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Showing 141 to 160 of 1633 Records
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2022 (3) TMI 1493
Condonation of delay - delay of 651 days to 742 days in filing the appeals before the CIT(A) - HELD THAT:- The sufficient cause within the contemplation of the limitation provision must be a cause which is beyond the control of the party invoking the aid of the provisions. The cause for the delay in filing the appeal, which by due care and attention, could have been avoided, cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence, or inaction, or want of bonafides can be imputed to the assessee, a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands.
The judgment of Anatek Services Pvt. Ltd. [2022 (2) TMI 1308 - BOMBAY HIGH COURT] relied on by the AR will be of no assistance to the assessee on the facts of the instant case. In the case considered by the Hon’ble Bombay High Court, on receipt of penalty orders, the assessee in order to buy peace and end the litigation, had paid penalty amount in full, but later when prosecutions were initiated, the assessee decided to challenge the penalty orders. The facts of the Hon’ble Bombay High Court judgment are totally different from the facts of the instant case.
In the instant case, the assessee has not given any reasons in the condonation petition for condoning the delay of 10 months for filing the appeal before the CIT(A) (i.e., from the date of receipt of ITAT’s order). When the assessee does not give any reasons for the delay of 10 months from the date of receipt of the ITAT order, it is only negligence / inaction on the part of the assessee in fulfilling the statutory obligations. Hence, there is no sufficient / reasonable cause for condoning the delay of more than 700 days in filing appeals before the CIT(A) -Appeals filed by the assessee are dismissed.
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2022 (3) TMI 1492
Penalty issued u/s 271AAB r.w.s. 274 - As argued AO has failed to specifically point out the clause on which the penalty was proposed to be levied - HELD THAT:- As perused the decision cited before us in the case of PCIT vs. Shri R. Elangovan [2021 (4) TMI 1131 - MADRAS HIGH COURT] and find that under similar facts the Hon’ble court has quashed the penalty order on the ground that it is based upon invalid penalty notice issued u/s 271AAB of the Act.
As in the case of PCIT vs. Shri R. Elangovan [2021 (4) TMI 1131 - MADRAS HIGH COURT] hold that the penalty order passed by the Assessing Officer is invalid and is accordingly quashed. The appeals of the assessee are allowed on legal issue.
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2022 (3) TMI 1491
TP adjustment - Purchase of finished goods and payment of Technical Administrative Fees to its Associated Enterprise - CIT(A) directing the AO/TPO to do the exercise of fresh benchmarking by treating the assessee as Trader - HELD THAT:- In the present case, it is not disputed that the relevant assessment year is the first year of operation of the assessee. From the financial statements, forming part of the paper book, it is evident that the assessee only earned Rs.9,16,35,833, from sale of traded goods and Rs.4,16,78,419 from commission income during the relevant financial year. The manufacturing license dated 16.07.2014, taken note by the CIT(A), also justifies the claim of the assessee as the trader during the relevant assessment year.
In the present case, it is also not being denied by the Revenue that the TPO has accepted the assessee as a trader for assessment year 2013–14 and 2014–15. Thus, we are of the view that the assessee has rightly been characterized as a trader by the CIT(A). Accordingly, we deem it appropriate to restore the matter to the TPO/AO to undertake fresh benchmarking of the international transaction pertaining to “purchase of finished goods" by considering assessee as a trader and to this extent we endorse the findings of the CIT(A).
Since we are remanding the issue to the TPO/AO for conducting a fresh benchmarking of aforesaid international transaction, which causes no prejudice to the interest of the Revenue, the infirmities pointed out by the learned D.R. in the order passed by the CIT(A), during the course of hearing, becomes academic in nature in the present case. Appeal by the Revenue is dismissed.
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2022 (3) TMI 1490
Acquisition of land of the original land owner vide notification dated 01.10.1980 for public purpose - non-satisfaction of requirement of Order 41 Rule 27 read with Section 96 of the CPC - appellate jurisdiction - HELD THAT:- It is required to be noted that before the Reference Court as well as before the High Court, the only evidence produced on record was the sale deed dated 29.12.1987 which was rejected from being considered. Hence, as such, there was no other evidence/material on record to arrive at a fair market value for the acquired land. Therefore, before the High Court, the appellant filed an application under Order 41 Rule 27 CPC for additional evidence to bring on record the sale deeds and certified copy of the judgment and award passed by the Reference Court which, according to the appellant, would have a direct bearing on the determination of the fair market value of the acquired land. The High Court has rejected the said application by observing that the application does not satisfy the requirement of Order 41 Rule 27 read with Section 96 of the CPC.
It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed.
The High Court ought to have allowed the application for additional evidence. However, at the same time, even after permitting to adduce the additional evidence, the applicant has to prove the existence, authenticity and genuineness of the documents including contents thereof, in accordance with law and for the aforesaid purpose, the matter is to be remanded to the Reference Court.
The present appeal is partly allowed.
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2022 (3) TMI 1489
Classification of imported goods - Aluminum slugs - classifiable under heading no. 7616 99 90 or under the sub-heading 7606 91 10 - HELD THAT:- Admittedly the imported goods are used by the importer to manufacture the finished goods classifiable under Chapter Heading 7608. The classification as proposed by the Revenue under Heading 7616, goes contrary to the General Structure of Tariff, which classifies the raw materials used in the manufacture of the finished goods under heading which occur prior to the heading of the finished goods.
In case of Shalimar Textile Mfg. [1990 (3) TMI 162 - CEGAT, NEW DELHI] relied upon by the Commissioner (Appeals) Tribunal was not concerned with the classification of “aluminum slugs”, but was concerned with admissibility of exemption under Notification No. 173/77-Cus. - As per this decision also the Slug is a plate, sheet or strip prepared for subsequent fabrication. When it is in circular shape it is circle. Undisputedly if the classification of the said product is to be determined by the application of this decision also then by application of the Note “d” to Chapter 76, these slugs will be classified under Heading 7606 only.
There are no merits in the impugned order - appeal allowed.
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2022 (3) TMI 1488
Validity of Lookout Circular - large scale diversion and siphoning of funds borrowed from Banks and Financial Institutions resulting in substantial loss of public money - HELD THAT:- A report has been filed by R1 on 17.0.2022 under the heading Role of Rahul Dinesh Surana in the case under investigation, setting out the details of various economic irregularities under investigation. The report concludes stating at para 39 that the investigation is in a crucial stage and that it is ‘reasonably apprehended that the applicant would not return to the country and might attempt to evade the process of law, more so as investigation prima facie finds siphoning of large extent of funds to foreign entities.’
The investigation, even after the elapse of three years, is stated to reveal only prima facie materials and no concrete evidences are stated to have been found been found to implicate the petitioner or frame charges. Admittedly, however there are no proceedings against the petitioner so as to implicate him before the Criminal Court or in any other fora to justify the restrictions under which he has been placed - Admittedly, there have been no instances when the petitioner has evaded summons/notices calling for his attendance/appearance. The Central Bureau of Investigation (CBI) has confirmed that there are no investigations that are ongoing in the case of the petitioner, though reserving their right to initiate appropriate action at an appropriate juncture in future.
No material is placed before the Court in support of the bald assertion that the petitioner is a flight risk and as a consequence there is no tangible material available, admittedly, to deny the petitioner of his Fundamental Right.
The petitioner’s challenge to the LOC dated 09.12.2020 is liable to be accepted. Even assuming that the same has been extended for which no materials are placed before the Court, the respondents has not been in a position to establish that the settled parametres justifying the issue of an LOC are satisfied in this case.
Petition allowed.
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2022 (3) TMI 1487
Addition u/s 68 - gifts received from Haribhat Vekariya alleging that the creditworthiness of the lender was not established - HELD THAT:- It is not the case that revenue did not have the name and address of the person giving the gift. It is also not the case that the enquiry was made and the said person has failed to respond.
CIT(A) has also accepted that the said person is having agricultural income and agricultural land. By no stretch of imagination, it can be presumed that people having agricultural income cannot make a small savings to give a small amount of loan or gift. Addition by such presumption without making any cogent enquiry is not sustainable in law. Accordingly, the addition sustained by the CIT(A) is liable to be set aside. We direct accordingly.
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2022 (3) TMI 1486
Seeking direction to 1st Respondent Bank to make payment of the Refund Monies to the Corporate Debtor's Account in CIRP - HELD THAT:- It is pertinent to point out that when the Consortium of Banks declared the accounts of the Corporate Debtor as NPA, any amounts received into the accounts of the Corporate Debtor should have been for the common benefit of all the Consortium Members. However, without an approval from the Lenders' Agent representing the Consortium of Banks and without obtaining Debit Instructions, the "suo moto" adjustment of the Refund amounts by the 1st Respondent Bank has the effect of putting other Banks in the Consortium, in a disadvantageous position and especially in the event of any distribution of assets in accordance with Section 53 of IBC, 2016. The said Claim Refund from the Department of Railway's is not in the normal course of business of the Corporate Debtor. The 2nd and 3rd Respondent have been made to be mere spectators of the unauthorized transaction entered on 19.12.2018 by the 1st Respondent.
In view of the undisputed fact, the R1 was chosen not to respond to the notice sent through this Tribunal and remained ex-parte.
Application allowed.
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2022 (3) TMI 1485
Modification of assessment order in question on the basis of which now the respondent wants to raise the demand, has been modified to NIL - HELD THAT:- Considering the submission of the parties and the admitted facts as appears from the documents annexed to the writ petition, no fruitful purpose will be served by keeping this writ petition pending and calling for affidavit and it can be disposed of at the motion stage by setting the impugned demand notice dated 15th February, 2022 being annexure P-5 to the writ petition and directing the respondent concerned to issue modified demand notice as per the request made by the petitioner by its letter dated 1st March, 2022 after taking into consideration the order of the appellate authority.
Petition disposed off.
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2022 (3) TMI 1484
Validity of SCN - seeking direction to the respondents for adjustment of the Integrated Goods and Services Tax (IGST) paid by the petitioner towards Central Goods and Services Tax (CGST) and State Goods and Services Tax (SGST) in the State of Telangana - HELD THAT:- Calling upon the respondents to adjust IGST paid by the petitioner with CGST and SGST would amount to adopting a procedure, which is not provided under the relevant statute. It would be going beyond the statute.
Reliance placed in the case of SAJI S., PROPRIETOR, ADITHYA AND AMBADI TRADERS, RANJITH R., PROPRIETOR, RANJITH ROADLINES VERSUS THE COMMISSIONER, STATE GST, THE ASSISTANT STATE TAX OFFICER [2018 (11) TMI 954 - KERALA HIGH COURT] where it was held that Where the amount of refund is completely adjusted against any outstanding demand under the Act, an order giving details of the adjustment is to be issued in Part A of FORM GST RFD-07 - the view expressed by the learned Single Judge of Kerala High Court in Saji S. Proprietor cannot be agreed upon. That was a case where petitioner had erroneously paid CGST instead of IGST.
The petitioner should comply with the show cause notice dated 23.01.2021 and pay the CGST and SGST amount in terms of the said show cause notice within a period of two months from today - petitioner would be at liberty to file appropriate application under Section 19(1) of the IGST Act for refund of the IGST amount erroneously paid by it - petition disposed off.
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2022 (3) TMI 1483
Fraudulent availment of Cenvat credit - invoices issued by M/s Suraj Ltd without receipt of goods - case of revenue is also on the ground of transporters’ admission that the goods were not supplied to the appellant - Retraction of statements and print outs which was recovered from the computers of M/s Suraj Ltd - pre-ponderance of probability - allegation of suppression with the intention to avail undue credit or not - extended period of limitation - HELD THAT:- The goods received from M/s Suraj Ltd. properly recorded in the books and accounts of the Appellant. Further the Director of Suraj Ltd. during the cross-examination admitted the supply of goods to the Appellant - it is established that the appellant have received the inputs from M/s Suraj Ltd. in their factory.
The appellant have recorded the receipt of the goods in their cenvat account i.e. RG-23A-Pt. I and Pt. II and the said disputed inputs used in the manufacture of dutiable goods. The purchase of the goods under the invoices in question were accounted for in in books of account. The payment against the said invoices were made through cheques. The Revenue could not bring any evidence that the goods covered under the invoices were diverted to any other place. It is also not the case of the department that the appellant have procured some unaccounted inputs to cover up the quantity of input shown in the invoices. There is no evidence that the inputs shown in the invoices received by the appellant were not used in the manufacture of final product. Department has not disputed the correctness of quantity manufactured by the appellant recorded in their daily stock account - The supply of disputed goods has been admitted by the supplier namely M/s Suraj Ltd. that they have supplied the goods to the appellant along with the duty paid invoices. In that situation, we are of the view that the have taken proper care while receiving the goods in their factory to avail the Cenvat Credit.
Section 36B (2) provides the conditions in respect of computer printouts. But, the said procedure has not been followed by the Revenue while relying on the said computer printout /ledgers. Therefore, the said printouts cannot be the piece of evidence to demand cenvat credit from the appellant. As can be seen, one of the conditions for the computer printout to be an admissibleevidence is that the said printout should have been produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer - There is also no investigation to find out whether the said computer data were forming part of the regular books of accounts maintained by the appellant and already found placed in these books. Further no statement of person was recorded who maintained the said data in computer. Therefore on the basis of said computer printout sheet demand of cenvat credit is not sustainable.
The Learned Adjudicating authority for denial of Cenvat Credit to Appellant also relied upon the documents/ records and statements of transporter. It is found that apart from the above, there is no other evidence to reflect upon the fact that the inputs were not actually received by the appellant. However, on the basis of transporters’ records and their statements itself, cannot be held to be sufficient for arriving at conclusion that the inputs were never transported to the appellant’s factory. All the documentary evidence on record supports the appellant’s case about the receipt of the input whereas there is no independent corroborative evidence by the Revenue produced on record. From the cross-examination records, it is also found that transporters also admitted that they have transported the goods from M/s Suraj Ltd. to Appellant company and vice -versa.
The impugned order denying Cenvat credit and ordering its recovery along with interest and imposing penalties cannot be sustained - Appeal allowed.
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2022 (3) TMI 1482
Miscellaneous Application by assessee requesting to recall the ITAT order - TP Adjustment - exclusion/inclusion of TTK Healthcare - HELD THAT:- We found that while adjudicating the issue of exclusion/inclusion of TTK Healthcare the Tribunal has restored the issue back to the file of the AO/TPO, whereas Ld. AR has pointed that this issue has already been considered by the DRP in A.Y. 2012-13 and the copy of the order is placed on record - He submitted that all the relevant information were already placed before the ITAT. After considering the submissions, we observe that there is a mistake apparent on record while adjudicating this issue.
Therefore, we deem it fit and proper to recall only those two grounds (Ground No. 1 and 2) for denovo adjudication. We direct the registry to post this case in due course in regular bench.
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2022 (3) TMI 1481
Offence punishable u/s 276B - Responsibility of Principal Officer - person responsible for non-deduction and depositing of the TDS amount - application was filed before the Trial Court for discharge contending that he is not the Managing Director of accused No.1 and only Director and hence not falls under charging of Section 2(35)(b) of the Act, which requires a notice to treat him as the ‘Principal Officer’ of accused No.1 - HELD THAT:- There must be a specific averment in the notice that he was in charge of the day-to-day affairs of accused No.1 Company and the same is missing in the notice. Only referring the proviso under Section 276 of the said Act in paragraph No.4 of Ex.P.2, asked respondent No.2 that he is also responsible for non-deduction and depositing of the TDS amount and also asked for only show cause notice why he cannot be treated as Principal Officer and no specific averment is made that he has been in charge of the affairs of accused No.1. When such averments are missing, the Trial Court has not committed any error in considering Ex.P.2 and making an observation that even it is not stated that accused No.2 had been in charge of the day-to-day affairs of accused No.1.
The notice Ex.P.2 was also taken note of by the Trial Court and comes to the conclusion that he was only asked to show cause why prosecution should not be initiated against him for the offence punishable under Section 276B of the Act, but nothing contains with regard to the contents of Section 2(35) of the said Act.
When such being the factual aspects of the case, we do not find any error committed by the Trial Court in discharging respondent No.2 in coming to the conclusion that nothing is found on record that he has been in charge of day-to-day affairs of accused No.1. Hence, no merit in the petition to invoke the revisional jurisdiction.
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2022 (3) TMI 1480
TP Adjustment - working capital adjustment - HELD THAT:- The coordinate benches already granted working capital adjustment to DPSI, assessee. We will no more interfere in the issue. This ground is setting aside for further adjudication to the Ld AO.
Erroneous rejection and selection of comparable companies - HELD THAT:- TPO was wrong to exclude the Engineers India Ltd so, the Engineers India Ltd is included in the TP study.
TPO has included L&T Limited on the ground that said companies financials are similar to the assessee company. The assessee never disputed the fact that the functions performed by L&T Limited is not similar to functions performed by the assessee company, but requested to exclude L&T Limited only on the ground that its turnover is huge which is almost more than 16 times of turnover of the assessee. We find that the Ld. DRP in its order on page 7 after considering relevant submissions of the assessee has directed the TPO to consider the power segment functionally of L&T Limited and then compare with assessee’s transactions. In addition to this, we also direct the TPO to adopt turnover filter to determine whether the power segment of L&T Limited is fit into the turnover category to compare the transactions of the assessee and then re-compute the TP adjustments.
Incorrect computation of margin of comparables and adjustment amount - HELD THAT:- We herein restore the matter back to the TPO with a direction to calculate OP/OC margin by comparing the entities as mentioned above. The matter is setting aside to AO for further calculation.
Transfer Pricing adjustment relating to payment of Technical Royalty - HELD THAT:- In this case, the AO has given various reasons to reject the TP study conducted by the assessee for benchmarking royalty payment and thus rejected the arguments of the assessee. Having said so, let us come back to the comparables selected by the TPO. The TPO has selected two comparables M/s Amanasu Energy Corp. & M/s Power verde Inc. According to the ld. Counsel of the assessee both are functionally similar and cannot be compared. He further submitted that in respect of M/s. Power verde Inc., the data relied upon by the TPO pertains to AY 2014- 15, whereas, the issue pertains to AY 2015-16. He further claimed that the TPO has failed to apply proper filter to select the companies. Therefore, considering the facts and circumstances of the case, we are of the considered view that this issue will go back to the file of the TPO for fresh examination of the claim of the assessee to carryout TP analysis in respect of royalty payments.
Employees Contribution to PF & ESI - payments of assessee made after the due date of the specific act, but before the due date of filing return u/s. 139(1) - HELD THAT:- The matter is already covered in assessee’s own case [2021 (3) TMI 585 - ITAT CHENNAI] So, the addition made is deleted and accordingly ground of assessee are allowed.
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2022 (3) TMI 1479
Exemption from GST - services of survey and preparation of detailed project report (DPR) for water supply schemes for Panchayats/Municipalities under Jal Jeevan Mission - pure services - applicability of 2% MS deduction on the payments made - N/N. 12/2017-Central Tax (Rate) New Delhi, dated 28th June, 2017 - HELD THAT:- It is observed that SI. No. 3 of the Notification No. 12/2017-Central Tax (Rate) dated 28 June, 2017 exempts pure services (excluding works contract service or other composite supplies involving supply of any goods) provided to the Central Government. State Government or Union territory or local authority or a Governmental Authority by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution.
Whether the services provided by the applicant are services, provided by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution? - HELD THAT:- To avail the benefit of the aforesaid exemption, three conditions should be satisfied. Firstly, pure services (excluding works contract service or other composite supplies involving any goods) should be provided, secondly, it should be provided to the Central Government, State Government or Union territory or local authority or a Governmental authority and thirdly it should be by way of any activity in relation to any function entrusted to a Panchayat under article 243G of the Constitution or in relation to any function entrusted to a Municipality under article 243W of the Constitution. Supply of man power as discussed above provided by business entities like the applicant, not involving any supply of goods would be treated as supply of pure services also the applicant has submitted that they are providing the same to Central / State Government.
It is dear from the documents furnished by the applicant that the provision of services of survey and preparation of Detailed Project Report for water supply systems for Panchayats/ Municipalities by the applicant through Public Health Engineering Department, Chhattisgarh, qualifies as being “Pure Services” as per the definition and the services rendered thereby being listed in article 243G of Constitution as functions pertaining to Panchayat, eligible for exemption as provided under Sr. no. 3 to Notification No. 12/2017- Central Tax (Rate) New Delhi, dated 28th June, 2017 as amended.
IDS deduction of 2% on the payment made by the PHED, Chhattisgarh - HELD THAT:- TDS under GST under CGST Act, 2017 is applicable only on “taxable goods or services” and not on “all Taxable supplies”. “Taxable supply” stands defined under Section 2 (108) of CGST Act, 2017 to mean a supply of goods or services or both which is leviable to tax under this Act, whereas TDS ibid stipulates about “taxable goods and services” and not on “taxable supply”. It would not be out of place to mention here that only “taxable supply” covers all supplies that are leviable to tax (even if exempt by Notification under Section 11 of CGST Act, 2017). Hence TDS ibid is not deductible if the underlying transaction is exempt or non-taxable (i.e.) the same is not leviable to GST - no deduction of TDS is warranted in respect of payment received by the applicant against the services rendered by the applicant which are exempted as per principal notification No.12/2017-Central Tax (Rate) dated 28th June, 2017, as amended.
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2022 (3) TMI 1478
Seeking grant of Anticipatory Bail - bogus billing scam - passing of wrong input tax credit - It is the say of the applicant that though the complaint is exhaustive running into several pages but no concrete material is available against the accused - HELD THAT:- The allegations which are leveled in the main criminal case are very serious in nature involving not only the main accused persons but several other accused persons and without their connivance this organized crime might not have taken place. The allegations which are leveled are related to economic offence and as such without opining clearly on these allegations which is not called for at this stage, this Court is of the considered opinion that offence is serious in nature in which to some extent a finger is clearly pointed out against the applicant and as such the Court is not inclined to exercise the discretion.
At this stage the Court is mindful of the situation that Court is not expected to undertake exercise critical analysis of any material in anticipatory bail application but then when the petition for quashing after arguing was withdrawn almost on similar submissions and earlier application for anticipatory bail application was also withdrawn, this Court is not inclined to allow the applicant to re-agitate the very same kind of submissions that applicant is an innocent person or there is no material connecting the applicant with commission of crime since all these points have already been agitated in earlier round of application.
This Court is of the clear opinion that no case is made out at all of anticipatory bail particularly when it was clearly found not by once but on more than one occasion that the applicant is a part of this organized crime of economic offence and has been found to be not co-operating with the investigating officer though might have remained present for some occasion but it was clearly found from the reply affidavit of investigating officer that this very applicant is the owner of one of the companies which is involved in activity of bogus bills scam. Therefore, when the applicant is found to have indulged himself in such economic offence this Court is not at all inclined to exercise the discretion and that too in the absence of any other change of circumstance though this change of circumstance concept may not be in anticipatory bail.
This Court deems it proper not to exercise the discretion in favour of the applicant since no exceptional circumstance is pointed, which may persuade the Court to exercise the discretion in his favour. In considered opinion of this Court the applicant has miserably failed in making out a case for anticipatory bail - Accordingly, present application stands rejected.
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2022 (3) TMI 1477
Reopening of assessment u/s 147 - Scope of Section 148A as newly inserted - Comparison between old and new provisions for reassessment - Individual identity of Section 148 as prevailing prior to amendment - applicability of the newly inserted provisions of Section 148A and the amendments brought inter alia w.e.f. 1.4.2021 - identity of Section 148 as prevailing prior to amendment and insertion of section 148A - Whether after introduction of new provisions for reassessment of income by virtue of the Finance Act, 2021 with effect from 01.04.2021, substituting the then existing provisions, would the substituted provisions survive and could be used for issuing notices for reassessment for the past period? - HELD THAT:- As relying on SUDESH TANEJA WIFE OF SHRI CP TANEJA [2022 (1) TMI 1212 - RAJASTHAN HIGH COURT] no notice under Section 148 would be issued for the past assessment years by resorting to the larger period of limitation prescribed in newly substituted clause (b) of Section 149(1). This would indicate that the notice that would be issued after 01.04.2021 would be in terms of the substituted Section 149(1) but without breaching the upper time limit provided in the original Section 149(1) which stood substituted.
Under no circumstances the extended period available in clause (b) of sub-section (1) of Section 149 which we may recall now stands at 10 years instead of 6 years previously available with the revenue, can be pressed in service for reopening assessments for the past period. This flows from the plain meaning of the first proviso to sub-section (1) of Section 149. In plain terms a notice which had become time barred prior to 01.04.2021 as per the then prevailing provisions, would not be revived by virtue of the application of Section 149(1)(b) effective from 01.04.2021. All the notices issued in the present cases are after 01.04.2021 and have been issued without following the procedure contained in Section 148A of the Act and are therefore invalid.
By virtue of notifications dated 31.03.2021 and 01.04.2021 issued by CBDT substitution of reassessment provisions framed under the Finance Act, 2021 were not deferred nor could they have been deferred. The date of such amendments coming into effect remained 01.04.2021.
In the result we find that the notices impugned in the respective petitions are invalid and bad in law. The same are quashed and set aside. The learned Single Judge committed no error in quashing these notices. All the writ petitions are allowed. Appeals of the revenue are dismissed.
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2022 (3) TMI 1476
TP Adjustment - comparable selection - HELD THAT:- Rejection of companies non-comparable to assessee's international transaction of Information Technology Enabled Services.
We noticed that the Cosmic Global Limited was excluded from the comparables in the earlier Assessment Years and the Coordinate Benches consistently confirmed the same. The major part of the income is from translation charges and functions of this comparable is different to the assessee company, therefore consistent with the earlier assessment year, we also direct the Assessing Officer/TPO to exclude this company from the list of comparables.
We direct the AO/TPO to exclude the comparable E-Clerx Services Ltd., and Coral Hubs Ltd., from the list of comparables as substantially different from that of the assessee.
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2022 (3) TMI 1475
TDS u/s 195 - royalty / Fees for Technical Service (“FTS”) taxable under section 9(1)(vi)/(vii) - payments proposed to be made to Hyatt Chain Services Ltd., Hongkong (“HCSL”) for provision of centralised services i.e. advertisement, sales promotion and computerised reservation to the assessee amongst others - assessee is running a hotel under the name and style of Hyatt Regency as a franchise of Hyatt International Asia Pacific Limited known as Hyatt - whether the chain marketing services provided by HCSL to assessee falls within the scope of Explanation 2 to section 9(1)(vi) of the Act? - HELD THAT:- As per SOA the remittance to HCSL is made by the assessee in relation to centralised services provided by HCSL outside India for advisement, sales promotion and computer reservation. In our view, payments to HCSL are not made for consideration for any of the items (i) to (vi) enumerated in Explanation 2 to section 9(1)(vi).
There are numerous decisions wherein the issue relating to the nature of provision of centralised marketing services by way of advertising and computer reservation etc. rendered by one of the group of company particularly in the field of hospitality industry outside India has been considered. In the case of Director of Income Tax vs. Sheraton International Inc. [2009 (1) TMI 27 - DELHI HIGH COURT] wherein such type of service was under consideration, the Hon’ble Delhi High Court held that such services are neither royalty nor FTS as per the provisions of section 9 of the Act and accordingly not liable to tax in India.
Thus we hold that the payments made to the HSCL by the assessee are not in the nature of royalty under the provisions of section 9(1)(vi) of the Act and thus not chargeable to tax and not requiring the assesee to withhold any tax on such payments.
It is a settled position of law that under section 195 of the Act, tax is not required to be withheld on remittance made by the assessee in respect of the income of the payee which is not chargeable to tax under the provisions of the Act. In support, reliance is placed on the judgements of the Hon’ble Supreme Court in Transmission Corporation of A.P. Ltd. & Anr. [1999 (8) TMI 2 - SUPREME COURT] and GE India Technology Cen. (P) Ltd. [2010 (9) TMI 7 - SUPREME COURT]
Alternate argument that the payment for chain marketing services has been made to HSCL as reimbursement of the proportionate expenses incurred by HSCL on cost to cost basis and there was no element of income at all - We find force in the argument of the Ld. AR. The Hon’ble Delhi High Court in CIT vs. Expeditors International (India) (P.) Ltd. [2011 (12) TMI 104 - DELHI HIGH COURT] held that the assessee was not liable to withhold tax in respect of the reimbursement of global management expenses, communication uplink charges and other expenses made to its parent company located outside India.
Thus in our view, no income can be said to accrue or arise to HCSL in India making the assessee liable to withhold tax under section 195 of the Act. We accordingly uphold the order of the Ld. CIT(A) and reject the appeal of the Revenue.
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2022 (3) TMI 1474
Reopening of assessment u/s 147 - reason to believe - onus to prove - HELD THAT:- We are satisfied that the reasons recorded for reopening are purely based on change of opinion and not due to any failure on the part of petitioner to disclose any material fact.
AO says that the AO who did the original assessment proceedings under Section 143(3) of the Act added back only 1% of the total turnover/sales to the total income of the assessee instead of adding back 5%. This indicates clear change of opinion. Moreover, there is nothing to indicate why it should be 5%.
In the circumstances, we are satisfied that the notice and the impugned order has to be quashed and set aside. - Decided in favour of assessee.
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