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Showing 161 to 180 of 1566 Records
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2023 (7) TMI 1409
Recovery of outstanding corporate tax dues from the personal assets of either of the petitioners - Lifting of corporate veil, to enforce the tax liability of a corporate entity on its directors and other functionaries etc. - Burden of proof on revenue authorities to justify piercing the corporate veil - HELD THAT:- Both generally (by way of a principle of law and also in the present facts), it is impermissible to allow the revenue authorities to rely on any assumption or presumption as to malfeasance or scam or fraud. Neither, the revival offered by BIFR was challenged nor there is any other material on record to reach such conclusion. Insofar as the conduct of the business upon revival is concerned, merely because statutory exemptions and benefits might have been claimed and those were declined would also not per se establish any malfeasance or misconduct or other conduct or omission attributable to the petitioners as may allow the recovery proceedings to be continued against them- for the dues of the company - Exemptions are claimed in accordance of perception of the claimant. Those are dealt with and decided by statutory bodies, on their own merits. Rejection of a claim may never be treated to be a fraudulent act, unless necessary facts are asserted and established. At present there is no allegation of any fraudulent claim to exemption made. The order dated 30.3.2005 only records, the claims, thus made by the company were rejected.
Fact of resignation by petitioners as directors of the company - HELD THAT:- Continuance as directors of a corporation may be prima-facie evidence as to who was responsible for running with the affairs of the corporation, yet, it may never be relevant or enough to reach a conclusion that therefore such person acted fraudulently or committed malfeasance or misconduct or other act or omission as may expose him/them to the exceptional liability of recovery of dues of the corporation, from their personal assets - The revenue failed to discharge its burden to prove special facts as may have exposed the petitioners to the impugned recovery proceedings. To that extent the facts found proven in the order dated 30.3.2005 as confirmed in appeal vide order dated 31.12.2007, are wholly extraneous to the issue. That discussion has already been made above. The corporate veil of the company, is found intact.
The petitioner is entitled to writ of Mandamus to restrain the respondent authorities from recovering the tax dues of the corporation M/s. Maharashtra Steel Ltd. For Assessment Years 1985-86 (U.P. & Central) to 1995-96 (U.P. & Central) from the personal assets of the petitioner -
The writ petition is thus allowed.
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2023 (7) TMI 1408
Applicability of Monetary limits where substantial question of law arises - condonation of delay - It was contended that the appeal would not lie since it is only where the duty element is in excess of Rs. 10 lakhs that the Department would have been justified in instituting an appeal - HELD THAT:- Since the respondent is duly represented, let a reply be filed within a period of three weeks from today. The Court takes note of the preliminary objection, which is urged by learned counsel for the respondent and rests upon the Litigation Policy as adopted by the Central Board of Indirect Taxes & Customs [CBEC] and embodied in the Instructions dated 17 August 2011.
We find ourselves unable to sustain the aforesaid submissions for the following reasons. Firstly the Litigation Policy does not while prescribing the monetary limits allude to a dispute being raised with respect to duty element involved. In any view of the matter, we are informed that the duty element in the present case exceeds Rs. 1 crore.
Additionally, we also take note of the submission of Mr. Kumar, learned Standing Counsel appearing for the appellant that the issue itself pertains to the redemption of gold and the interpretation to be accorded to Section 125 of the Customs Act, 1962 [the Act] and the expression “prohibited goods” as appearing therein. In our considered opinion, once the appeal is found to raise an important question of law and which is likely to impact a large number of cases, the monetary limit as specified in the Litigation Policy would not be construed to be a deterrent.
The Court also bears in mind that an identical question forms subject matter of W.P. and other connected matters on which judgment has been reserved. The preliminary objection, consequently, stands negated.
Admit. Having heard learned counsels for parties, we are of the considered view that the following question of law arise for consideration:- Whether gold could be said to fall in the prohibited category as contemplated u/s 125 of the Act and thus not liable to be released on payment of redemption fine?
List again.
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2023 (7) TMI 1407
Seeking direction to IRP to reconstitute the CoC of the Corporate Debtor by including the Appellant as Financial Creditor - genuinity of claims filed by the Appellant - Assignment Deeds were not brought on the record inspite of direction - HELD THAT:- There are sufficient substance in submissions of learned counsel for the Respondent No.2 that Corporate Debtor being aware of the insolvency resolution process mentioned assignment in favour of the Appellant to put the Appellant in the CIRP of the Corporate Debtor in event it is initiated, to take control of the CIRP. As noted above, in the balance sheet of the Appellant no such dues payable by Corporate Debtor has been mentioned on the basis of any of the three assignments, as claimed before the Resolution Professional. In the balance sheet of the Assignor Company also there was no mention of the aforesaid dues against the Corporate Debtor before they were assigned to the Appellant. Non-reflection of amounts in the financial accounts of either of the Assignor or the Assignee creates substantial doubt in the case of the Appellant.
Looking to the facts and circumstance and the manner in which the claim has been put up by the Appellant, the opinion of the Adjudicating Authority agreed upon that all three transactions are sham and the matter needs to be examined by appropriate authority to prevent misuse of the forum and defeat the objectives of the Code.
The Adjudicating Authority after considering in detail the entire facts and circumstances and material on record has rightly come to the conclusion that none of the claim submitted by the Appellant in Form C could have been admitted in the CIRP of the Corporate Debtor. Claims submitted by the Appellant were all non-genuine claim and have rightly been rejected.
The Adjudicating Authority has rightly directed the Resolution Professional to send all related papers received from the Applicant, Financial Creditors, Documents in his possession and details of such transactions to the Ministry of Corporate Affairs for examination/ investigation - there are no merit in the Appeal.
Appeal is dismissed.
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2023 (7) TMI 1406
TP Adjustment - notional interest computed by applying the SBI short term deposit rate - amounts outstanding have been settled by the AE on an on-going basis in the normal course of business having regard to economic and commercial factors - HELD THAT:- We referred to decision of Special Bench of this Tribunal in case Instrumentation Corpn. Ltd. [2016 (7) TMI 760 - ITAT KOLKATA] as held that outstanding sum of invoices is akin to loan advanced by assessee to foreign AE., hence it is an international transaction as per explanation to section 92 B of the Act.
As argued working capital adjustment subsumes sundry creditors - In such situation computing interest on outstanding receivables and lones and advances to international transaction would amount to double taxation. We deem it appropriate to set aside the impugned order on this issue and remit the matter to the file of the Ld.AO/TPO for deciding it in conformity with the above referred judgment.
We also direct the Ld.TPO that in the event the WCA subsumes the outstanding receivables, no separate characterisation is to be made. However for those receivables that fall out of the WCA pertaining to year under consideration, then, the rate of interest to be charged must be LIBOR + 300 basis points which is in accordance with the principles laid down in case of Cotton Naturals (I) Pvt. Ltd. [2015 (3) TMI 1031 - DELHI HIGH COURT] by considering a credit of 90 days. Needless to say, the assessee will be allowed a reasonable opportunity of being heard in such fresh proceedings.
Comparable selection - inclusion of Rheal Software Ltd. and Evoke Technologies Pvt. Ltd. - HELD THAT:- As the authorities have not disputed these comparables are functionally not similar, it is directed that the objections of the assessee may be verified having regards to their annual reports and then to consider the claim for inclusion of these comparables in accordance with law.
In the event, the contentions of the assessee are found to be true, the two comparables are directed for inclusion. Assessee is directed to file all the relevant documents in support of the claim. Needless to say that proper opportunity of being heard must be granted to assessee.
Exclusion of 11 comparables on application of upper turnover filter - We note that the Ld.TPO erred in not applying a cap on upper limit on the turnover while selecting the companies comparable. In this regard, we note that, application of turnover filter is a relevant criterion in choosing comparable companies. The difference in the scale of operations has a direct impact on the profitability. The concept of economies of scale wherein, an increase in the size and scale of the operations leads to a decrease in the long run average cost of each unit or each service project delivered. Therefore, the per unit fixed cost of a small-scale company would be much higher than that of a medium/large size organisation.
As relying on the case of Autodesk India Pvt Ltd., [2018 (7) TMI 1862 - ITAT BANGALORE] we hold that the listed 11 companies whose turnover in the current year is more than Rs. 200 crores should be excluded from the list of comparable companies.
Threesixty Logica Testing Services Pvt. Ltd. be excluded from the final list for lack of segmental information and functional dissimilarities with assessee.
Elveego Circuits Pvt. Ltd. company is in the business of Chip and semiconductor design services where as the assessee before us is into basic SWD services of coding an documentation, Testing and quality assurance, software patches and maintenance. There is no similarity between the functions performed by the assessee vis-à-vis that of this company. We therefore at the threshold reject this company being functionally not similar with that of the assessee.
Great Software Laboratory Pvt. Ltd. company works in a different horizontal and this company has been retained by the Ld.TPO only because it renders services under the category SWD. It is also noted by the Ld.TPO that the operations of this comparable is from SWD segment without there being any segmental details, which according to the Ld.TPO is irrelevant. In our considered opinion, this Tribunal has been consistently rejecting the comparables whether there are no segmental information available in order to compare “an apple with an apple”. Therefore the services rendered by the assessee under a contract with its AE cannot be compared with a company that renders various services under SWD segment. We do not find any reason to include this comparable in the final list.
Acewin Agriteck Ltd. (formerly known as OFS Technologies) fails the functionality test and this company OFS Technologies Ltd. is not functionally similar and deserves to be excluded.
Appeal filed by assessee stands partly allowed
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2023 (7) TMI 1405
Rectification u/s 254 - Deduction u/s 80IB denied for non-filing of a valid sec.139(1) return - HELD THAT:- We are of the view that till the time the assessee fails to pinpoint any apparent mistake in our order within the four corners of sec 254(2) jurisdiction as per Saurashtra Kutch Stock Exchange Ltd. [2008 (9) TMI 11 - SUPREME COURT], Reliance Telecom Ltd. [2021 (12) TMI 211 - SUPREME COURT] and Ramesh Electric and Trading Co. [1992 (11) TMI 32 - BOMBAY HIGH COURT] that our rectification jurisdiction is confined only to correct apparent mistakes than adopting long drawn process of roving enquiries, such a prayer raised at assessee’s behest hardly deserves acceptance. This is indeed coupled with the fact not only we had passed our order [2020 (5) TMI 718 - ITAT PUNE] which was never placed before their lordships but also Order 47 Rule 1 and 2 CPC giving rise to applicability of the Code of Civil Procedure does not apply to Income Tax Act, 1961. We accordingly reject the assessee’s arguments.
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2023 (7) TMI 1404
Admission of appeal or permit filing of memorandum of cross-objections after expiry of relevant period by Tribunal - stand of the assessee is that their tax consultant did not communicate the notices received by him from the office of ld. CIT(A), therefore, they could not prosecute their remedy before the first appellate authority and similarly, he has not communicated the order of CIT(A) as well as prepared the appeal further - HELD THAT:- It is pertinent to observe that no litigant would gain anything by making an appeal time barred. Therefore, such a step can never be taken at the end of the assessee to delay the disposal of the appeals. The demand has already been raised against the assessee and it is an adverse order against it unless it is deleted, no benefit would be there to the assessee. Therefore, to our mind, it was not adopted as a strategy to litigate with the Department. We condone the delay and proceed to decide the appeal on merit.
Addition u/s 68 - large share premium received - assessee had raised fresh paid-up share capital - HELD THAT:- AO recorded finding in one and a half page which has no coherence with the subject. It is just a jurisprudence taken out from some commentary or we do not know whether he has kept it as a readily available material. Order does not disclose who are the share applicants, how much money has been received by the assessee from these share applicants whether they are taxable entities or individuals. In the computation of income, AO has made addition of Rs. 4.70 Cr but in the next line observed that assessed total income is Rs. 3.32 Cr. In the next line, he again made taxable income at Rs. 4.70 Cr. All these things are discernible from perusal of the assessment order extracted .
CIT(A), though, devoted 13 pages to record the finding that additions made by ld. AO deserves to be upheld but out of those 13 pages, he also reproduced the readily available material from some earlier discussions in some other case - he just cut & paste from a readymade available material.
It does not show any application of mind. It is pertinent to observe that order of the first appellate authority is an ex-parte order but sub-Section 6 of Section 250 of the Act contemplates that ld. first appellate authority would state the points in dispute and thereafter record reasons in support of his conclusion on those points. Both the authorities have not framed the points or explained who are the share applicants, how much money has been received by the assessee from each share applicant. A total figure has just been mentioned and which has been included in the taxable income of the assessee.
Therefore, we are of the view that factual investigation is not complete on the record. In the absence of these details, it is very difficult to adjudicate this issue.
Thus we deem it appropriate that we set aside the impugned orders of the authorities below and institute these proceedings to the file of ld. AO for afresh adjudication.
Appeal filed by the assessee is allowed for statistical purposes.
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2023 (7) TMI 1403
Reopening of assessment u/s 147 - income chargeable to tax in India or not? - as argued purchased since Petitioner has only purchased equity shares in the subsidiary and there has been no sale of shares and the subsidiary having not declared or paid any dividend and also Petitioner has not earned any India-sourced income during the year under consideration - HELD THAT:- Respondent No.1 has not applied mind to the matter at hand. Respondent No.1 has not considered the fact that Petitioner has the necessary permission from the Reserve Bank of India and if the Reserve Bank of India had any doubts about Petitioner’s genuineness or the source of funds, Reserve Bank of India would have red flagged Petitioner or the subsidiary.
As stated in the Petition that at no stage Respondent No.1 even called upon Petitioner to explain the source of fund and has straight away passed the order impugned, saying that Petitioner has not submitted any documentary evidence to verify the source of investment. Respondent No.1 has failed to appreciate Petitioner is a company organized under the relevant laws of USA and is subject to tax in USA, with income running into billions of dollars. Petitioner has been filing its financial results with the Federal Reserve as per Bank Holding Company Act which is in public domain and indicates Petitioner had sufficient funds to make the investments in the subsidiary during the year in consideration.
We hereby quash and set aside the order passed u/s 148A(d). We remit the matter back to Respondent No.1 but the officer who shall consider the matter will be someone different from said Ms. Monica Pande who has passed the impugned order. Respondent No.2 may assign the matter to any other officer as he/she deems fit. The consequential notice issued under Section 148 is also hereby quashed and set aside.
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2023 (7) TMI 1402
Condonation of delay - Delay of 128 days in filing as well as delay of 7 days in refiling the petitions - Foreign Trade Policy (FTP) - Incremental Export Incentivisation Scheme (IEIS) - HELD THAT:- Delay in filing as well as in refiling the petitions is condoned. We are not inclined to interfere with the judgment and order(s) impugned in these petitions. The Special Leave petitions are, accordingly, dismissed.
In view of the dismissal of the Special Leave petitions, respondent(s) is/are at liberty to seek appropriate orders in the contempt petition(s).
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2023 (7) TMI 1401
Bogus share capital u/s 68 - assessee firm failed to prove the genuineness of the funds utilized to introduce capital - as submitted capital has been introduced by partner of the firm - HELD THAT:- We find that in this case there is no ambiguity about the identity of the partner and capital introduced from him. In such circumstances if he AO was of the opinion that the amount is not proved in the hands of the partner, he should have considered it in his individual hands and not in the hands of the firm. This view is duly supported in the case of CIT vs. Metachem Industries [1999 (9) TMI 21 - MADHYA PRADESH HIGH COURT] - Appeal by Revenue stand, dismissed.
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2023 (7) TMI 1400
Continuation or stay in the liquidation order of the Corporate Debtor - eligibility under Section 29A of the IBC to submit a resolution plan - resolution plan unilaterally - manner of rejection of the resolution plan can be deemed to have been marred by material irregularity in the conduct of CIRP of the Corporate Debtor by the RP or not - HELD THAT:- After due deliberations, it is the CoC members who advised the RP that only Section 29A compliant plan should be placed before CoC for consideration and voting. Given that CoC had decided that only Section 29A compliant resolution plan can be placed for consideration of CoC members and further that the CoC had sought the opinion of the RP on the Section 29A eligibility of Epitome, it cannot be said that the RP had exceeded his jurisdiction or had acted unilaterally or that RP had supplanted the commercial wisdom of the CoC. Further, the fact that the RP had opined that the Appellant was not eligible in terms of Section 29A criteria cannot be held against the RP simply because the opinion of the RP did not suit the interest of the Appellant - Further it is the CoC which took the decision to intimate the decision of the RP to Epitome which the RP carried out dutifully vide their email dated 16.07.2021. It is significant to note that the 29th CoC meeting was held on 15.07.2021 which pre- dated the letter from the RP to the Appellant informing them about their ineligibility which was dated 16.07.2021. Thus what was conveyed by the RP to the Appellant also clearly had the sanction of the CoC.
It is also noticed that it was the CoC which had directed the RP to give his opinion on the Section 29A compliance of the Appellant and in terms of the IBC, the RP was duty-bound to give his views to the CoC. The CoC members having seconded the RPs opinion after due consideration of all facts presented before it by the RP, it can be safely inferred that this acquired the character of being the final and determinative opinion of the CoC based on the exercise of its own commercial wisdom and definitely not one which was foisted upon the CoC by the RP unilaterally. Thus there is no basis for holding this action on the part of the RP to be in breach of the settled proposition of law.
There are no hesitation in holding that there is no substance in the contention of the Appellant that the RP had usurped the role of the CoC in rejecting the resolution plan of the Appellant and in suo motu determining ineligibility of the Appellant in terms of Section 29A of IBC. It was the CoC which had requested the RP to field his views on the Section 29A eligibility of the Appellant. Thus in giving the prima facie opinion as to whether the Appellant was Section 29A compliant or not, the RP did not tender the opinion on his own volition but on the specific directions and on behest of the members of the CoC.
Whether the liquidation order passed by the Adjudicating Authority should be allowed to be completed or be set aside? - HELD THAT:- Both Epitome, the Appellant in the first appeal and Sanghathan, the Appellant in the second appeal have contended that the liquidation order passed by the Adjudicating Authority should be set aside on grounds of the alleged material irregularities in the CIRP of the Corporate Debtor.
The RP cannot be said to have exceeded the powers vested upon it by the IBC. It is reiterated that there is no sound basis to the claim of the Appellant that the RP unilaterally rejected the resolution plan leading to material irregularity in the CIRP of the Corporate Debtor. It was a duly considered and unanimous decision of the CoC not to put the resolution plan of the Appellant for consideration and voting. Further we notice that the liquidation of the Corporate Debtor was unanimously approved by the CoC with 100% votes in favour of liquidation in the 30th CoC meeting held on 19.07.2021. Prima-facie on this count, no illegality or impropriety can be attributed to CIRP process undertaken by the RP.
The CoC had made all endeavors for resolution of the Corporate Debtor in the first place and had voted upon liquidation only as the last resort. The resolution process has run for more than 3 (three) years before the liquidation resolution was passed by the CoC. Thus reading any ulterior motive behind this decision is misconceived and lacks foundation.
There are no reasons to disagree with the decision of the Adjudicating Authority in passing the liquidation order of the Corporate Debtor as a going concern having been so voted and unanimously recommended by the CoC in the exercise of its commercial wisdom - there are no merit in both the appeals - appeal dismissed.
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2023 (7) TMI 1399
Assessment order passed u/s 153A - valid approval granted u/s 153D or not? - as argued statutory approval granted by the ld. Addl. Commissioner u/s. 153D of the Act enabling the ld. AO to complete the search assessment, was a mere mechanical approval without due application of mind on the part of the ld. Addl. CIT. - HELD THAT:- Addl. CIT has accorded approval for the said draft assessment orders on the very same day i.e., on 30.12.2018 for seven assessment years in the case of the assessee and for seven assessment years in the case of Smt. Neetu Nayyar. It is also pertinent in this regard to refer to pages 68 and 69 of the paper book which contains information obtained by Smt. Neetu Nayyar from Central Public Information Officer who is none other than the ld. Addl. Commissioner of Income-tax, Central Range-5, New Delhi, under Right to Information Act, wherein, it reveals that the Addl. CIT had granted approval for 43 cases on 30.12.2018 itself. This fact is not in dispute before us.
Of these 43 cases, as evident from paper book which contains the approval u/s. 153D, 14 cases pertained to the assessee herein and Smt. Neetu Nayyar. The remaining cases may belong to some other assessees, which information is not available before us. In any event, whether is it humanly possible for an approving authority like ld. Addl. CIT to grant judicious approval u/s. 153D of the Act for 43 cases on a single day is the subject matter of dispute before us. Further, section 153D provides that approval has to be granted for each of the assessment year whereas, in the instant case, the ld. Addl. CIT has granted a single approval for all assessment years put together.
Similar issue has been addressed in the case of PCIT vs. Anju Bansal [2023 (7) TMI 1214 - DELHI HIGH COURT] wherein, under similar circumstances, the Hon'ble jurisdictional High Court categorically held that statutory approval given by a quasi judicial authority without due application of mind as contemplated in section 153D of the Act would be fatal to the entire search assessment proceedings.
We have no hesitation in holding that the approval u/s. 153D of the Act has been granted by the Addl. CIT in the instant case before us in a mechanical manner without due application of mind, thereby making the approval proceedings by a high ranking authority, an empty ritual. Such an approval has neither been mandated by the provisions of the Act nor endorsed - Hence, we find lot of force in the arguments advanced by the ld. AR in support of the additional ground raised for all the assessment years under consideration before us. Accordingly, the additional ground raised by the assessee is hereby allowed.
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2023 (7) TMI 1398
Interim order - HELD THAT:- There is no scope of passing any interim order in the matter and the issues involve require affidavit from the respondents for final adjudication.
List this matter for final hearing in the monthly list of October, 2023.
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2023 (7) TMI 1397
Rejection of Section 7 Application as barred by Section 10A of IBC - Period of limitation - corporate guarantor defaulted to make payment - Principal Borrower can be made liable for default of corporate guarantor or not - HELD THAT:- When the Financial Creditor has invoked the corporate guarantee of the corporate guarantor by the notice dated 16.10.2020 and asked the corporate guarantor to make the payment within seven days from the receipt of the notice, the default has occurred during the 10A period and the default dated 02.07.2019 which is default alleged against the Principal Borrower can not be put to a default for corporate guarantor. Liability of corporate guarantor although is coextensive of the Principal Borrower but when the Guarantee requires invocation of the guarantee deed, default on the guarantor shall be the date when corporate guarantee has been invoked.
There are no error in the Order of the Adjudicating Authority dismissing Section 7 Application as barred by time - dismissal of Section 7 Application shall not preclude the Appellant to take other recourse in accordance with law - appeal dismissed.
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2023 (7) TMI 1396
Seeking extension of CIRP beyond the period of 330 days - liquidation of the Corporate Debtor - HELD THAT:- There are no substance in the argument of Appellant because the CoC had time and again extended the period which was allowed by the Adjudicating Authority but two resolution plans in respect of the Corporate Debtor were rejected with the majority of the vote of 91.92% by the CoC and at that time the CoC was aware that 330 days time period in respect of the Corporate Debtor had already been over. Moreover, it has been categorically observed by the Adjudicating Authority that neither any plan was pending nor any application under Section 12A of the Code was pending for their consideration, therefore, the period of CIRP cannot be extended on the flimsy grounds much beyond the period of 330 days as has been held by the Hon’ble Supreme Court in the case of Essar Steels Through Authorised Signatory [2019 (11) TMI 731 - SUPREME COURT].
Therefore, the applications filed for extension of time by the RP has rightly been dismissed and the application filed by the RP for an order of liquidation of the Corporate Debtor has rightly been passed which does not require interference by this Tribunal.
There are no merit in the present appeal and the same is hereby dismissed.
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2023 (7) TMI 1395
Seeking grant of anticipatory bail - Validity of SCN - Department states that the impugned order is illegal on the face of it as the department had specifically submitted before the learned Special Judge that there is not even a proposal to arrest the accused - HELD THAT:- In view of the specific statement by learned senior counsel for the petitioner that there is no apprehension of arrest, the impugned order on the face of it requires an examination. Hence, the operation of the impugned order is stayed. However, in the event the department feels the necessity of affecting arrest of the accused, he shall be given seven days prior notice by the department.
List on 15.09.2023.
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2023 (7) TMI 1394
Applicability of clause (i) of section 92BA as omitted from 01.04.2017 - validity of transfer pricing reference of a ‘specified domestic transaction’- whether any transfer pricing adjustment per se can be made in respect of specified domestic transactions u/s 92BA of the Act in view of the fact that section 92BA(i) has been omitted from the statute by the Finance Act, 2017 w.e.f. 01.04.2017? - HELD THAT:- This issue is no longer res integra in view of the decision in the case of PCIT vs. Texport Overseas Pvt. Ltd [2019 (12) TMI 1312 - KARNATAKA HIGH COURT] wherein it was held that clause (i) of section 92BA having been omitted by the Finance Act, 2017 w.e.f. 01.04.2017 from the statute, the resultant effect would be that it had never been passed and, hence, the decision taken by the AO under the effect of section 92BA of the Act and reference made to the TPO u/s 92CA of the Act was invalid and bad in law.
Respectfully following the same, we have no hesitation in holding that the transfer pricing adjustment made could not be made, in the facts and circumstances of the instant case. Appeal of the assessee is allowed.
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2023 (7) TMI 1393
Additions u/s 68 - bogus sale proceeds of sale of shares - AO received information from the Investigation Directorate, Kolkata that the prices of certain stocks are manipulated by certain people in order to generate bogus capital gains, business loss etc. Those types of shares were named as ‘penny stocks’ - HELD THAT:- There is no dispute with regard to the facts that the assessee has purchased the shares through a broker by paying the consideration in cheque. The said shares were split and were sold through a broker in a recognized stock exchange. The said shares have been held for more than one year.
Assessee has furnished all the documents in support of purchase and sale of shares. However, the AO did not examine those documents and find fault with them. It is the finding of CIT(A) that the shares have entered and exited his demat account of the assessee. There is also no allegation made that the assessee was part of ring which indulged in the alleged price rigging. The AO has placed reliance on the report of Investigation wing to hold that the assessee has availed accommodation entries by way of long term capital gains.
We are of the view that the decision rendered in the case of Shyam R Pawar [2014 (12) TMI 977 - BOMBAY HIGH COURT] and Ziauddin A Siddique [2022 (3) TMI 1437 - BOMBAY HIGH COURT] are squarely applicable in the present case. Accordingly, we hold that the long term capital gains declared by the assessee cannot be doubted with. Accordingly, we hold that the AO was not justified in assessing the sale value of shares as unexplained cash credit in both the years under consideration. Decided in favour of assessee.
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2023 (7) TMI 1392
Seeking grant of pre-arrest bail - Money Laundering - proceeds of crime or not - criminal conspiracy - forgery with valuable security - breach of confidentiality and privacy under the I.T. Act - HELD THAT:- Having regard to the facts and circumstances of the case, the materials available on the record showing the gravity of the offences alleged against the petitioners, the recovery of 36 ATM Cards of various banks from the petitioners and the allegation that he used to receive various phone calls from a Pakistani national and on his instruction he used to withdraw money from various ATMs and the allegation that from the proceeds of crime the petitioners had acquired immovable property as well and now a charge-sheet has been filed against them, this Court is not inclined to grant privilege of pre-arrest bail to these petitioners.
Prayer for anticipatory bail of the petitioners is, thus, refused.
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2023 (7) TMI 1391
Condonation of delay of 688 days in filing the appeal - Sufficient reasons for delay or not - no care was taken to file appeal or even to get it set aside by availing appropriate remedy promptly or even within a reasonable time - appellant stated that it has a very strong case on merits and, therefore, the appellant be not non suited only on the ground of delay - HELD THAT:- The submissions are not satisfactory and convincing - The delay in filing the appeal is too long without any cause much less sufficient for adopting liberal approach also. In the absence of any cause shown, delay cannot be condoned. Therefore, the application is rejected.
The appeal is dismissed as barred by limitation.
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2023 (7) TMI 1390
Levy penalty u/s 270A(9) - Mis reporting of income - as alleged non specification of clear charge - HELD THAT:- AO has discussed how the assessee has mis-reported the income. AO has not identified the specific limb of section 270A(9) of the Act, either in the penalty order or in the assessment order which is applicable in the case of assessee.
We find that ITAT Pune in the case of Kishor Digambar Patil [2023 (3) TMI 1472 - ITAT PUNE] has held that failure on the part of the AO to showcase which of the specific action of the assessee from Clause(a-f) of section 270A(9) was determinant before imposing the impugned penalty u/s 270A of the Act has rendered the entire proceedings invalid and untenable. Appeal of the assessee is allowed.
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9911796707
