capital of the assessee.
Applying the decision in Kusum Health Care (supra),directed the TPO to study the impact of the receivables appearing in the accounts of the assessee; looking into the various factors as to the reasons why the same are shown as receivables and also as to whether the said transactions can be characterized as international transactions.”
We deem it appropriate to set aside this issue to Ld.AO/TPO for deciding it in conformity with the above referred judgment. Needless to say, the assessee will be allowed a reasonable opportunity of being heard in accordance with law.
Set off of brought forward business losses and unabsorbed depreciation, set off of MAT credit, and non-granting of foreign tax credit - HELD THAT:- We direct the Ld.AO to consider the above claim in accordance with law. The assessee is directed to furnish relevant information / details in support of the claim. Accordingly, these grounds filed by assessee stands allowed for statistical purposes.
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2022 (7) TMI 1354
Condonation of delay of 29 days in filing appeal - deliberate delay on their part in filing the appeal or not - HELD THAT:- Section 61 of the Code provides appeals to the Appellate Authority much less the NCLAT against the order of the Adjudicating Authority. Section 61(2) provides limitation of 30 days to file the appeal. The proviso to section 61(2) further provides that the period of limitation can be extended by the Appellate Authority for another 15 days if it is satisfied that the Appellant had a sufficient cause for not filing the appeal within the prescribed period. There is no other provision in the Code by which the limitation can be extended.
It is an admitted fact that the appeal has been filed much beyond the period of 30 plus 15 days. It is needless to mention that the period of 30 days is statutorily provided to a party who intends to file an appeal but the period of 15 days is left at the discretion of the Appellate Authority which has to look into the adequacy of sufficient cause before extending the period of another 15 days. In no case the limitation can be extended beyond the period of 45 days.
In view of the aforesaid facts and circumstances, especially in view of the fact that despite having the knowledge on 02.01.2020 the certified copy was applied on 31.01.2020 the Appellant has shown that they were actually not interested in filing the appeal in time. No other argument has been raised.
Appeal dismissed.
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2022 (7) TMI 1353
Maintainability of petition - availability of alternative remedy - paramount contention advanced by the appellants is that the learned single Judge egregiously erred in dismissing the writ petition on the ground of availability of alternative remedy - it was held by High Court that When a provision is interpreted by the Tribunal to arrive at a conclusion in regard to the application filed before it, it cannot be said that the Tribunal has passed the order without jurisdiction. At the most, what the appellants could allege is only the illegality of the order passed, which is a subject matter to be considered by the appellate Tribunal in terms of Section 61 of the Insolvency and Bankruptcy Code, 2016, which is a well defined provision exemplifying the powers of the Tribunal.
HELD THAT:- There are no grounds to interfere with the impugned judgment and order of the High Court in exercise of jurisdiction under Article 136 of the Constitution of India
SLP dismissed.
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2022 (7) TMI 1352
Revision u/s 263 by CIT - Bogus purchases u/s 69C - AO Estimates the addition at 3% of the bogus purchase - HELD THAT:- It would be relevant to note that when the assessing officer gave an opportunity to the assessee to explain the transaction, the assessee did not produce any document, but stated that 2% of the purported bogus purchase may be added to the total income. Thus it would mean that the assessee had accepted the allegations against them and precisely for such reason they offered that 2% of the bogus purchase may be added to the total income.
If such was the factual position in the case on hand then it is incumbent upon the AO to inquire into the matter and take the proceedings to the logical end. Having not done so, PCIT was fully justified in exercising jurisdiction u/s 263 of the Act. Thus, we are of the view that Tribunal erroneously interfered with the order passed by the PCIT. Appeals filed by the revenue are allowed and the order passed by the Tribunal is set aside.
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2022 (7) TMI 1351
Seeking grant of Sections 135 of the Customs Act - illegal removal of imported goods clandestinely - Section 49 of Customs Act - HELD THAT:- The second accused arrested and remanded to judicial custody, who is the clearing agent of the goods. Considering the submission made by the learned Senior Counsel, this Court is inclined to grant anticipatory bail to the petitioner with certain conditions.
The petitioner shall deposit a sum of Rs.35,00,000/- as fine and penalty as imposed by the Additional Commissioner of Customs by an order dated 16.02.2022 to the credit of F.No.DRI/CZU/VIII/48/ENQ-01/INT-32/2022 within a period of fifteen days from the date on which the order copy made ready and on such deposit the petitioner is ordered to be released on bail in the event of arrest or on his appearance, before the learned Chief Judicial Magistrate, Coimbatore, on condition that the petitioner shall execute a bond for a sum of Rs.10,000/- with two sureties, each for a like sum to the satisfaction of the respondent police or the police officer who intends to arrest or to the satisfaction of the learned Magistrate concerned, failing which, the petition for anticipatory bail shall stand dismissed with further conditions imposed.
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2022 (7) TMI 1350
Seeking Enhancement of amount of compensation for the lands acquired mainly relying upon the prevailing Ready Reckoner rates of the land - whether prices mentioned in the Ready Reckoner for the purpose of calculation of the stamp duty, which are fixed for the entire area can be used as basis to determine the compensation under the Land Acquisition Act? - HELD THAT:- Whether the prices mentioned in the Ready Reckoner can be the basis for determining the compensation for the lands acquired under the Land Acquisition Act has been dealt with by this Court in the two decisions of this Court in the case of Jawajee Nagnatham [1994 (1) TMI 276 - SUPREME COURT] and Krishi Utpadan Mandi Samiti, Sahaswan [2004 (1) TMI 715 - SUPREME COURT]. In the case of Jawajee Nagnatham, this Court has observed and held that the amount of compensation for the lands under the Land Acquisition Act is determined by adopting the method of valuation namely, (1) opinion of experts; (2) the price paid within a reasonable time in bona fide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages; and (3) a number of years purchase of the actual or immediately prospective profits of the lands acquired. It is observed that in determining the market value, the Court has to take into account either one or the other of the three methods to determine market value of the lands appropriate to the facts of a given case to determine the market value. Thereafter, this Court considered whether the Basic Valuation Register would form the foundation to determine the market value.
The aforesaid decision in the case of Jawajee Nagnatham has been subsequently followed in a subsequent decision of this Court in the case of Lal Chand [2009 (8) TMI 1248 - SUPREME COURT] and it is observed that the market value of the land under Section 23 of the Land Acquisition Act cannot be fixed on the basis of the rates mentioned in the Basic Valuation Registers' maintained for the purpose of collection of proper stamp duty. In that case, as the Reference Court determined the amount of compensation on the value of the land fixed by the District Magistrate for stamp duty purposes, this court has observed and held that the same was erroneous.
As such, we are in complete agreement with the view taken in the aforesaid two decisions that the prices mentioned in the Ready Reckoner for the purpose of calculation of the stamp duty, which are fixed for the entire area, cannot be the basis for determination of the compensation under the Land Acquisition Act. It is required to be noted that in the present case, the Reference Court did consider the submission on behalf of the claimants to determine the market value on the basis of the Ready Reckoner.
Why the prices mentioned in the Ready Reckoner, which is basically for the purpose of collecting proper stamp duty and registration charges shall not be the basis for determination of the compensation for the lands acquired under the Land Acquisition Act is required to be considered from another angle also. It cannot be disputed that the rates mentioned in the Ready Reckoner are for the lands of the entire area and the uniform rates are determined with respect to different lands.
There cannot be a uniform market value of the land for the purpose of determination of the compensation for the lands acquired under the Land Acquisition Act. As observed herein above, the market value of the different lands vary from place to place and it depends upon various factors - the impugned judgment and order passed by the High Court is hereby quashed and set aside and the judgment and order passed by the Reference Court determining the compensation @ Rs.21/- per sq. ft. is hereby restored.
Appeal allowed.
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