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Showing 101 to 120 of 2362 Records
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2018 (7) TMI 2266
Disallowance of interest and expenses u/s. 14A r.w.r 8D - HELD THAT:- We find that the CIT-A held that the assessee has shown capital reserve fund more than the investments made. Therefore, it is to be presumed that such investment made out of its own fund and, the disallowance made under Rule 8D(2)(ii) of the IT Rules, 1962 is not maintainable and we confirm the impugned order of the CIT-A.
Disallowance under Rule 8D(2)(iii) - make disallowance in respect of investments that had yielded exempt income by placing reliance on the order of the Hon’ble High Court of Calcutta in the case of REI Agro Ltd [2013 (12) TMI 1517 - CALCUTTA HIGH COURT] - Decided against revenue.
Disallowance of 25% of air craft flying right charges - HELD THAT:- As decided in own case [2016 (10) TMI 323 - ITAT KOLKATA] all costs and expenses associated with the operation of the aircraft. The assessee was not required to pay anything over and above the sum of Rs.340 lacs agreed between the parties irrespective of the use of the aircraft. The aircraft flying rights were taken considering the business needs of the assessee and the aircraft was used by very senior officials of the company for the purposes of business and furtherance thereof - Decided against revenue.
Allowability of retainer ship fees paid - HELD THAT:- As relying on own case [2016 (10) TMI 323 - ITAT KOLKATA] allowed the claim of assessee regarding retainership fees paid to M/s. Sree Bala P.Ltd
Disallowance of 25% towards guest house expenses - HELD THAT:- We find that the issue in hand is covered by the order [2016 (10) TMI 323 - ITAT KOLKATA] in assessee’s own case for the A.Ys 2006-07 & 2008-09 allowed claim of assessee.
Allowability of licence fees paid to M/s. RPG Enterprises Ltd. - HELD THAT:- We find that the issue in hand is covered by the order [2016 (10) TMI 323 - ITAT KOLKATA] in assessee’s own case for the A.Ys 2006-07 & 2008-09 allowed claim of assessee.
Allowability of unrealized loss on foreign exchange fluctuation - HELD THAT:- It is noticed that the assessee claimed loss of Rs.46.58 crores on account of foreign exchange fluctuation. We noticed that the assessee has shown gain in its profit & loss account on account of foreign exchange fluctuation for the A.Y 2010-11 and the AO assessed the same as income on account of forward contract gain, in the same way, in our opinion, the AO should have taken the loss due to unrealized forward contract for the A.Y under consideration as real loss - CIT-A held the same as real loss and the assessee is entitled to claim as deduction. We find that similar issue on identical facts and circumstances, this Tribunal has decided the issue by placing reliance on the decision of Woodward Governor India Pvt. Ltd [2007 (4) TMI 118 - DELHI HIGH COURT] wherein held that loss recorded due to foreign exchange fluctuation is an allowable deduction - Decided against revenue.
Disallowance on account of book profit u/s.115JB on disallowance u/s 14A - HELD THAT:- Co-ordinate Bench, ITAT, Kolkata in the case of TMT Viniyogan Pvt. Ltd [2017 (12) TMI 1841 - ITAT KOLKATA] wherein the Tribunal held that no disallowance could be made u/s. 14A while computing the book profit u/s. 115JB of the Act and remanded the matter to the file of AO for computing the disallowance under clause (f) to section 115JB of the Act by placing reliance on the decision of the Hon’ble High Court of Calcutta in the case of CIT Vs. Jayshree Tea Industries Ltd [2014 (11) TMI 1169 - CALCUTTA HIGH COURT] we remand the matter to the AO and to work the disallowance in terms of clause (f) to Explanation-1 of Section 115JB of the Act for the purpose of book profit.
Disallowance made on account of misc. expenses - HELD THAT:- We find that the assessee claimed the misc. expenses and without there being any evidence to that effect the AO made the disallowance. CIT-A considering the submissions of assessee in respect no inference or adverse remark whatsoever was made by the statutory auditor in the tax audit deleted the same. But, however, taking into consideration the facts and circumstances of the case, we find that the AO was justified in disallowing the same at 25% of claimed expenses. Therefore, we reverse the impugned order of the CIT-A and restore the order of AO on this issue.
Disallowance on account of Puja & Temple expenses - CIT-A deleted the addition - HELD THAT:- We find that the CIT-A placed his reliance on various case laws of Hon’ble High Courts and CBDT Instruction. The Hon’ble High Courts allowed such expenses treating the same as welfare measure for employees. Thus, the CIT-A was right in directing the AO to delete the same. We find no infirmity in the impugned order of the CIT-A and it is justified.
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2018 (7) TMI 2265
Application for Rectification of Mistake - error apparent on the face of record or not - HELD THAT:- The error pointed out by the Ld. A.R is an error which is apparent on the face of record and requires rectification. It is thus ordered that the Final Order in M/S INNOBIZ ELECTRONICS PVT. LTD. VERSUS COMMISSIONER OF CUSTOMS, TUTICORIN [2017 (1) TMI 1305 - CESTAT CHENNAI] is to be modified. The last sentence in page 2 of the said final order will read as under :
“The appeal of M/s.Innobiz Electronics Pvt. Ltd. is taken up for disposal in this order.”
The ROM application is allowed.
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2018 (7) TMI 2264
Seeking benefit of certain answers for which marks had not been awarded, which was found out in the process of RTI application - HELD THAT:- When the matter came up before this Court, the learned Standing Counsel for the State of Madhya Pradesh are directed to ascertain whether there is any vacancy in the post of Commercial Tax Inspector available as on today. A detailed counter affidavit has been filed on behalf of the State. It is pointed out that subsequent selections have been conducted and in case the appellant is appointed at this juncture it would have serious repercussions on the seniority of the officers already appointed.
It is only in the interest of justice and for doing complete justice between the parties that the appellant is appointed in one of the available posts of Commercial Tax Inspector, without treating this as a precedent.
Appeal disposed off.
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2018 (7) TMI 2263
Seeking approval of the final resolution plan - Section 31 (1) of IBC - HELD THAT:- On perusal of this entire resolution plan, this Bench hereby noticed that this resolution plan has provided for payment of insolvency resolution process costs in the manner specified by the Board in priority to the repayment of the other debts of the Corporate Debtor, provided for the repayment of debts of the operational creditors as per the waterfall mechanism mentioned under Section 53 of the Code, provided for the management of the affairs of the corporate Debtor after the approval of the Resolution plan, provided plan for payment to the creditors as mentioned in the resolution plan and this plan is not in contravention to any of the provisions of law for the time being in force with an undertaking that this plan will remain in conformity with the other requirements as specified by the Board.
Application disposed off.
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2018 (7) TMI 2262
Adjournment seeked - HELD THAT:- As petitioner submits that the amount due to the respondent was offered to him but he declined to accept the same.
At this stage, Mr. Srivastava, respondent No. 1 submits that he will accept the money which has been offered to him by the petitioner under protest as only half of the money is offered to him which is disputed by Mr. Katyal, Advocate. Be as it may be, in case the money is accepted, it would be without prejudice to rights and contentions of both the parties.List on 16th February, 2016.
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2018 (7) TMI 2261
CENVAT Credit - fraudulent availment of credit - it is alleged that unit is set up in Jammu with a mala fide intention to avail area based exemption provided under Notification No. 56/2002-CE dated 14.11.2002 and to pass on the Cenvat credit to the buyers of copper ingots - HELD THAT:- The consignment note issued by the transporter contained the reference of the invoice, quantity, description of goods etc. It is also found that the transport documents, evidencing movement of goods from the State of J & K to destination point has also been endorsed with proper certification. Thus, it is not the case of Revenue that the goods in question, during the disputed period were not transported from the factory of M/s VKM to the appellant’s manufacturing unit. Further, it is also found that based on the investigation conducted by the DGCEI in the premises of M/s VKM, the proceedings were initiated against the appellant, alleging fraudulent availment of Cenvat credit.
Since, the order confirming the demands against M/s VKM has already been set aside by the Tribunal in VINOD KUMAR JAIN VERSUS C.C.E. & S.T. -JAMMU & KASHMIR AND OTHERS [2018 (5) TMI 1512 - CESTAT NEW DELHI] on the ground that it had manufactured the impugned goods in its factory, it is opined that the adjudged demands confirmed against the appellant cannot be sustained for judicial scrutiny.
Appeal allowed - decided in favor of appellant.
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2018 (7) TMI 2260
Deduction u/s 80IB - Whether the amendment in 2005 to Section 80-IB(10), which was pertinent for the relevant assessment year 2005-06, was prospective in its operation or retrospective ? - HELD THAT:- Whether the amendment would operate prospectively or otherwise, the Tribunal has relied on an order of the Bombay High Court [2011 (2) TMI 373 - BOMBAY HIGH COURT]. The assessee now refers to a Supreme Court judgment in CIT v. Veena Developers [2015 (5) TMI 193 - SUPREME COURT] which endorses the Bombay view. The first question raised by the Revenue is, accordingly, answered in terms of the Supreme Court judgment, that the amendment will operate prospectively.
Whether the benefit of deduction under Section 80-IB(10) could be given to an assessee in respect of a project otherwise covered by the sub-section but where some of the residential units exceed the area indicated in clause (c) thereof ? - Section 80-IB(10) of the Act refers to projects and, at the first blush, the Revenue’s contention appeals. However, a closer scrutiny of such provision reveals that there are several conditions that have to be complied with before the benefit of deduction under such provision can be availed of by an assessee. Clause (c) is one of several such conditions. In such a situation, when an assessee complies with the other conditions and substantially complies with the condition in clause (c), the assessee may be justified in claiming deduction for the proportionate profit of the project referable to the residential units upto the ceiling limit indicated in the provision.
Since the deduction which has been permitted by the order impugned passed by the Appellate Tribunal does not cover the proportionate profit pertaining to the residential units exceeding 1500 sq.ft. in area, the reasoning of the Tribunal that a liberal construction of the provision should be made to give such benefit that the assessee may be entitled to, does not call for any interference.
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2018 (7) TMI 2259
Income accrued in India - FTS receipt - AO treating the standby maintenance charges received by the assessee to be in the nature of ‘fee for technical services’ as per Sec. 9(1)(vii) of the Act as against assessee’s stand of it being liable to be taxed as ‘business income’ - HELD THAT:- The issue has been consistently adjudicated by the Tribunal since Assessment Years 1998-99 onwards upholding the stand of the assessee that the receipts from standby maintenance charges cannot be taxed as ‘fee for technical services’. Therefore, following the aforesaid precedents which have been rendered in identical circumstances, and since they continue to hold the field as they have not been altered by any higher authority, we affirm the decision of CIT(A) qua the grounds raised by the Revenue and accordingly, Revenue fails in its appeal.
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2018 (7) TMI 2258
Rectification of mistake u/s 254 - HELD THAT:- After considering rival submissions and perusing the papers on record, we find that the assessee in his 23 page objections, has parawise disputed the findings of the Tribunal. This can be done only in an appeal against the order of the Tribunal. The elaborate miscellaneous application and the contents in the same clearly demonstrate that the assessee seeks review of the order of the ITAT [2017 (11) TMI 1971 - ITAT KOLKATA]
We hold that there is not mistake apparent on record in the order of the Tribunal requiring rectification. This miscellaneous application of the assessee is dismissed as non-maintainable.
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2018 (7) TMI 2257
Deduction under section 10A - Whether Tribunal is correct in directing the assessing officer to exclude expenses incurred in foreign currency and other expenses that has been excluded from ETO, from the total turnover also and accordingly recomputed the deduction under section 10A? - HELD THAT:- As decided in HCL Technologies Ltd. [2018 (5) TMI 357 - SUPREME COURT] when the object of the formula is to arrive at the profit from export business, expenses excluded from export turnover have to be excluded from total turnover also. Otherwise, any other interpretation makes the formula unworkable and absurd. Hence, we are satisfied that such deduction shall be allowed from the total turnover in same proportion as well”
Comparable selection - HELD THAT:- We direct the TPO to include Akshay Software Technologies Ltd., (2) Maars Software International Ltd and (3) VJIL Consulting Ltd., for the reasons by the Assessee
Negative working capital adjustment - HELD THAT:- No need for making any negative working capital adjustment when assessee does not carry any capital risk. In fact, TPO should have done necessary working capital adjustment to the profits of the selected comparables so as to make them comparable - See Adaptec (India) P. Ltd. [2015 (6) TMI 288 - ITAT HYDERABAD]
Comparability economic adjustments - adjustments to be carried out in situations where there are differences between the tested parties and comparable - HELD THAT:- As upheld by the recent High Court ruling the case of Chryscapital Investment Advisors (India) Pvt. Ltd. [2015 (4) TMI 949 - DELHI HIGH COURT] wherein the Hon’ble Court has held that appropriate adjustments should be carried out in situations where there are differences between the tested parties and comparables and in case such differences perceptible in the comparables cannot be eliminated on account of adjustments or otherwise, then such comparables have to be rejected - thus direct the TPO to work out appropriate risk adjustment.”
This Court in a recent judgment in Pr. Commissioner of Income Tax, Bangalore and Another Vs. M/s. Softbrands India P.Ltd. [2018 (6) TMI 1327 - KARNATAKA HIGH COURT] has held that in these type of cases, unless an ex-facie perversity in the findings of the learned Income Tax Appellate Tribunal is established by the appellant, the appeal at the instance of an assessee or the Revenue under Section 260-A of the Act is not maintainable.
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2018 (7) TMI 2256
Disallowance of a claim u/s.54F on long term capital gains - CIT(Appeals) declined to admit her claim that the land sold which gave rise to the gains was an agricultural one and hence outside the ambit of levy of capital gains tax - HELD THAT:- It is not disputed by the assessee that nature of land which was sold giving rise to the gains was never an issue before AO nor raised by her before him. It is also true that assessee herself had computed capital gains from the sale of such property and claimed deduction u/s.54F of the Act in her return of income. Nevertheless, assessee did prefer a claim before the ld. CIT (Appeals) that the land sold was agricultural in nature and would not be capital asset within the meaning of Section 2(14).
In support of this assessee placed before ld. Commissioner of Income Tax (Appeals) a number of records to substantiate such claim. Ld. Commissioner of Income Tax (Appeals) declined to admit the claim made by the assessee, citing a reason that Rule 46A did not permit admission of additional evidence, due to assessee’s failure to produce the evidence before the ld. Assessing Officer . However, a reading of the assessment order clearly show that assessee’s representative had mentioned loss of documents provided by the client to him in the Chennai floods.
If the land sold by the assessee was indeed agricultural in nature, gains arising from such sale would not be exigible for capital gains tax, since agricultural land is not a capital asset under Section 2(14) of the Act. We are of the opinion that the question whether the land sold was agricultural or not was a fundamental issue and this claim ought not have been brushed aside by the ld. Commissioner of Income Tax (Appeals), citing Rule 46A of the Income Tax Rules, 1962. When a particular receipt is not taxable under the Act, it would not become taxable solely for a reason that an assessee returned such income on a wrong understanding of law. Whether a receipt is taxable is to be determined by testing it against the provisions of the Act. Considering the facts and circumstances, we are of the opinion that assessee’s claim that land sold was agricultural in nature requires consideration.
We therefore set aside the orders of the lower authorities and remit the issue whether land sold by the assessee was agricultural or not and whether it was exigible to capital gains to the file of the Assessing Officer for consideration in accordance with law. Appeal of the assessee is allowed for statistical purpose
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2018 (7) TMI 2255
Monetary limit for filing an appeal before High Court - HELD THAT:- The tax effect in the present case as stated by the Appellants-Revenue is less than the prescribed limit of ₹ 50.00 lakhs for filing an appeal before High Court.
Appellants-Revenue does not press this appeal and seeks leave of the Court to withdraw the present appeal in terms of paragraph-13 of the said Circular.
Accordingly, in view of the aforesaid Circular issued by the Central Board of Direct Taxes, the present appeal is disposed of as withdrawn without answering the purported substantial questions of law.
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2018 (7) TMI 2254
Monetary limit for filing an appeal before High Court - HELD THAT:- The tax effect in the present case as stated by the Appellants-Revenue is less than the prescribed limit of ₹ 50.00 lakhs for filing an appeal before High Court.
Appellants-Revenue does not press this appeal and seeks leave of the Court to withdraw the present appeal in terms of paragraph-13 of the said Circular.
Accordingly, in view of the aforesaid Circular issued by the Central Board of Direct Taxes, the present appeal is disposed of as withdrawn without answering the purported substantial questions of law.
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2018 (7) TMI 2253
Grant of regular pay scale from the date of initial appointment - HELD THAT:- Without commenting upon merits of the case, the present writ petition stands disposed of with a direction to the respondents to consider the petitioner's claim by passing a reasoned and cogent order and if the petitioner is entitled for the benefit, the same shall be extended to the petitioner, as has been extended in other identical matters. The aforesaid exercise shall be completed within a period of four months from the date of receipt of certified copy of this order.
The writ petition stands disposed of.
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2018 (7) TMI 2252
Validity of import noting / order dated 18.01.2018 passed by Assistant Custom Officer with regard to amendment of IGM - appealable order or not - HELD THAT:- As per section 128 of the Custom Act, 1962, any person aggrieved by any decision or order passed under this Act by an officer of customs lower in rank than a Commissioner of Customs may appeal to the Commissioner (Appeal) within sixty days from the date of the communication to him of such decision or order.
Since the impugned order is appealable before the Commissioner (Appeal) and, therefore, the petitioner is permitted to challenge the same by filing an appeal before Commissioner (Appeal). In case such an appeal is filed within a period of 15 days from today alongwith an application for condonation of delay, the same shall be decided on merits in accordance with law.
Petition disposed off.
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2018 (7) TMI 2251
Approval of the resolution plan - section 30(6) of the Insolvency and Bankruptcy Code 2016 - HELD THAT:- On perusal of the resolution plan, it appears that the Resolution Professional had given the details of the Resolution applicants and its connected persons as per regulation 38(3) of the IBBI (Insolvency Resolution Process) Regulation 2017. In this list, the name of the resolution applicant Rajasthan Liquor Ltd. is on the top of the list and the names of Corporate Debtor Swadisth Oils Pvt. Ltd. as related party of Resolution Applicant, i.e. RLL. It is also important to point out that the name of unsecured Financial Creditor M/s. Jya Finance & Investment Co. Ltd. is also shown as a related party of Resolution Applicant, i.e. RLL.
The approved Resolution Plan secure financial creditor State Bank of India which has 86.18% vote share in the COC is not getting anything from the distribution of liquidation estate. Approved plan provides that SBI shall enhance the working capital limits from present limit of ₹ 20 crores to ₹ 30 crores. It is also clear that in 2016 the corporate debtor paid ₹ 50 crores to SBI and after that State bank of India issued no dues certificate DT. 18 October 2016 in favour of corporate debtor. Thus it is clear that SBI, which has 86.18% vote share in the COC was not aggrieved at all. Therefore they have proposed to enhance working capital limits from ₹ 20 crores to ₹ 30 crores - Since approval of resolution plan was mainly dependent on its approval by SBI. Since you SBI was not aggrieved therefore they have not taken care of the dues of other unsecured operational creditors.
Since debt of Jya Finance and investment Ltd. is an intragroup debt. The Jya finance and investment Ltd. has always acted as a financial arm of the corporate debtor. In UNCITRAL legislative guide on insolvency law, such type of debt has been treated as an equity contribution rather than as an intragroup loan, with the consequence that intragroup obligations will rank lower priority than the same obligation between unrelated parties - Therefore they can be treated in the waterfall as provided in section 53(1)(h) of the code in the category of "the equity shareholders and partners, as the case may be" which is below the rank of both the unsecured financial creditors and as well as other debts and dues.
Keeping in view the global practices, especially UNCITRAL legislative guide to insolvency law, we are of the view that claim of a related party, i.e. Jya Finance And Investment Company Limited should rank subordinate to the claim of operational creditors and treated at par with equity shareholders are partners under waterfall principle under section 53(1)(h) of the Code - the debt of ₹ 36.6643 crore of Jay Finance & Investment Co. Ltd. Crores, which is admittedly a related party of corporate debtor should fall in the category of "equity shareholders are partners" as provided in section 53(1)(h) of the Code. Their claim will be treated at par with equity shareholders are partners, who are other unsecured creditors they rank below the operational creditors of the corporate debtor.
List the matter on 31st July, 2018 for further consideration.
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2018 (7) TMI 2250
Liquidation of Corporate Debtor - Section 33(2) of the Insolvency & Bankruptcy Code, 2016 - HELD THAT:- There was no ‘resolution applicant’ who came forward to file a ‘Resolution Plan’. The ‘Committee of Creditors’ in its meeting held on 31st August, 2017 asked the ‘Resolution Professional’ to come forward with concrete proposal for revival of the company as otherwise they will have to consider the question of liquidating the company. Thereafter in absence of ‘resolution plan’, the ‘Committee of Creditors’ decided to go ahead with the liquidation of the company.
The appeal is dismissed.
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2018 (7) TMI 2249
Maintainability of petition - Validity of assessment order - HELD THAT:- Since the reassessment is already complete and the assessing officer has passed the assessment order, there are no reason to interfere with the impugned order passed by the High Court in exercise of our power under Article 136 of the Constitution of India.
It will be open to the petitioner-Authority to challenge the order of the assessing officer by filing statutory appeal and in the said appeal the petitioner would also be permitted to challenge the correctness of notice under Section 147/148 of the Income Tax Act, 1961. The appellate authority may go into the said question uninfluenced by the observations which are made in the impugned order.
Application disposed off.
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2018 (7) TMI 2248
TDS u/s 195 - tax withholding on payments of transponder fees by the Appellant to Intelsat Corporation, USA, ('Intelsat'), are taxable as 'royalty' - India- USA Tax Treaty - HELD THAT:- We note that the Hon’ble Apex Court in the case of G. E. Technology Centre Pvt. Ltd. [2010 (9) TMI 7 - SUPREME COURT] has held that where an amount is payable to a non-resident, the payer’s obligations to deduct tax at source arises only when such remittances is a sum chargeable under the Act, i.e., chargeable u/s. 4, 5, 9 of the Act in the hands of the recipient. It has further been expounded that section 195(2) of the Act is not merely a provision to provide information to the ITO(TDS), so that the department can keep track of the remittances being made to non residents outside India, rather it gets attracted to the case where payment made in a composite manner which has an element of income chargeable to tax in India and the payer seeks determination of the "appropriate proportion of such sum so chargeable". From the above case law it emerges that when in the hands of the nonresident recipient, the sum paid is not chargeable under the Act, there is no liability on the payer to deduct tax at source.
Also in INTELSAT CORPORATION [2011 (8) TMI 1248 - DELHI HIGH COURT] held income received from the activities undertaken by the respondent/assessee would not be exigible to tax in India.
Similar payments received by the Intelsat Corporation USA have been held to be not chargeable to income tax in the hands of the same recipient - no liability fasten on the assessee to deduct tax at source on payments made to Intelsat Corporation USA. Hence, the additional grounds of the assessee deserve to be allowed. Accordingly, we hold that since the Hon’ble High Court has held that the payment was not income chargeable to tax in the hands of the same recipient, there was as a corollary no liability on the part of the assessee (the payer) to deduct tax at source on the similar payment made to the same payee. Hence, the assessee succeeds on the additional ground.
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2018 (7) TMI 2247
Maintainability of appeal - low tax effect - HELD THAT:- As tax effect in the present case as stated by the Appellants-Revenue is less than the prescribed limit of ₹ 50.00 lakhs for filing an appeal before High Court.
Appellants-Revenue does not press this appeal and seeks leave of the Court to withdraw the present appeal in terms of paragraph-13 of the said Circular. Accordingly, in view of the aforesaid Circular issued by the Central Board of Direct Taxes, the present appeal is disposed of as withdrawn without answering the purported substantial questions of law.
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