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Showing 21 to 40 of 2854 Records
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2015 (10) TMI 2846
Addition of cash credit u/s.68 - whether Assessee has discharged the onus of proving the identity and capacity of the creditor? - CIT(A) deleted the addition - HELD THAT:- CIT(A) while deleting the addition has given a finding that Assessee had submitted the copy of Pan Card, Address, confirmation letter, copy of return and bank statement of RSA Marketing, the party from whom the Assessee had received loan. She has further given a finding that the loan was taken by cheques and the perusal of the bank statement of RSA Marketing did not reflect any cash deposits immediately before issuing cheques to the Assessee.
She has further noted that Assessee has discharged the onus of proving the identity and capacity of the creditor and also the genuineness of loan transaction. Before us, Revenue has not brought any material on record to controvert the findings of ld. CIT(A). No reason to interfere with the order of ld.CIT(A) and thus this ground of Revenue is dismissed.
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2015 (10) TMI 2845
Unexplained cash deposits in bank account u/s.68 - no narration of cash deposit and withdrawal has been given - assessee submitted that the authorities below failed to appreciate the fact that the assessee had been withdrawing and depositing the amount with ICICI Bank - HELD THAT:- We find that both the authorities below have failed to appreciate the fact that on various occasions, the assessee has withdrawn from the same account and deposited in the bank after a week’s time.
In our considered view, this amount should not have been added to the total income of the assessee. It is settled position of law that only unexplained deposit could be subjected to tax. If an assessee is able to demonstrate that he had deposited the amount earlier withdrawn from the same account, in that case, the AO would not be justified to subject both the credits to tax.
Assessee in respect of other deposits could not give any satisfactory explanation, therefore we hereby direct the AO to make addition on the basis of the peak-credits. AO is directed to compute the peak-credits and make addition accordingly. Ground raised in the assessee’s appeal is allowed for statistical purposes.
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2015 (10) TMI 2844
TDS u/s 194J - Non deduction of TDS on “Portfolio Management Fees” - addition u/s 40(a)(ia) - HELD THAT:- We find that the Co-ordinate Bench of Tribunal in the case of Hiren Valves Pvt. Ltd.. [2014 (9) TMI 1275 - ITAT AHMEDABAD] on identical issue has held that only the services rendered by a person in the course of carrying out listed professions and other notified professions constitutes “fee for professional services” and only the payment in connection with those services attract the provision for Section 194J.
Revenue has not pointed any distinguishing features in the present case and that of Hiren Valves (supra) nor has demonstrated as to why the aforesaid decision rendered by the Co-ordinate Bench could not be applied to the facts of the present case. We therefore, hold that no disallowance of expenses u/s. 40(a)(ia) in respect of payment of management fees was called for in the present case. We therefore direct its deletion. Thus the ground of Assessee is allowed.
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2015 (10) TMI 2843
Maintainability of petition - availability of alternative remedy - Jurisdiction of Tribunal - petitioner submits that the Tribunal exceeded its jurisdiction while passing the orders impugned without deciding the question as to whether the original application itself is maintainable or not being barred by limitation.
HELD THAT:- The remedy given under Article 226 being discretionary is subject to several checks. The checks mostly are self-imposed and as a rule of policy with a view that extraordinary remedy should always be exercised in extraordinary circumstances only. The remedy given must not be treated at par or alike other statutory remedies. A prominent self-imposed restriction in exercise the discretion given under Article 226 of the Constitution is the principle of exhausting all other statutory remedies before approaching writ court. It is a rule of convenience and discretion and does not oust the jurisdiction of a writ court, but indicates a caution in exercising extraordinary constitutional authority.
The petitioner herein seeks a deviation from the doctrine of exhausting all other remedies before approaching writ court with allegation that the tribunal under the orders impugned exceeded jurisdiction vested with it as the original applicant is barred by limitation and further the issue agitated in this regard has yet not been decided.
In the case in hand original applicant Shri Digvijay Singh, preferred a petition for writ before a Division Bench of this Court with an allegation of violation of Article 21 of the Constitution of India, but looking to the remedy provided under the Act of 2010 the same was transferred to the tribunal. Chapter-III of the Act of 2010 relates to jurisdiction, powers and proceedings of the Tribunal. As per Section 14 of the Act of 2010, the Tribunal have original jurisdiction to hear all civil cases in which a substantial question relating to environment in respect of the acts mentioned in Schedule-I is involved. The Tribunal acts as the first fact finding authority and exclusively hears all applications raising concerned with respect to substantial question relating to environment. The jurisdiction vested with the Tribunal is very wide and that covers not only damage already caused, but even the matter proposed to prevent any damage i.e. expected to be caused in case certain activities resulting in degradation of environment are not stopped immediately. In view of Section 14 of the Act of 2010 there is no doubt that the cause agitated by the original applicant is within the jurisdiction of the Tribunal. The only question is with regard to filing of the application within the limitation prescribed.
The remedy given by the legislature to the Supreme Court as per Section 22 of the Act of 2010 is with a caution that even appeal may be filed on any one or more of the grounds specified in Section 100 of the Code of Civil Procedure, 1908 and that indicates intention of the legislature for minimal interference with the orders passed by the Tribunal. The remedy given under Section 22 of the Act of 2010 by no stretch of imagination can be termed and treated as not efficacious to meet the injury, if any caused to the petitioner, and if that involves any ground as required to invoke Section 100 of the Code of Civil Procedure.
The most important aspect of the matter is that the remedy provided under the Act of 2010 is before the Hon'ble Supreme Court of this country. The Tribunal as per Section 20 of the Act of 2010 is under statutory obligation to apply the principles of sustainable development, the precautionary principle and the polluter page principle. Instant one is a case where an admitted polluter is demanding the shield of fundamental right to protect his business which is subject to statutory conditions. It is also relevant to notice that Section 29 of the Act of 2010 puts a bar upon civil courts to entertain any appeal in respect of any matter which the Tribunal is empowered to determine.
Having considered all these aspects of the matter the writ jurisdiction vested not invoked in the instant matter - petition dismissed.
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2015 (10) TMI 2842
Calculation of CENVAT credit to be availed by a DTA unit in respect of inputs procured from 100% EOU - value of Basic Customs Duty (BCD) as leviable or what has exactly been paid by 100% EOU will be leviable.
Revenue's objection is that the formula, as prescribed under the said Rule denotes the BCD actually paid by the 100% EOU and not the BCD leviable on like goods if imported into India.
HELD THAT:- The said issue stands decided by the Tribunal in the appellant's own case M/S. MICRO LABS LTD VERSUS COMMISSIONER OF CENTRAL EXCISE [2015 (10) TMI 1788 - CESTAT BANGALORE] wherein by taking note of a precedent decision in the case of SV. SALES CORPORATION VERSUS COMMISSIONER OF CENTRAL EXCISE, SURAT [2013 (9) TMI 209 - CESTAT, AHMEDABAD] it stands held that the BCD, mentioned in the said formula, refers to the BCD leviable on the like goods if imported into India.
The impugned order set aside - appeal allowed.
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2015 (10) TMI 2841
Dishonour of Cheque - acquittal of the accused - discharge of any debt or other liability - rebuttal of presumptions - Whether the transactions in question were simple lending of money for which the appellant/complainant had no valid licence and hence the provisions of Section 138 or 139 of the N.I. Act is not attracted in the case?
HELD THAT:- There cannot be any dispute to the fact that the presumptions both in Section 118 and 139 of the N.I. Act are rebuttable presumptions. In the present case the only point for rebuttable of such presumptions for the respondents/accused is that the transactions in question are illegal transactions as the appellant/complainant has no money-lending licence. As held earlier, lending money without having a money-lending licence itself is not prohibited under the Bengal Money-Lender's Act, 1940. So, the presumptions in favour of the appellant/complainant stand unrebutted. The respondents/accused cannot, therefore, escape from the liability under Section 138 of the N.I. Act, especially when there is no denial of the fact that the respondents/accused issued the cheques in question which were dishonoured due to insufficient fund in the account of the respondents/accused.
The order passed by the learned Metropolitan Magistrate, 6th Court, Calcutta on 29.06.2013 in case No. C-15450/2011 acquitting the respondents/accused is hereby set aside. All the respondents/accused are found guilty of the offence under Section 138 of the N.I. Act and all the respondents/accused are convicted accordingly.
All the respondents/accused are found guilty of the offence under Section 138 of the N.I. Act. Respondents/accused number 2 and 3, namely, Mahendra Kumar Patni and Anjani Kumar Shahi are sentenced to suffer Simple Imprisonment for six months each. They are also directed to pay compensation to the appellant/complainant under Section 357(3) of the Code of Criminal Procedure @ rupees 50,00,000.00 (rupees fifty lakh only) each, in default, they will suffer Simple Imprisonment for two months more. The respondents/accused company, i.e., respondent number 1 is also directed to pay compensation to the appellant/complainant for an amount of rupees 2,50,00,000.00 (rupees two crore and fifty lakh only) under Section 357(3) of the Code of Criminal Procedure within two months from this date failing which the amount would be realised from the company according to the provisions in law.
Appeal allowed.
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2015 (10) TMI 2840
Exemption u/s 11 - accumulation not made as per law and assessed it as AOP - objects specified in Form No. 10 for accumulation of income were too vague and further there was no need for assessee to accumulate funds for the purpose of salary as it has enough funds including grants received from State Government for this purpose - Assessee stated that the assessee is a society registered under section 12A of the Act since 2005 - whether assessee has accumulated the funds as per law? - HELD THAT:- On perusal of the bye laws of the assessee society, we see that hiring of staff and utilization of funds for welfare of patients are two objects of the society. Therefore, it cannot be said that the objects which are stated for the purpose of accumulation of funds under Form No.10 are outside the objects as provided in the bye laws of the society. The contention of the AO is that these objects are too vague and are not specific.
No reason for not granting assessee the benefit of such accumulation given the fact that the accumulation is sought for the purpose of its objects on the basis of which it was granted registration u/s 12A - We do not even find the objects stated in the Form No.10 too vague either, as these are the objects as per the bye laws. Admittedly, the objects stated in Form No.10 are not elaborately stated, but that cannot be the reason to deny the said benefit.
Thus we find that there is no vagueness in the purposes specified by the assessee in Form No.10.
Assessee has enough funds for the purposes of salary to be paid in the form of grants received from the State Government as well as the unutilized amount of grant so received by the assessee - It is not the Assessing Officer’s case that the assessee has not complied with any of these conditions. His only concern is the availability of a huge amount of funds for the said purpose. AO in this regard has to confine himself to the provision of the Income Tax Act read with the Income Tax Rules only.
AO does not have any prerogative to comment on the way the activities are to be carried on by the assessee. How much funds are needed for which purpose and how funds are to be used for different purposes is none of the Assessing Officer’s concern. It is only assessee’s own way of functioning. AO cannot sit on the armchair of the assessee to decide all these things, given the fact that the Income Tax Act does not give him any such power. Whether the assessee is receiving excess grant or whether it is in need of such grants may be the concern of the granting authority or that the assessee, but certainly not of the AO.
We find that this issue raised by the AO to be not relevant for giving benefit of accumulation. benefit of accumulation of funds as provided u/s 11(2) allowed - Decided in favour of assessee.
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2015 (10) TMI 2839
Setting aside the award under execution - Section 47 of the Code of Civil Procedure - dispute relating to title and possession over immovable property and all the respondents are private persons not discharging any public duty - applicability of Article 226 of the Constitution of India invoking extraordinary writ jurisdiction of this Court - HELD THAT:- A proceeding before the civil court under Section 36 of the Act 1996 for the enforcement of an arbitral award is a proceeding under the said Act and not a proceeding under the Civil Procedure Code. As a necessary corollary, the resort to the provisions of the Civil Procedure Code for raising objections having the propensity to annihilate the award, which has been brought before the civil court only for the purpose of enforcement, is clearly excluded. The main submission on behalf of the petitioner that the civil court, at the stage of enforcement of the award, can invoke its jurisdiction, inherent or otherwise provided in the Civil Procedure Code and exercisable in the proceeding for execution of a decree, to examine the legality and validity of the award, is therefore held to be not tenable. A new avenue dehors the provisions of Act, 1996 to challenge the award cannot be permitted at the stage of its enforcement before the civil court in view of the express exclusion of judicial intervention under general law procedure as envisaged in Section 5 of the Act, 1996.
This Court therefore, comes to the conclusion that the provisions of Section 47 or Order 21 Rule 97 to 101 C.P.C. have no application to a proceeding under Section 36 of the Act, 1996 instituted for enforcement of an arbitral award. The learned court below has correctly appreciated the law in this regard and has committed no error in declining the prayer of the petitioner.
The prayer to annul the award raised at the stage of its enforcement under Section 36 of the Act, 1996 under the provisions of Civil Procedure Code cannot be entertained by the court, this Court refrains from proceeding to express opinion on this controversy - the present writ application under Article 227 of the Constitution of India is dismissed.
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2015 (10) TMI 2838
Gains arising from sale of land - Nature of land sold - correct head of income - business income OR capital gains - period of holding of asset - contention of the assessee was that the assessee has sold part of the land after holding it for a period of 20 years and utilizing it for agricultural purposes during the said period without effecting any kind of improvement on the land, therefore, earning of sale of land has to be treated as capital gain and not profit and gains of business and profession - HELD THAT:- The land has been recorded in the Revenue records as agricultural land, there is nothing on record to show that the entry was wrong.
As in the case of CIT v Sohan Khan [2008 (4) TMI 142 - RAJASTHAN HIGH COURT] made a remarkable observations and stated that in the absence of anything to show that assessee had purchased the land with the intention to sell it at a profit or that the assessee is a regular dealer in real estate, piecemeal sale of land by the assessee by earmarking plots constituted disposal of capital asset and not an ‘adventure in the nature of trade’ and therefore, surplus is taxable as capital gains.
Also in Pai Provision Stores [2011 (8) TMI 725 - KARNATAKA HIGH COURT] held that even though development and sale of property was one of the object of the assessee firm, the assessee was in fact not carrying on that business hence income from sale of part of developed property, which was utilized in clearing the debts incurred in development of property was capital gains and not business income, more so even the remaining property was used by assessee in carrying out its business and letting out to tenants.
In the instant case, the assessee sold part of the agricultural land holding for last 20 years and entire sale proceeds were invested in constructing the residential house, which clearly suggest that assessee is not in the business of sale / purchase of immovable property and, therefore, the stand taken by the authorities below are not sustainable. Decided in favour of assessee.
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2015 (10) TMI 2837
Penalty u/s 271(1)(c) - disallowance made for no explanation regarding non-maintenance or non-production of bills/vouchers could be furnished by the assessee - income of the assessee was estimated by the Assessing Officer and the addition was sustained by the learned CIT(A) - HELD THAT:- As in the absence of supporting evidence for allowability of the expenses claimed by the assessee, certain disallowance made could be sustained but this fact alone is not sufficient to sustain the penalty imposed u/s 271(1)(c) of the Act. There is no material brought on record on behalf of the Revenue to suggest that the assessee was guilty of concealment of income or filing of inaccurate particulars of income.
Merely because the assessee could not file the supporting vouchers/bills for the expenses claimed by it, it could not be concluded that the assessee has claimed bogus expenses and could be penalized u/s 271(1)(c) of the Act. The conduct of the assessee was bona-fide and the assessee has filed an explanation before the Revenue authorities. In the facts of the case, we are of the view that it was not a fit case for levy of penalty u/s 271(1)(c) of the Act, which is accordingly cancelled and the ground of appeal of the assessee is allowed.
Penalty u/s 271(1)(b) - As assessee was required to file certain information/documents before the Assessing Officer before the completion of assessment proceedings. However, the assessee has failed to comply with the statutory requirement without any valid reason and therefore, in my view, the penalty imposed at ₹ 10,000/- u/s 271(1)(b) of the Act was reasonable and is accordingly confirmed and the ground of appeal of the assessee is dismissed.
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2015 (10) TMI 2836
CENVAT Credit - supplier not paying duty on inputs - Revenue is of the view that as the supplier of these inputs namely SE copper wire is not liable to pay duty as SE Copper wire is not dutiable, therefore, the respondent is not entitled to take Cenvat credit - HELD THAT:- The facts of the case are not in dispute. As the respondent has paid the duty on SE Copper wire purchased from the supplier and taken the Cenvat credit. Although SE Copper wire is not dutiable but the respondent has paid the duty, they have taken Cenvat credit correctly as per Rule 3 of the Cenvat Credit Rules, 2004.
There are no merit in the Revenue’s appeal - appeal of Revenue dismissed.
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2015 (10) TMI 2835
Dishonour of Cheque - insufficiency of funds - legally enforceable debt - rebuttal of presumption - acquittal of accused - mandatory presumption of law under Section 118 and 139 of the NI Act - Burden to prove - HELD THAT:- Once the payment was not found to have been made on execution of agreement, the execution of promissory note on the same day i.e. 16.09.2008 (Ex. CW1/B) also became operative only on the contingency of the loan having being advanced. The Appellate Court, therefore, was of the view that the agreement was executed without any actual transfer of money. The printed proforma which contained the signature and the thumb print of the respondent were filled up with two different inks - in the absence of any proof of the amount of loan to have been paid, the promissory note and the agreement referred above lost all its efficacy and force. A promise for no consideration is a void agreement.
Under Section 139 of NI Act, unless the contrary is proved, the holder of the cheque shall be presumed to have received the cheque in discharge of any debt or liability - Sub-clause (a) of Section 118 of the NI Act, inter-alia, provides that unless the contrary is proved, the drawn up negotiable instrument, if accepted, has to be presumed to be for consideration.
In GOAPLAST (P.) LTD. VERSUS CHICO URSULA D’SOUZA [2003 (3) TMI 533 - SUPREME COURT], the Supreme Court has held that that the provisions of section 138 to 142 of the NI Act, is for the purpose of giving credibility to negotiable instruments in business transactions. In view of section 139 of the NI Act, it had to be presumed that a cheque is always issued in discharge of any debt or other liability. The presumption could be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption.
In RANGAPPA VERSUS SRI MOHAN [2010 (5) TMI 391 - SUPREME COURT], section 139 of the NI Act is stated to be an example of a reverse onus clause which is in tune with the legislative intent of improving the credibility of negotiable instruments. Section 138 of the NI Act provides for speedy remedy in a criminal forum, in relation to dishonour of cheques. Nonetheless, the Supreme Court cautions that the offence under Section 138 of the NI Act is at best a regulatory offence and largely falls in the arena of a civil wrong and therefore the test of proportionality ought to guide the interpretation of the reverse onus clause. An accused may not be expected to discharge an unduly high standard of proof. A reverse onus clause requires the accused to raise a probable defence for creating doubt about the existence of a legally enforceable debt or liability for thwarting the prosecution. The standard of proof for doing so would necessarily be on the basis of "preponderance of probabilities" and not "beyond shadow of any doubt".
Thus, on an analysis of fact, the scale of balance tills in favour of the respondent. The respondent appears to have rebutted the presumption under Section 139 of the NI Act, namely, the existence of a legally enforceable debt by establishing that no loan was advanced to him even though there was an agreement and a corresponding promissory note and an affidavit. The aforesaid loan was not shown in the ITR return of the petitioner. An adverse inference could be drawn against the petitioner on that account. The loan amount also appears to be doubtful.
Section 378(4) of the Cr.P.C. would apply not only to an original order of acquittal in a case of complaint but also to an order of acquittal passed by the Sessions Court in appeal. There is nothing in Section 378(4) of the Cr. P.C. to limit its application only to the order of acquittal passed in the first instance by the Trial Court - Sub-Clause (4) of Section 401 of Cr.P.C. provides that when an appeal is provided for and no such appeal is filed, no proceeding by way of revision shall be entertained at the instance of the party, who could have appealed. Sub-clause 5, however, permits the High Court on its satisfaction about the interest of justice to treat the application of revision as petition of appeal and deal with the same accordingly.
The successful rebuttal of the presumption under Section 139 of the NI Act of any legally enforceable debt, and the petitioner failing in discharging his onus, in the second instance, the petition is dismissed - The respondent no. 2 stands acquitted.
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2015 (10) TMI 2834
Penalty imposed u/s 271(1)(c) - depreciation at a higher rate on software development - HELD THAT:- In the case under consideration, the ld. CIT(A) gave a categorical finding that the assessee has made proper and full disclosure of its income and the higher percentage claimed in depreciation was only a bonafide error which was corrected by assessee. Therefore, the ratio laid down by the Hon’ble Supreme Court fully RELIANCE PETROPRODUCTS PVT. LTD. [2010 (3) TMI 80 - SUPREME COURT] supports and is applicable to the case of assessee. Accordingly, we do not find any infirmity in the order of CIT(A) in cancelling the penalty levied by AO u/s 271(1)(c) of the Act and the same is hereby upheld dismissing the grounds raised by the revenue.
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2015 (10) TMI 2833
Deduction u/s 80P(2)(a)(i) - Addition u/s 56 - bank interest received by the assessee - HELD THAT:- As assessee was a co-operative society engaged in the business of providing credit facility to its members. The assessee claims that it was engaged in the business of banking and consequently, the income earned by the assessee from its activities including the interest received from Union Bank of India against the FDR’s kept with the said bank, was income from business, which was eligible for deduction under section 80P(2)(a)(i) - Assessing Officer held that the interest income was assessable as income from other sources, in view of the ratio laid down by the Hon’ble Supreme Court in Totgars Co-Op. Sale Society Ltd. [2010 (2) TMI 3 - SUPREME COURT]
In view of the ratio laid down by the Hon’ble Supreme Court in Totgars Co-Op. Sale Society Ltd. Vs. ITO (supra), the interest income from surplus fund / short deposits with the bank was assessable as income from other sources, which in turn, is taxable under section 56 of the Act. The said income assessed under the head ‘Income from other sources’ is not eligible for deduction under section 80P(2)(a)(i) of the Act.
The plea of the assessee that it was required to keep the funds in specified securities with the banks does not entitle the assessee to claim it as expenditure since the same being assessed as income from business being eligible for deduction under section 80P(2)(a)(i) of the Act. Accordingly, we uphold the order of CIT(A) in this regard.
Alternate plea of the assessee is that it has only positive income Assessing Officer had not disallowed any of the expenses in the hands of assessee - In view thereof, we find no merit in the directions of CIT(A) to the Assessing Officer to examine the claim of expenses made by the assessee and also the same as inadmissible under section 56 of the Act. On the other hand, in case the interest income of Rs.31,62,825/- is assessed under section 56 of the Act as income from other sources and there is net loss of Rs.20,94,884/- assessable in the hands of assessee as income from business, then in view of the provisions of the Act, the assessee is entitled to the claim the benefit of set off of business loss against the income from other sources of the instant assessment year. Accordingly, we direct the Assessing Officer to allow the claim of the assessee after due verification and in accordance with law.
Appeal of the assessee is partly allowed.
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2015 (10) TMI 2832
Levy of penalty u/s 114AA of the Customs Act, 1962 - price declared is lower than the initial export price of US $ 2.50 per KG - export of certain quantities of metalised film to M/s. Alcan Packaging Strongpack Public Company Ltd., Thailand through CFS, Ludhiana - HELD THAT:- It is an admitted fact on record that the impugned goods were originally exported by the appellant to its overseas buyer in February, 2010 and the same were rejected by its buyer in 2011 due to quality mis-matching. The goods in question were re-imported by the appellant nearly after 21 months from the date of original exportation. Since the impugned goods are not usable as such by the overseas buyer, the same were returned to the appellant at a lesser value. There is every possibility of reduction in price. It is not a case of the Department that the appellant while importing the said rejected goods has misdeclared or suppressed any other information to the Department.
The penal provisions contained in Section 114AA of the Customs Act, 1962 cannot be invoked inasmuch as the appellant has not furnished any incorrect price to the Department at the time of filing of the Bill of Entry for re-importation of the rejected goods or suppressed any facts to the Department.
Appeal allowed - decided in favor of appellant.
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2015 (10) TMI 2831
Violation of principles of natural justice - grievance of the petitioner is that the impugned assessment – cum – penalty proceedings were issued by the 1st respondent – Deputy Commercial Tax Officer on the grounds which were not mentioned in the show cause notice and also without furnishing the copies of the material relied on for passing the impugned order - HELD THAT:- The issue decided in case of M/S. CHITAMBER AGENCIES VERSUS COMMERCIAL TAX OFFICER, CIRCLE I, FLOOR [2015 (7) TMI 1414 - TELEGANA HIGH COURT] where it was held that considering the fact that the assessment orders are set aside, it is deemed appropriate to direct the respondent authorities to furnish the details to the petitioners within a period of four (4) weeks from today and complete the assessment proceedings within a period of three (3) months thereafter.
The impugned order is set aside and the writ petition is disposed of in terms of the judgement mentioned.
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2015 (10) TMI 2830
Income accrued in India - fixed place Permanent Establishment (PE) in India under article5(1), 5(2)(a) and 5(2)(c), a Service PE under Article 5(2)(l) as well as a Dependent Agent PE under Articles 5(4)(a) and 5(4)(c) of the India -USA DTAA - Whether the CIT(A) was justified in holding that the assessee has a PE in India/ - HELD THAT:- Taking a consistent view, we hold that the assessee has a fixed place PE in India, but has no dependent agent PE in India. Accordingly, ground raised by the assessee and the only ground raised by Revenue in their respective appeals are dismissed.
Attribution of profits to PE - We hold that since in the A.Y. 2002-03, the margin kept by assessee after payments to CIS is in loss, no profit attribution is available to PE in India. Ground No. 2 of assessee’s appeal is accordingly disposed of.
Levy of interest under section 234B - The charging of interest is automatic under the Act if the assessee has defaulted in payment of advance tax. The income of the assessee was not liable for withholding tax under section 195 of the Act. In this case we have no option but to hold. that the assessee is liable to interest u/s 234B, as the income being assessed now cannot be held. to be income liable to TDS under Indian provisions. The same is being assessed in the hands of PEs who had not filed their return on the ground that this income was not attributed to Indian Business Connection. Provisions of section 234B are mechanical in nature. In view of the above this ground of appeal of the assessee is dismissed.
Taxability on IPLC/link charges - As held payment is not taxable in the hands of the assessee as Royalty - We hold that there is no transfer of the right to use, either to the assessee or to CIS. The assessee has merely procured a service and provided the same to CIS, no part of equipment was leased out to CIS. Even otherwise, the payment is in the nature of reimbursement of expenses and accordingly not taxable in the hands of the assessee. Therefore, it is held. that the said payments do not constitute Royalty under the provisions of Article 12 of the tax treaty and the ground is allowed in favour of assessee.
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2015 (10) TMI 2829
Reopening of assessment u/s 147 - assessment Reopened after four years from the end of the relevant assessment year - eligibility of reasons to believe - HELD THAT:- Undisputedly in the instant case, nothing has been mentioned by the Assessing Officer that income chargeable to tax has escaped assessment on account of failure on the part of the assessee. Moreover, the issue on which assessment was reopened was already discussed by the AO in the original assessment. In the light of these facts, we are of the considered view that the assessment was reopened without the jurisdictional foundation u/s 147 of the Act. Therefore, the notice u/s 148 and subsequent proceedings are without jurisdiction and liable to be quashed - Decided against revenue.
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2015 (10) TMI 2828
Conspiracy - disproportionate sources of income - framing of charges - offences punishable under Sections 13(2) read with Section 13 (1) (e) of the Prevention of Corruption Act, 1988 - HELD THAT:- In the present case, the allegation against husband of petitioner is that he acquired disproportionate assets in his name and in the name of the petitioner and other family members out of ill gotten money. In case of P. NALLAMMAL VERSUS STATE REP. BY INSPECTOR OF POLICE [1999 (8) TMI 953 - SUPREME COURT], the Apex Court has held that if a non-public servant abets any offence committed by the public servant, such non-public servant shall also be liable to be tried along with the public servant.
The learned Trial Court after taking into account the materials available before it, directed for framing of charges against the petitioner. The details and particulars regarding the respective role of the accused have been drawn in the charge-sheet which makes the case against the petitioner triable. By no stretch of imagination can it be said that the materials available against the petitioner, taken to be ex facie true, do not constitute the offences alleged. It is admitted that out of 35 witnesses, 22 prosecution witnesses have already been examined. Thus, the trial is at the advance stage - It is settled law that at the time of framing of charge, the Court is not expected to hold mini trial and delve deep into the matter for the purposes of appreciating the evidence and the evidence can only be weighed when the entire material will be brought before the Trial Court. The Court was required to see at the time of framing charge whether a strong suspicion exists for commission of the offence. The Trial Court found prima facie case against the petitioner, accordingly framed charges.
By the present petition, inherent power of this Court under Section 482 Cr.P.C. has been sought to be invoked. The inherent powers are only meant to be applied ex debito justitiae in order to render real and substantial justice for the administration of which alone, the Court exists or to prevent the abuse of the process of the Court. It has been repeatedly held by this Court that the extraordinary powers under Section 482 Cr.P.C. has to be exercised sparingly and with great care and caution.
At the time of framing the charges, the Court had to see prima facie case, the material which is in the possession of the petitioner, cannot be considered at this stage. The Trial Court has to rely upon the charge-sheet and the material placed by the prosecuting agency. In the present case, the allegations against the petitioner and her husband are of severe nature, namely, abusing the official position. The petitioner alleged to have conspired with her husband and amassed assets as mentioned in the charge sheet and impugned orders as well.
This Court is not inclined to interfere therewith - Petition dismissed.
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2015 (10) TMI 2827
Non-appearance before the Tribunal on the date of hearing by assessee - HELD THAT:- As none appeared on behalf of the assessee though the notice was sent through RPAD. The notice has been sent on the address given on Form No.36. The assessee has not intimated change of address, if any, to the Tribunal. There is not even an adjournment petition received from the assessee.
Assessee is not interested in pursuing these appeals, and no useful purpose would be served by adjourning the hearing. Considering these facts and keeping in mind the provisions of Rule 19(2) of the ITAT Rules, as were considered in the case of Multiplan India [1991 (5) TMI 120 - ITAT DELHI-D] and in view of the decision of Estate of Late Tukoji Rao Holkar, [1996 (3) TMI 92 - MADHYA PRADESH HIGH COURT] we dismiss these appeals in limine.
However, if the assessee on a later stage gives explanation in regard to its non-appearance before the Tribunal on the date of hearing before the Tribunal by filing a Miscellaneous Application as per the ITAT Rules and if the Bench is so satisfied these appeals of the assessee can be recalled for hearing on merit.
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